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Devising and Distributing Real Estate in Wyoming

Probate is the court-supervised process of transferring a decedent's property to those entitled to receive it. In Wyoming, probate procedures are governed by Title 2 of the Wyoming Statutes (Chs. 1-18).

Generally, property held by the decedent in his or her name alone is subject to probate. Property held with a survivorship designation (real estate held in joint tenancy or tenancy by the entirety), a beneficiary designation (payable on death accounts and transfer on death accounts, for example), and property held in a trust generally transfer outside of probate. Wyoming also recognizes probate alternatives, such as "summary procedure" for qualifying small estates -- a less extensive informal probate. Consult a lawyer for guidance in determining the best course of estate administration, as each estate is unique, and many factors contribute to lawfully handling an administration.

In most cases requiring probate, the custodian of the decedent's will delivers it to the clerk of the district court in the county where the decedent resided at the time of death, along with a petition for probate and a certified copy of the death certificate (Wyo. Stat. Sec. 2-6-119). Upon receipt, the clerk notifies the executor and the distributees (2-6-120). Once the court proves the will is valid, the court appoints the executor by issuance of letters testamentary, if willing and able to serve.

If the decedent dies without a will (intestate), probate involves petitioning the court for the appointment of a personal representative (PR), who is issued letters of administration. A personal representative is a fiduciary entrusted to administer the estate. Wyo. Stat. Sec 2-4-201 establishes the order of priority of persons entitled to administer the estate. A person selected by the court to administer an intestate estate may be referred to as an administrator.

Letters testamentary or letters of administration are evidence of the personal representative's authority to act on behalf of the estate. He or she provides notice by publication in the county where probate is pending of admission of the estate to probate and of his or her appointment (2-7-201). Creditors have within three months of publication to bring their claims against the estate by filing them in the office of the clerk of court in compliance with the procedures at Wyo. Stat. 2-7-701--2-7-729.

In Wyoming, title to a decedent's property passes to his testamentary devisees (those named in the will to receive it) or to his heirs-at-law according to the laws of descent in Wyoming. Property not disposed of by will transfers according to Wyo. Stat. Sec. 2-4-101 (with half to the surviving spouse and half to children, or all to the surviving spouse if no children). All property, however, "is subject to possession by the personal representative and to the control of the court for the purposes of administration, sale or other provisions of the law and...is chargeable with the payment of debts and charges against" the estate (2-7-402).

The statutes establish the purposes for which property -- real and personal -- may be sold, including for the payment of debts and charges against the estate; the distribution of the estate; or any other purpose deemed "in the best interests of the estate" (2-7-612). Generally, the PR must petition the court for a sale, unless the decedent gives a testamentary power of sale (2-7-614, 2-7-609).

The court schedules a hearing on the petition, and the PR must give notice of the hearing to the surviving spouse, beneficiaries under the will, creditors discernable by the PR, and other noted parties where circumstances require (2-7-205). Upon satisfactory evidence, the court may enter an order for sale under 2-7-621 (2-7-615). The PR is required to provide the court with a report after the sale and the court will examine the report. If satisfied, it shall enter a confirmation of sale (2-7-624). Decrees confirming a sale are recorded in the office of the county clerk in the county where the property is located (2-2-301).

To transfer real estate to a purchaser (grantee) following a sale, the personal representative executes a deed. A personal representative's deed is a fiduciary instrument that typically follows the form of a special warranty deed. This level of warranty is appropriate for a grantor acting in a representative capacity because its warranty only covers the claims against the property arising from the time the grantor held the title. The special warranty is statutory in Wyoming under 34-2-136.

A lawful personal representative's deed is executed by the duly appointed and acting PR and provides details of the estate including the decedent's name, the court in which probate is open, and the probate number assigned to the estate. The deed describes the property sold with a legal description and typically provides evidence of the personal representative's authority to make the sale and may include supplemental documentation such as the PR's letters and any relevant decrees from the court.

Conveyances in Wyoming should also be accompanied by a statement of consideration; a statement in the form of the deed waiving rights under the homestead exemption laws of the state; and must be in recordable form, complying with state and local standards. Deeds executed by a personal representative are evidence of the grantee's right, title and interest in the property conveyed, and prevent them from claiming any further right, title or interest in and to such real estate (34-5-106).

When the estate is ready for final settlement (no sooner than three months after publication of notice of opening probate), the personal representative may petition the court for distribution, with notice of the petition mailed the appropriate parties under 2-7-205 (2-7-204). Marketable title to real estate in devisees and heirs-at-law is established by a final decree of distribution. Decrees making distributions of real property are recorded in the county clerk's office in the county where the subject property is situated.

This article is not an exhaustive view of the probate process in Wyoming and is not a substitute for legal advice. For questions regarding probate or the sale of real property, contact a qualified attorney in Wyoming.


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