INHERITANCE LAW
ESTATE ADMINISTRATION, PROBATE SERVICES, PARTITION
The weeks following a loved one’s death can be confusing and complex. Funerals stir up a whirl of emotion: grief, fear, shock, anger. The bereaved may feel helpless, bewildered, alone, and deluged by unpleasant tasks, from inventorying assets to submitting tax reports, selling real estate, dividing and distributing assets, and crisscrossing minefields of family history. For this reason, you should appoint an attorney as your executor.
Most heirs and lay executors are unprepared for the challenge of estate administration. They make mistakes because of stress and haste. Assets are sold at fire-sale prices, filing deadlines are missed, bills go unpaid, and assets are distributed before debts are fully logged and paid, leading to awkward claw-backs of distributions that the recipients may already have spent. It is not pretty. I can save your estate that awkwardness.
Immediate Measures
Upon death, certain measures assume immediate priority. The estate’s assets must be listed, a tax inventory must be prepared. The Will must be submitted to the authority. The probate authority will open and read out the testator’s will and notify the named executor of the appointment ex officio.
Tasks to Be Performed
The executor must administer the estate – pay its debts, maintain property until it can be distributed or sold, collect outstanding debts and receivables to the estate, distribute individual bequests, and divide the remainder of the estate among heirs. If the decedent is married at the time of death, the spousal portion needs to be separated before dividing the remainder pursuant to the Will or laws of intestate succession.
Your Executor assumes these tasks. Without an executor, it is the heirs who perform these tasks. It may be that a Will fails to name an Executor, or as more often occurs, the named Executor declines the “honor”. When naming an Executor in your Will, make sure he or she is willing and capable of assuming that role. My recommendation? Name your attorney.
Community of Heirs
The estate in its entirety vests by operation of law in the heirs on the death of the deceased. The heirs become a Community of Heirs. All decisions affecting the estate, including distributions, must be made unanimously. Such estates can remain in limbo for months, sometimes years. Relationships between heirs are fragile, especially when a unifying force in their lives – you! – is no long there to encourage consensus.
As soon as the heirs do not agree, a stalemate situation arises. In the event of incapacity to act, a co-heir may apply to the competent authority for the appointment of a respresentative of the heirs, provided that an executor or administrator of the estate does not yet exist.
Inheritance Division Agreement or Action for Partition of the Estate
If the heirs in a community of heirs agree on how the estate should be divided, they sign an inheritance division agreement.
If the heirs cannot reach agreement, an action for partition of the estate may be filed. This is a cumbersome, time-consuming, and expensive cause of action – a measure of last resort. Far more preferable is to continue working jointly for a solution. The heirs should consider mediation. They should continue negotiating until each heir can live with their respective distribution. Retaining an objective facilitator with no stake in the outcome is often the only way to attain a unanimously-signed inheritance division agreement.
Do you have questions about probating your will or the will of a loved one? Do you have questions about executorship? I can help if you are an heir concerned about protecting your rights under a will. I can help if you are a testator planning your will. I can help as a mediator or facilitator. And I can help you if you need a patient, competent, executor or executor’s advisor. Call me.