Probate - September 2014
TITLE TIPS BY JOE VITULLO - SEPTEMBER 2014
PROBATE-Not only can't you take it with you when you die, but your property is subject to the claims of your creditors (R.I.G.L. 33-13-4). In Rhode Island, if no administration has been taken out for a decedent, any creditor may petition for administration for a period of six years. For this reason, heirs of a decedent cannot give a good deed to the property they have inherited for a period of six years when there has been no probate (R.I. Practice Standard 4.1). Naturally, there must also be a Release of the Inheritance Tax Lien, which lasts for ten years (R.I.G.L. 44-23-38). In addition, if the decedent was married, the surviving spouse has a statutory life estate in any property owned by the decedent (R.I.G.L. 33-25-1 et seq.).
When administration is taken out, title to the real estate does not vest in the executor or administrator. Knowles v. Blodgett, 15 RI 463, 465. Title vests immediately in the decedent's heirs or devisees. Votolato v. McCaull , 80 R.I. 301 (1953). This means that the names of all heirs and devisees should be run in any title examination of the decedent's property. The list of heirs on a petition to probate a will or for administration in probate court may be relied upon as complete by the examiner. Title Standard No. 9.2. In the case of a will being admitted to probate, title to the land devised relates back to the death of the testator or testatrix. In order to prevent the heirs or devisees from conveying the property while the executor or administrator is trying to pay claims and settle the estate, R.I.G.L. 33-13-3 prohibits the heirs or devisees from conveying the property for a period of 2 years and 6 months after the publication of notice of the qualification of an executor or administrator. The heirs or devisees cannot give a deed free from the claims of creditors until after the estate is closed, either by an Affidavit of Complete Administration or court approval of a Final Account. Title to land in a town or city other than that in which the will is proved, does not pass until a certified copy of the will is recorded in the town or city where the land lies (R.I.G.L. 33-6-31).
The title vested in the heirs or devisees is subject to divestment while the estate is open. The executor or administrator may wish to sell the property and may petition the court to sell under either of two statutory grounds: (1) personal property of the decedent is insufficient to pay the decedent's debts (R.I.G.L. 33-12-4) or (2) when sale is desirable for prompt and efficient settlement of the estate (R.I.G.L. 33-12-6). The probate courts are part time statutory courts and their jurisdiction is determined solely by statute (R.I.G.L. 8-9-9). Probate Judges are appointed by the majority of a city or town council on the day after election. What they can do or not do is derived from the statutes alone. All petitions to sell must be advertised (R.I.G.L. 33-22-7 (a)). When a testator or testatrix includes a power of sale in a will the probate court lacks jurisdiction to entertain a petition to sell. Now, under R.I.G.L. 33-12-6, an executor or executrix who wishes to sell property which has been specifically devised, must get the consent of the specific devisee, usually in a quitclaim deed. A specific devise is a devise which is dependent upon a particular piece of property (e.g. "I give you my house at 10 Main Street"). A general devise is not dependent upon a particular piece of property (e.g. "I give you all my property, real, personal or mixed, where so ever situated)".
Because the heirs and devisees take title subject to divestment by the action of the executor or administrator, the judgment creditors of the heirs and devisees are subject to the same rules. In DiCristofaro v. Beaudry , 113 R.I. 313 (1979) a mother devised her property to two sons in a will that contained a power of sale. The creditor of one of her sons levied Execution against his share and held a sheriff's sale. The executor exercised his discretionary power of sale and the creditor's levy failed since the devisee son only held title subject to divestment.
Any appeal from a Probate Court Decree must be filed within 20 days (R.I.G.L. 33-23-1 (a)). As with any court action, the appeal period must have expired before a title policy can be issued for any sale.
Rhode Island recognizes the validity of foreign wills, but the devisees must either petition to record the will in the city or town where the decedent owned land (R.I.G.L. 33-7-18 et. seq.) or the will can be admitted to original probate in R.I., if it was executed according to R.I. law (R.I.G.L. 33-7-25). Once the foreign will is recorded in R.I., it has the same force and effect as if it were originally proved and allowed in R.I. The probate court may grant letters testamentary to the named executor in the will. Otherwise, foreign executors or administrators have no authority to act in Rhode Island.
Practice Standard No. 4.1 of Section IV: Estates of the Rhode Island Title Standards provides a complete guide for obtaining marketable title from a Rhode Island estate.