In a nutshell, probate is a court-supervised process to handle the affairs of someone who has died. There are some things that can be handled outside of the probate process, life insurance or property that passes directly to someone else through a right of survivorship … and Rhode Island allows some exceptions for small estates … but absent estate planning to avoid the process, many families will be facing a probate proceeding at some point.
It’s a common misconception that a properly-drafted will avoids probate. But that is just not true. You can think of a will as your “ticket to probate,” because that’s exactly what it is. In fact, in Rode Island, “probating a will” means proving to the court that the will – with all of its directions about who should or shouldn’t inherit – was legally executed by the deceased person.
A typical probate proceeding in Rhode Island involves collecting an inventory of all the deceased’s assets – all of the property they owned at the time of their death, paying all of the deceased’s debts and taxes, and then determining the rightful heirs.
Probate in Rhode Island will take at least six months, by law, to give creditors time to make their claims against the estate. While some assets may be distributed before the estate is closed, final distributions generally are not made until after that six-month time period. Of course, in some circumstances, the probate process may last a lot longer, especially if litigation is involved.
Costs will vary from case to case. In Rhode Island, the personal representative may charge a fee, but it must be reasonable. The same is true for attorney’s fees – they must be reasonable and represent a fair market value for the services performed.
If the estate is valued at $15,000 or less, you may consider taking advantage of Rhode Island’s “small estate” provision and use a simplified proceeding.
The fundamental duty of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate is to protect the assets and interests of the beneficiaries.
A personal representative must prepare and file an inventory and a list of claims (debts due and owing to the estate, not debts the estate owes to another party) of the estate. This inventory should detail all the assets subject to probate. The property must be valued and even appraised as necessary. The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. Not that if the inventory is filed late, the representative could be fined and removed, which would slow down the process.
The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. He or she must give proper notices to creditors, including making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail.
The representative also must keep the beneficiaries in the loop, including providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the independent executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property.
As you can see, being a personal representative can be a big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement. They also could be subject to a lawsuit for breach of fiduciary duty.
Don’t panic and don’t feel bad if you need help. It’s a big job and one that needs to be done right. The good news is, that helping families through the Rhode Island probate process is exactly what I do. Give me a call or fill out the contact form here and let’s see if I can help you, too.
There can be terrific grief and pain at the loss of a loved one. Beyond grief and pain, when you add external stresses to the equation you can have a disaster on your hands in very short order. Part of the responsibilities or duties of an executor or administrator of an estate can be to reduce the level of stress during the Rhode Island probate process. The fundamental duties of a personal representative (also known as an “executor,” if male, or an “executrix,” if female) of an estate are the same as those of a trustee–protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have all of your ducks in a row and prepare for court as best you can. Read on for some essential reminders about the Rhode Island probate process and how representatives can assist with the process.
A personal representative is required to prepare and file an inventory and a list of claims after the representative is approved by the court. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary. The claims include debts due and owing to the estate (not debts the estate owes to another party). The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate’s assets and claims. [Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.] If the inventory is filed late, the representative could be fined and removed, which would slow down the process (and raise tempers).
One thing to realize if you are a beneficiary is that the will may be “read” a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate’s administration. The representative must settle the decedent’s debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma’s house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative must also keep the administration process moving along by settling all of the decedent’s debts. He or she must give proper notices to creditors, including making publication in the appropriate newspaper and sending written notice to known secured creditors by certified mail. Also, some representatives are under the mistaken impression that all debts must be paid. He or she begins paying the decedent’s bills immediately, which is not necessarily good. Some states provide “permissive notice” to unsecured creditors and this may avoid paying some unsecured claims.
The representative must keep the beneficiaries in the loop, including providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for a formal accounting by the independent executor.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative is able to sell any property that is perishable or would deteriorate in value during the Rhode Island probate process.
As you can see, being a representative is a big, big job. Consequently, he or she can be removed if proven to have been guilty of any gross misconduct or mismanagement in the role of representative. The representative may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with many other details.
So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with Jay Bianco, an experienced probate attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines.
