What is probate?
"Probate" is a legal term referring to the court-supervised process of transferring property from the deceased to the living. Wyoming usually requires probate when an estate’s assets exceed a certain dollar value. Probate disadvantages, such as its being a public proceeding with a public record, and alternatives are discussed further below and on their respective pages.
Basic Terms - Glossary
Everybody knows what a will is, but personal representatives and fiduciary duties are less commonly known. Since probate and estate planning pull from a legal lexicon all their own we have compiled the basic terms here to serve as a road-map. From "Elective Sharing" to "Tenancy by the Entirety" we hope to provide you with some insight into the probate process. Once you're familiar with these then you can explore the probate process more in-depth, including alternatives should you feel the process does not best fit your situation.
how does probate work?
Probate proceedings typically involve several features:
- Proving the will is authentic;
- Appointing someone to administer the deceased's affairs, i.e., a Personal Representative ("PR");
- inventorying the deceased's property;
- Adjudicating payment of debts and taxes;
- Identifying heirs; and
- Distributing property according to the will, and in case of no will, according to state law.
Property held in a person's sole name will generally be transferred to his or her heirs according to the Wyoming Probate Code, which can be found in Title 2 of the Wyoming Statutes; however, the estate must first satisfy the individual's final debts, expenses, and tax liabilities. Certain interests fall outside the probate process, such as jointly titled assets.
The Wyoming Probate Code is somewhat old and has not been thoroughly updated to take advantage of many of the innovations introduced by the Uniform Probate Code. Possible disadvantages of a formal probate for estates in Wyoming include:
Significant expense: In addition to filing fees, the Wyoming Probate Code provides a fee schedule that entitles PRs and attorneys to fees based on the value of the assets in the estate.
No privacy: Unless a court seals filings for good cause, probate proceedings are public records, potentially subjecting a family's private dealings to public scrutiny.
Delays and interference: The probate process can take considerably longer than simpler forms of post-death administration and can be slowed by the process of mandatory court supervision.
While the Wyoming Probate Code allows for temporary administration and allowances for the decedent's surviving spouse and minor children, trust administration is generally faster than a probate. Some people mistakenly believe that a will is sufficient to avoid probate. While a will can give testators a great deal of control over how their estate is administered and distributed after death, it does nothing to avoid probate. A Trust, however, will avoid probate. There are a few other ways to avoid probate. For example, a transfer of membership transfer testament can help a limited liability company avoid probate and a beneficiary designation on an IRA or 401k will also allow those assets to avoid probate.
What probate alternatives are there?
Trusts, a variety of property forms, e.g. Joint Tenancy, POD/TOD accounts, and other structures can be constructed to avoid formal probate. These structures are often sought out by those seeking additional privacy so as to keep family matters from the public's eye. These arrangements also provide an avenue which avoids the unnecessary procedures and expenses associated with formal probate. These arrangements are not limited to residents of Wyoming. Note, you can avoid probate via a Wyoming Trusts.
Probate is usually necessary in Wyoming to transfer assets held by a decedent in his or her sole name at death worth more than a certain value, ($200,000 at the time of writing). If a full probate is needed, the person designated as PR (or who may be appointed PR in the absence of a designation), may expect to go through the following steps:
- Filing the will with the court and notifying the named PR and readily ascertainable distributees or heirs.
- Petitioning the probate court for appointment as PR.
- Filing Petition for Probate with certified copy of death certificate and required information.
- Proving validity of will if necessary.
- Litigating items in will that are contested, if necessary.
- Filing oath of PR.
- Receiving Letters Testamentary from the court clerk.
- Mailing and publishing required notices.
- Accepting or rejecting creditor claims.
- Filing inventory and appraisal with probate court.
- Making required tax filings.
- Filing Interim Reports and Accountings if necessary.
- Filing Final Report, Accounting, and Petition for Distribution.
- Filing Petition for Final Discharge. Probate can be a difficult and complex process but is often necessary to effectively transfer title to a de¬ceased person's Wyoming property.
Probate includes a variety of mandatory deadlines, notices, reports, and requirements, which can be confusing for someone not familiar with Wyoming's patchwork quilt approach using an antiquated probate code. It may, therefore, be a good idea to consult with a qualified Wyoming attorney This brochure is for information purposes only. It does not constitute legal advice. You should not act or rely on this brochure without seeking the advice of a probate attorney.