Table of Contents:
- Probate Laws in Indiana
- Oregon Probate Laws
- What Are the Probate Laws in Virginia?
- Probate Laws in Tennessee
- Mississippi Probation Laws
- Probate Laws for Nebraska
- Probate Law in Oklahoma
Probate is the legal process of transferring property from the estate of someone who has died to the persons entitled to receive it. In Indiana, probate can be supervised by the probate court or unsupervised, depending on the terms of the will or the circumstances of the estate. And some estates need not be probated at all.
Testate or Intestate
Whether someone dies with a will, termed testate, or without a will, termed intestate, some type of probate proceeding is usually required. But not all property must go through probate -- only property solely owned by the deceased in her own name. Other assets, such as property held in joint tenancy with right of survivorship or payable-on-death accounts, are transferred to joint owners and beneficiaries outside of probate.
Transfer by Affidavit
If the value of an estate is under $50,000 and does not contain real estate, the person entitled to the property can wait until 45 days after the death to file an affidavit stating that no probate has been opened and that he has given all interested parties notice of the affidavit. He must also provide other information required by the statute. He then presents the affidavit to anyone holding personal property belonging to the deceased, and they must turn over the property to him.
Simplified Probate Procedure
If real property is included in a small estate worth less than $50,000 in Indiana, the personal representative must open a probate proceeding in court, but he can use a simplified probate procedure, termed summary administration. Without notifying creditors, he can distribute the property to the persons entitled to receive it. The only document he must file with the court is a closing statement describing his actions. If real property is involved, he files an affidavit in the recorder's office in the county in which the property is located that states the names and addresses of all the deceased's heirs or beneficiaries who might have some ownership interest in the property.
Probate With a Will
A valid will often names an executor, the person chosen by the deceased to move the estate through probate. The executor files the will in probate court in the county where the deceased person resided, together with a petition for probate. The court then issues an order appointing her executor.
The next step is to prove the will by having the persons who witnessed the signing of the will testify in court that the deceased was competent when he signed the will. If the witnesses signed a self-proving affidavit before a notary at the time of will signing, proving the will is not necessary. The executor collects the estate assets, pays bills and debts, and files tax returns before distributing estate assets to the beneficiaries.
If no executor is named in the will, or the named executor refuses to serve, the probate court appoints someone to serve in that capacity, usually called an administrator. Both executors and administrators are also referred to as personal representatives.
Probate Without a Will
If someone dies without a will in Indiana, his property passes to his nearest family members under the state's intestate statute. Generally, a surviving spouse and children of the deceased inherit in different shares set out in the law, depending on the number of children and whether or not they are also the children of the surviving spouse. Parents and siblings of the deceased may also inherit a share of the estate if the deceased has no children. For example, if someone dies leaving a spouse and parents, but no children, the surviving spouse receives three-quarters of the estate and the parents receive the remainder.
Intestate estates are subject to probate in Indiana. The personal representative is appointed by the court. She collects estate assets and pays bills before distributing the estate property pursuant to intestate succession laws.
Supervised and Unsupervised Probates
The personal representative of an estate in Indiana has two options: she can request a supervised probate or an unsupervised probate. The court's role is greater in the former, more relaxed in the latter. Most Indiana probates are unsupervised.
Supervised probate is similar to formal probates in other states. The personal representative reports every step to the probate court for approval. She prepares an inventory of the estate assets and files a certificate of preparation with the court. She cannot sell or distribute any property without court approval. When administration is completed, she files a final report together with a full financial accounting and a proposed distribution plan. Distribution of the estate is permitted only after court approval.
Unsupervised probate involves fewer expenses and court filings. Personal representatives perform many functions without court permission that would require court approval in a supervised probate, such as taking out a mortgage on real estate or selling it outright. At the end of an unsupervised probate, the personal representative provides all beneficiaries and heirs with an accounting. If it appears that she acted improperly, the issue can be raised in court. If even one heir or beneficiary objects to unsupervised probate, the probate must be supervised.
One of the most commonly encountered aspects of Oregon's probate law is provision for the use of last wills and testaments. Oregon Revised Statutes § 112.225 states that anyone can make a will as long as the person is at least 18 years old, or under 18 but married, and of sound mind. Further, Oregon Revised Statutes § 112.255 requires that all wills must be in writing and signed by the testator (person making the will) in the presence of at least two witnesses. The witnesses must either witness the testator signing the will or hear the testator acknowledge signing the will. The witnesses must then attest to witnessing the will by signing it.
Anyone who dies without a will in Oregon has her property distributed pursuant to the state's laws of intestate succession. A person without a will is said to have died intestate, and the laws of intestate succession dictate who receives property when this happens by establishing a hierarchy of beneficiaries based on their relationship to the deceased person.
For example, if a person dies leaving behind both children and a spouse, Oregon Revised Statutes § 112.025 states that the spouse receives all estate property unless any of the children are not children of the couple. If the child is the issue of the decedent but not the surviving spouse, the child receives half of the estate and the spouse the other half.
