A person who dies leaving behind a will is known as a testator. Typically, the testator, in the will, has named someone to serve as the executor of the person’s estate. An estate includes assets (real and personal property) as well as debts (monies owed to creditors, taxing authorities, and others). An executor’s job is to manage the assets and debts of the estate. A key role of this management is the executor’s representing the estate in the probate process.
In the process of probate, a will is reviewed by a court to determine whether it is valid. The probate process has a number of other steps as well. These include filing of a petition for probate, payment of estate taxes (if any), as well as an inventorying of the property of the testator.
What Property Must be Included in an Inventory?
All property that belonged to the testator must be included in an inventorying (listing) of their belongings. Property that must be inventoried includes:
- Real property (houses and land, regardless of whether the land has been developed).
- Personal property,which includes property that is not land, such as jewelry and computers). Personal property may be tangible (something that one can touch, such as a car, or a lamp, or painting). Person property may also be intangible. Intangible personal property cannot be physically touched. Intangible property consists of assets, such as the money in a 401(k) and certain securities. Intangible property may consist of rights, such as a right to lease property, or to drill for oil.
For the probate process to properly function, a court must know what items are available for distribution to beneficiaries of the will. Therefore, the executor must provide the court with an accurate and complete inventory. This requires that the executor make a diligent and sincere effort to locate all real and personal property that belonged to the person who is now deceased.
How is the Property Inventoried?
Property is inventoried by the executor. Inventorying includes classifying the property as real or personal. Inventorying the property also requires determination of the value of the property items. When actual cash is being inventoried, the value is the “face value.” Property such as family heirlooms, real estate, and rare coins, has value that may change or fluctuate over time.
The value of such items for purposes of inventorying is known as the fair market value. The fair market value is what a reasonable buyer would pay a reasonable seller in the current market. Valuation of certain items, such as antiques or rare art, may be difficult. In such instances, the executor may hire a professional appraiser. An appraiser has expertise in valuing certain items.
How Are Disputes Over the Inventorying Resolved?
If the will is determined to be valid, the named beneficiaries will receive the property (bequest, or distribution) left to them in the will. The inventorying process must be completed before distributions are made. Not infrequently, disputes over inventorying arise between relatives or beneficiaries.
In some instances, disputes arise as the result of simple errors made by the executor. Executors are not professional inventory-takers by trade. Sometimes, they may make an error in the inventorying, either in the description, classification, or valuation of property.
In other instances, the error is not an accident, but is instead the product of fraud. Fraudulent inventorying occurs when an executor or appraiser deliberately over-values or under-values an item of property. An executor or appraiser may commit fraud if they have a financial interest in the property, or in ensuring a particular beneficiary receives (or does not receive) the property.
If a dispute is not resolved informally, a person with an interest in the estate may request court intervention. When probating a will, courts are guided by what is known as the “intent of the testator” standard. This means that when disputes arise as to the meaning, amount, or other characteristics of property, courts will look at what the testator intended. “What the testator intended” means whom the testator intended to benefit.
A testator’s statement about one or more aspects of their estate may be admissible in court as evidence of that intent. Individuals who knew the testator well, or who were generally familiar with the testator, may be privy to that intent. Such persons, if otherwise trustworthy, are suitable inventory-takers.
Do I Need the Help of a Lawyer With Probate Estate Inventorying Issues?
The process of probating a will is a significant undertaking. Inventorying, all by itself, can be a complicated and time-consuming task. If you have an inventory question, issue, or dispute, you should contact a probate lawyer for assistance.
A probate lawyer has expertise in reviewing wills and trusts. An experienced probate lawyer near you can advise you as to your question or dispute, and can assist you with ensuring estate property is accurately and properly distributed.
