Probate In Wyoming

Will my estate have to go through probate?

Contrary to how people sometimes would like to think and act, when a person dies owning property, it does not just automatically pass on to their heirs. The first one to show up at the house with a pick-up truck isn't just allowed to take what they want. Your roommate's sound system does not become yours because you spent many hours together listening to tunes or he owes you money. Your father's classic car and his tools do not become yours simply because you remember working on it when dad said that someday they would be yours. Your grandma's house doesn't suddenly become yours because grandma's Will says she wanted you to have it after she dies. Once they are dead, your roommate, your father, and your grandma can no longer take the steps or sign the paperwork necessary to transfer ownership on to you. Something else has to be done before the property is yours. The estate has to go through a process before it is yours. The nature and extent of that process depends upon how much advance planning was done and how title to the property was held before death.

Note that Wyoming law requires that the deceased's Will be filed with the district court within ten (10) days of death or coming into possession of the Will even if there will be no estate administration. Failure to deliver the Will to the court can make the Will custodian (the person who has it in their possession) personally liable for any loss that others suffer as a result of not having the Will available to open probate.

When is probate required?

When a person dies, some assets will pass as a matter of law to certain people. These are called "non-probate" assets. For instance, if a husband and wife have a joint bank account and the husband dies, the wife gets the money in the account automatically, usually by presenting a death certificate to the bank. In reality, by virtue of it being a joint account, the money was hers before he died. All the bank does is remove his name from the account. The same is true in the case of a house whose title is held in joint tenancy or as "husband and wife." An affidavit is recorded at the courthouse and the deceased's name is removed from the title. No actual transfer occurs at that time.

Another major category of non-probate assets are life insurance or retirement accounts,where someone specific is named as the beneficiary. "Payable on death" accounts at the bank and "transfer on death" stock and mutual fund accounts at the brokerage house are also non-probate assets. In each case the assets will be distributed or transferred to the designated parties upon presentation of a valid death certificate and completion of some paperwork.

All other assets are called "probate assets." Probate assets do not pass automatically and must be disposed of under the probate system.

What are "probate assets?"

Household and personal items, bank accounts, stocks, automobiles, real estate -- generally anything that is solely in the deceased's name and does not have a survivorship title or payable on death designation are called "probate assets" and must go through some sort of probate process to pass ownership on to the heirs.

If an estate has "probate assets," what must be done to pass those assets on to heirs?

After all the "non-probate assets" are identified, the remaining "probate assets" are generally administered in one of three ways:

1. Affidavit: If the amount of probate assets in an estate are less than $200,000, they can often be transferred to the heirs by filing out an affidavit. The person holding the assets then releases the assets to the heirs without further action. Affidavit distributions generally do not dispose of any claims that creditors might have against the deceased or the estate.

With the help of an attorney and a little advance planning, it may be possible to avoid court involvement by structuring your estate so that it contains less than $200,000 in probate assets.

2. Summarily: If a person dies with a probate estate under $200,000 which contains real estate, a court order is required to transfer title. This is done by filing an application for summary distribution with the court, publicizing notice in the newspaper and after opportunity for people to object, having the court sign an order distributing the property. The order acts like a deed when it is filed with the county clerk. The summary estate administration can take as little as two months and usually requires the services of an attorney to make sure it is done correctly. As is the case with distribution by affidavit, creditors' claims remain intact in a summary distribution.

If there is a Will that names someone to inherit other than the heirs defined under Wyoming Statute, for example, if one or more of the children are disinherited, it may still need to go through an additional probate process of publication in the newspaper to prove that it indeed sets out the deceased's final wishes.

3. Supervised: A formal supervised administration is needed for all probate estates over $200,000. In this process the court appoints a personal representative to administer the estate, notice is published in the newspaper and anyone owed money by the estate has three months to file a claim. Failure to file a proper claim during the allotted time means that the creditor will not get paid. If necessary to pay the bills or divide the estate, the personal representative can sell assets with the court's permission. After the debts are paid, the personal representative files a report with the court and, if approved, can distribute the estate. Most estate requiring formal probate can be administered in nine months to a year.

Even when the estate is under $200,000, it is common to do a formal supervised probate to take advantage of having a personal representative appointed by the court or to cut off creditor claims.

Who's in charge of administering an estate?

The person appointed by the court to administer the estate is call the "personal representative." This is because he/she represents the person of the decedent. A will almost always names a personal representative. Even so, that person is not recognized as the personal representative and has no authority until appointed by the court. It is against the law to act as a personal representative before the court issues its order of appointment. If a person doesn't have a Will with these instructions, an heir or interested party can petition the court to appoint them to be personal representative.

The personal representative:

  • locates and obtains an independent third-party valuation of all the assets;
  • gives notice to creditors, sells property, pays the just debts;
  • reports to the court; and
  • distributes the balance of the estate to those entitled to receive it.

A Word About Fees

An attorney's help will usually be needed. The amount of help will depend on the complexity of the estate. Costs depend upon the size of the estate and are generally fixed by statute. The jobt of the attorney is to keep the personal representative on track, prepare and file court documents, and prepare transfer documents. For estates under $200,000 the attorney will normally bill for his services at an hourly rate. The allowable rate for larger estates is fixed by statute. Sometimes people will try to handle the estate on their own, without the assistance of an attorney. They may even do nothing, thinking that the Will is all that is needed to transfer the estate. This usually ends up costing them more in both time and money than if they hired an attorney in the first place.