Further, Oregon Revised Statutes § 112.015 states that even if a person dies having left a will, any property not covered by the will passes in accordance to the laws of intestate succession.
The probate process starts after a person dies leaving behind property. When this happens, Oregon Revised Statutes § 113.035 states that any interested party can bring a copy of the will to the probate court in the county where the decedent lived or owned property. The court will then accept the will, or hold a hearing to determine its validity, and then name a person to distribute the estate property. This person either can be named in the will or chosen by the court, and is alternately called the executor or personal representative. Once the executor is named, he must account for all estate assets and liabilities, pay debts with estate property and then distribute remaining property in accordance either with the terms of the will or the laws of intestate succession.
The Commonwealth of Virginia states that heirs of the decedent don't always qualify as beneficiaries of the estate. For this reason, all names, ages, and addresses of relatives are to be provided to the clerk during probate. According to Code of Virginia § 64.1-1, real estate where the title was free and clear will be passed on to the closest living relative, starting with the spouse. If the spouse is no longer living, the estate passes to the children. When there are no children, Virginia code requires the estate to go down this prioritized list, until there is a living relative or ancestor to whom the property can be given.
Executor of Estate
When there is a named executor, Virginia Code requires that if the executor is not a resident of Virginia, she may either go through the process to become a registered agent" or choose a Virginia resident to serve as a co-registered agent. If the named executor does not wish to fulfill her duties, then she must submit a notarized letter of decline. In the event that the executor is deceased, a copy of the death certificate must be presented to the county clerk.
Validity of Will
When a will is self-proving, it will have been signed by the individual, or testator, and the witnesses in front of a notary public. The notary public will sign the will as well as a self-proving affidavit. The affidavit should be stapled to the will. When a will is not considered self-proving, the witnesses of the signing of the will need to give their testimony to the clerk at the designated county court.
The executor or registered agent is responsible for commissioning appraisal of the decedent's estate. The appraisal needs to be an itemized list, noting which appraiser appraised which item.
All taxes must be paid before any distributions are made from the estate. Proof must be provided that federal and state taxes have been paid. In the case of federal estate taxes, Virginia requires an estate tax as well. In addition, there is a probate tax for any estates over a $15,000. The state tax is equal to $1 for every $1000, and some local municipalities add an additional local probate tax.
The Commonwealth of Virginia recognizes that the death of a loved one is a particularly stressful and emotional time and, therefore, does not place a time frame on when probate must begin. Virginia recommends that probate filing begin within a week to 30 days from the time of death, but there is no law requiring this.
In the state of Tennessee, if a person dies without a will, the courts will determine how his property is to be distributed. If the deceased was married and did not have children, the estate becomes the sole property of the surviving spouse. If a person is married and has children, the estate becomes the property of the surviving spouse and children. Surviving children will inherit the estate if a person is unmarried. Surviving parents inherit the estate of an unmarried person who does not have children. In the event that the deceased was preceded in death by both parents, surviving siblings will inherit the estate. If there are no surviving relatives, the estate will become the property of the state of Tennessee.
A will states how property is to be distributed to the deceased person's beneficiaries. An executor oversees the estate and ensures that the terms of the will are carried out. It should include provisions for the care and guardianship of minor children. Persons over the age of 18 of sound mind can make a will in the state of Tennessee. It must be signed in front of a witness. Handwritten wills are legal in the state of Tennessee, but two individuals must verify the authenticity of your handwriting. However, handwritten wills can be revoked and the estate will be divided according to the estate laws.
Revoking a Will
In the state of Tennessee, you can revoke your own will before your death by destroying it, signing a document stating that you wish to revoke your will or making and signing a new will. If a person with a will divorces her spouse, any provisions related to the ex-spouse are automatically revoked. If you marry and have children after you have made a will, the will becomes null and void and a new will must be drawn.
Contesting a Will
A will can be contested in probate court. An attorney licensed in the state of Tennessee can represent a person appearing before the court to object to the terms of a will. A judge will rule on the case and determine the validity of the claim against the will and decide how it will affect the distribution of the estate.
The Probation Process
Probation in Mississippi is overseen by the probation department of the Department of Corrections. If it has been decided that you are to be sentenced to probation, a probation officer will make an initial appointment with you to interview you and review the rules and restrictions of your probationary period with you. Following that, you will be supervised throughout the probationary period through either meetings, household visits, random drug and alcohol testing, or a combination of these events.
While on probation, you will be prohibited from using drugs and alcohol; from consorting with known felons; from possessing firearms or other weapons, and will likely be required to show proof of employment and good attendance. If you do not maintain the terms of your probation, either the supervising judge or the probation board as represented by your probation officer have the discretion as to whether to have your probation revoked and incarcerate you for the remainder of your probationary period. It is important to follow the rules you are given during probation, as a chance at serving your sentence without being incarcerated typically is preferable to any prison sentence, which will cause you to miss out on your life, potentially lose your job, or face other negative consequences.
