When someone dies, there can be a lot of turmoil. The family grieves the loss of their loved one. The process takes time to express sadness over the death. After planning the funeral and burial, dealing with the estate is an important issue. Have you ever thought about what it would be like to have someone going through your personal effects? When someone dies, all of his personal property is handled by his closest family members. This is usually the time when the will is found. The well-organized individual will leave a copy of his last will and testament with his attorney. The individual will name one of his family members as executor of his estate telling him to contact the attorney who has the will. When the individual dies, the executor must inform the lawyer of the death and request a copy of the will.
Duties of the Estate Executor
The Executor is given authority over the estate of the Deceased. This is an incredible amount of power if there are valuable assets in the estate. But there are also legal duties that the Executor must perform. One essential duty is to publicize the will. Usually, there will be a hearing with the reading of the will. This is where most people will discover the contents of the will. Some states make it a crime for the Executor to fail to publicize the contents of the will. Some states require probate for estates of the Decedent, others don’t. The last will and testament should be recorded in the probate court records of the county in which the individual resided when he died. If you want to find out if someone had a will, then you can check with the individual’s attorney, estate Executor or probate court.
If none of these options work, you can sue the estate of the Deceased. Somewhere, someone has control of the personal property of the Decedent. You can bring a lawsuit against that individual to force him to acknowledge the existence and content of any will. Estate settlement occurs when the court approves the final report from the estate’s appointed representative, usually an executor or administrator. The estate settlement process involves payment of the deceased’s debts, final tax return fillings and the transfer and sale of assets with property and sale monies going to the deceased’s heirs or will beneficiaries. Estate proceedings are a matter of public record, so if you need to know whether an estate was settled, you can find out by viewing the estate’s court records. Finding out whether an estate is settled is useful in various situations, especially if you’re a family member or will beneficiary who didn’t receive your share, or a creditor who never received payment.
Step 1: Locate the probate or surrogate court that handled the estate proceedings. The court may be in the county where the deceased resided or where he owned real estate.
Step 2: Contact the court clerk of each court you locate. Inquire as to the procedure for reviewing estate files. Procedures vary by country. Some courts allow a person to mail in a written request for estate records, while others require an in-person visit. Follow the instructions of the clerk to view the estate records. You’ll need to give her information about the deceased, usually the deceased’s legal name and the date of death if you have it, so she can locate the estate paperwork.
Step 3: View the estate file. You need to find the final estate account. The executor or administrator of the estate must file a final account to settle the estate and receive a release from the court. You’ll find a final account and release in the files of a settled estate. Write down the name and address of the estate’s attorney, as shown on the court files if you don’t see a final account or release. Write down the name and address of the executor or estate administrator if the estate did not use an attorney.
Step 4: Contact the estate’s attorney or administrator if you want to inquire about the estate’s settlement status. Identify your relationship to the deceased, if any. Give your reason for asking. The attorney or administrator may not respond to you if you don’t state why you’re interested in the estate.
Almost everyone has an estate at the time of death: An estate is simply the property the person owned at the moment of death. Most people own something, even if it is only a few personal items. However, you may not know the size of a deceased person’s estate. If someone has initiated court proceedings to account for and divide the estate, you can often find out what the estate contains.
• Go to the clerk of the court’s office in the county in which the person lived at the time of death.
• Ask the clerk if a will has been filed with the court and if it is available for public viewing. If a will has not been filed, ask if proceedings for intestate succession have commenced.
• Read the will, if it is available for public viewing, to determine who the executor of the estate is. The executor is the person responsible for determining what property the deceased had at death. If there is not a will, courts often appoint a personal representative to carry out the same function as an executor. Ask the clerk for the contact information of the executor or personal representative; it will be on file with the court.
• Contact the executor and ask for the information you want. If the executor will not tell you, monitor any legal proceedings for filings and hearings that you can view to ascertain the information.
Finding out if an estate is established for a deceased person is a task that you can undertake on your own. You do not need professional assistance to locate a pending estate. The process of locating an open estate is uncomplicated because courts in most jurisdictions strive to make their informational services as easy to access as possible. You do need to obtain some basic background information before contacting the court. However, this supplemental information is accessible from public sources. Obtain a copy of an obituary or death notice of the individual who is deceased. Newspapers make these notices available through their Internet website for a period of at least six months following a death.
Note the residence of the deceased. By law, estates are opened in most cases in the county of residence at the time of a person’s death. An estate also can be opened in the county where an individual died if it is not the same as his residence. Telephone or otherwise contact the clerk of the court in the county of residence of the deceased individual. Request to speak with an associate clerk in the probate division or department. Provide the name of the deceased individual to the clerk’s staff. The clerk’s office will be able to advise you of whether or not an estate is opened for that individual. Contact the clerk of the court in the county where the individual died. Make this secondary contact if there is no information about an open estate in the county of residence.
If someone has died leaving behind money in the bank, landed properties or personal belongings, and you want to take over these assets, or want to administer, manage, distribute, or sell off the assets; the following is a guide on what you need to do.
What You Should Note
Before you can take over or assume control over the estate of someone who has died, you have to first obtain the letter of administration from the Probate Court to become the administrator of the deceased’s estate. Without being appointed the administrator, meddling with the estate of the Deceased is illegal and you may face civil and criminal liabilities.
When Can You Be Granted the Letter of Administration?
A letter of administration may be granted after 14 days, where the deceased died intestate (i.e. without leaving a valid Will); or 7 days where there is partial intestacy. Partial intestacy may arise where there is absence of residuary clause in a valid Will; or where the testator (the deceased) does not have executors to carry out his instruction as contained in the Will. Not having executor(s) may arise where the deceased made a Will without appointing executors; or the executors who he appointed had died; or the executors are underage; or the executors are resident abroad, or have refused to act or have renounced the probate.
