For informational purposes only. Always consult an attorney to obtain competent legal advice.

 
The Probate Process

 

 When I Die, Who Gets My Assets?

 

Automatic Transfer of Assets Upon Death:

  • In general, any assets standing in your name upon your death that have either at least one co-owner or surviving named direct beneficiary for that asset will transfer automatically to the co-owner(s) or direct beneficiary(s) upon your death, whether or not a probate estate is opened. In fact, your probate estate will not include these assets as they automatically become owned by other(s) upon your death.

  • No provision in your Will alters this automatic transfer upon death of assets that had either a co-owner or a named direct beneficiary. (Note: the "beneficiary" referred to here is a beneficiary of the particular asset, such as a bank account, life insurance policy or IRA. This type of beneficiary is different from a beneficiary named in your Last Will and Testament.) 

  • Therefore, if you die leaving a Will that has a provision that gives 50% of your IRA to a long-time friend, forgetting that you had years ago named another person as direct beneficiary of the same IRA, the Will provision generally has no force and effect and your long-time friend takes nothing -- the direct beneficiary named in your IRA automatically becomes owner of the entire IRA upon your death.

  • Always know which of your assets will go to direct beneficiaries or co-owners, and which will become part of your probate estate and pass under your Will. There is no substitution for a thorough estate plan.

 

Exception for Accounts Held "For Convenience Only":

  • One exception to the rule that a co-owner automatically owns the funds in a bank account is when you have the name of another person, such as a child, on one or more bank accounts solely for your convenience -- so that the child can do your banking for you. In such a case, those assets should not transfer to the other named person upon your death. 

  • Be careful to make your intentions very clear with a bank or other financial institution when adding the name of another person to a financial account "for convenience only". It must be clear that the account is not a typical "transfer on death" (or "TOD") account. Any such confusion can lead to a serious family dispute, hard feelings and possibly legal proceedings after your death.

What Happens with my Will when I Die?

  • Assuming your Will is found after your death, the document has absolutely no legal force and effect until it is presented to the probate court in the city or town in which you resided at death and then "admitted" by the probate court judge.

  • The validity of a purported Will can be challenged, for example, by claiming the signature is a forgery or was coerced, or that the Will was revoked by the signing of a more recent Will.

  • Wills prepared by attorneys are less susceptible to challenge.

What Happens to my Assets when I Die?​​

  • Generally, any of your financial assets will be transferred to any named co-owner(s) or named beneficiary(s); and any real estate transfers automatically to any joint tenant(s).

  • Generally, any other assets belonging to you upon your death become part of your probate estate. Only the legal representative of your probate estate has the legal authority to collect these assets after he or she has been appointed by the probate court. 

Probate Assets Distributed to Beneficiaries or Heirs-At-Law: 

  • Assets belonging to you that were not transferred automatically to a co-owner or beneficiary upon your death will typically become assets of your probate estate to be distributed to the beneficiaries named in your Will. 

  • If you didn't leave a Will, or if no Will is found, then your probate assets will be distributed to your "heirs-at-law", which include your surviving spouse and/or children, or nearest blood relatives if you did not leave a spouse and/or children.

  • In the very rare event no Will and no blood relatives of yours are found, your property could be transferred to the General Treasurer of the State of Rhode Island. Ordinarily, distant relatives will be found, even if it takes the efforts of genealogist or other person trained in locating heirs to find them.

 

Can a Person be named as a Beneficiary in a Will, but still not get anything from the Probate Estate?

  • Unfortunately, the answer is “yes”, and this happens all the time. People often name beneficiaries in their Will to receive assets that will not be available when they die. If so, the “bequest” to that beneficiary is “unfunded.”

  • For example, if a decedent left a Will that leaves $10,000 to a deserving caretaker, friend, or family member, but virtually all of the assets of the decedent were in a single investment account that named someone else as the direct beneficiary on the account, then the assets go directly to the named account beneficiary and do not become assets of the probate estate to be distributed to the beneficiary named in the Will.

  • Careful estate planning is necessary to ensure that a person’s assets are distributed in the manner intended by the decedent. Unfortunately, many people assume their affairs are in order and then will not be around to see the unintended consequences of improper estate planning.

