Estate Planning / Probate
Losing a loved one is traumatizing enough. At the time of death, survivors have to focus on not only planning the memorial/funeral services, but also the dividing of assets. Often times the spouse or surviving family members will have to delegate who gains access to property, vehicles, clothing jewelry, and any items of the deceased. Items of extreme value often take the most time to delegate as they are the most sought after by other family members.
This can lead to a huge battle. Family members will get angry because they did not get the item they wanted or did not get anything at all. It is important to have an estate plan in order (i.e. some sort of will) for protection against these types of battles. If a will is not in place, a probate court will take the case and decide which family member receives which item. Probate court rules in accordance with state law.
Usually, the first step is to determine whether there is some sort of will intact. If there is a will intact then it comes down to delegating property and items to the appropriate parties listed. Often times there can still be a legal fight. Family members can try to contest that the deceased did not want actions to be taken in this manner or that the deceased family member was not in the right state of mind at the time of the executing of the will. In this case, it is up to our legal team to build a case to prove that the deceased was in fact of sound mind at the time of the execution of the will. If there were no discrepancies and evidence is clearly outlined, this is usually a swift process.
If there is no will, the case moves onto the probate court. When the case moves to probate court, there are typically six steps to this process:
File a petition
A petition needs to be filed within the state and there must be a legal executor determined. The legal executor will be in charge of ensuring that the deceased’s wishes in the will (if any) are handled accordingly. The legal executor represents and speaks on behalf of the family. If the deceased did not appoint a legal executor before passing, the court will appoint a legal executor to represent the deceased. A death certificate must be included in this process. When the legal executor is determined, the case will be approved to move forward to probate court where items will be delegated accordingly.
Notify all appropriate parties
The legal executor and sometimes the deceased family must notify any listed beneficiaries in the will, as well as any creditors. This process varies state by state.
Value and assess all assets
Each asset listed in the will along with any financial assets must be assessed for value by the family, accordingly. This can be anything from bonds, insurance policies in the deceased’s name, bank accounts, or any items such as jewelry, artwork, etc.
Pay off any debts
Any debts or monies owed must be paid off on behalf of the deceased before moving forward in the estate planning process. The family must include any credit card debts, delayed rent or mortgage payments, taxes, as well as filing a final tax return for the deceased. This process might include some extensive research.
Once all items are assessed and any debts are paid, the family is able to distribute items accordingly to any beneficiaries of the deceased, as listed in the will or delegated by the court.