2012 -- H 7597

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LC00898

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - PRACTICE IN PROBATE

COURTS

     Introduced By: Representatives Jackson, O`Neill, Gallison, Lally, and Keable

     Date Introduced: February 16, 2012

     Referred To: House Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 33-22-4, 33-22-8, 33-22-19 and 33-22-23 of the General Laws in

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Chapter 33-22 entitled "Practice in Probate Courts" are hereby repealed.

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     33-22-4. Listing of and notice to legatees and devisees in will contests. -- Whenever, in

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any proceeding pending in a probate court for the probate of a will, it appears to the court that the

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probate of the will or the appointment of an executor or administrator with the will annexed is to

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be contested in the probate court, then and in that event, the court shall forthwith cause to be

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entered upon its records an order requiring the petitioner to file with the clerk of court the same

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information relative to legatees and devisees, if any, named in the will or their representatives as

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is required relative to a surviving spouse and heirs at law; and the petitioner or his or her attorney

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shall give or cause notice to be given to those legatees and devisees in the same manner and under

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the same conditions as provided in this title for notice to a surviving spouse and heirs at law.

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     33-22-8. Notice of authority to sell or mortgage real estate. -- Authority to sell or

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mortgage real estate shall not be given to a guardian until notice by public advertisement or

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otherwise, as the court may order, has been given to the husband or wife and the next of kin of the

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ward, and authority to mortgage shall not be given to an executor or administrator until after

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personal notice shall have been given by citation to all known parties interested.

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     33-22-19. Decrees and orders in writing -- Recording. -- All the decrees and orders of

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probate courts shall be made in writing, and shall be recorded by the clerk in books kept for that

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purpose.

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     33-22-23. Division of fees. -- The fees provided for in section 33-22-21 shall inure, one-

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half (1/2) to and for the use of the probate court, and one-half (1/2) to and for the use of the

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probate clerk, unless provision is made to the contrary as provided in this chapter.

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     SECTION 2. Sections 33-22-5, 33-22-6, 33-22-7, 33-22-11, 33-22-14 and 33-22-21 of

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the General Laws in Chapter 33-22 entitled "Practice in Probate Courts" are hereby amended to

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read as follows:

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     33-22-5. Waiver of notice. -- If all interested parties, not including, however, the

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legatees and devisees named in the will unless they shall have become entitled to notice under the

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provisions of section 33-22-4, shall, in writing, waive the notice required by section 33-22-3 or

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section 33-22-4, and assent to action upon the petition by the court at any time, the court may

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proceed to hear the cause without publication or further notice and any decree entered in the

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proceeding shall be of the same force and effect as if notice had been given in the manner

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provided by this chapter.

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     33-22-6. Additional notice given -- Failure to comply. -- The notice prescribed by

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section 33-7-9 and the notice by publication in the manner as prescribed by section 33-22-11 shall

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also be given in all cases in which notice by mail is required by section 33-22-3, unless waived in

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writing by the persons entitled to such notice surviving spouse and heirs at law, but failure to

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comply with any of the provisions in sections 33-22-2 and 33-22-3 33-22-4 shall not defeat the

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jurisdiction of the court or affect adversely the regularity of any proceedings in which the failure

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shall have occurred, and upon discovery of the failure the court may make such further orders as

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the circumstances may require.

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     33-22-7. Proceedings in which notice given by court. -- Every probate court shall,

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before proceeding, give notice to all parties known to be interested in the following cases:

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      (1) In the granting of letters of administration.

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      (2) In the probate of a will.

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      (3) In the appointment or approval of a conservator or guardian.

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      (4) In any complaint for the removal of an executor, administrator, conservator, or

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guardian.

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      (5) In the acceptance of the resignation of an executor, administrator, conservator, or

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guardian.

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      (4)(6) In the making of any decree upon the account of an executor, conservator, or

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guardian.

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      (7) In the appointment of commissioners and in the making of any order upon the report

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of commissioners on any estate.

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      (8) In the making of any order of distribution among the next of kin of a deceased

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person.

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      (5)(9) In any petition of an executor, administrator, conservator, or guardian for leave to

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sell real estate of the testator, intestate, or ward.

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      (10) In the granting of any petition of a conservator or guardian for leave to make a

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mortgage or written lease of real estate of his or her ward.

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      (11) In canceling the bond of an executor, administrator, conservator, or guardian.

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      (12) In making an allowance out of the estate of a deceased person for the support of his

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or her family.

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      (13) In any petition of an executor or administrator for leave to mortgage real estate of

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the testator or intestate.

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      (14) In setting off and allowing real estate in fee, or the proceeds of sale thereof, to a

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widow or surviving husband.

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     Nothing contained in this section shall be deemed to limit the court’s discretion to order

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whatever notice it considers appropriate given the circumstances of the matter before it, and

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whose interests may be affected by the court’s action.

