Who Initiates Probate?
Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died. The property that a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned when they died.
To transfer or inherit property after someone dies, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court.
It is not always easy to tell whether you need to go to court or qualify to use a different procedure. There are a lot of new terms in these types of cases that you should know.
This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.
What are the different ways an estate can be transferred after someone dies?
It depends. There are some ways that do not involve going to probate court.
Here are some common examples:
If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.
If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.
Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).
Property in living trusts can be transferred without going to court.
There are also some simplified procedures for estates that are under $166,250. Read Simplified Procedures to Transfer an Estate to find out different ways to transfer property that do not involve going to court.
Any portions of the estate that can’t be transferred more informally will likely have to be dealt with in probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.
What Is “Probate”?
Probate means that there is a court case that deals with:
- Deciding if a will exists and is valid;
- Figuring out who are the decedent’s heirs or beneficiaries;
- Figuring out how much the decedent’s property is worth;
- Taking care of the decedent’s financial responsibilities; and
- Transferring the decedent’s property to the heirs or beneficiaries.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
First Steps in Dealing with an Estate
When Someone Dies
Step 1: Figure out who will be the estate representative:
The first thing is to figure out who will be the representative of the estate. If there is a will, the representative is the executor named in the will.
If there is no will, it depends whether the case needs to go to probate court or not.
If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.
If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461External link icon. As you may imagine, the surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.
Sometimes, it is not clear who should be estate representative, like, if the will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, and many more. Talk to a lawyer if this may be your situation.
If you are the estate representative, keep in mind that:
You must be trustworthy, very organized, and act diligently and responsibly.
You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty.”
You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.
Step 2: As estate representative, start gathering information and fulfilling your duties:
As an estate representative, there are a number of preliminary duties you have:
Take possession of the property and safeguard it until everything is distributed and any debts are paid. For example, if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place.
Find the will, if there is one.
- Get certified copies of the death certificate. You will need them for many of your duties.
- Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
- Figure out who all the heirs and beneficiaries may be.
- Check out any safe-deposit boxes for important papers or other valuables.
- Collect the decedent’s mail, to make sure you don’t miss anything important.
- Cancel credit cards and subscriptions.
- Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
- Notify the Franchise Tax Board
- Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
- Prepare the decedent’s final income tax returns.
Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.
Step 3: Figure out who the heirs and beneficiaries are:
“Heirs” refers to people who have the right to inherit when someone dies without leaving a will (called “dying intestate”). Beneficiaries are the people who inherit according to a will.
Who the beneficiaries or heirs are is usually decided by:
The terms of the will,
State law, if there is no will, or, if there is a problem with the will, or
Other estate planning documents like beneficiary designations (like in retirement accounts), living trusts, or joint tenancy arrangements.
It is not always straightforward to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date and the new spouse was not included or the will was not changed after a divorce, or a beneficiary named in the will already died, and many other situations. You may need to talk to a lawyer to help you figure out who the heirs or beneficiaries are.
Step 4: Identify and generate an inventory of the decedent’s property:
You will need to carefully identify all of the decedent’s property, everything they owned. Then, you will have to make an inventory of everything.
To identify the property, here is some helpful information:
Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy.
If you are not sure if something qualifies as real property, talk to a lawyer.
Personal property is all property that is not real, and it can be tangible or intangible:
- Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc.
- Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. For example, stocks and bonds are intangible and the stock
- certificate is the document giving you ownership over the stock so you can sell it.
- Figure out how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both? These questions can be difficult to answer on your own.
Once you have identified all the property and have all the necessary papers, you will have to make a list of assets and debts.
It should list all the property the decedent owned when they died. For your list, write down:
- Each asset, with a brief description,
- The value of the asset as of the date of death
- How the decedent owned the asset (like, separately, or in joint tenancy, or as community property, etc.)
- What portion of the asset the decedent owned, and the value of the decedent’s portion, and
- Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt.
Step 5: Figure Out the best transfer process for the assets:
Once you know what property the decedent had when they died, who should get what, and what the value of everything is, you need to figure out how to transfer it. As we have explained, there may be simplified procedures available, or it may have to be done formally in probate court.
Step 6: Close The Estate:
Once everything has been distributed, you’ll submit receipts and records of everything to the court and then ask for the estate to be closed – and to be released from the role of executor.
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