Here are some critical questions you should ask when you meet with an estate attorney in the wake of a loved one’s death. Is the Previous Power of Attorney Still Valid? You may have had a power of attorney for the loved one who has just died, and you may erroneously believe that the power of attorney is still in force.
This means ownership transfers automatically and directly to her co-owners when she dies, so the property would not remain in your mother’s name and it would bypass her probate estate.
Without Probate If you don’t probate your mother’s will, her house will remain in her name even after her death. This doesn’t mean that you can’t live in it or otherwise make use of the property, but you won’t own it. If you don’t own it, you can’t sell it.
In some cases, probate isn’t necessary to transfer a property out of the deceased’s name. If your mom held title to the property as a joint tenant with someone else, such as you or one or more of your siblings, these deeds come with rights of survivorship.
Their “estate” is the property they owned when they died. To transfer or inherit property after someone dies, you must usually go to court.
A family member who takes responsibility for the patient's estate after his or her death. An individual assigned to make financial decisions about the estate of a deceased patient. The individual who subscribes to an insurance plan and accepts financial responsibility of a deceased patient.
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A living spouse usually would be the first person in line as next of kin. He or she will then be followed by any children. On the other hand, you can choose any adult to give your power of attorney to as long as you're designating them legally (complying with all the legal requirements).
If your mom held title to the property as a joint tenant with someone else, such as you or one or more of your siblings, these deeds come with rights of survivorship. This means ownership transfers automatically and directly to her co-owners when she dies, so the property would not remain in your mother’s name and it would bypass her probate estate.
Her house can’t remain in her estate indefinitely because the estate closes when the probate process is completed.
If your mother created a living trust, this changes the rules. She likely transferred ownership of the house from herself to her trust during her lifetime. Trust assets do not go through a probate procedure, so they do not have to close after a relatively short period of time the way a probate estate does. Your mother’s trust might maintain ownership of the property indefinitely if this is what she elected when she created the trust’s terms. Otherwise, the trustee must follow whatever directions she laid out in the formation documents and create a new deed to transfer the property from the trust to its named beneficiary just as the executor of her will would do if the property was an asset in her probate estate.
If you don’t probate your mother’s will, her house will remain in her name even after her death. This doesn’t mean that you can’t live in it or otherwise make use of the property, but you won’t own it. If you don’t own it, you can’t sell it. You also can’t use it as collateral for a loan.
Probate is the legal process of transferring ownership of your mother’s assets from her name to that of her beneficiaries. It involves several other issues as well, such as making sure that her will is valid and paying her debts and taxes. The probate process has a reputation for lasting a long time, but in reality, ...
If your mother died without a will, the intestacy laws of the state she resided in at the time of her death will determine who gets what. If there are both a surviving spouse and surviving adult children (either by birth or by legal adoption), the estate is split between them. If there are minor children their share is often put into a trust for safe-keeping Surviving step-children usually don't get anything. Any property that your mother inherited before she married belongs solely to her unless she lived in a community property state and the surviving spouse contributed to pay taxes, maintain the property, etc. Any life life insurance, bank accounts, stock, etc. with a named beneficiary is paid directly to that person (s). If you are adults, you can petition the probate court to name you the executor of her estate. If you are still minors, approach your aunt or some other relative and ask them to petition the court on your behalf.
If no will you may be entitled to a portion of what is in her name only. Anything joint with her husband is his. If you are beneficiary on life insurance that is yours.
If there is no will then the statute on descent and distribution controls. When there is a spouse and children then the assets are divided one half to the spouse and one half to the children. Children is defined as children born to or adopted by the decedent. If the children of the spouse by a prior marriage were not adopted by your mother then they are not considered your mother's children If they were the children of your mother with her current husband then they are her children. The assets in the estate would be divided as described above. Some of her assets may pass outside of the estate. These would be assets held in joint tenancy. Such property would be the property of the surviving joint tenant after her death and would pass outside of probate and her estate. Life insurance may be claimed by the designated beneficiary of the insurance policy. The death benefit is distributed directly to the beneficiary outside of the estate. If there is a Will then it must be filed within 30 days of the date of death. If your mother owned real estate then a probate must be opened to sell the asset. Similarly a representative should be appointed to deal with her personal property. Any interested person can petition to open a probate. The spouse is likely to be appointed as representative but the other heirs would be entitled to contest the appointment. In any event the estate could be forced into a supervised administration which would require the representative to petition the court for approval before taking any action. As an heir you would be entitle to notice and an opportunity to object.
Hire an attorney IMMEDIATELY. You and your siblings (not step siblings) have a right to 1/2 of her assets unless she had a will.
