How Does Wyoming Probate Work

Filing the will

After learning of the death of the decedent, whoever had custody of the will has 10 days to deliver the will to either (1) the clerk of district court in the county where the decedent lived or (2) the named Personal Representative (abbreviated as PR). (W.S. §2-6-119(a)) After receiving the will, the clerk of court will notify the person named as PR, as well as the distributees named in the will who can be readily located. (W.S. §2-6-120).

The PR has 30 days after learning of the decedent's death and that he/she has been named PR to bring a petition to probate the will; otherwise, the court may find that the person has renounced the rights of a PR and appoint a different person as PR unless the named PR shows good cause for the delay. (W.S. §2-6-202.) Learn how to avoid probate using anirrevocable trustcrafted by ourWyoming attorney.Initially, a decision should be made as to whether to probate the will. A probate will be necessary to transfer the decedent's estate to the heir if the decedent owned assets there were:

• Located in Wyoming
• Worth more than $200,000 (as of the writing of this article, not counting mortgages and other encumbrances)
• Held in the decedent's sole name, rather than in a trust or joint tenancy
• Did not pass through a non-probate transfer, such as a beneficiary designation on a 401(k) plan, IRA, life insurance contract, etc. (W.S. §2-6-208)

If the decedent had Wyoming property worth $200,000 or less, the intended recipients of that property could use the alternative summary procedure to distribute her property rather than usingprobate. The summary procedure is discussed in more detail later in this article.

If a testator having a valid will dies, the will must be admitted to the probate court. The will must be submitted to the court along with other required documentation by way of an official legal form. This is called a "petition for probate" and may require additional notices and evidentiary support. The petition must be signed and include information required by Wyoming law. (W.S. §2-4-205)

Unless the will is self proving, it must be "proven" or verified by the court. (W.S. §2-6-205(a)) A will that is not self-proving must be sworn to by the witnesses to the will, or other evidence must be produced to prove its authenticity. In contrast, a "self-proving" will does not require further proof to begin the probate process, but it still must be submitted to the court. (W.S. §2-6-204) A will is "self-proving" if it uses the proper language, is signed before a public notary, and is witnessed by at least two people. (W.S. §2-6-114)

Before the probate process begins, the PR must file an "oath" regarding the PR's duties with the probate court. The court will grant "letters testamentary" to the PR and admit the will to probate. The order admitting the will to probate triggers a number of deadlines. The letters testamentary constitute a legal document that gives the PR authority to administer the decedent's estate. The PR may be required to submit a "bond" to the court to serve. This bond is a monetary deposit that serves as a promise to act according to the direction of the court. Many decedents' wills waive the bond requirement.

After The decedent's will has been admitted to probate, any interested person may contest the will or its validity by filing a petition within the required time asking the court to revoke the probate. (W.S. § 2-4-206) This often occurs when there are multiple wills or it is unclear whether the testator was competent or was subjected to undue influence in executing a will.

Appointing the PR

The person who will be appointed PR depends on whether the decedent's will effectively named someone to act as PR. If someone is named in the will, that person will have first preference to be named PR if he or she is found to be competent. (W.S. §2-6-208) If no one named by the will is available to serve, the court can appoint a different person in the following order:

• A beneficiary named in the will or a person nominated by the beneficiaries
• A creditor of the decedent or someone nominated by a creditor
• A different person found to be qualified by the court. If the decedent did not execute a will, then Wyoming law requires the court to appoint someone to act as PR. A court-appointed PR will typically be a relative of the decedent, such as a spouse, child, or parent; however, if a spouse, child, or parent is not available, the court will utilize the Wyoming Probate Code to determine an appropriate representative. The process for appointing a PR of an intestate decedent is often initiated by the decedent's surviving relatives who are entitled to receive part of the estate, although Wyoming law allows a number of individuals to request authority to act as PR in the following order:
  • A surviving spouse or other competent person nominated by the decedent
  • A child
  • A parent
  • A sibling
  • A grandchild
  • A next of kin entitled to part of the estate
  • A creditor
  • Any legally competent person (W.S. § 2-4-201(a))

Deciding Whether to Accept the Appointment

Before accepting a nomination as PR, the appointee should ensure that he has the necessary skills and resources to properly administer the estate according to the terms of the will and Wyoming law. If the person nominated accepts the appointment, the appointee will have a number of powers and responsibilities with serious potential legal consequences.

Stated simply, the PR's primary duty is to administer a decedent's estate during the probate process. Specific duties may include paying the estate's final expenses, filing tax returns, making tax elections, and ensuring that property is transferred to the proper recipients. A PR must act with care and prudence when administering the estate. A person interested in receiving a portion of the estate, including creditors and distributees, may contest inappropriate or bad-faith actions of the PR.

In some cases, the responsibilities of a PR can be relatively small, but in other cases the duties may be quite complex and rigorous. The PR is, therefore, entitled to reasonable compensation for his or her services based on the size of the estate. As a fiduciary, the PR is required to act in a way that is beneficial to and not against the interests of the decedent and the distributees or heirs receiving portions of the estate. Thus, the PR must follow the wishes of the decedent and adhere to the provisions in the will, unless otherwise directed by the court.

During the probate process, the PR will be required to file certain reports and accounting with the court, as well as notices to creditors of the estate. The process has a number of deadlines, which requires diligence on the PR's part. Due to the complex nature of the probate process, it is often beneficial for a PR to retain representation from a licensed attorney. This is especially true if the estate has a sizable value.

Does It Matter if the PR is not a Wyoming Resident?

