A common question asked of estate planning attorneys is how to obtain a copy of a deceased person’s last will and testament or other probate court records. Because probate files are public court records that anyone can read, if a will has been filed for probate then you should be able to obtain a copy of it. And with modern technology comes the ability to locate information about a deceased person’s estate online, and in most cases for absolutely free. But while you may not be able to view copies of the actual will and other documents that have been filed with the probate court for free (many courts have started charging for the ability to view their documents), at the very least, you should be able to see a list of the documents that have been filed, who has been named as the executor of the estate, which attorney the executor has hired, and the name of the judge presiding over the case. Some courts even list the names of all of the creditors and beneficiaries of the estate. This will then give you the ability to request copies of the will and any other documents you are interested in viewing from the probate clerk’s office, or you can try contacting the executor or the executor’s attorney for additional information.
How to Find Out Where a Probate Estate Has Been Filed
In general, an estate is probated in the county where the deceased person lived at the time of his or her death, or, in some cases, the county where the deceased person owned real estate.
How to Locate Online Probate Records and Request Copies
Once you have located the appropriate county where the probate estate should be administered, an online search can be done for that country’s probate court or probate court dockets. This can be tricky because in some states the probate court is not actually called the probate court, it could be referred to as the “circuit court,” “surrogate’s court,” “orphan’s court,” or any other number of courts. Once you have located the appropriate country and view the probate court docket online, usually the steps involved in obtaining a copy of a will or other probate document directly from the probate court will include the following:
• Appearing in person and asking for a copy of the will or other probate documents, or making a written request by fax or mail if applying in person is not feasible.
• Paying a copying fee for the number of pages that the will or other probate document contains. These fees usually range from $1.00 to a few dollars per page.
• Providing a self-addressed, stamped envelope for mailing the copies if the request is not made in person.
What to Do if You Cannot Locate Probate Records Online
If you do not have any luck in locating the appropriate probate court’s dockets online, then you can try the following:
• Go to the probate court in person and ask for assistance in locating the documents. In most cases, the clerk will be able to look up the estate information by using the decedent’s legal name, and if an estate has been opened, you will be able to view the actual probate file and request copies of applicable documents.
• Call the probate court and ask how to obtain copies of documents. Some probate clerks will be very helpful, while others not so much.
• Call an estate planning attorney’s office in the area near the applicable probate court and ask if they will assist you in obtaining copies of probate documents from the local probate court. The office will most likely charge a fee for their services, but if you do not live close to the area, this will save you from the travel expenses that will be incurred to travel to the court yourself.
If you are unsuccessful after trying all of the above suggestions, your chances are that a probate estate has not been opened for the decedent in question. If you believe that a probate estate should have been opened, you should consult with an estate planning attorney in the area where the decedent lived in order to determine all of your options.
The first step of settling any estate is determining if a Will exists. If it does, you will need an original signed version of copies won’t hold up in court. If there is no will, intestate laws will guide the estate settlement process. The second step is to compile an inventory of the deceased person’s assets. The Will (if one exists) and the asset information must be presented to the probate court to determine if probate is even necessary. If the deceased person’s assets were all jointly owned by, say, a spouse, or beneficiaries are already designated on assets like retirement accounts, probate may not be necessary. Some states don’t require probate if the estate is valued below a certain amount. This is why knowing the total value of the deceased’s estate is so important.
To compile the all-important inventory, you will need these key documents:
• original version of the Will
• titles and deeds to personal property such as real estate and automobiles
• recent bank and investment account statements
• insurance policies and annuities
• business ownership documents
• appraisal valuations of high-value personal belongings such as jewelry and furniture
As you search for probate paperwork, keep any other legal documents you find. These may be needed later in the estate settlement process. These can include personal trust documents, divorce decrees and any legal contracts.
When in doubt, save it!
Probate Paperwork: Where to Look
In the house, start your sweep by checking the most obvious places. These include filing cabinets, fireproof lock boxes (which may be hidden in a closet or under a bed) and recent mail. Important probate paperwork may also be in a safe-deposit box at the deceased person’s bank or credit union. Some people have their attorney hold the original copy of their Will, so it’s worth finding out if the person had an attorney and contacting them. If you know the decedent’s passwords, you may also be able to log into their online accounts and review financial account information. If you’re unable to find the records you need, expand your search. Look under beds and through drawers in the house. Call trusted friends and family members who may know the whereabouts of those documents or may have been asked to keep a copy of the Will.
