The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen [of that jurisdiction]'[citation needed] may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts appointment, the court will appoint a representative from the local public administrator's office.
Will contests are concerned only with external validity, such as failure of due execution, fraud, mistake, undue influence, lack of testamentary capacity, or lack of intent that the instrument be a will. Issues of internal validity, such as violation of the Rule against Perpetuities, must be raised in proceedings at a later stage of administration. Although a will has been probated as a genuine expression of the testator's intended distribution of property upon her or his death, the estate might be disposed of according to the laws of descent and distribution if the testamentary provisions violate the law.
Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in a another state, the will disposing of these assets must also be probated in that state.To qualify as a will in probate, an instrument must be of testamentary character and comply with all statutory requirements. A document is testamentary when it does not take effect until after the death of the person making it and allows the individual to retain the property under personal control during her or his lifetime. A will that has been properly executed by a competent person—the testator—as required by law is entitled to be probated, even if some of its provisions are invalid, obscure, or cannot be implemented.
Some states have procedures that allow for the transfer of assets from small estates through affidavit or through a simplified probate process. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent's asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000.[37]
One way to avoid U.S. Federal estate and gift taxes is to distribute the property in incremental gifts during the person's lifetime. Individuals may give away as much as $15,000 per year (in 2018) without incurring gift tax. Other tax free alternatives include paying a grandchild's college tuition or medical insurance premiums free of gift tax—but only if the payments are made directly to the educational institution or medical provider.
The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
The cost of an estate plan depends largely on the number of parts it includes and the complexity of the documents. The most basic estate plan is simply a will, but it may also include designating power of attorney or a health care proxy to another person, writing a living will, or making a HIPAA authorization. The average national cost to make an estate plan ranges from $350 to $900, but can cost much more in complicated situations. For example, an estate attorney may charge only $900 to prepare a basic will providing outright distribution — meaning that property and assets are distributed upon death. Writing a more complicated will and holding assets in trusts can cost $3,000, or more. The process of creating an estate plan generally takes two to four weeks, starting with the initial consultation with the wills attorney to identify areas of concern in order to design an estate plan that fits your goals and budget. Once an estate plan is written, the attorney meets with the clients, a notary, and two neutral witnesses to review and sign the plan and associated documents.
Only a person having some interest that will be affected by the probate can contest it. Such persons include next of kin who will receive property if the will is set aside and intestacy results, purchasers of property from the heir or heirs, administrators or personal representatives under prior wills, and the state, if there is a possibility of Escheat, which means that the government will receive the property if no living heirs can be found. Creditors, however, generally are not entitled to contest the will of a debtor.
Next, start adding your non-tangible assets to your list, such as things you own on paper or other entitlements that are predicated on your death. Items listed here would include brokerage accounts, 401(k) plans, IRAs, bank accounts, life insurance policies, and other policies such as long-term care, homeowners, auto, disability, and health insurance.