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     33-22-11. Notice by advertisement. -- In all cases in which notice is required and special

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provision is not made for it, it shall be given by advertisement of a notice once a week for at least

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two (2) weeks, the first advertisement to be published at least fourteen (14) days before the first

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of any hearing dates contained in such notice, in a newspaper printed in English and published in

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the county city or town or in a Providence newspaper having general circulation within the

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county in which the matter is to be acted upon, as the probate court by general rule or special

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order may designate for that purpose; provided, however, that when a probate court shall give, or

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order to be given, notice by advertisement in a newspaper which has furnished the court with a

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definite schedule of prices for this advertising, the court shall require the cost of the advertising to

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be paid to the clerk of the court in advance, and the court shall pay over each month to the

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newspaper the sums so paid in, upon proof that the notice has been advertised as ordered;

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provided, however, that any advertisement affecting probate matters in the town of New

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Shoreham shall be given in a newspaper printed in English and published in the counties of

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Washington and/or Providence.

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     33-22-14. Findings of court as to notice. -- If it shall appear to the court, before

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proceeding, that notice has been given to all known parties interested, by the clerk, upon

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application to him or her made, in accordance with the foregoing provisions, and in a manner

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satisfactory to the court, it shall be sufficient to warrant proceeding; and its findings as to notice,

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unless appealed from, shall be conclusive. Notice by telephone, facsimile, e-mail or other

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electronic transmission may supplement, but shall not discharge any party's obligation under this

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chapter to give notice by service or mail.

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     33-22-21. Fees enumerated -- Hearing date to be noted on receipt. -- (a) The fees in

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probate courts shall be as follows: for every petition for the appointment of a receiver, custodian,

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administrator, guardian, or conservator, or for the probate of and recording of a will, one percent

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(1.0%) of the personal property of the decedent or ward over which the court has jurisdiction, but

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in no event shall the fee be less than thirty dollars ($30.00) nor more than one thousand five

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hundred dollars ($1,500); for every petition for the change of name, thirty dollars ($30.00); for

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every petition for adoption, thirty dollars ($30.00); for every petition of a foreign administrator,

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executor, or guardian to transfer or sell real or personal estate, one percent (1.0%) of the personal

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property of the decedent, or ward located in Rhode Island, but in no event shall the fee be less

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than thirty dollars ($30.00) nor more than one thousand five hundred dollars ($1,500) which fees

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shall be in lieu of all subsequent filing and recording fees in the same proceedings, except as

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hereinafter provided, and shall be paid before the petition is filed, and shall be based upon

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estimates submitted by the petitioner or someone in his or her behalf, and shall be subject to

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revision whenever it appears that the estimates were incorrect, and upon revision a further

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payment or rebate shall be made promptly. In the event that the appointment of a receiver or

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custodian, pending the appointment of an administrator, guardian, or conservator, or the probate

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of or recording of a will, is necessary, the fee so paid for the petition shall be applied on the

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amount to be paid upon the filing of a petition for the appointment of the administrator, guardian,

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or conservator, or for the probate of or recording of the will. The court at any time may cite in and

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examine any receiver, custodian, executor, administrator, guardian, or conservator for the purpose

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of determining the full fee due and payable. Also, the following fees shall be charged:

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      (1) For every petition to file a claim out of time, thirty dollars ($30.00);

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      (2) For every petition for the removal of an executor, administrator, guardian,

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conservator, or other fiduciary, thirty dollars ($30.00);

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      (3) For every petition for appointment of a successor guardian under the uniform gifts to

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minors act, thirty dollars ($30.00);

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      (4) For every petition to file a will with no probate, thirty dollars ($30.00);

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      (5) An For every affidavit of complete administration, thirty dollars ($30.00);

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      (6) For every certificate of appointment, five dollars ($5.00);

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      (7) For every petition to remove or fill a vacancy of a trustee of any trust established

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under a will, or the termination of such trust, thirty dollars ($30.00); and

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      (8) For every petition for tax minimization or estate planning, thirty dollars ($30.00).;

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      (9) For every petition for change of name, thirty dollars ($30.00); and

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     (10) For every petition for adoption, thirty dollars ($30.00).

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      (b) Upon payment of any fee enumerated in this section, the clerk of the court shall issue

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a written receipt to the person making payment. In the event that the matter filed with the court

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calls for a hearing, the clerk of the court shall note the hearing date and time on the receipt

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whenever possible; otherwise as soon as is practicable after the filing of the matter, the clerk of

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the court shall provide written notice of the hearing date and time directly to the person filing the

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matter.

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      (c) The clerk of the court shall charge one dollar and fifty cents ($1.50) per page and

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three dollars ($3.00) to certify any probate documents on file with the probate court.

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     SECTION 3. This act shall take effect upon passage.

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LC00898

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE - PRACTICE IN PROBATE

COURTS

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     This act would eliminate and amend certain notice requirements to parties in interest in

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the probate of a will or letters of administration but in no way would limit the discretion of the

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court to order any notice it deems necessary and would make technical amendments to the

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probate court fees enumerated in this section.

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     This act would take effect upon passage.

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LC00898

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