The period immediately following the death of a loved one is stressful. Facing the prospect of attending to the legal details of settling the decedent’s estate is not something that anyone looks forward to. However, under Alaska law before the assets in an estate of a decedent can be legally transferred to others, the local probate court must authorize it. Typically, this involves the estate going through the formal probate process which is governed by Title 13 of the Alaska Code. However, if the estate is small, it may qualify for a shorter, less complicated process.
Probate
Probate, also referred to as probate administration or estate administration, is the process during which a decedent’s debts are paid and assets are transferred to their beneficiaries or heirs. Probate is necessary whether or not the decedent left a valid will. The first step in probate is initiating a probate case by filing a petition with the probate court located in the Alaska judicial district in which the deceased person lived at the time of their death.
The court will appoint a personal representative to handle the probate process, also called an executor. The responsibilities of the personal representative include:
- Gathering property owned by the decedent
- Notifying creditors, beneficiaries, and heirs
- Paying debts, expenses, and taxes
- Transferring property owned by the decedent to the appropriate beneficiaries or heirs
- Filing appropriate documents with the court to close the probate case
The administration process typically takes about 6-12 months. Probate disputes involving beneficiaries, heirs, fiduciaries, and creditors must also be resolved and can significantly delay the process. If the estate is small, there are alternatives to the formal probate process such that assets can be distributed a lot more quickly.
Probate Litigation
When disputes develop during the administration process, they can lead to probate litigation. Probate litigation occurs when the parties to a dispute cannot settle it themselves outside of court through negotiation. Instead, the court must step in and settle the dispute.
Common types of probate disputes include:
- Challenges to the validity of the will
- Will construction
- Breach of fiduciary duty
- Challenges to a guardianship appointment
- Trust modification
Intestate Succession
When someone dies without leaving a will, their estate must still go through probate. Instead of asset distribution being based on the terms of the will, it is based on Alaska’s intestate succession laws. Alaska Stat. § 13.12.101 et seq. This means that the decedent’s surviving spouse and children inherit the entire probate estate. In the absence of a spouse or children, the estate goes to the decedent’s parents, siblings, or other relatives based on a predetermined order of priority.
Intestacy does not only result when the decedent fails to make a will. It can also result from a will being invalidated as a result of a will contest or when all probate assets are not disposed of though a will.
Simplified Procedures for Small States
Probate can be long and somewhat burdensome, particularly if the estate is small and uncomplicated. With that in mind, Alaska created options for estates that qualify because they have relatively few assets.
Collection of Personal Property by Affidavit
Under Alaska Stat. § 13.16.680, if a probate estate has personal property with a value of $50,000 or less (excluding the value of vehicles up to $100,000), probate can be skipped entirely. Instead, following a 30-day waiting period, those entitled to assets from the estate can file an “Affidavit for Collection of Personal Property of Decedent” (Form P-110) requesting immediate distribution of assets to which they are entitled. To take advantage of this procedure, there must not have been a personal representative appointed or an appointment pending.
Summary Administrative Procedure
Under Alaska Stat. § 13.16.690, certain small estates can take advantage of a simplified probate process. Under this process, the personal representative can settle the estate without supervision from the court. This process is available only if the value of the estate is not more than the homestead allowance, exempt property, family allowance, and certain other expenses. The personal representative must get permission from the court to proceed in this manner.