Who Is Entitled to Obtain the Letter of Administration over the Deceased Estate?
Where the deceased had married his spouse under the Marriage Act (what in layman’s term is known as “White Wedding” or “Court Marriage”), he is not subject to the traditional practice of inheritance or succession principle under his native law and custom. In other words, the distribution and inheritance of his property or succession to his estate will be based on the Administration of Estate Law, and not according to the local traditions and native laws and customs of the locality he hailed from.
The following is the order of priority of persons entitled to the grant of probate in testate succession (i.e. with Will annexed):
• The executor;
• Any residuary legatee holding in trust for any other person (that is, where the residuary estate is subject to a trust);
• Any residuary legatee or devisee for life;
• The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency;
• Any specific legatee or devisee or creditor or their personal representative;
• Any specific legatee or devisee entitled on the happening of any contingency, or next-of-kin.
The order of priority of persons entitled to grant of letters of administration in intestate succession (i.e. without Will attached) are as follows:
• The surviving spouse
• Children of the deceased or grandchildren of deceased whose parent died during the life time of the deceased.
• Father or mother of the deceased.
• Brothers or sisters of the deceased of full blood
• Half Brother(s) and sister(s) of the Deceased.
• Grandfather or grandmother of the deceased.
• Uncles and Aunts.
• Creditors of the deceased.
How to Obtain Letter of Administration (With Will Attached)
Where the deceased died testate (with a valid Last Will), you need to consult a Solicitor to make an application on your behalf to obtain the Letter of Administration. The Solicitor shall satisfy the Probate Registrar about the reason for the absence of the executor that was appointed by the deceased in his Will. The Solicitor shall lead evidence to prove that the executor is dead, or he renounced his executor ship, or he is an infant, or he is abroad and has appointed an attorney to apply for the grant, any of these facts must be proved by tendering the relevant documents. Thereafter, the Probate Registrar shall inspect the Will to ensure that it was properly executed and attested.
How to Obtain Letter of Administration (Without Will Attached)
In some states, the law prescribes a minimum of 2 persons and maximum of 4 persons to administer the estate of the deceased, except predicated on a legal exception. Thus, if you and 1 or 3 other family members fall suitably amongst the persons listed above in their order of priority, what you need to do to obtain the Letter of Administration where the deceased died intestate (without a valid Last Will) is to consult a Solicitor who will make an application to the Probate Registrar on your behalf.
What Documents May be required for the Grant of Letter of Administration?
At the consultation with your Solicitor, you will need to present the originals of the following documents:
• Death Certificate of the deceased obtained from the National Population Commission
• Marriage Certificate/Affidavit of Marriage of the deceased and his spouse
• Certified True Copy of the deceased record of service (if he was a public officer and you want to receive his salary/pension arrears)
• Retirement Letter/Pension ID Card (if the deceased was a pensioner)
• Passport photographs and valid means of identification of you and other proposed administrators.
You will further provide the following details: Full names of the deceased; Date of birth of the deceased; Last known address of the deceased; Occupation of the deceased; Marital status of the deceased; Name of deceased’ spouse and children (if any); Date and place of death of the deceased; Your name and the names of the other proposed administrators; Relationship between the deceased and you and other proposed administrators).
Actions Your Solicitor Will Take
• Obtaining Authority to Act: After due consultation and evaluation of the documents and information you have provided, the Solicitor will issue you a letter of engagement to sign and to act on your behalf in connection with obtaining the Letter of Administration (with or without Will annexed) from the Probates Registry.
• Formal Application: Your Solicitor shall submit an Application letter in prescribed form and may accompany same with copies of the documents listed above and the following documents:
1. Oath of Administration (with or without Will attached)
2. Administration Bonds (with or without Will attached)
3. Renunciation of administration (Will attached)
4. Statutory Affidavit of the next of kin
5. Inventory of moveable and immovable assets of the deceased
6. Schedule of Debts owed by the deceased
7. Justification of sureties
8. Particulars of freehold/leasehold property left by the deceased.
9. Schedule of Funeral Expenses of the deceased
10. Bank or Share Certificate (showing the balances of the deceased’s bank account(s) or company shareholding, respectively).
• Publication of Notice: Your Solicitor shall thereafter notify the general public by way of publication in a newspaper, a Notice of Application for the Grant of Letters of Administration over the deceased’s estate in the name of the proposed administrators.
• Court Representation: Where there is an objection to the Application for the Grant of Letters of Administration over the deceased’s estate in your name or the other proposed administrators, your Solicitor shall issue a Warning to the Caveator and a write for the Probate Court to determine the merit or otherwise of the caveat for the purpose of granting or refusing the grant of the Letter of Administration. Where at the expiration of the publication notice, there is no objection entered by way of caveat, your Solicitor shall move the Probates Court to proceed to grant the Letter of Administration in favor of the proposed administrators.
• Payment of Prescribed Fees: In the course of obtaining the Letter of Administration, your Solicitor may be required to pay certain fees such as: Publication Fee, Estate Fee, etc. as administrative charges and government taxes.
• Collection of Letter of Administration: After due compliance with all the laid down requirements, the Probate Registrar shall direct a grant of Letter of Administration Order to be enrolled for the Chief Judge of the State to sign. Thereafter, the final instrument of the Grant of Letter of Administration is prepared and signed by the Probate Registrar for collection. Letter of Administration will be issued to you through your Solicitor. Armed with the Letter of Administration, you and other named Administrators shall have the legitimate power and authority to take over full control of the estate of the deceased, and have the power to manage, share, distribute, or sell the deceased’s estate, or initiate or defend legal proceedings thereto.
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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!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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