For example, there may be shares in the Estate to sell through a stockbroker or share registrar which can be time consuming, with forms to be completed and signed by the Executors/Administrators. Or share certificates can be lost and unless they are held electronically then a search for them will have to be made; otherwise costs to the Estate will be incurred in order to replace them. Another common cause of delay is a potential Beneficiary being missing, where the close relatives of the deceased do not know the whereabouts of someone who has been named as a Beneficiary in the Will. In these circumstances reasonable investigations have to be carried out, usually by using a tracing agent in an attempt to find them. If the deceased owned a property that needs to be sold, obtaining a Grant of Probate is crucial. But finding a buyer for a Probate property that needs to be sold can take much longer and can often cause delays. Foreign assets will also add time to the process. Should there be a property abroad that needs to be sold, the acting Personal Representative have to sell that property by instructing foreign estate agents and lawyers. The Personal Representative must also comply with different requirements to issue notifications regarding the death and obtain the necessary permissions to sell the property.
Estate Administrators/Executors can place a Deceased Estate notice in The Gazette, Official Public Record*, forward is two months. Another common reason for distribution to take a long time is if the Department for Work and Pensions (DWP) makes an investigation into any benefits the deceased may have been in receipt of. This will usually add a further 6 to 9 months before the final sum due back to them is confirmed as a liability of the Estate. If an insurance policy forms part of the Estate, the insurer has discretion as to whom they pay out to.
Often a lot of questions will be asked of potential Beneficiaries and the circumstances of the death.
Individual assets include all property titled in the decedent’s sole name without co-owners or payable-on-death and beneficiary designations. They commonly include bank accounts, investment accounts, stocks, bonds, vehicles, boats, airplanes, business interests, and real estate. They can also include personal property that may or may not have much value, such as artwork, memorabilia, and electronics. Holding title to property as tenants in common can’t typically avoid probate, at least not without a little help. If your loved one has died and you owned property together as tenants in common, certain laws and rules determine who will inherit his ownership interest.
When the Property Is Titled in the Decedent’s Sole Name
This situation may seem impossible on the surface. How can a jointly-held property such as a tenancy in common be held in just one person’s name? It can’t—but the deceased’s ownership interest can be. If the decedent’s share of the tenant-in-common property is titled in his name alone, his ownership interest in the property will pass through his probate estate in one of two ways. It will go to the beneficiaries named in his last will and testament if he left a valid will. His portion of the tenant in common property would pass to the beneficiaries he named to receive it. Otherwise, it would go to the decedent’s heirs at law. These are individuals who stand to inherit from a decedent in the absence of a will. Although it varies by state law, spouses and children are usually first in line to inherit. If the decedent failed to make a will, his portion of the tenant-in-common property would pass according to these rules, called laws of intestacy.
A mortgage is a debt, and the probate process addresses a decedent’s debts. But the decedent’s estate would not be responsible for paying off the mortgage if the loan is in joint names. In this case, consumer law trumps probate law. Both tenants were contractually bound to pay the mortgage. If only one of them survives, the entire contract obligation automatically shifts to the survivor by operation of law. But if the decedent held a mortgage in his sole name for just his portion of the property, his estate would be responsible for paying it or otherwise resolving the situation. This could potentially involve a forced sale of the property by either the estate or by the lender if there aren’t sufficient funds in his estate to settle the mortgage balance. The whole process can become complicated with various parties concerned with protecting their own interests.
Tenant-in-common assets include property titled in the decedent’s name as a tenant-in-common with one or more other individuals. Each owner has a percentage interest in the property, such as 80 percent and 20 percent, or 50 percent and 50 percent. Real estate is often titled this way between unmarried owners, but other types of assets can be titled this way as well, including bank accounts, investment accounts, stocks, bonds, and vehicles. This type of property should not be confused with assets held by joint tenants or other arrangements with rights of survivorship. Property held with rights of survivorship passes directly to the survivor when one owner dies. It does not require probate and is not included in the decedent’s probate estate. If the decedent retiles his tenant-in-common interest into the name of a living trust before his death, this converts the tenant-in-common interest into a non-probate asset. It won’t require a probate court proceeding to pass to a new owner. It occasionally happens that someone will create a living trust and move his property into it, but this doesn’t necessarily mean that none of his property will be probate assets at his death. Living trusts do avoid probate of the property held by them, but years may go by during which the decedent acquires additional assets, and he may neglect to pass all of them to his trust.
A common solution to this dilemma is to create a pour over will to direct property outside of the trust into the trust at death, but these assets are still subject to probate and contribute to the decedent’s probate estate. The probate process can be long and costly, taking months and sometimes years to resolve. The longer it takes, the more it will cost, leaving potential heirs with less than the deceased may have intended. For these reasons, most people will try to avoid probate in any way possible. Transferring assets outside of the probate process can not only save the estate a lot of time and expense, but can also help loved ones avoid years of legal hassle. There are four general ways to pass on your property and avoid the probate system:
• Joint Property Ownership
• Death Beneficiaries
• Revocable Living Trusts
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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