Identifying Reasons to Reopen
Reopen if you discover an asset. This is the most common reason for reopening an estate. For example, you may discover a bank account, retirement account, bonds, or some other type of asset after the estate has been closed. If so, you can petition the court to reopen the estate. Check to see that the asset has been titled in the deceased’s name. For example, vehicles, boats, bank accounts, and investment accounts should have a title or other documentation identifying the owner. However, other assets don’t. Also look to see who the beneficiary is. Some assets, such as retirement accounts, have designated beneficiaries. If so, then the asset doesn’t need to pass through probate, so you won’t need to reopen the estate. Other assets won’t have a designated beneficiary, which means you will have to collect it for the estate.
Consider reopening an estate if you discover a new debt. Someone who lent the deceased money might appear to make a claim for payment from the estate. Be sure to check the validity of the claim, as these are often fraudulent debts. But, in some situations, you may need to reopen the estate. Analyze whether or not the claim is timely. During administration, the personal representative should have given notice to possible creditors via publication in a newspaper or by direct mailing. Creditors then had a certain amount of time to file a claim against the estate. If they file too late, they are typically barred from attempting to collect on the debt. Laws vary by state, so consult a probate attorney and find out if the estate is responsible for the debt.
Reopen the estate if all assets were not distributed. The personal representative might have closed the estate without properly distributing all assets to heirs or beneficiaries. If so, you can petition the court to reopen the estate. You should look at your copy of the will. Check to see if some gift wasn’t distributed to a beneficiary. However, things can get complicated because the will does not list every asset in the estate. You will have a very strong case to reopen the estate if the personal representative committed fraud or other wrongdoing.
Analyze whether to reopen after the discovery of a will. You may unearth a new will when going through the deceased’s belongings. Often, a court will refuse to revoke probate because a new will has been discovered. However, you should analyze the situation. The new will must be valid and enforceable. It should have been signed according to your state’s formalities. The rules differ by state, but generally at least 2 people must witness the signing of the will. The will also must have been written later than the will that was probated. If not, then it is not valid. If the estate has already been distributed, then the personal representative may need to recover gifts from the initial beneficiaries.
Check whether to reopen for a newly discovered heir. Previously unknown heirs have been known to come out of the woodwork when someone passes away. If a new heir steps forward, you’ll have to analyze whether to reopen the estate. Generally, the heir should be mentioned in the will. If not, they usually can’t inherit. Most states don’t require that a person name every heir they are intentionally disinheriting. However, spouses in community law states do not have to be mentioned in the will. If there was no will, then the heir could inherit under the state’s intestacy laws, which apply in the absence of a will. Analyze your state law. For example, in Texas, you can only reopen the estate if property was omitted from the will or not administered in probate. Look if the personal representative gave the heir notice of the probate proceedings. If not, then you may need to reopen the estate for further administration. However, if the heir did receive notice, they should have pressed their claim during the time prescribed.
Check if you need to reopen for litigation. Sometimes, an estate will bring a wrongful death lawsuit for the death of the deceased. Also, the estate might be sued for any wrongdoing committed by the deceased. In these situations, you may need to reopen the estate.
Consult with a probate attorney. If you ever have a question, you should meet with an experienced probate attorney. Every situation is different, and laws often vary by jurisdiction. Accordingly, only an attorney can analyze your specific situation and offer tailored advice. Find a probate attorney by contacting your local or state bar association and asking for a referral. Once you have the name of someone, call them up and schedule a consultation.
Filing a Petition with the Court
Check if you can file the petition. Once an estate has been closed, you’ll need submit an “Application for Petition to Reopen” with the probate court to reopen the estate. However, not anyone can file this petition. Generally, only “interested parties” can file. An interested party is generally someone with a property right or financial interest at stake, such as an heir or creditor. In some states, interested parties may need to get the personal representative’s permission to reopen the estate. Typically, the prior personal representative can also petition to reopen the estate.
Complete a petition. Your probate court might have a printed, fill-in-the-blank petition form you can fill out. Check with the probate court or look on their website. If no form is available, you’ll need to draft your own petition. Your petition should provide background facts about the dispute and explain why the estate should be reopened. Court documents like petitions must look a certain way. Search online to find sample probate petitions. Consult with an attorney if you find this difficult.
File your petition. Make several copies, including one for your records. Take the original and copies to the probate court where the estate was initially administered. Ask to file. You may also have to pay a filing fee. Call the court ahead of time
Serve notice. Depending on your court, you may need to serve a copy of the petition on all heirs who were listed in the original probate petition. You will also need to certify that you have served notice. Often, you can serve using a process server, who will fill out a certificate of service and return it to you.
Administering a Newly Reopened Estate
Distribute any newly discovered wills. If you’re named the personal representative after the estate has been reopened, then you must give all interested parties a copy of any newly discovered will. They will need to unanimously consent to the will, or the judge will hold a hearing to determine if the will is valid.
Identify the value of newly discovered assets. The personal representative is responsible for collecting and safekeeping all assets. Create an inventory of any recently discovered assets. If necessary, you may also need to have them appraised. Generally, you’ll need to file an inventory of newly discovered assets with the court or give the inventory to all interested parties.
Keep detailed records. Personal representatives must carefully account for all money and property collected and distributed. Even if the estate is small, keep accurate records. You may need to keep receipts of all expenses to share with the court or with interested parties. Remember to consult with a lawyer or accountant with questions. The judge and court staff can’t provide legal advice. Usually, you can pay your lawyer or accountant out of estate assets, which makes getting professional help feasible.
Distribute assets. In some states, you need court approval before you finally distribute assets to the beneficiaries. Remember that the estate may owe taxes, so you should hold back enough to cover them. Consult with an accountant if you have questions about taxes, because you may be held personally responsible for any unpaid amount. As the personal representative, you will also have to file the estate’s tax returns.
Close the estate in a timely manner. Consult your state’s law. In Michigan, for example, you must close a reopened estate within one year. Remember to file required reports with the court.
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