An important part of being a responsible property owner is estate\nplanning and deciding one\u2019s intentions in the event of death. When a person\ndies, applicable assets become part of the estate and are subject to\nadministration in probate. Probate is the legal process of collecting a\ndecedent\u2019s assets, settling the decedent\u2019s debts, and distributing the\nremaining property to heirs and devisees entitled to receive them. Probate\nprocedures are codified under Title 33 of the Rhode Island General Laws.<\/p>\n\n\n\n\n\n\n\n
The extent to which the decedent\u2019s property is subject to\nprobate administration depends on the way the decedent vested assets during his\nlifetime, and the size of the overall estate. Generally, property that is\njointly owned or is held with a beneficiary designation is not subject to\nprobate (exception: real property vested as a tenancy in common). <\/p>\n\n\n\n
The law requires the custodian of a decedent\u2019s will to\ndeliver the will to the appropriate court for probate. The court with\njurisdiction is the probate court of the town or city in which the decedent was\ndomiciled at the time of death. The decedent\u2019s will typically identifies a\npersonal representative of the estate. A personal representative (PR) is the\ncourt-appointed fiduciary who is entrusted to administer the estate. This\nperson is referred to as an executor, if named in a will; if the decedent dies\nwithout a will (intestate) or the named executor is unwilling or unable to\nserve, the court-appointed PR is referred to as an administrator.<\/p>\n\n\n\n
Petition of the court is required to initiate probate\nproceedings. The contents for a petition for probate of a will or grant of\nadministration are established at RIGL 32-22-2. If the petitioner is not the\nexecutor named in the decedent\u2019s will, the court will issue a notice of probate\nto the executor (RIGL 33-7-9). Once the will is probated, the court will issue\nletters testamentary to the executor (RIGL 33-8-1). If the executor refuses the\nappointment or fails to qualify 30 days after probate of the will or within 30\ndays of the notice under RIGL 33-7-9, administration will be granted to a\nperson with priority, as established at RIGL 33-8-8.<\/p>\n\n\n\n
Administration of an estate includes, but is not limited to,\nmarshalling the decedent\u2019s assets and taking inventory of the estate, determining\nheirs and next of kin, paying taxes, and paying creditors. The PR may need to sell\nproperty to pay expenses of administration or to generate funds to pay\ncreditors. <\/p>\n\n\n\n
In Rhode Island, the probate court must authorize sales of\nrealty from the estate (RIGL 33-19-3). The PR files a petition for the sale of\nreal estate, which must include the reason for the sale. Valid reasons for petitioning\nfor the sale of real property under RIGL 33-12-6 include enabling the payment\nof debts or facilitating efficient administration of the estate. This authority\nexcludes sales of real property that is specifically devised by the decedent\u2019s\nwill, unless the devisee(s) give consent to the sale. A PR with a power of sale\nunder a will must also obtain consent to sell specifically devised real\nproperty (RIGL 33-12-6).<\/p>\n\n\n\n
To convey title following the sale, the PR executes a fiduciary\ndeed. A fiduciary is an individual charged with managing financial obligations\nto someone else\u2019s advantage, and serving as that other person\u2019s representative.\nIn probate situations, depending on the capacity of PR, the deed is referred to\nas either an executor\u2019s deed or an administrator\u2019s deed. A personal\nrepresentative\u2019s deed contains the implied covenants that the grantor is the\nduly qualified and acting PR of the estate, that he or she has good right and\nlawful authority to convey the decedent\u2019s interest in the subject property, and\nthat he or she, in his or her capacity, has given bond as required by law and\nhas complied in all respects with the court\u2019s decree. The form of the fiduciary\ndeed is statutory in the State of Rhode Island (RIGL 34-11-12).<\/p>\n\n\n\n
Deeds in Rhode Island are required to reflect the true\nconsideration paid by the grantee for the grantor\u2019s interest in the realty. A\nreal estate conveyance tax is levied in Rhode Island based on purchase price,\nto be paid by the grantor (RIGL 44-25-1). If no consideration is made for the\ntransfer, the deed must include a statement to the effect that \u201cthe\nconsideration is such that no documentary stamps are required\u201d (RIGL\n44-25-1(b)). A conveyance tax return (CVYT-1) should be submitted to the Rhode\nIsland Division of Taxation.<\/p>\n\n\n\n
Nonresident sellers of realty in Rhode Island must furnish a\nresidency affidavit to the buyer at closing. The grantee deducts and withholds\na percentage of the consideration paid to nonresident sellers (for more\ninformation on withholding of Rhode Island tax, see RIGL 44-30-71.3). Grantees\nmay rely on the grantor\u2019s residency only if the grantor provides a residency\naffidavit [1]. If the transfer is exempt from the affidavit requirement, the\ndeed should include a statement to the effect that the grantor is a resident,\nand that no withholding under RIGL 44-30-71.3 is required. <\/p>\n\n\n\n
The PR\u2019s duties also include transferring title to property\nand distributing the estate\u2019s remaining assets. Real property not disposed of\nby the decedent\u2019s will is divided among heirs in the same manner as if the\ndecedent had died intestate (RIGL 33-3-10). The rules of descent by intestacy are\ncodified at chapter 33-1 of the Rhode Island General Laws. The court may submit\nan order of distribution once six months have passed since notice of\nappointment of the administrator, granted that all claims have been filed in\nthe estate (RIGL 33-13-11). Orders of distribution are required within two\nyears after such notice, barring additional time approved by the court (RIGL 13-33-12).<\/p>\n\n\n\n
When real property is devised or distributed, the personal\nrepresentative must record a certificate of descent (RIGL 33-9-29).\nCertificates must be recorded in the land evidence records of each town or city\nwhere the decedent\u2019s real property is situated. The PR presents this recorded\ncertificate to the court prior to its accepting the PR\u2019s final account and\nclosing the estate. Alternately, the PR may use an affidavit of real property\nunder RIGL 33-3-14, showing either that at the date of death, the decedent\nowned no real property; that the real estate was sold during administration; or\nthat a certificate of decent is recorded.<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
Related Rhode Island Probate Forms:<\/p>\n\n\n\n
The information provided here is not a substitute for legal\nadvice. Consult an attorney licensed in the State of Rhode Island with\nquestions regarding personal representative\u2019s deeds and probate procedures in\nthat state, as each situation is unique.<\/p>\n\n\n\n