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Preparing To Probate An Estate |
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IMPORTANT: NO ASSETS MAY BE REMOVED FROM THE DECEDENT'S HOME OR PROPERTIES UNTIL A PERSONAL REPRESENTATIVE HAS BEEN APPOINTED BY THE PROBATE COURT OR UNTIL THE PROBATE COURT HAS ISSUED AN ORDER. SPECIAL NOTE CONCERNING LEGAL ADVICE: Although we cannot give you legal advice, we do try to be as helpful as we can with that limitation in mind. |
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Calling the Probate Court |
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Once you have received the Death Certificate, you should call the Probate Court for an appointment. The Probate Court staff will inquire as to what assets the decedent owned so that a determination can be made on the type of probate proceeding that will be needed. From the information you provide the Probate Court staff, an appointment will be scheduled with the Probate Court Judicial Assistant. If the decedent had a Will and there is real estate or other probate assets that are valued $10,000 or more, you will need to do an Intestate/Full Estate proceeding. In this type of proceeding, the estate is required to stay open/active for at least eight months from the first date that the Notice to Creditors is published in The Lancaster News. (Go to Intestate/Full Estate Proceeding) If the decedent had no Will but owned real estate or other probate assets that are valued $ 10,000 or more, you will need to do an Intestate/Full Estate proceeding. As above, the estate is required to stay open/active for at least eight months from the first date that the Notice to Creditors is published in The Lancaster News. (Go to Intestate/Full Estate Proceeding) If the decedent did not own real estate and the assets are less than $10,000.00, you may be able to file an Affidavit for Collection of Personal Property. (Go to Small Estate Affidavit) If the decedent had a Will but did not have any assets in their name alone then you may be able to file a petition to Probate the Will for Record only. (Go to Probate Will Only) |
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Testate/Full Estate Proceeding - Informal |
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If the decedent had a Will and owned real estate or in the process of purchasing real estate, or had more than $10,000.00 in personal assets, the person named in the Will to be the Personal Representative (or Executor) will make an appointment with the Probate Court Judicial Assistant. If the Personal Representative nominated in the Will has predeceased or is unable to serve, you need to inform the Judicial Assistant and they will inform you how to proceed. When you come for the first appointment with the Judicial Assistant, you will need to bring a certified Death Certificate, the original Will, and a copy of all Deeds, if there is real estate. This appointment is what we call the "information appointment." If you feel that you might be unable to remember the information that we will be going over with you, we strongly suggest that you bring another family member or friend that might be helping you, on this first appointment. The Judicial Assistant will go over a general overview of the Probate process, as well as the forms that you will be required to file in order to get started on the estate. A second appointment will be scheduled for the person that will be appointed as Personal Representative to return with completed forms. Second Appointment On your second appointment you will be appointed as the Personal Representative if the forms are correctly completed, bond has been waived or obtained (the bond is usually only necessary in an Intestate situation or the Personal Representative lives out of State). This Court requires that the forms be typed or printed neatly in black ink. If we cannot read it or the form has not been completed, you will have to re-do it and schedule another appointment. If there are bank accounts in the decedent's name alone, you may be required to set up an estate account. All income should be deposited into this estate account and all expenses of the estate should be paid from this account. It will be necessary for the Personal Representative to acquire a Federal Identification number before the bank will allow you to open the estate account. You may contact an attorney, a CPA or the bank may help you in obtaining the ID number. You will need to contact the IRS to obtain this number. The lnventory and Appraisement If additional assets are found or corrections need to be made to the original Inventory, the Personal Representative will need to file a Supplemental Inventory. Note: We suggest that the Personal Representative prepare a rough draft of the Inventory on a Xerox copy of the form. The Judicial Assistant will be glad to look over the form to make sure the assets are listed under the correct schedule. If you have a complicated Inventory or the value of the assets are rather large, we suggest that you contact an attorney or a CPA to assist you. Most important, the Personal Representative is responsible for protecting and managing the assets of the estate. The Personal Representative will make sure that the assets are disbursed according to the will and will make sure all claims have been paid. |
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Testate/Full Estate Proceeding - Formal |
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When the decedent died with a Will, but the person nominated in the Will has predeceased or is unable to serve as the Personal Representative and there is not a Alternate Personal Representative named in the Will a Formal Testacy proceeding may need to take place. Formal testacy would be required if the Devisees named in the Will could not agree on who should be appointed as Personal Representative or if minors are involved as Devisees. This procedure is very complicated, therefore, the services of an attorney will be required. |
