Or, someone might also object to the executor named in the will to handle the estate. To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called "self-proving affidavits" in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed.
This is good enough for the court. Lacking this, however, one or more of the will's witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will. They will also have to attest to the fact that the will is indeed the one they saw signed. The judge will appoint an executor as well. Sometimes, this is called a personal representative or administrator. This person will oversee the probate process and settle the estate.
The decedent's choice for an executor is often included in the will. The court will appoint next of kin if they didn't leave a will.
For instance, the court might appoint the surviving spouse or an adult child. This person isn't obligated to serve. They can decline and the court will then appoint someone else.
The appointed executor will receive "letters testamentary" from the court. This is a fancy, legal way of saying they'll receive documentation allowing them to act and enter into transactions on behalf of the estate. This documentation is sometimes referred to as "letters of authority" or "letters of administration.
It might be necessary for the executor to post bond before they can accept the letters and act for the estate. But, some wills include provisions stating this isn't necessary. Bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error—either intentionally or unintentionally—that financially damages the estate.
Beneficiaries can elect to unanimously reject the bond requirement in some states, but it's an ironclad rule in others.
This is particularly true if the executor ends up being someone other than the individual nominated in the will or if they live out of state. The executor's first task involves locating and taking possession of all the decedent's assets so they can protect them during the probate process. This can involve a fair bit of time and sleuthing. Some people own assets they've told no one about, even their spouses, and these assets might not be delineated in their wills.
The executor must hunt for any hidden assets, typically through a review of insurance policies, tax returns, and other documentation. In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to "protect" it. But they must ensure property taxes are paid, insurance is kept current, and any mortgage payments are made to prevent foreclosure so the property isn't lost.
The executor might literally take possession of other assets, however. They might place collectibles or even vehicles in a safe location. They'll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds. Date of death values for the decedent's assets must be determined and this is generally accomplished through account statements and appraisals.
The court will appoint appraisers in some states, but in others, the executor can choose someone. Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset's value, as well as a notation as to how that value was arrived at.
The decedent's creditors must be identified and notified of the death. Most states require the executor to publish notice of the death in a local newspaper to alert unknown creditors.
Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money owed. The exact time period can vary by state. The executor can reject claims if they have reason to believe they're not valid. The creditor might then petition the court to have a probate judge decide whether the claim should be paid.
Valid creditor claims are then paid. The executor will use estate funds to pay all the decedent's debts and final bills, including those that might have been incurred during the final illness. The executor will file the decedent's final personal income tax returns for the year they died. They'll figure out if the estate is liable for any estate taxes, and, if so, file these tax returns as well.
Any taxes due are also paid from estate funds. This can sometimes require liquidating assets to raise the money. As the executor or administrator of the estate, you have a legal responsibility to pay off any debts the deceased had before you can distribute the estate.
This is to give anyone with a claim the chance to come forward. You can do this by placing a notice in the Belfast edition of The Gazette, the official newspaper of the UK government, and a local newspaper. By law anyone who wants to claim has two months and one day from the date of the notice being published to come forward.
When placing a notice in the Gazette for Northern Ireland estates, you should choose the Belfast edition. If the deceased had close business or personal ties to England or Wales you may also want to place a notice in the London edition. Whatever the size of the estate, it's a good idea to open a separate 'estate account' with a bank or building society, so that all transactions about the administration of the estate can be recorded.
Beneficiaries are entitled to go to the court and seek an order that the executor or administrator provide them with a full inventory of the estate and a copy of the estate accounts. The deceased person may have held money with another person in a joint bank or building society account. Normally this means that the surviving joint owner automatically owns the money.
The money does not form part of the deceased person's estate for administration and therefore does not need to be dealt with by the executor or administrator. However, a deceased person's share in joint property is treated as part of their estate for inheritance tax purposes, both on death and on gifts made during their lifetime. Find out how to find a dormant or lost bank or building society account.
