When a person dies, some type of formal process is required for two main reasons. First, successors in interest need proof that they are indeed the new owners of the decedent’s property by virtue of being heirs under the state’s intestacy law or by being beneficiaries under the decedent’s valid will. Procedures to establish title are relatively simple and often do not require a full estate administration. Second, the decedent’s creditors need to be paid. In a sense, death is like going bankrupt. Estate administration assures that creditors get paid to the fullest extent possible. However, state statutes often shield a portion of the decedent’s estate from the claims of creditors to protect the decedent’s surviving spouse, minor children, and sometimes adult children who are still living at home.
An estate administration begins with the personal representative collecting all of the decedent’s probate assets. The personal representative preserves this property and manages it in a fiduciary capacity. The personal representative then pays the creditors and if property still remains, distributes it to the appropriate heirs or beneficiaries. The details of estate administration vary tremendously among the states. This Chapter reviews the basic structure of the administration process.
Neither the probate of the decedent’s will nor an administration of the decedent’s estate occurs automatically upon a person’s death. Someone must start the process. Normally, this person needs a pecuniary interest such as being an heir, beneficiary, or creditor. In some situations, however, a person without an interest may be able to request a temporary arrangement to protect the decedent’s property from being dissipated because no one is managing or safeguarding the property.
The applicant needs to determine whether the decedent died with a valid will. A careful search is needed to either (1) locate the will, or (2) conclude that the decedent is unlikely to have died testate because a reasonable search did not turn up a will. There are four basic categories of locations where the decedent’s will might be found.
The decedent may have retained the will and kept it at home or at the decedent’s office.