Probate is the legal process for distributing the estate of someone who has passed away.
An estate may consist of land, money, and personal belongings. One way of distributing the assets of an estate is based on whether a Decedent, or person who has passed away, has left a Will. The Will determines who inherits and what they will inherit. A Will can be used to give clear instructions on how the estate is to be divided. If someone has a valid Will, the Decedent’s wishes on how the estate will be distributed must be honored.
If someone passes away but does not leave a Will, then the estate is divided according to intestate succession or the default rules set by Guam law.
General overview of the probate process in Guam.
The probate process begins with a request for the court to formally open a probate case to distribute the estate of a Decedent. This request is made through filing a petition. Usually if there is a Will, the Decedent names a person in the Will to serve as the executor, or person entrusted by the Decedent to carry out the instructions in the Will. The executor is the person who initiates the probate process and handles the probate process. The petition should identify all of the Decedent’s estate known at that time as well as all legal heirs, or people entitled to inherit assets of the estate of the Decedent.
If the Decedent passed away without a Will, instead of an executor the court can appoint an administrator to handle the probate process. The administrator of the Decedent’s estate can be a surviving spouse, a child, grandchild, parent, sibling, or even a creditor. The priority to administer the estate is set by Guam law. The administrator is the person appointed by the court to handle the probate process.
Before an executor or an administrator is appointed, notice is required to be given to all legal heirs by either personally delivering the notice to them or by sending it to them via registered mail. The court then holds the initial hearing to verify that the executor or administrator meet all legal requirements to serve in their role and to learn if there are any objections to the appointment of the executor or administrator. One of the most important requirements is that the proposed executor/administrator be a Guam resident.
After the court has appointed an executor or administrator, they must publish a Notice to Creditors. A Notice to Creditors gives an opportunity to people or businesses who may have a claim against the estate of the Decedent to formally file their claim. After notice is published, creditors have sixty (60) calendar days to file their claim against the estate. If they do not file a claim within that period, their claims could be barred forever.
After the time to file claims has passed, the executor or administrator can then file an inventory of the estate and a petition for final distribution. The inventory should identify all assets and debts of the estate and the petition should propose how the assets and debts will be distributed. The petition will also identify the amount of court costs and attorney fees. Any objections to the proposed distribution must be filed before the hearing on the petition for final distribution. After reviewing the inventory, petition, and resolving any objections, the court will issue a final decree settling the account of the Decedent’s estate. Court costs and attorney fees must be paid before the court will release the final decree.
What happens to my property in Guam if I pass away without a will?
In Guam, if you die without a valid will (intestate), your property in Guam will be distributed according to the laws of intestate succession. These laws determine how your assets will be distributed among your surviving relatives. Generally, any community property will be distributed to your surviving spouse. Any separate property could be distributed to your surviving spouse, children, parents, or siblings.
What happens if my family member passed away with property in Guam, but I don’t live in Guam?
In order to serve as an executor or administrator, you must be a Guam resident. If someone passes without any family members living in Guam, then an heir can nominate someone else - an attorney, a friend, a relative - to serve as the administrator or executor.
What happens if someone lives somewhere else and passes away with property in Guam and in another location? In these cases, an ancillary probate - or secondary probate - must be opened in both jurisdictions. It is the law of where the property is located, not the law where the decedent lived at the time of their death, that determines how the property is distributed.
What is joint tenancy with a right of survivorship, and how could you use it as part of your estate plan?
Joint tenancy with a right of survivorship is a type of property ownership arrangement that is recognized in Guam. This form of co-ownership can offer several benefits for individuals who choose to hold property in this manner in Guam. One of the primary advantages of joint tenancy with a right of survivorship is that it allows for the seamless transfer of property ownership upon the death of one of the joint tenants. When one owner passes away, their share of the property automatically transfers to the surviving joint tenant(s) without the need for probate. This can save time and money in the estate settlement process.
What is a trust, and how can you use it as part of your estate plan?
A trust is a legal arrangement where one party (the trustee) holds and manages property for the benefit of another (the beneficiary). There are numerous benefits of a trust, but they are often used for estate planning because they allow for the efficient transfer of assets after the grantor passes away. Because the assets are held by the trust, trusts can help avoid the cost and time associated with probate and streamline the distribution process.
How much does Guam probate cost?
One of the most common questions we get is how much the probate process could cost. There are expenses that have to be paid as part of administering an estate, such as publication and mailing. Guam law also sets the rate of how much an administrator and attorney are paid for handling an estate based on the total value of the estate. We have put together a separate page that provides a summary of costs and fees you can expect to pay in a Guam probate.
If you or someone you know has questions about the probate process or need help starting the process, please contact us.