Petitions for Probate; Administration of Estates
When a person dies owning real property or other titled property interest held in their individual name, it will be necessary to file a petition for probate. When a decedent has a will, the petition will normally seek appointment of the “executor” (or “executrix”) named in the will. When there is no will, or the named executor declines to act, the petition for probate will seek appointment of an “administrator” of the decedent’s estate. An “executor” or “administrator” is called, more generally, a “personal representative.” It is the duty of the personal representative to collect all assets of the decedent’s estate, to report all assets to the probate court, to account for all income and expenses of the estate since the death of the decedent, and to request an order from the probate court, authorizing the personal representative to distribute the net assets of the estate to the beneficiaries named in the decedent’s will or, if there is no will, to those persons entitled to a share of the decedent’s estate under the laws of intestate succession. This process, from the filing of the petition for probate through the entry of a final decree, approving a final account and ordering the distribution of the decedent’s estate, is known as “estate administration.” Estate administration is also commonly known as “probate.”
With the assistance of an experienced probate attorney, estate administration need not be a difficult process, although it may take some time to complete. Unless there are issues that delay the process, most estates administered by a personal representative with the assistance of an experienced probate attorney can be completed in ten to twelve months. One of the benefits of a properly administered estate is that the entry of an order for distribution of the estate vests title to a share of the net assets of the estate in the intestate heirs, or the beneficiaries under a will, that is legally binding and conclusive on all the world.
Petitions for Appointment of Conservators
When, due to age related or disease related decline, a person is unable to adequately manage their own affairs, or is deemed to be vulnerable to financial abuse by others, the Probate Court may appoint someone to act as conservator for the “person” and “estate” of the affected person, who is then referred to as the “conservatee.” A conservator for the person has the duty to provide for the physical well-being of the conservatee. A conservator for the estate has the duty to properly manage the financial affairs of the conservatee. The actions of a conservator are subject to supervision by the Probate Court and the conservator for the estate must provide a periodic accounting of the conservatee’s funds. Usually, the conservator of the person and conservator of the estate are the same person, but not always.
The filing of a petition for appointment of conservator can bring order to a difficult situation and provide necessary care and protection for the conservatee. The timely filing of a petition for appointment of conservator can also help preserve assets for the conservatee, and for the heirs and beneficiaries of the conservatee. However, there are significant legal costs to even a routine conservatorship proceeding. With proper estate planning, including the use of trusts and durable powers of attorney, these costs can be largely avoided in cases that are uncontested.
Petitions for Appointment of Guardians
There are a number of situations in which it may be necessary to file a petition for appointment of a guardian for the person or estate of a minor child. Where a minor has lost both parents through death or incapacity, the appointment of a guardian may be necessary to provide legal authority for a relative or other suitable person to then act in a parental-like capacity on behalf of the minor child. Occasionally, a minor child receives substantial funds and a guardian must be appointed to handle the funds for the minor’s benefit, with a duty to make periodic accountings to the court. Where a minor child is the beneficiary of a life insurance policy, the insurer may require the appointment of a guardian for the minor’s estate by the probate court, before paying over the policy proceeds.
Court Supervised Trusts
When disputes arise in connection with living trusts, either before or after the maker’s death, a party may file a petition in the probate court that results in the trust becoming a court supervised trust. In this situation, in addition to the litigation of any other issues raised in the petition, the trustee may then be required to render accountings to the probate court. The parties on both sides in these situations will benefit from experienced representation. Even trust beneficiaries who are not directly involved in the underlying dispute may find it appropriate to retain an experienced attorney to advise them in the course of the legal process.