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Intestate / Full Estate Proceeding |
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When the decedent died without a Will, you will proceed under the Intestate Appointment for Personal Representative. This could be a Formal Appointment procedure or an Informal Appointment procedure. Formal Appointment Formal Appointment procedures will be required when:
To proceed, a SUMMONS and a PETITION FOR FORMAL APPOINTMENT (Form 300PC) must be submitted to the Court along with a CERTIFIED DEATH CERTIFICATE and a $150.00 FILING FEE. Once filed, the SUMMONS and PETITION FOR APPOINTMENT (Form 300PC) must be personally served on all interested parties. Interested parties would include all heirs of the decedent (refer to the FAMILY TREE) and creditors who have filed claims with the Court, and those who have filed Demands for Notice. Proof of the personal service must be filed with the Court. Interested Parties are then allowed thirty (30) days to Answer the Petition for Appointment. A hearing date will then be set by the Court. The Petitioner is also required to notify all interested parties of the hearing date and file a PROOF OF DELIVERY (Form 12OPC) of the Notice with the Court. A failure to comply with the required procedures will result in a delay of the Appointment. As you can see the process for Formal Appointment is complicated and the services of a PROBATE LAVIYER will be necessary. Informal Appointment Informal Appointment procedures are allowed when:
To proceed follow basically the same procedures as in the Testate/Full Estate proceeding. Contact the court for an appointment and the Judicial Assistant will go over the forms and give you instructions of how to proceed. (See Testate/Full Estate) The main difference is that there is no will in the Intestate proceeding. The court will inform the Personal Representative of how the estate is to be divided according to Intestate Law. A Certified Death Certificate and copies of Deeds will need to be brought to the first appointment. The Second Appointment will require that the person bring the completed Application for Appointment of Personal Representative (Form 300PC) and all Renunciation of Right to Administration forms along with appropriate Filing Fees. If the decedent owned any personal property at the time of their death, a BOND may be required before a Personal Representative can be appointed. |
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Small Estate Affidavit |
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If the decedent owned personal property and no real estate, in their name alone, (This would exclude joint banking accounts, and life insurance or annuities payable to a specific beneficiary) of a total value of less than $10,000.00, then you may be able to proceed informally with a Small Estate Affidavit. However, you must wait thirty (30) days from the date of death. You must contact the Probate Court and we will schedule an appointment with the appropriate Judicial Assistant. We will need a receipt showing the funeral expenses have been paid in full and a Certified Death Certificate. There will be a Filing Fee as determined by the value of the assets. The court will determine who has priority to file this Affidavit. |
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Probate Will for Record Only |
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When the decedent died with a Will but has no Probate Assets, the Will should be filed on record with the Probate Court within thirty (30) days, but no longer than ten (10) years from date of death. The filing of the Will could prevent the necessity of a Petition for Determination of Heirs action at a later date when assets are discovered. You need to contact the Probate Court for an appointment with the appropriate Judicial Assistant. You will need to bring the original Will and a Certified Death Certificate. The Judicial Assistant will go over the Application for Probate of Will (Form 30OPC) on the first appointment and schedule you a second appointment to bring the completed Application back to the Court. The appropriate filing fee will be due at this time. If there is a Will and a Small Estate Affidavit also needs to be filed, the Judicial Assistant can schedule the second appointment to accommodate both filings. Petition to Determine Heirs If more than ten (I0) years has passed since the decedent's death and the decedent has real estate or other assets that was never probated, the Court is required by state law to hold a hearing to determine who the heirs of the decedent were at the time of their death. To allow the Court to hold this hearing, an interest party (typically the spouse or child of the decedent) must formally Petition the Court setting forth the heirs or family members, status of the family members and documents supporting the status and relationships.
This would include birth certificates, death certificates, marriage licenses, Orders from divorce proceedings, adoption records, and Termination of Parental Rights.
This Petition must then be personally served, along with a Formal Summons, on all of the heirs. Proof of this personal service is required to be filed with the Court.
The heirs are then allowed thirty (30) days to Answer this Petition. A publication is also required by state law to allow any other potential heirs to come forward and
attend this hearing. At the hearing, the testimony to establish the heirs will be taken. A disinterested party is required to testify to support the family members.
Currently, there is a non-refundable $150.00 FILING FEE required for this hearing. As you can see, this process is very complicated. The services of a PROBATE LAWYER
will be necessary.
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