Different rules apply to different pension schemes. The executor or administrator will need to contact each scheme the deceased belonged to and ask if:. Remember that an ex-spouse or former civil partner may have rights to some of the pension, depending on the terms of the divorce or dissolution settlement.
There is a Pension Tracing Service, that you can use to trace a personal or workplace pension scheme. It's advisable to contact the insurance company as soon as possible.
They'll tell you what to do and what documents they need before they can pay out. It's also advisable to check carefully the amount that should be due, and to whom, under the policy before signing for any money.
Also, remember to make sure policies are still in force, and how much they are worth, before committing to funeral costs. Always get a receipt from the insurance company when cashing in a policy.
Sometimes fraudsters try to take the deceased person's identity to steal money from their estate. You can apply for protective registration to prevent this. We will not reply to your feedback. Don't include any personal or financial information, for example National Insurance, credit card numbers, or phone numbers. The nidirect privacy notice applies to any information you send on this feedback form.
Comments or queries about angling can be emailed to anglingcorrespondence daera-ni. If you have a comment or query about benefits, you will need to contact the government department or agency which handles that benefit. Contacts for common benefits are listed below. Call Email dcs. In some states, however, an heir need only outlive the deceased person by any period of time -- theoretically, one second would do.
Many states have adopted a law the Uniform Simultaneous Death Act that says for purposes of inheritance, each person is treated as if he had survived the other.
Check your state law to learn the rules in your state. Intestacy laws often provide that if one of a group of heirs has died, his or her children inherit their parent's share.
In other words, they take the place of the parent. According to this concept called the "right of representation" , children or, in some cases, grandchildren stand in the place of their deceased parent when it comes to inheritance. Figuring out exactly who should inherit can be complicated depending on state law. Parents who have young children and who make a will typically name someone to serve as the personal guardian of their children.
But if a guardian is needed and there's no will, how does a judge know whom to appoint? In that situation, the court will appoint a guardian. The judge will gather as much information as possible about the children, their family circumstances, and the deceased parents' wishes and try to make a good decision.
The primary rule is that the judge must always act in the best interests of the children. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. Intestate succession laws control who inherits property if no will exists.
First, it's important to understand that many kinds of assets aren't passed by will, such as: life insurance proceeds real estate, bank accounts, and other assets held in joint tenancy, tenancy by the entirety, or community property with right of survivorship property held in a living trust funds in an IRA, k , or retirement plan for which a beneficiary was named funds in a payable-on-death POD bank account stocks or other securities held in a transfer-on-death TOD account, and real estate or vehicles held with a transfer-on-death TOD deed or title document.
Who's in Charge? Who Gets What: The Basic Rules of Intestate Succession Every state has laws that direct what happens to property when someone dies without a valid will and the property was not left in some other way such as in a living trust. Understanding Key Terms in Intestate Succession Intestate succession laws refer to groups of people such as "children" and "issue. Spouse To qualify as a surviving spouse, the survivor must have been legally married to the deceased person at the time of death.
Legal separation or pending divorce. If the couple had separated before one spouse died, or if one person had begun divorce proceedings, a judge may have to rule on whether or not the surviving member of the couple is considered a surviving spouse. Common-law marriage. A few states allow common-law marriages in which a man and a woman who never went through a marriage ceremony can be considered legally married under certain circumstances.
Generally, to create a common-law marriage, the couple must live together, intend to be married, and present themselves to the world as married. Check your state's law to see whether your state recognizes common-law marriage and, if so, under what circumstances.
Same-sex couples. After a long period of uncertainty, same-sex marriage is now legal in every U. Married same-sex spouses also have the same rights and responsibilities as all legally married people. This includes the rights that come with qualifying as a surviving spouse. In contrast, depending on the state, couples who are registered domestic partners or civil union partners and not married may not have all of the rights and responsibilities as married people.
Further, some states automatically converted registered domestic partnerships or civil union partnerships to marriages.
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