A Rhode Island last will and testament is a document that records a person’s preferences for the distribution of their assets after death. A will allows an individual, the “testator,” to specify who should receive their real estate, money, and personal items, as well as who will be responsible for settling their estate with the probate court. Additionally, a will can nominate guardians for children and provide pet care instructions.
Anyone who is mentally sane and 18 years of age or older may create a last will and testament.
Holographic Wills – Holographic wills are only valid if made by someone actively serving in the military or a mariner/sailor at sea.
Revocation – A will is revoked when the testator destroys the original will, creates a new will, or writes a statement communicating the will’s revocation. Unless the will indicates otherwise, a marriage revokes a will in its entirety, while a divorce revokes only the provisions of a will that benefit the former spouse.
Signing Requirements – The testator must sign or acknowledge their signature in front of two or more witnesses, and each witness must sign in the testator’s presence.
Probate Process in Rhode Island (10 Steps)
Settling a deceased person’s estate is accomplished through a court-supervised process known as “probate.” Although there is no fixed time frame for probate in Rhode Island, individuals can expect the process to take six months to a year, with more complex estates lasting much longer.
- Locate and File Will
- Publish Advertisement
- Notify Beneficiaries
- Obtain Letters Testamentary
- Notify Creditors
- File Inventory of Assets
- Submit Tax Returns
- Pay Debts
- File Affidavit of Real Property
- Settle the Estate
Small estates can be settled without probate by filing a Petition for Voluntary Informal Administrator, also known as a small estate affidavit. In Rhode Island, a “small estate” consists entirely of personal property and is worth no more than $15,000 (not counting tangible personal property).
Whoever has custody of the decedent’s will is legally obligated to deliver it to the probate court or the executor appointed in the will within 30 days after learning of the decedent’s death. If presented to the executor, they must provide it to the court within 30 days of receiving it. In addition to the will, probate applicants are required to provide the following to the court:
- Petition for Probate of Will (PC-1.5) – Must identify the heirs, beneficiaries, and the chosen executor.
- Death certificate
- Filing fee – Charges vary depending on the county and circumstances related to the estate.
- Proof of the will’s validity – This can be an oral testimony or written affidavit by a subscribing witness.
After receiving the probate documents, the court will schedule a hearing to confirm the will’s validity and appoint an executor. Unless all of the decedent’s beneficiaries sign a Waiver – Section A (PC-9.1), the petitioner must give notice of the hearing by publishing an advertisement in a newspaper that circulates in the county where the estate is being administered.
The advertisement must be published once per week for at least two weeks, with the first publication occurring no sooner than 14 days before the hearing date. After publication, the petitioner must provide the court with proof of publication by filing an Advertising – Section B (PC-9.1) with an attached copy of the newspaper clipping.
In addition to publishing an advertisement, the petitioner must mail a hearing notice to each party named in the Petition. The notice must be sent at least ten days before the hearing date, or three weeks before the hearing if the recipient lives in another country.
The petitioner must then provide the court with a copy of each notice and an affidavit confirming the delivery information.
Following the probate hearing, the court will issue Letters Testamentary. This document establishes the executor’s appointment and officially grants them authority to handle the estate. If the executor accepts the position, they’ll need to fill out an Acceptance (PC-3.4) and file it with the probate court.
After the executor receives authority to administer the estate, a probate clerk will announce the appointment through a published notice.
Executors must deliver a Notice of Commencement of Probate (PC-9.9) to the decedent’s known creditors and, if the decedent was 55 or older, to the Executive Office of Health and Human Services. The Notice must be sent by first-class mail within a “reasonable period of time” after the executor qualifies to administer the estate.
After mailing the Notice, an Affidavit of Notice to Creditors (PC-10.14) must be filed with the probate court.
Creditors must present their claims within six months after the probate clerk first published notice of the executor’s appointment.
Within 90 days of their appointment, the executor must file an inventory that describes and appraises the decedent’s personal property, including any money owed to the estate by debtors. The executor can conduct their own appraisals, but if an interested party requests otherwise, the court will appoint professional appraisers to perform the valuations.
Every executor is responsible for filing and paying the decedent’s taxes. This involves submitting federal and state personal income tax returns. In some cases, fiduciary income tax and estate tax returns may also be required.
Outstanding debts and administration costs must be paid with funds from the estate. Some of the decedent’s property may need to be liquidated during this process; personal property must be sold first, followed by the decedent’s real estate. When there aren’t enough assets to pay each creditor, the executor must issue payments in the order of preference defined by state law.
Assets may be sold at a public auction so long as reasonable notice of the sale is provided to the beneficiaries. Private sales are also allowed, but the executor must first ask for the court’s permission by filing a Sale of Personal Estate (PC-4.1). Also, before selling the decedent’s real estate, the court must approve a Petition for the Sale or Mortgage of Real Estate (PC-4.2).
An Affidavit of Real Property (PC-10.13) must be filed with the court to indicate whether the decedent owned real estate and whether the property was sold during probate or set aside for the beneficiaries.
If the beneficiaries will receive real estate, the executor must also file a Certificate of Devise or Descent (PC-10.6) with the probate court and each land records office where the property is located.
When the estate is ready for settlement, the executor will need to prepare and file an Account (PC-7.1) that details the present value of the estate, together with any payments, expenses, losses, or distributions that have occurred.
Then, the executor must complete an Order of Distribution (PC-10.3), which requests the court’s permission to distribute the estate. The Order of Distribution must be filed within two years after the first publication by the probate clerk. After the probate judge signs the Order, the executor can settle the estate by distributing assets to the beneficiaries.
Note: Filing an Account is not required if the executor is the sole beneficiary. In this case, the executor need only file an Affidavit – Complete Administration (PC-7.3).