If you are the beneficiary of her life insurance policy, you should receive the death benefit from that policy. Likewise, if the bank accounts have payable on death provisions to your sister, those accounts will pass to her. You need to find out whether your mother had a will and what it says. You should talk to a local probate lawyer about this situation. The laws affecting this situation are different in each state. In California, much depends on whether she acquired her assets during her marriage or before her marriage.
You need to see a wills, trusts and estate lawyer right away. You should know that assets in joint names or with a named beneficiary go to the joint tenant or beneficiary. You should also know that separate property (such as inherited property) goes one third to the husband and two thirds to her children, if there is no will or trust.
The life insurance is paid to the named beneficiary. For the rest of the property, you probably must file for probate to get a court to establish which property is in her estate and which property passes to him as her husband.
If you fail to open a probate estate, you could be liable for taxes and other claims. Even if you do not think a probate estate is necessary, it is important to discuss your options with an experienced estate attorney.
You will need a death certificate to claim certain benefits, and for the estate process as well. If you need additional copies of the death certificate, you should contact your local Department of Vital Records.
Asset protection is very important when a loved one dies, and what you do now can make a big difference later on. The death of a loved one can present a golden opportunity for individuals and companies that do not have your best interests at heart, from shady financial advisors to greedy relatives.
You should not simply assume that everyone who needs to know about the death will find out. With physical newspapers becoming rarer and rarer, you cannot rely on the obituaries to get the word out, and word of mouth may not be as reliable as you would think.
The death certificate should become available after the funeral process has been completed, and most funeral homes will help loved ones get the documentation they need.
You should also contact an estate attorney about the notification process, including required death notices in the local newspapers and elsewhere. This will provide the notification you need to protect yourself legally and prevent others from contesting the estate.
If the assets in the estate are less than the debts and tax obligations, those debts do not become the responsibility of the loved ones left behind. Unfortunately, many people do not understand this, and they end up paying off debts for which they have no financial or legal responsibility.
Although it seems elemental, the first step for any lawyer in any case is to identify the client. In a probate matter, the estate’s attorney generally represents the Personal Representative, in his or her fiduciary capacity. What does that really mean?
When a beneficiary calls and a lawyer chooses to engage in a conversation, the lawyer must walk a careful line between providing general information about the estate (which is okay) and providing legal advice to a beneficiary (which is not okay). Another consideration at play is the attorneys’ fees.
So what’s a poor confused beneficiary to do? If you are an estate beneficiary, and you are confused by what’s going on or suspect foul play, the best thing you can do is to hire your own attorney. Your attorney can explain the probate process to you, obtain information from the estate’s attorney in an efficient way and, if necessary, file reasonable and legally sound pleadings on your behalf. Ultimately, this approach will not only make the estate lawyer’s job easier – it may also save the beneficiaries a considerable sum of money at the end of the day.
So that beneficiary, and any other beneficiaries who will receive percentage distributions, will ultimately receive less money. Since, again, the lawyer represents a fiduciary and must seek to act in the estate’s best interest, often it is in the estate’s best interest if the lawyer does not communicate excessively with the beneficiaries.
A lawyer’s time is considered an expense involving estate administration. In Washington, these expenses are prioritized ahead of any estate distributions to the beneficiaries.
No one, unless a beneficiary decides to obtain counsel. Unfortunately, some beneficiaries think the estate’s lawyer represents them too. For free. As a result, they call the lawyer’s office. And call. And call again.
Mismanaging an estate is not without consequences. If an heir or beneficiary believes you are not appropriately fulfilling your legal obligations, they have the right to file a petition with the probate court to get a full accounting of the estate’s assets or to have you removed as the executor.
If the deceased died without a signed will, the deceased died without a will. No one else can sign it on their behalf, and the estate will be managed in accordance with that state’s laws of intestate succession. Take action to manage the estate prior to being appointed as executor by the court.
As the executor of an estate, you are responsible for managing the probate process, which means you’ll be interacting with the probate court and making decisions about the handling of probate assets. You will: Open probate with the court. Identify the deceased’s assets. Provide notice to heirs and interested parties.
Carrying out all these duties means that you can make a lot of the decisions about what happens with the estate since you are managing the deceased’s property and assets until they are distributed to the heirs.
Serious violations could also result in your being held in contempt of court or being the subject of a civil lawsuit.
There are limits on what an executor can and cannot do. If you’ve been named an executor, a couple basic rules of thumb are that you can’t do anything that disregards the provisions in the will, and you can’t act against the interests of any of the beneficiaries. Sounds pretty straightforward, right?
So an executor can't do anything that intentionally harms the interests of the beneficiaries. As an executor, you cannot: Do anything to carry out the will before the testator (the creator of the will) passes away. Neither the executor nor the beneficiaries have any rights with regard to the estate before the testator passes away.