Probate is a legal process that occurs following an individual’s death. This procedure involves validating the deceased’s will and appointing an executor, who is typically a friend or family member. The executor’s role is to manage the estate and distribute the assets according to the will. If no will exists, the probate process determines the distribution of the decedent’s assets.
Guidance from Probate Lawyers on Asset Management
Probate is necessary for assets that are:
- Solely in the decedent’s name, such as a car or property titled exclusively to the deceased.
- Jointly owned as tenants in common, like a storage unit shared with a sibling as an investment.
These assets are part of what is known as a probate estate. For assets requiring probate court proceedings, the executor must consult a lawyer and initiate the case in court. If there is no will or no named executor, the probate court appoints someone to fulfill this role. This appointed individual can hire a probate lawyer, with the legal fees paid from the estate’s funds.
Assets Exempt from Probate
Several types of assets are exempt from probate. If the decedent was married and held property jointly or had made arrangements to avoid probate, court proceedings might not be necessary. Non-probate assets include:
- Retirement accounts like IRAs and 401(k)s
- Assets held in living trusts
- Securities registered as Transfer on Death (TOD)
- Payable on Death (POD) accounts
- Co-owned savings bonds
- Pension plans
- Real estate with TOD designations
- Unpaid salaries, wages, and commissions
- Community property with rights of survivorship
- Joint tenancy property with rights of survivorship
- Boats and cars registered as TOD
- Household items and personal goods for immediate family members
- Vehicles transferred to immediate family members under state laws
Role of Lawyers in Assisting Estate Executors
Probate lawyers provide essential support and advice to estate executors by:
- Identifying both probate and non-probate assets
- Preparing and filing necessary court documents within deadlines
- Obtaining appraisals and death values for properties
- Collecting life insurance proceeds
- Advising on the payment of final bills and outstanding debts
- Managing rollovers and elections for retirement plans like 401(k)s and IRAs
- Monitoring the estate’s checking account
- Determining and assisting with state and federal inheritance or estate taxes
- Addressing income tax issues
- Resolving disputes among beneficiaries and executors
- Retitling real estate to beneficiaries if not sold
- Assisting with the sale of estate property
- Distributing remaining assets to heirs after taxes and bills are paid
- Requesting court permissions for actions required by state probate laws
Conclusion
An experienced probate lawyer can help you understand the distinction between probate and non-probate assets and manage estate administration professionally. These lawyers specialize in areas such as creating wills, estate planning, and establishing trusts. They ensure the decedent’s will is properly probated and assist in the distribution of assets following the testator’s death.
Lawyers often focus on specific legal areas, aiding clients in drafting wills, planning estates, and setting up trusts. They represent estate assets, ensuring the decedent’s will is probated correctly and facilitating the distribution of assets posthumously.
