Heir Rights (GU)
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As an heir, you likely have questions about the inheritance process in GU, and your rights.
Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).
Rights Under GU Probate
Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.
However, GU estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.
Your rights as an heir include:
- Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
- Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
- GU Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see GU Family Entitlement details for your state).
- Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
- Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
- Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.
Additional considerations:
- Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See GU Rules of Inheritance for details.
- Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
- Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
- Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.
GU Small Estate Rights
Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.
In Guam, small estates can bypass probate via small estate affidavit, or simplify it via summary administration. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Small Estate Affidavit
If a Guam estate has an adjusted gross value <$75,000, you may be able to use a small estate affidavit to settle the estate with no court involvement.
Requirements
In Guam, an estate qualifies as "small" if its adjusted probate value is <$75,000 and it contains no real property (i.e., real estate).
In calculating estate value, you should exclude:
- The value of any motor vehicles
- Up to $6,000 in salary and vacation from an employer
- Any amounts due for services in the armed forces
Value assets as of the date of death, and ignore any debts (other than secured debt such as liens and mortgages). Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
If the estate qualifies as small, you can simplify the probate process as follows:
- Prepare a small estate affidavit (see below)
- Use the affidavit to collect estate assets from current custodians
- Settle the estate in the normal manner (pay all obligations, distribute assets)
- If everything goes smoothly, there will be no need for any court involvement at all
Affidavit
The small estate affidavit is simply a sworn statement that includes:
- The name of the decedent, address, and date of death
- A statement that the value of the gross probate estate, as defined by , is <$75,000
- A description of the assets being claimed (consider attaching the EstateExec Inventory Report)
- Names and addresses of heirs claiming the assets, and their percentages
- A statement that each claiming inheritor is entitled to payment or delivery of the property in the listed percentages
It is not necessary to try to unify everything into a single affidavit, but that can sometimes be the most efficient.
It seems more impressive to have every inheritor sign the affidavit, and have each signature notarized, but in truth only the person who will actually present the affidavit needs to sign it, swearing that everything is true.
It can be helpful to attach a copy of the death certificate and the will (if one exists).
See 15 Guam Code § 3101.
Summary Administration
Summary Administration (also known as simplified probate) can also be used for estates worth <$75,000 if there is a surviving spouse or minor children. You might want to use this approach if the estate does not qualify for a small estate affidavit (e.g., it contains real property), or if you simply want court involvement so that enforcement and protection are a bit more formalized.
Requirements
You can use summary administration if the estate is worth <$75,000 and there is a surviving spouse and/or minor children.
In calculating estate value, you should value assets as of the date of death, and ignore any debts (other than secured debt such as liens and mortgages). Do not include assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Unlike estate valuation for a small estate affidavit, you do not exclude motor vehicles or back pay, but you do exclude the value of any homestead exemption.
Process
To settle an estate via summary administration:
- Submit to the court a Petition for Summary Administration (see below)
- Notify interested parties of the hearing for your petition by posting a notice in the office of the municipal commissioner at least 15 days before the hearing, and publishing it in a newspaper of general circulation in Guam for 3 consecutive days, the last of which cannot be more than 10 days before the hearing
- Upon approval, the court will issue an order setting aside the estate for the surviving family
- Use the order to collect estate assets, and then settle the estate in the normal way (pay debts, make distributions)
Petition
The petition should:
- State the interest of the petitioner (e.g., named in the will as executor, surviving spouse, guardian of minor children)
- State the name, address, and date of death of the decedent
- If a will exists, attach the original or a certified copy, and include a statement that you believe the attachment is the decedent's last will, that you believe the will to have been validly executed, and that after the exercise of due diligence, that you are unaware of any instrument revoking the will. Also state whether the will has been admitted to probate in any other jurisdiction.
- If the decedent died intestate, state that you diligently searched for and failed to find a will
- List the estate inventory, including specific descriptions and values, any liens or encumbrances, and a designation of any property identified as the homestead (consider attaching an EstateExec Inventory Report)
- Request that the court set aside the estate for the surviving family
In addition to attaching any will, attach a copy of the death certificate, and have the petition notarized.
See 15 Guam Code § 3109 - 3125.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in GU, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to GU Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow GU probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
Court
In Guam, the Superior Court in Hagåtña handles wills and estate matters.
Estate Debts
Finally, note that as an heir, you are NOT responsible for paying the debts of the GU estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.
If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.
Additional Information
For more information about inheritances in general, see EstateExec Heir Guide.
In case you're interested, heir rights in other states can be found here:
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