Through its probate courts (sometimes called surrogate courts) each state governs the distribution of a decedent’s property or estate in accordance with its own laws regarding wills, trusts and estates. If there is a will, the executor named by the decedent will file an application with the probate court. The probate court will then distribute the property to all claimants, after paying taxes and creditors. The executor appointed by the court actually does this and has a considerable amount of authority and discretion.

Any claims you may have on the estate should be made to the executor or directly to the court. If you have grounds for believing a will is fraudulent or the executor is abusing his or her authority, you can petition the court for redress. You can also file a "demand for prior notice" of any action the executor might take, such as selling property.

The executor should be aware of all types of property that could exist in the decedent’s estate including the following:

1. Ownership of a house by a married couple, which under joint tenancy with right of survivorship is transferred at the time of death to the surviving spouse.
2. Qualified retirement plan benefits or life insurance. proceeds, which will go directly to the named beneficiary.
3. Bank accounts, which go directly to the "in trust for" person.
4. Gifts that were made by the decedent prior to death which may not be documented in any of their trust and estate information.

Another kind of property the executor may not be aware of is property transferred to the decedent’s heirs by what is called a living trust. In a trust document, the grantor gives the control of property to a trustee. If the grantor dies, the trustee distributes the property. The trustee's authority comes, not from a court order, but from the death certificate of the grantor and the trust document.

When trying to find government information about wills, you should know that law governing the decedent's property when there is no will or trust is called intestate law. State legislatures decide how much an intestate decedent's relatives should inherit. Children and spouses disinherited by a will, however, may still be entitled to part of the estate under state law, according to various government resources on wills, or trust and estate resources.

Action Steps
The best contacts and resources to help you get it done

Be familiar with trust and estates law in the decedent's state

The amount of information about government wills is considerable and varies greatly from state to state. The Uniform Probate Code was written by the American Bar Association using government information on trusts and estates, and nationwide trust and estates law. It is not as successful as the Uniform Commercial Code, however, and has been adopted (with modifications) by only sixteen states.

I recommend: The University Of Pennsylvania Law School's version of the Uniform Probate Code includes their comments. FindLaw has a complete list of all the state statutes with links to the actual information on wills and trusts and trust and estate information.

Obtain legal assistance from trust and estate attorneys

The laws concerning trusts and estates are constantly changing and there is a considerable amount of government information on wills available. Excellent resources for new developments and the latest information are trust and estate lawyers.

I recommend: Lawyers.com has a list of over 2000 trust and estate attorneys under the category "Estate Litigation." Nolo categorizes its trust and estate lawyers under "Wills, Trusts & Estates."

Call your local bar association for help with government research on wills

Local bar associations can generally give you information about the location of public access law libraries, which contain a great deal of government information on trusts and estates.

I recommend: The American Bar Association (ABA) can provide you with the address and telephone numbers of the bar associations in your area. Bar associations frequently have referral services with reduced or set fees for consultation with trust and estate lawyers. Law libraries open to the public might even have online access available to trust and estates law through WestLaw and LexisNexis. These services publish judicial opinions which you can be search for trust and estate information.

Tips & Tactics

Helpful advice for making the most of this Guide

• •  Anna Nicole Smith sued her stepson and his attorney in Texas Probate Court for unlawful acts that caused her to be disinherited by her elderly husband. Facing a $500,000 judgment for sexually harassing her former housekeeper, Anna filed for bankruptcy in California. The stepson intervened in California, making Anna's accusations against him a federal case. Anna lost the probate action, but won $88,000,000 in bankruptcy court. Overturning a US Court of Appeals ruling, the Supreme Court of the United States ruled that the US District Court had jurisdiction and the judgment stands.
• •  The Connecticut Probate Court ordered the executor of Isaac Stern's estate to pay the heirs $550,000. The court criticized the executor for the fees he paid to himself and for incurring unnecessary expenses, while claiming the estate was insolvent. The court also criticized the executor for approving the transfer of the $3,700,000 Manhattan apartment to his wife of five years a few weeks before his death.
• •  A Texas Probate Court jury ruled that Texas A&M Foundation had to return a $1,100,000 bequest by C. E. Olsen to his family because of undue influence from the university. There was testimony that Mr. Olsen, 92 at the time he signed the will, lacked the mental capacity to make such a decision. Also, the memorandum part of the $794 check Mr. Olsen gave his attorney for writing the will said, 'mowing grass.'