Handling the legal issues that arise after the death of a friend or loved one can be very challenging.
To reduce the stress associated with these problems, it is best to contact an experienced attorney who can be reached when you call upon them, and one who is responsive to you and your family's needs.
When a person dies, the chances of theft and misuse of the property that they owned increases because often there is no one with proper authority present to protect and maintain the property. It is very important to promptly gather together all property owned by the deceased in order to insure it is protected, maintained, and ultimately transferred to the proper individuals.
Not just anyone can lawfully obtain possession and control of property that was owned by a deceased person. First, the court must issue an order giving authorization to either an Administrator or Executor, and that authorization is limited to the gathering together of the assets for safe-keeping, until later, when the court issues an order stating what is to be done with the assets.
Additionally, issues with life insurance, retirement accounts, social security, bank and trading accounts, and other financially related assets, may need certain treatment outside of probate in order to have them transferred to the proper individuals.
What is Probate?
Probate is a procedure that is designed to Protect against Improper use of the assets of the estate of a deceased person, by insuring it is Properly distributed according to Law, or according to the Will of the recently deceased.
It is a court procedure whereby the distribution of a person's assets after death is supervised and controlled. During the process, it is required that certain parties, usually family members and / or those named in the Will (if a Will exists) receive copies of most documents filed with probate court for their review.
Is Probate Really Necessary?
In most cases, some sort of procedure is necessary. It depends upon the size of the estate on the date of death. The degree of complexity of the probate procedure depends upon the value of the assets on the date of death. The simplest procedure is allowed if the assets value $20,000 or less. Slightly more complex procedures are required, respectively, if over $20,000 up to $100,000, then over $100,000 up to $200,000, and lastly, over $200,000.
How Do I Determine the Value of an Estate?
The value of an estate is equal to the gross value of the assets owned by the deceased, less any encumbrances. The value of non-liquid (non-cash) assets can require an appraisal or similar method of determining value, which would be submitted to the court.
Can I Sell Property in the Estate Before Probate is Complete?
You cannot sell or otherwise dispose of estate property without first obtaining the consent of Probate court.
What is Estate Planning?
Estate Planning is a course of action aimed at ensuring that your wishes for your personal care and for your finances are followed in the event you are incapacitated or upon your death.
PLANNING FOR INCAPACITY:
If your physician determines that you are not able to manage your affairs, the District Court may appoint a "guardian." Though not attractive to any of us, such a development may be unavoidable. However, you can determine in advance who will serve as your court appointed guardian by nominating such person in advance. You can also minimize and even eliminiate the need for a court appointed guardian by executing certain documents:
General Power of Attorney
PLANNING FOR DEATH
Health Care Power of Attorney
Upon your death your property ("estate") may be distributed in a number of ways. Your jointly owned accounts and real property will go to the other persons who hold title with you. Your life insurance policies will go to the beneficiaries you have designated as will your retirement accounts. If there is no designated beneficiary and/or no joint owner of your property, your estate may become part of a probate proceeding and distributed by the District Court.
You can ensure that those people or organizations that are important to you will receive your assets in accordance with your wishes in a quick, private and cost-effective manner.
A Living Trust may be your best option but you may also elect to use a Will. The trust avoids probate while the will is "admitted to probate."
There is no set of instructions and forms that is appropriate for every person as every person's situation is unique to some degree. I invite you to schedule a consultation with me. I will ascertain your situation and advise you of your various options and the costs involved and you can determine which approach, if any, is best for you.