When a loved-one or relative dies, it can be a difficult time to speak with a lawyer about legal issues regarding the estate. At this time, the grief over the loss can be overwhelming, so much so that it may interfere with your ability to contemplate what information you may need to have an application prepared for probate court. To meet this challenge, you should be able to address the following questions on an initial phone call or interview with a lawyer.
Do You Have the Original or A Copy of a Will?
Did the deceased person (called the “decedent”) have a will, and do you have the original? At the outset, an attorney must know if an estate will be filed with a will (called “testate”) or without a will (called “intestate”). This is important for a number of reasons, the first of which is to know if you are the designated personal representative (called the “Executor”) named in the will. On the other hand, if this is an intestate estate, the lawyer must know your relationship to the decedent and the names of other relatives (both living and deceased) who may have a right to inherit from the estate.
If the original will can't be located, do you have possession of a copy? In some instances, and following a hearing, a fully signed copy of a will may be probated. A “valid lost will” is established when it can be shown by clear and convincing evidence that it was properly signed and witnessed, the content is clear and unambiguous, the reasons for its loss are reasonably explained, and credible testimony is offered to show that the decedent had not revoked it.
If you are seeking appointment as the personal representative of an intestate estate (called the “Administrator”), are you credit-worthy without a history of judgments or bankruptcy? This is important because you must be able to obtain (with the lawyer's help) the required corporate surety bond to ensure that you will protect the assets of the estate unless this requirement is waived by the other heirs.
What Property (or Assets) did the Decedent Leave Behind?
If there is property solely owned (i.e., bank accounts, investments, etc.) or titled (i.e., home, vehicle, boat, etc.) at the time of death, these assets will need to be listed with their estimated value on the probate application. The purpose is to enable the fiduciary bond to be set by the Judge that will require corporate surety or be waived.
However, if the total estimated value of assets (not including real estate) is less than $30,000 and the person filing the probate petition is either the surviving spouse, the surviving child or children, or someone who has paid the decedent's funeral expenses equal to or less than the asset total (in both testate and intestate cases), a petition to dispense with administration may be filed. Sometimes this situation is referred to as a “small estate”, but no estate is actually created. Under these circumstances, the assets are ordered to be transferred to the surviving spouse, child, or children (as the statutory exemption) or as a preferred creditor.
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