Dealing with a Loved One’s Estate

Losing a loved one is a sad and challenging time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the deceased person. The property a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died, and their “estate” is the property they owned when they died.

You must usually go to court to transfer or inherit property after someone dies. 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.

Understanding the legal process of dealing with the estate is vital to feeling in control during this challenging time. It can be difficult to tell whether you must go to court or qualify for a different procedure. You should be familiar with many new terms in these cases. Click here for a glossary of terms and frequently asked questions to empower yourself with the needed knowledge and regain a sense of control.

This section will provide some general information to help you understand your options. However, due to the complexity of the process, we strongly encourage you to talk to a lawyer. A lawyer can guide you through the legal requirements, help you understand your rights, and ensure the estate is handled correctly. Their expertise is invaluable in this situation, and you can usually pay the lawyer’s fees from the property in the case.

I will help you find a lawyer if you reach out to me. Click here.

What are the different ways an estate can be transferred after someone dies?

It depends. Some ways do not involve going to probate court.

Here are some common examples:

Suppose a particular asset (like a retirement plan, life insurance policy, or bank account) already has a named beneficiary. In that case, 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, meaning they inherit the entire property in their name.

Real estate can sometimes be transferred without court with a transfer-on-death deed (a beneficiary deed).

Property in living trusts can be transferred without going to court.

There are also some simplified procedures for estates under $166,250.

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 9 months to 1 ½ years, maybe even longer.

Step 1: Figure out who will be the estate representative

The first thing to do is figure out who will represent the estate. If there is a will, the representative is the executor named in the will.

If there is no will, it depends on whether the case needs to go to probate court.

If the estate is small or can be passed 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, the court appoints an administrator to represent the estate.

If someone dies without a will, the law gives a priority list for who should be the administrator. 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, such as if the will does not name an executor and more than one person has the same priority, if there is a disagreement between heirs as to who should serve, or if the person with the higher propriety has a conflict of interest. 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 manage it in everyone’s best interests. This is called a “fiduciary duty,” which means you must act in the estate’s and its beneficiaries’ best interest, even if it means putting their interests ahead of yours. This is a serious responsibility, and you must take it seriously.

You must act responsibly and honestly. If you break this duty, you may be personally responsible for any loss in the estate’s value.

Step 2: As estate representative, start gathering information and fulfilling duties

As an estate representative, there are several 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, 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 ensure you don’t miss anything important.

Cancel credit cards and subscriptions.

Manage “digital assets” (like online accounts, photos, documents stored online, etc.). You may need to get email access for important information.

Notify the Franchise Tax Board

Notify the Social Security Administration if the decedent received monthly social security benefits.

Prepare the decedent’s final income tax returns.

These are just some of the steps you will have to take. As the estate representative, ensure you do all you need to manage the estate and help distribute it 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 include beneficiary designations (such as in retirement accounts), living trusts, and joint tenancy arrangements.

It can be challenging to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date, the new spouse was not included, the will was not changed after a divorce, or a beneficiary named in the will had 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 make an inventory of the decedent’s property.

You will need to carefully identify the decedent’s property and everything they owned and then 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 a 10-year term or with an option to buy. Talk to a lawyer if you are unsure if something qualifies as real property.

Personal property is all property that is not real, and it can be tangible or intangible:
- You can touch tangible property, such as cars, boats, jewelry, furniture, and antiques.
- Intangible property is abstract. It is a right to be paid money or have some type of power, usually laid out in writing. For example, stocks and bonds are intangible, and the stock certificate is the document that gives you ownership over the stock so you can sell it.

Figure out how the property you found is owned. Did the decedent own it, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? It could be 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 must list 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, in joint tenancy, 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.

Each probate is unique. Let me help you throughout the process. Allow me to help you step by step—no need to go it alone. Click here.

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