The Basics of Probate

Probate Options

Alaska's probate procedure is quite flexible. The court can be involved at every step of the way, but nothing requires this level of involvement. Basically, the court usually gets involved only to the extent an interested person requests involvement.

There is no one way to take an estate from start to finish. But in general, the main options are:

1. doing nothing;
2. using collection affidavits for property without court involvement;
3. informal probate; and
4. formal probate.

Doing Nothing

If there is no Will, heirs of the deceased take on his death, so long as they survive by 120 hours. But they take "subject to ad­ministration," which means subject to a probate case being filed with the court. If an “interested person” (i.e. someone with a legal interest in the estate) comes forward within three years of death and becomes the personal representative of the estate, the personal representative will have the ability to control the property.  As a result, heirs who decide to do nothing will not have clear title during the three year period following death. By contrast, appointment of a personal representative allows heirs to be­come "distributees" within the three year period.

Collection by Affidavit

The second option is available for relatively small estates which contain no real property (i.e. a home or land). If the estate only includes personal property (e.g. bank accounts, household items, insurance payable to the estate, motor vehicles, boats) valued at less than $50,000 (plus $100,000 in motor vehicles), and an heir or devisee is willing to wait 30 days after death, he is authorized to collect the property by presenting an affidavit to the person holding the property. There is no court involvement.

When determining whether an estate is small enough to use the collection affidavit, the value of village and regional corporation stock issued pursuant to the Alaska Native Claims Settlement Act is not considered in calculating the personal property limitation. Neither is restricted Native property such as Native allotments and town site lots.

The Affidavit for Collection of Personal Property of Decedent, (P-110) form can be found here:

http://www.courtrecords.alaska.gov/webdocs/forms/p-110.pdf

Informal Probate

A third option for probate is called informal probate. Informal probate involves an application to the court attaching the Will (if there is one), a review by the clerk to assure compliance with the law, and the issuance of an order appointing a personal representative for the estate. This order is called either Letters of Administration (if there is no Will) or Letters Testamentary (if there is a Will).

Informal probate is available as soon as 120 hours after death. Generally, no hearing is required and no notice is required unless a specific request has been made. However, notice (Notice to Heirs) must be issued to all “interested persons” within 30 days of the order appointing a personal representative for the estate.

The advantage to informal probate is that once appointed, a personal representative can transfer clear title to beneficiaries of the estate. A beneficiary would then be able to sell the property. Ap­pointment of a personal representative also triggers shorter limita­tion periods for creditors.

Formal Probate

If an informal application is denied, a formal proceeding may be filed immediately. In contrast to informal procedures,formal probate involves pre-notification to interested parties, is presented to a judge or magistrate, and usually requires a hearing.

Formal procedures are typically used for complicated estates or where there is a dispute between interested parties. For example, a formal proceeding may permit interested parties to establish conclusively that a particular document is the decedent's Will or that the deceased left no valid Will.  The in­creased burden of formal probate has its benefits. While informal probate is challengeable any time within the first three years after death, formal probate is usually final one year after a final order is issued. Choosing a more formal alternative leads to more court control, but also gives increased finality.

Formal Probate - Supervised Administration

Supervised Administrationis a form of formal probate. This is a proceeding where the court is involved at each stage. The court decides whether the decedent left a Will or not, and if necessary, interprets the Will. Distributions of property from the estate are not permitted without a court order. The estate must be closed with a court order that reviews the personal representative’s actions and approves the final settlement.

For more detailed information regarding formal probate, check out the separate Classroom on this topic.