The PR does not have to be a Wyoming resident. Wyoming law allows the decedent to name any person who is a resident or citizen of the United States or any bank or trust company organized in the United States and doing business in Wyoming to act as the PR. However, a non-resident PR must designate a Wyoming resident, bank, or trust company to act as his agent or designate an attorney licensed to practice law in Wyoming to receive orders, notices, and other documents issued by Wyoming courts. Failure to designate a Wyoming agent or attorney will cause revocation of authority to act. If the decedent is intestate, a non-resident may serve as administrator; however, it would be necessary for the court to appoint a co-representative who is a Wyoming resident. (W.S. §2-4-201(c))

The Process

The PR has a certain amount of time after appointment to collect all the decedent's property and file an inventory of the property with the court. The PR then has a certain amount of time to file an appraisal of the property listed in the inventory with the court. Items listed in the inventory should include the decedent's house, checking accounts, vehicle, and other property. If new estate property is later discovered, the PR will need to file additional appraisals.

While legal title to the decedent's property is considered to have passed at the death, the estate's assets are subject to possession by the PR, and control by the court during the probate process. The PR holds the assets subject to payment of the estate's administration fees, funeral expenses, debts, and tax liabilities.

During probate, the decedent's surviving spouse and minor children will be entitled to certain property rights, known as "allowances."

The PR may be authorized or required to convey, sell, or otherwise dispose of the estate's property during probate, depending on the will and a range of provisions in the Wyoming Probate Code. For example, if the estate has insufficient cash assets to pay its bills, it may be prudent under the circumstances to sell certain unneeded assets.

The PR will be required to provide a number of notices to different people, including the estate's heirs and creditors. These notices trigger deadlines within which creditors must file claims against the estate.

Estate Expenses, Claims, and Taxes

During probate, the estate will be subject to a number of administrative expenses. These include filing fees, PR fees, attorney fees, travel fees, the costs of selling and managing property, etc. The fees are typically based on a fee schedule fixed by Wyoming law based on the size of the estate (often $350 plus 2 percent of the value of the probate estate), although additional fees may be requested for "extraordinary expenses or services" provided to the estate. The PR must request court approval before paying extraordinary fees. The estate will also generally be liable for the decedent's other final expenses, such as the costs of the funeral.

The PR may be required to obtain taxpayer identification numbers, file the decedent's final individual income tax return, file an income tax return for the estate, and file an estate tax return. If the estate owes debts or taxes, these obligations typically need to be satisfied before the distributees or heirs can receive any portions of the estate. Thus, some property may need to be sold or otherwise disposed of before distributions can be made.

The estate's creditors have a certain amount of time to file claims against the estate. The PR decides which to accept (in whole or in part) and which to deny. Denial will generally give a creditor an opportunity to file an action against the estate. Late claims may be forever barred. Wyoming law provides for a priority list for determining which creditor claims, taxes, and estate administration expenses will be paid first from an estate that has insufficient assets to pay all claims and expenses.

After funeral expenses, administration expenses, timely creditor claims, and taxes have been paid, the PR will be able to file the final report and accounting with the probate court. The estate's remaining assets can then be distributed to the estate's heirs and distributees.

The final report should contain a recitation of all the probate steps completed up to that time, a detailed accounting of estate assets and the disposition thereof (if not waived by all distributees and the surviving spouse), and the proposed distribution of the estate assets. The court will hold a hearing regarding the final report and will address timely objections filed by interested parties. After the court is satisfied that all of the required steps of the probate have been taken, that the proposed distribution of estate assets is valid, and that any objections have been resolved, it will issue an order approving the final report and authorize distribution of the assets as proposed in the final report. After the court has approved the final report, the PR can distribute the remaining assets of the estate according to the distribution approved by the court.

The probate process can take up a large part of a year, although Wyoming law requires that probate be completed within one year of the PR's appointment unless there is good cause for delay. The process can take even longer if there are disputes between the PR, heirs, distributees, creditors, or other interested persons. If the estate is not ready for final distribution within one year, a verified interim report and accounting may be filed requesting the court allow continuance of administration for another year for good cause shown.

If the decedent died with a will, final distributions will generally be directed according to the terms of that will. If the decedent was married and the will deprived the spouse of more than the share of the estate to which the spouse was entitled under Wyoming law (called the "elective share"), the surviving spouse has the right to claim a minimum portion of her estate.

If the decedent had used a trust as the primary means of administering the estate, it is likely that the will would have simply provided for all the remaining property to be transferred to the trustee of her trust. The terms of the trust would then determine the final distributions or ongoing management of her property.

If the decedent had died without a will, the court would order distribution of her estate to her heirs according to the default rules provided by Wyoming law. Typically, the spouse and children will receive a majority of an intestate estate, but other relatives may be selected as heirs by the court depending on the situation. If no heirs exist, the state may acquire the estate through a rare process called "escheat."

Once all administrative expenses have been paid and all assets of the estate distributed, the PR signs a petition for final discharge with the probate court. The petition would have receipt forms signed by the distributees (or other type of proof of distribution) attached to it. The court would then discharge the PR if proper proof had been given regarding distribution to the distributees. Once the court has entered the order of final discharge and it has been filed with the court, the probate is closed.

Wyoming law provides special provisions for the administration of estates involving foreign wills, missing persons, simultaneous deaths, wrongful deaths, missing beneficiaries, and estates that need to be reopened.

For information on general asset protection strategies, reach out to our Wyoming trust attorney or view our page on Wyoming Trusts here.