What is Probate?
by: Micronesian Legal Services Corporation
What is Probate?
Probate is the court-supervised legal process that determines heirs and distributes property of a person who has died. The Court probates an estate, not a particular asset owned by the deceased person. In the probate process, all assets must be included, all debts must be listed, all heirs must be notified.
There are two basic types of probate: one is called testate and means the person who died left a written will. The other is called intestate and means that the person died without leaving a will. In the CNMI, Chamorro custom of partida and testamento are also honored. And if the decedent had very little property, there is also a probate process for transfers of limited estates. This is faster, easier and less costly than the usual probate.
In each type of probate, the Court appoints someone to manage the estate, either an executor in testate proceedings, or an administrator in intestate proceedings. An advantage of probate is that the probate court supervises the entire proceeding, and the probate laws are followed. This is especially helpful if there are claims of creditors, challenges to the Will, or disputes that arise from the Will or about heirship. However, the probate process can be time-consuming and costly. And occasionally, the Court's supervision is inadequate to protect all of the estate assets.
Why is a will important?
The CNMI law provides a basic distribution plan for every person who lives and dies in the Commonwealth. However, some people don't like what the law says will happen. A will is the written instruction made before death by the owner about how to distribute assets. It helps identify what assets may exist. It helps clarify who may be creditors. It allows people the opportunity to make special arrangements for their property so that their wishes are fulfilled after their death.
There are legal requirements for making a valid will. In the CNMI, the will must be in writing. It must be signed by the person making the will (testator) at a time that the person knows and understands what the document means. The testator must sign in front of witnesses, who also sign the will.
What happens at court?
Any relative, creditor or other interested person can file the first papers in court to start the process of probate of a deceased person's estate. The Clerk of Courts will, upon request, check the Court's records to see if a will was filed. The Court will set a date for hearing. If there is a will, the pleadings need to attach a copy of it and request that an Executor be named to manage the probate. If there is no will, the pleading asks the Court to appoint an administrator.
The person who files to start a probate proceeding gives notice to all potential heirs—that is anybody who might claim to be entitled to share in the estate. They also must publish notice in the newspaper to heirs and creditors and give notice of the first hearing in court.
At the hearing, the Court appoints an executor or administrator. Usually, the person who made the will (testator) states in the will who he wants to be the executor and the Court follows that request. If the executor will be a woman, the court calls the person executrix. If there is no will, the Court will appoint an administrator to manage the probate. The only requirements (qualifications) to be an executor or administrator is that the person be a resident of the CNMI and be able to carry out the duties.
Family members come to the hearing. They may object and say they prefer someone else than who filed the papers in court. Those objections usually will be overruled if the person who filed the probate is qualified to serve and still wants to do so.
Everybody who shows up to court for the first hearing is entitled to notice of all matters in the case from then on. Another way to make sure to get notice is to file an entry of appearance and request notice of all matters.
The executor or administrator will file an inventory of the estate, listing all assets and obligations. There may be hearings at which the will is "proved" and objectors can offer evidence against the validity or effect of the will. In intestate cases, there may be a hearing for determination of heirs.
Then the executor or administrator will file a petition for distribution. This could be for the whole estate to be divided up at once, or could be for part of it to be distributed and the rest saved for later, especially if there are matters like leases or expected land compensation still outstanding. As part of the distribution, the executor or administrator can also ask to partition land, that is, to divide it into separate pieces so each heir has his or her own identified piece. Most petitions for distribution will also include payment of attorney fees. CNMI law prohibits a fee calculated as a percentage of the estate, and only allows reasonable fees.
Once everything is finished, the Court discharges the executor or administrator and closes the probate.
If there is very little property of small value, you may be able to use the transfer of limited estate proceedings instead of the full-blown probate. These proceedings usually require only a petition and whatever notice the court requires. There is only one hearing and the order transferring the assets is issued promptly.
How can a person avoid Probate?
You may want to save your family the expense, delay and trouble of probate. There are some things you can do before you die that help. One option may be to create a trust or a living trust. You need legal advice from a qualified attorney to do this.
Life insurance, pension plans, and retirement accounts are paid directly to a named beneficiary and do not require probate.
You may deed real property in advance and reserve only a life estate, so that when you die, your land is already owned by the person you want to receive it. Another option may be to place your real property, or bank accounts or vehicles or other similar property, into joint ownership with rights of survivorship. Then the ownership passes automatically to the survivor and is not subject to the Will or probate proceedings.
The information provided above is general and may not be applicable under all circumstances. The Micronesian Legal Services Corporation does not intend that anything stated here provides specific legal advice or establishes any kind of professional attorney/client relationship with the reader. If you have questions about your own situation, consult an attorney.
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