Probate & Administration
“Death is not the end. There remains the litigation over the estate.” -- Ambrose Bierce
Wills, trusts, and powers of attorney are all tools with which to prepare for the day when one leaves this mortal coil. Probate or administration is what comes afterwards: The implementation and, if necessary, litigation necessary to affect an individual’s last wishes.
Definitions and Terminology
“Probate” is a legal term of art to describe the process of filing a will with the court and the proceedings surrounding the same. This process is usually described as “admitting a will to probate.” The term "probate" also can be used to describe all court-related proceedings regarding someone’s estate, including intestate proceedings. When an intestate estate is opened, this is called an “administration”, even though it is in most respects identical to a testate probate. Similarly, an executor is the court-appointed individual tasked with implementing a will admitted to probate; this person is called an administrator when dealing with intestate succession, despite them having very similar powers and duties.
Anatomy of a Probate Proceeding
Probate proceedings are begun by an individual filing a Petition, a document which contains a recitation of what the Petitioner’s desires and the facts that the Petitioner feels entitle him or her to the relief sought. The typical Petition to Admit A Will to Probate requests that the person designated in the will be named executor (which is usually the Petitioner) and that Letters Testamentary be issued to the executor to allow for the implementation of the will. For a Petition for Administration, it is typically a request that an administrator be appointed, that the Petitioner is a fit and responsible person to be named such, and that Letters of Administration be issued to allow for the implementation of an intestate succession. After the Petition has been filed, a copy must be given to every heir of the decedent, as well as any other person receiving a gift from the estate in the case of testate Petitions. Further, a notice must be run in the newspaper of record in the county in which the probate action was filed for at least three consecutive weeks, giving notice of the existence of the probate action and the time of any hearing set on the probate Petition.
Once notice has given to the heirs and published, a hearing will be had on the probate Petition. At the hearing, each party in interest is given the opportunity to express their opinion on the request to admit the will to probate or to name a particular individual as administrator. If there are objections, a trial will be scheduled, at which the objecting party will have the opportunity to call witnesses and put on evidence in support of his or her position(s). The same opportunity is also be afforded to the Petitioner. Each party is also given an opportunity to cross-examine and rebut evidence put on by the opposing party. At the conclusion of the trial, the court considers the evidence put before it and determines whether Letters Testamentary or Letters of Administration should be issued.
Once a will has been admitted to probate or an administrator appointed, the yeoman’s work of managing the estate begins, as the assets of the estate must be marshaled and an Initial Inventory of the estate’s contents filed with the court within thirty (30) days of the issuance of Letters Testamentary or Letters of Administration. The executor or administrator must also pay the decedent’s final expenses, settle any claims which the estate has against it or it may have against others, ready the estate’s assets for distribution to the heirs, and, in the case of testate estates, undertake any other actions commanded by the will. Once all of that is done and the non-claim period for creditors has expired, the executor or administrator can file a Petition for Final Settlement, seeking to reimburse him or her for whatever expenses he or she has incurred during the administration and make a final distribution of the estate’s assets to the heirs as prescribed by the will or the laws of intestacy. The court can approve the Petition for Final Distribution either at a hearing or by agreement of all of the heirs, after which the estate is closed and the heirs receive their respective inheritances.
Attorneys and Their Clients
There is an old saw, made famous by Abraham Lincoln, about those who represent themselves having fools for clients. While it is possible for an executor or administrator to represent themselves in a probate proceeding, it is likely to cause far more stress than hiring counsel, as probate practice is highly procedural and has more than its fair share of technical quirks.
Fear not, though! Since 2013, the Law Office of Christopher J. Velez has been representing individuals and families in Southwestern Kansas in contested and uncontested probates and administrations. And we would like the chance to do the same for you.
Call (620) 277-3315 to find out what the Law Office of Christopher J. Velez can do to help you with anticipated or ongoing probate litigation.