The loss of a loved one is a difficult time, often made more stressful when one has to handle the affairs of the deceased. Certain tasks must be completed to administer the estate of the deceased. This may be a great undertaking or rather minimal work, depending upon the level of estate planning completed prior to death.
First, it must be determined whether probate (a court-managed process where the assets of the deceased are managed and distributed) is needed. To do this you must take a look at all assets owned by the individual and determine how these assets were titled. If a probate is required whether or not the individual had a Will changes how you proceed with a probate. Each state’s rules may be slightly different, so it is important to seek proper legal advice if you are charged with handling the affairs of a deceased family member or friend.
It’s important to understand that assets titled jointly with another person are not probate assets and will normally pass to the surviving joint owner. Also, assets such as life insurance and retirement assets that name a beneficiary will pass to the named beneficiaries outside of the court probate process. If the deceased relative had formed a Trust and during his life retitled his assets into that trust, those trust assets will also not pass through the probate process.
Assuming probate is required, there will be a process that you must follow to either file the will and ask to be appointed as the executor (assuming you were named executor in the will) or file for probate of the estate without a will (this is referred to as dying “intestate” which simply means dying without a will). Also, there will be a process to publish notice to creditors and you may be required to send each creditor specific notice of the death. Those creditors will have a certain amount of time to file a claim against the estate assets. If a legitimate creditor files a claim, the claim can be paid out of the estate assets. Depending on your state’s laws, there may also be state death taxes (sometimes referred to as “inheritance taxes”) that have to be paid and, if the estate is large enough, a federal estate tax return may also have to be filed along with any taxes which may be due.
Only after the estate is fully administered, creditors paid, and tax returns filed and taxes paid, can the estate be fully distributed to the named beneficiaries or heirs. Given the many steps, and complexities of probate, you should seek legal counsel to help you through the process.