Newly Discovered Assets After the Close of Probate

By Timothy Mucciante

A decedent's assets may be found after the estate executor has submitted his final accounting to the probate court and the estate is closed. The Uniform Probate Code, approved by the National Conference Of Commissioners On Uniform State Laws, and recommended for adoption by all states, outlines how post-probate discovery of the decedent's assets could be handled. States are not required to adopt the Uniform Probate Code; states that have not adopted the code have statutes that address newly found assets of the decedent.

State Procedure For Reopening An Estate

Although the Uniform Probate Code delineates a methodology for dealing with newly discovered assets, the actual procedure for reopening a probate estate is based on state law. In Michigan, to reopen an estate, the interested party files an Application/Petition to Reopen Estate, based on previously unknown assets the decedent owned. The statute defines an "interested party" in Michigan as ". . .any other person that has a property right in or claim against a trust estate or the estate of a decedent. . ."

Application of the Uniform Probate Code

If assets belonging to the decedent are found after the close of probate, Section 3-1008 of the Uniform Probate Code permits any interested person to file a petition with the probate court to reopen the estate. The code also provides that any disallowed claim in the original probate may not be submitted as a new claim against the found assets. Although the Uniform Probate Code has a general three-year statute of limitation, discovery of previously unknown assets is an exception to that rule.

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Not All States "Reopen" Estates

In some states, there is no provision for an estate to be reopened after assets are found. In Nevada, newly found assets require that a second probate estate be opened. The discovered assets, together with the value of the original assets, are included in the second probate estate. Probate estates that have assets greater than $100,000 are treated as general probate. But estates that have assets less than $100,000 are permitted to use "set-aside" probate, which is specifically for smaller estates. If the recently discovered assets push the probate estate assets over $100,000, a more cumbersome probate process may result.

The Executor's Responsibility To Find Assets

The estate executor has a fiduciary duty to find a decedent's assets and prepare an inventory of these assets for submission to the probate court. The executor must use his best efforts in searching for or in making an inquiry about assets that should be included in the probate estate. An executor who does not use his best efforts to find the decedent's assets may be considered to have breached his fiduciary duty to the estate.

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