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Do I have to file probate? Can I just get letters of testamentary?
Anonymous6 views5 answers
My father died recently. My mother passed away four years ago. I am the only child. My father's will leaves me everything. He has two vehicles that are paid off. He has a house that has a mortgage of about 79,000. Property assessment is about 90,000 due to housing slump. He has about 3,000 in checking that I am on due to the guardianship over person and estate that I had. I'd like to sell/lease the house instead of letting it go back to the bank, but I don't know what taxes/fees would be associated (would it be worth it). Please advise if I have to file probate, if I can just get letters of testamentary, if selling/leasing would be good or bad, or what I should do/consider. Thank you.
I would recommend that you let your guardianship attorney assist you with the probate procedures and advise you further.
You can't replace the relationship with an attorney(through this forum) through this tough time in your life and the importance of doing everything correctly.
Saying you need to open probate and obtain letters testamentary are one in the same (although some states have small estate procedures, etc.). When you take the will to be "probated" you are opening probate (sometimes called raising the estate) and if you are appointed as Executor the register/surrogate issues a document called Letters Testamentary (or short certificates). Your decision to sell or rent the home is really a one that has to be considered by someone with all the facts. If the house passes to you under the will or state law you need to put the house in your name so that you can rent it out.
You have too many different issues and not enough facts to be able to answer all your questions. I believe you need to meet with a probate lawyer and look at the different options available to you. There is not a lot of money in this estate, from the looks of things, and you will need to figure out how you can maintain the house from where you are at.
James Frederick
I think all of the other attorneys here have identified the need for you to discuss this with a probate attorney. However, as an Indiana attorney, I wanted to take a moment to give you specific details of the law in the state of Indiana. If the net value of the house (assessed value minus the mortgage), the fair market value of the two vehicles, and the checking account total less than $50,000, then you do not have to open an estate. Indiana has small estate procedures that allow for your to administer your father's estate without going to court. However, such procedures require documents best drafted by an attorney. Additionally, an attorney can properly advise you on the issues you may not realize you have. Lastly, it has been my experience that the big bank mortgagees (for example Chase, PNC, and Bank of America) tend to refuse to negotiate with beneficiaries who try to administer estates through small estate procedures, regardless of those procedures legality. Most attorney these days will take a case such as yours on an hourly or flat fee basis. Most probate attorneys do not operate under the old maxim of charging a percentage of the estate.
