An important part of being a responsible property owner is estate planning and deciding one’s intentions in the event of death. When a person dies, applicable assets become part of the estate and are subject to administration in probate. Probate is the legal process of collecting a decedent’s assets, settling the decedent’s debts, and distributing the remaining property to heirs and devisees entitled to receive them. Probate procedures are codified under Title 33 of the Rhode Island General Laws.
The extent to which the decedent’s property is subject to probate administration depends on the way the decedent vested assets during his lifetime, and the size of the overall estate. Generally, property that is jointly owned or is held with a beneficiary designation is not subject to probate (exception: real property vested as a tenancy in common).
The law requires the custodian of a decedent’s will to deliver the will to the appropriate court for probate. The court with jurisdiction is the probate court of the town or city in which the decedent was domiciled at the time of death. The decedent’s will typically identifies a personal representative of the estate. A personal representative (PR) is the court-appointed fiduciary who is entrusted to administer the estate. This person is referred to as an executor, if named in a will; if the decedent dies without a will (intestate) or the named executor is unwilling or unable to serve, the court-appointed PR is referred to as an administrator.
Petition of the court is required to initiate probate proceedings. The contents for a petition for probate of a will or grant of administration are established at RIGL 32-22-2. If the petitioner is not the executor named in the decedent’s will, the court will issue a notice of probate to the executor (RIGL 33-7-9). Once the will is probated, the court will issue letters testamentary to the executor (RIGL 33-8-1). If the executor refuses the appointment or fails to qualify 30 days after probate of the will or within 30 days of the notice under RIGL 33-7-9, administration will be granted to a person with priority, as established at RIGL 33-8-8.
Administration of an estate includes, but is not limited to, marshalling the decedent’s assets and taking inventory of the estate, determining heirs and next of kin, paying taxes, and paying creditors. The PR may need to sell property to pay expenses of administration or to generate funds to pay creditors.
In Rhode Island, the probate court must authorize sales of realty from the estate (RIGL 33-19-3). The PR files a petition for the sale of real estate, which must include the reason for the sale. Valid reasons for petitioning for the sale of real property under RIGL 33-12-6 include enabling the payment of debts or facilitating efficient administration of the estate. This authority excludes sales of real property that is specifically devised by the decedent’s will, unless the devisee(s) give consent to the sale. A PR with a power of sale under a will must also obtain consent to sell specifically devised real property (RIGL 33-12-6).
To convey title following the sale, the PR executes a fiduciary deed. A fiduciary is an individual charged with managing financial obligations to someone else’s advantage, and serving as that other person’s representative. In probate situations, depending on the capacity of PR, the deed is referred to as either an executor’s deed or an administrator’s deed. A personal representative’s deed contains the implied covenants that the grantor is the duly qualified and acting PR of the estate, that he or she has good right and lawful authority to convey the decedent’s interest in the subject property, and that he or she, in his or her capacity, has given bond as required by law and has complied in all respects with the court’s decree. The form of the fiduciary deed is statutory in the State of Rhode Island (RIGL 34-11-12).
Deeds in Rhode Island are required to reflect the true consideration paid by the grantee for the grantor’s interest in the realty. A real estate conveyance tax is levied in Rhode Island based on purchase price, to be paid by the grantor (RIGL 44-25-1). If no consideration is made for the transfer, the deed must include a statement to the effect that “the consideration is such that no documentary stamps are required” (RIGL 44-25-1(b)). A conveyance tax return (CVYT-1) should be submitted to the Rhode Island Division of Taxation.
Nonresident sellers of realty in Rhode Island must furnish a residency affidavit to the buyer at closing. The grantee deducts and withholds a percentage of the consideration paid to nonresident sellers (for more information on withholding of Rhode Island tax, see RIGL 44-30-71.3). Grantees may rely on the grantor’s residency only if the grantor provides a residency affidavit [1]. If the transfer is exempt from the affidavit requirement, the deed should include a statement to the effect that the grantor is a resident, and that no withholding under RIGL 44-30-71.3 is required.
The PR’s duties also include transferring title to property and distributing the estate’s remaining assets. Real property not disposed of by the decedent’s will is divided among heirs in the same manner as if the decedent had died intestate (RIGL 33-3-10). The rules of descent by intestacy are codified at chapter 33-1 of the Rhode Island General Laws. The court may submit an order of distribution once six months have passed since notice of appointment of the administrator, granted that all claims have been filed in the estate (RIGL 33-13-11). Orders of distribution are required within two years after such notice, barring additional time approved by the court (RIGL 13-33-12).
When real property is devised or distributed, the personal representative must record a certificate of descent (RIGL 33-9-29). Certificates must be recorded in the land evidence records of each town or city where the decedent’s real property is situated. The PR presents this recorded certificate to the court prior to its accepting the PR’s final account and closing the estate. Alternately, the PR may use an affidavit of real property under RIGL 33-3-14, showing either that at the date of death, the decedent owned no real property; that the real estate was sold during administration; or that a certificate of decent is recorded.
Recording in Rhode Island is done at the municipal level in the town or city where the property is situated. Submit the completed, signed, and notarized deed, along with any supplemental documents, to the land evidence division of the town clerk in the municipality where the subject parcel is located.
Related Rhode Island Probate Forms:
The information provided here is not a substitute for legal advice. Consult an attorney licensed in the State of Rhode Island with questions regarding personal representative’s deeds and probate procedures in that state, as each situation is unique.