 
 

Steps in the Probate Process

 

Probate Assets Get Distributed After All Debts Are Paid: 

  • As stated above, only those assets of yours that were not transferred to co-owners or beneficiaries named in any of your accounts will become assets of your probate estate. These assets will become part of your probate estate that will be opened

  • probate estate is opened in your name in the probate court for the city or town that you resided in at death. (In Massachusetts, probate courts are county-based and are state courts, not municipal courts as in Rhode Island.)

  • During the probate process, all of your just debts are paid and the remaining or net probate assets are distributed to the beneficiaries named in your Will, or to your heirs-at-law if no Will is found.

 

Time for Distribution of Net Probate Assets:

  • Generally, the distribution to beneficiaries or heirs-at-law will not take place until at least six months have passed from the time that notice was given of the appointment of the executor or administrator of your probate estate. However, it may take much longer for your estate to be "administered". 

  • The six-month period is the "claims" period, or time that any person or entity that had a claim against you at the time of your death may file notice of the claim in your probate estate. The executor or administrator will then either allow or deny the claim.

  • In Massachusetts, the "claims" period is nine months.

 

Probate Estate Representative Appointed: 

  • When a probate estate is opened, the first order of business for the probate court is to admit any Will and appoint the legal representative of the estate. This person has the power and fiduciary duty to collect all assets, preserve the estate, find and pay all debts of the deceased, make all appropriate filings with the probate court, and then close the estate and distribute the net probate assets to either the beneficiaries or the heirs-at-law.

  • The representative of the estate will usually be the person named as "Executor" in the Will; or if no Will is found an "Administrator" is appointed by the probate court. In any event, an attorney will almost always be involved to perform the legal steps necessary in the administration of a probate estate.

 

We Can't Find the Will!

"I Know Mom Left Me the House, But We Can't Find the Will".

  • No Will, No House is the usual rule when this happens. Mom may have left you the house in her Will, but if her Will can't be found it is unlikely that your mother's wishes will be carried out. (You may still receive all or a portion of the house if you are an "heir-at-law"). Lawsuits between family members are common in these cases, and expensive.

  • A Will can easily "disappear", and many of them do for a variety of reasons. The Will may have been put somewhere for safekeeping and couldn't be found, or inadvertently discarded. Or whoever found it first may have decided that he or she didn't like the Will and made sure that it was never found.

  • The easiest way to ensure that your Will will be found after your death is to leave the original with your attorney. Even leaving the Will in a safety deposit box at a bank may not prevent someone from removing and destroying the Will. Leaving a copy of the signed Will with a trusted person is an added guaranty. A copy of a Will is ordinarily not signed and not admitted to probate.

 

Probate Definitions

  • The person who dies, for whom a probate estate is opened, is called the “decedent”. A decedent who leaves a “Last Will & Testament”, or Will, is also called the “Testator” and is said to have died “testate”. A decedent who dies without a Will is said to have died “intestate”

  • A "probate estate" is opened by the filing of a petition in the probate court of the town or city where the decedent resided at death. Legal notice must be provided to those persons designated by law who have any interest in the probate estate.

  • In the case where a decedent leaves a Will and names a person to serve as "Executor", the petition will request that the Will be “admitted” to probate and that the person named as Executor be appointed (unless the named executor declines the appointment or is deemed by the court to be unsuitable).

  • In the case where no Will found, an "Administration Petition" is filed instead, which requests that a person named in the petition be appointed as the estate "Administrator". Sometimes the probate court judge will name more than one person to serve as co-executors or co-administrators. Executors and Administrators serve similar functions, which is to administer the probate estate of the decedent.

  • Any probate assets left over after paying all debts of the probate estate ordinarily get distributed to the "beneficiaries" named in the Will. If the decedent dies without leaving a Will, any remaining assets will pass instead to the decedent’s "heirs-at-law", which include any spouse and children or other blood relatives of the decedent. 

 

FAQs About Probate Court

  • There are 39 different probate courts in Rhode Island, one for every city and town. Probate courts are municipal courts in Rhode Island, not state courts.

  • Probate court judges are part-time positions filled by practicing attorneys.

  •  Probate court judges must approve all petitions, fees, expenses, accountings, etc. No probate estate can be closed or assets distributed without the approval of the probate court judge.

  • Any beneficiary named in a Will or heir-at-law of the decedent is a person with "standing" who may contest or be heard on any matter that is before the probate court.

  • An appeal to any Order of a probate court is made in the Superior Court for the county in which the city or town of the probate court is located. There are four Superior Courts in Rhode Island: Providence/Bristol County, Kent County, Washington County, and Newport County. 

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