Types of Probation
In Mississippi, there are two major types of probation: non-adjudicated and suspended sentence. With non-adjudicated probation, you serve your time under probation and then, as long as you didn't do anything wrong, your record is cleared and the charges expunged at the end of the probationary period. Suspended sentence probation, on the other hand, occurs when you are sentenced to jail time but the court suspends that sentence and puts you on probation instead; provided you comply with the terms of your probation, you will not have to serve the actual jail sentence.
Crimes For Which Probation is Prohibited
Certain crimes can automatically disqualify someone from even the possibility of probation. In Mississippi, murder, manslaughter, habitual or repeat offenses, or previous convictions for the same or other offenses are an automatic disqualifier. The presiding judge in the trial is the one who will review your record for prior offenses or other mitigating circumstances before making the decision about whether to recommend probation or incarceration once the conviction has been made.
As per Nebraska Revised Statutes § 30-2326 et. seq., when someone dies in Nebraska, estate matters are handled through the probate court in the county in which the person died. If the decedent left a will, the person who has it, such as a family member or attorney, must deliver it to the probate court within a reasonable amount of time after learning of the testator's death. Nebraska law also allows the will to be filed with the court before the testator dies. Upon the person's death, the court will deliver a copy of the will to any person so designated by the testator.
According to Nebraska Revised Statutes § 30-2326 et. seq., a resident of Nebraska can decide how her property gets distributed after her death by writing her wishes in a will. To make a valid will in Nebraska, a person has to be at least 18 years old and be of sound mind. The will itself must be written and signed by the testator, as well as signed by two witnesses who don't have an interest in the property distributed in the will. Once the person dies, the will must be proved, meaning the person filing it with the court must either swear an oath to its validity or provide a notarized document signed by the testator and the witnesses.
According to Nebraska Revised Statutes § 30-2303, dying without a will leaves an estate to be distributed according to the laws of intestate succession. These laws establish the method through which an estate is distributed, establishing interests in the estate based on the decedent's family members. For example, if a decedent leaves behind no surviving spouse or children, but has two surviving siblings and a surviving parent, the parent gets the entirety of the estate.
The probate process is inescapable unless you have some other plan in place for transferring ownership of your property to others after you die, such as beneficiary designations or a living trust to hold your assets. Otherwise, probate is generally required if you die leaving a will or intestate -- without a will. Oklahoma’s rules are somewhat more intricate than those in other states in one respect – they include special provisions for surviving spouses.
Petition to Open Probate
Unlike some other states, Oklahoma does not have dedicated probate courts. The district court oversees estates here. Anyone who has the deceased’s will in his possession can present it to the district court in the county where the deceased lived by filing it with a petition asking the court to accept the will for probate. The court will schedule a hearing to admit the will if the judge determines it meets all requirements for validity. The judge then authorizes a personal representative to manage the estate through the probate process, usually the executor nominated by the deceased in his will. If there is no will, the court will appoint someone as administrator. A petition must be filed with the court to open an intestate estate_._
Duties of the Personal Representative
Most of the personal representative’s probate responsibilities are the same in Oklahoma as elsewhere. The Oklahoma Bar Association describes them in detail:
- Determine exactly what the deceased owned and prepare an inventory of his assets, including appraisals to set values, if necessary.
- Identify all of the deceased’s heirs, even those who are not beneficiaries under the terms of the will.
- Notify the deceased’s creditors of his death and inform them how to make claims to the estate for money owed. The judge decides whether the claims are legitimate and if they should be paid.
- Prepare tax returns that are due for the estate and the deceased’s last year of life, and pay any taxes due.
- Submit a final accounting to the court, detailing everything done toward settling the estate, and appear at a final hearing. The judge will approve the request to distribute the property of the estate to its beneficiaries if everything is in order.
Special Spousal Rights
Oklahoma law specifies that certain personal property, such as the deceased’s clothing, household goods and family photographs must go directly to his surviving spouse. They’re not considered part of his estate for probate purposes and aren’t available to pay the deceased’s taxes or creditors, according to Rainey Law in Oklahoma City. A spouse is entitled to a financial allowance decided by the court to provide support during the probate process and until distributions of property can be made. Additionally, if the marital home is in her spouse’s sole name, she has homestead rights – she can live there for the rest of her life, even if the deceased left the property to someone else in his will. His spouse can also elect against the will, meaning she can decline to accept its terms and instead, take half the deceased’s property acquired during the marriage if this amounts to more than she would get under the terms of the will.
Exceptions for Small Estates
Oklahoma offers two options for smaller estates. If the estate’s value is $20,000 or less after accounting for debts, taxes and liens, you can transfer property by affidavit after waiting 10 days from the date of death. You must sign a statement under penalty of perjury, stating that you’re entitled to the property. Then present the affidavit, along with a copy of the death certificate, to the person or entity holding the property, such as a bank, to take control of money in the deceased’s account.
Estates valued at $200,000 or less are eligible for a simplified probate process. File a written request with the court at the time you file the petition to open probate for this less complicated administration process.