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Probate

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Guiding you through life's transitions

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The death of a family member or loved one is a difficult time for anyone. The last things you want to think about at such a time are the practical and legal steps that need to take place. We are here to guide you through the process and take as much off your plate as possible. 

What to Do Upon Learning of the Death

When a family member dies, you, or someone else close to that person, should notify the decedent’s employer, personal physician, attorney, accountant, and anyone else closely involved in his or her life, or anyone who might have important information.

Care for Pets or Dependents

If the decedent was the sole caretaker for any animals, pets, minor children, or adults with disabilities, you’ll need to ensure they’re properly cared for immediately. If the decedent left an estate plan, that plan should directly address such issues. But if it doesn’t, or if there is no plan, you’ll have to act. If the death was unexpected and there are immediate needs that must be addressed, you’ll need to call a probate attorney about your options after you’ve ensured the child, dependent, or animal is cared for. In these situations, you may have to ask a court to issue emergency orders to ensure the protection of the minors or dependents.

Contact a Funeral Home

 

One of the most immediate concerns you’ll face is arranging for a transfer of the body to a funeral home or mortuary. Hospitals will typically assist you with this, as will nursing homes and other health care facilities. For decedents who had an estate plan, that plan will often include the name of the funeral home they’ve selected. You’ll usually find this information in the letter of instruction, advance medical directive, or the last will and testament.

Request Original Death Certificates

 

The funeral home can help you request original death certificates.  Purchase several certificates.  Without the death certificate many of the steps you have to take will be much harder, if not impossible.

Probate or Trust Administration =

Settling the legal and financial matters of the Decedent

 

The legal process of winding up the affairs of the deceased is generally known as probate or trust administration.   

Once you’ve addressed the immediate needs that arise after the death, you’ll have to begin the process of managing and settling the estate.  An “estate,” in legal terms, is the collection of assets, debts, and other issues left behind by a decedent. The estate settlement process is the legal process of disposing of the assets, paying the debts, and addressing any other questions or legal issues that might arise, such as who becomes the owner of the decedent’s pets, or who is legally responsible for caring for any young children who were in the decedent’s care, the decedent’s property (home and other personal property).

 

As a general rule, only those who are chosen by the decedent or granted permission by a court can settle the estate. You can’t, for example, simply decide to start taking grandma’s money out of her bank account after she dies, even if you’re sure you know where the money has to go. The property belongs to the estate, and until the estate transfers it in a legal manner, neither you, nor anyone else, can use it.

The estate settlement process can be complicated, lengthy, and expensive, even if there aren’t any complications. The larger the estate, the more complicated its holdings, and the more conflicts that arise, the more help you’ll need. That’s why anyone in a position to manage an estate needs to contact an estate planning and probate attorney as soon as possible, especially if the estate is of considerable value. The cost of hiring an attorney will differ depending on where you live and the size of the estate. An estate attorney will charge either an hourly rate, a flat fee, or a percentage of the estate’s final value.

Pay for Estate Expenses

The costs involved in dealing with the death of a loved one is one of the most immediate concerns faced by people who find themselves in this situation. Who pays for the funeral? Who pays for copies of the death certificate? Who pays for the incidental expenses that must be paid immediately? Who pays the lawyer to take the case through probate?

As a general rule, the estate is responsible for any debts that arise after the death and throughout the estate settlement process. In practical terms, this means that if you personally incur expenses when you, for example, pay for pet food to care for the decedent’s pets that were left behind, you can bill the estate to receive compensation for those expenses. The estate won’t pay you back immediately (and you’ll have to wait for the estate representative to be appointed and begin paying estate debts), but you’re entitled to be compensated for your actions.

 

Similarly, if the decedent left behind any debts, taxes, or other obligations, it’s not your personal responsibility to pay them unless you were a joint debtor. So, if the decedent has unpaid credit card bills, you’re not responsible for paying those bills. But, if you had a joint credit card with the decedent, you’re still responsible for those debts, as you are for any other loan or obligation you have.

Initiate Probate

 

Before anyone can begin selling, transferring, or using estate property, someone has to initiate the probate process. This process begins when you file a document (usually called a petition or application) with the probate court in the county in which the decedent lived. The document will ask the court to open a new probate case and name an estate administrator to manage it. When you file the petition, you usually ask the court to name you as executor, but you can also ask the court to name someone else.

Resolve Conflicts Challenges

 

The majority of probate cases are relatively simple and straightforward. While they all involve specific processes and procedures that must be met, they don’t usually involve legal battles or lawsuits. However, there are some circumstances that fall outside of probate, or are part of some cases and not others, that can either complicate or simplify the process.

Transfer-on-Death Assets

 

Not all the assets a decedent owned become part of the probate estate. For example, if the decedent had a transfer-on-death bank account and named a beneficiary, the beneficiary inherits the funds in that account automatically, and does not have to wait for the probate process before inheriting. (This is one reason why obtaining copies of the death certificate is necessary.)

Trusts

 

It’s easiest to understand a trust fund by imagining it as a small company that exists for one purpose: to own money or property on behalf of someone else. There are many kinds of trusts, and many ways to create them. One of the most common is when someone writes a last will and testament that calls for the creation of a trust to own assets on behalf of minors (children) who can’t legally own property.

 

Since trusts are independent legal entities, they can continue to exist after the death of the person who creates them. Many types of trusts are not subject to the probate process, and if the trust owns property that passes to new owners after the trust creator dies, that inheritance process won’t be a part of the probate process either.

 

If a relative dies and leaves behind a trust, the most important thing to understand is that, unlike a will, the probate process has a small role in how the trust operates. 

 

Trusts typically own property on behalf of someone else (the beneficiary). The trustee manages the property the trust owns and uses it only in a way that benefits the beneficiary. For example, a will might direct that part of the estate’s money be transferred to a trust, to be managed by you, so that the trust can pay for the care of the decedent’s dog. This is known as a pet trust, and is a common type of testamentary (will-created) trust.

Young Children

 

When the parent or guardian of a child dies, the probate case may also address the child’s care and material needs. However, this only happens if there isn’t a surviving guardian or spouse who can care for the child. For example, if your sister dies, leaving behind a daughter, the child will be cared for by her father, assuming that the father is still alive.

 

However, if your niece is left without a living parent, and your sister didn’t leave behind a last will and testament that named a guardian, the court will have to determine who the new guardian is. Also, because the child is not old enough to own property, any inheritance she receives will have to be held in trust and managed by a trustee until she is old enough to become the owner.

Final Word

 

Managing an estate, navigating the probate process, and dealing with all the issues that arise after a relative dies can be difficult. That you’re also grieving when you’re expected to manage these issues makes the experience that much harder. With a simple road map, an understanding that the process will take time, and lots of patience, you’ll get through it.    We can guide you through this process after the death of a loved one.  

 

STEP 1:

 

We Take The Time To Clearly Answer Your Questions – (Free Consultation)

We start with a free consultation with the attorney and the appointed executor/personal representative for the decedent.  We will take the time to clearly explain the process, pricing, and answer all your questions.

 

STEP 2:

Review The Estate – We Check And Confirm Your Probate Case Documents.

We begin by reviewing helping you gather the required documents and draft all the documents that the court requires to probate the estate as quickly as possible.  

Don’t carry the burden alone, call us as now so we can go through the process with you.

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© 2020 by The Offices of Cynthia J. Arevalo Esq.