Newland's Business Notes

Being a Personal Representative: An Introduction to
Probate  – Part I

Volume 9 Issue 4 -- July/August 2005

“Probate,” also sometimes called “estate administration,” is the legal term for the process of settling the affairs of a deceased person. Few think about probate until a relative dies, often a spouse, mother, father, or sibling.

Several years ago we wrote about “What To Do When Someone Dies” in Newland’s Business Notes, May/June 2002.  If the person who died was a close family member, you may find yourself being appointed a “personal representative” (“PR”).

In some situations and in some states, a PR may be called something different, such as “executor,” or  “executrix,” but the basic functions are still the same.

A PR can be “appointed” by a Will, but where there is no Will, the probate court will appoint an “administrator”  or “administratrix” who will often be the nearest surviving relative.

A person who finds himself or herself in the position of being appointed a PR will have to deal not only with the grief associated with the demise of a loved one but also with a variety of legal obligations associated with settling that person’s financial affairs. Complicating that process may be the task of having to deal with less than amicable heirs.  See “Don’t Assume Your Children Will Get Along,” Newland’s Business Notes, July/August 1998. 

This will be the first of two newsletters  addressing what a PR must know and do.  In this issue we’ll look briefly at some basic concepts in the probate process.

In many cases, there is the Will (and often, a Revocable Living Trust). If a person dies without a Will, the same basic process will take place, except that it will be called an “administration” rather than “probate.”

After death, the Will of the decedent is submitted to a probate official for the preliminary purpose of determining the validity of the Will, among other things.

If the Will is deemed valid, it will usually control who gets what.  It is often erroneously believed that a Will controls the distribution of all of a decedent’s assets.  Wrong. 

Many assets may pass outside of probate and directions in a Will do not control such assets. There are a host of conveyances and contractual arrangements that are not affected by a Will. 

The most common example of assets passing outside of probate is a home or farm that is jointly owned by husband and wife.  In such cases, the survivor of the marriage gets the property, regardless of the wording of a Will, because the deed to the property controls. As a result, the jointly owned house or farm is not deemed to be an asset of the decedent.

Similarly, life insurance, bank accounts, and IRAs are usually controlled by contractual relationships between the decedent and party obligated to fulfill the contractual relationship.  For example, the beneficiary named in an insurance policy (the contract) gets the insurance regardless of what the Will says.

Revocable living trusts work somewhat similarly to contractual relationships found in insurance policies.  Assets placed in such Trusts are controlled by the wording of the Trust, not a Will, and the assets in the Trust are not part of the probate estate.

Another way of understanding the probate process is to view it as the process for distributing those things the decedent controls at death which do not pass to the beneficiaries by other means, i.e. deeds, insurance, and trusts.

Being named a PR for a decedent is not easy for most persons. Sometimes the PR must post a bond.  In most states (not Virginia) newspaper notices of the decedent’s death are mandatory.  Certain next of kin must be notified and allowed to contest the Will as well as the PR’s actions.

In addition to the scrutiny of relatives, there are judicial or semi-judicial officials who supervise probate.  In Virginia, these officials are called Commissioners of Accounts. 

In Virginia, PRs must file an inventory of the decedent’s assets within four months of qualifying, and they must, usually within 16 months, account for gathering and distributing the probate assets. 

Next time, we’ll look at those functions in greater detail.  

Copyright 2005

Published by the law firm of Newland & Associates, PLC
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