Legal Issues
Below is some information that we hope will be helpful to you. If you have any questions or concerns please contact us anytime or day.
Do I need a Lawyer?
While there is no requirement to use a lawyer, probate is a rather formal procedure. One minor omission, one failure to send Great Aunt Tillie a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability.
The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one's death, such as who gets the iron frying pan and who gets the kettle. Such minor matters, or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus it generally is a very good idea to "let a lawyer do it".
Probate Probate is the process that transfers legal title of property from the estate of the person who has died (the "decedent") to their proper beneficiaries.
The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will. Since the deceased can't take it with them, probate is the process used to determine who gets their property
Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.
Probate is not cheap or quick. Because probate requires a hearing in over-burdened courts, the process can tie up property for a year or more. In addition, probate may be expensive. Estate attorneys, who sometimes charge a flat percentage or a high hourly rate, usually handle probate. Their fees and court costs may cost 5% of the estate's value. A will is a very personal document, and may reveal private family and financial issues and concerns. But once it is entered into the court record, it becomes public, and can be inspected by anyone.
Administration of a Will
Wills are simple, inexpensive ways to address many estates. But they don't do it all. Here are some things that may not be accomplished in a will.
Named Beneficiaries for Certain Kinds of Property
A will can't be used to leave:
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Property you held in joint tenancy with someone else. At death, the deceased's share will automatically belong to the surviving joint tenant(s). A will provision leaving the deceased's share to someone other than the surviving joint tenant, would have no effect unless all joint tenants died simultaneously.
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Property that was transferred to a living trust.
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Proceeds of a life insurance policy for which there is a named beneficiary.
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Money in a pension plan, individual retirement account (IRA), 401(k) plan or other retirement plan.
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Money in a payable-on-death bank account.
What is a Will?A Will is a document that is created to help make your loved ones decision at the time of death. The Will contains important direction as to your wishes for your funeral. It can also contain your direction on dispersing the estate amongst your loved one.
Your Will can also help to name someone to be left in charge of your children if something was to happen to you. This very important when their are enfants or young children involved in the family.
The Will also simplifies the legal process for the lawyer which will result in minimizing the legal costs that your family will encounter.
One of the most important aspects of the Will is that it will prevent Family bitterness. Your Will will help guide your family through all aspects of the Death Process.
Estate Settlement Issues
Wills, probate, administrator, social security benefits, veterans benefits, insurance benefits, joint property, estate taxes and other issues may appear overwhelming after the death of a loved one. Sorting and settling all the details may be confusing because many of the terms are unfamiliar. Please feel free to print this document. This guide is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended. Most of all keep in mind that while it is important to take care of all of these activities, it's more important to move slowly at a pace that is comfortable for you during your grieving process.
Executors
Your executor has full responsibility with regards to your funeral arrangements. If so desired your executor can change anything with reference to those arrangements. This is the person all funeral homes take direction from.
Since your Personal Representative is given access to all property in the probate estate, the selection of a competent and trustworthy person is very important. It is wise to nominate someone who has business experience, intelligence, and the utmost integrity and honesty to serve as your Personal Representative. Your nomination of Personal Representative, (along with Alternatives who are asked to serve in the event that the prior nominee is unwilling or unable to act), should appear in your Will. This is your chance to tell the court whom you think is best to do this job for you (since you can't speak to the court in person).
Most jurisdictions require the Personal Representative to post a surety bond covering their actions. This requirement can be waived if your Will states that you want your nominated Personal Representative to serve without bond.
Notify Creditors
Creditors should be notified promptly following a death. If there is to be a delay in meeting debts or installment payments, you may be able to file for extensions. Many creditors are sympathetic to these situations and are willing to grant your requests. If credit insurance or mortgage insurance policies were in force, purchases made on credit (vehicles, furniture, etc.) or the home mortgage may be paid off by the insurance. Ask your lending institution.
Bank and Saftey Deposit Boxes
Because banks are subject to both state and federal regulations, procedures can vary greatly from bank to bank and state to state. Some states have been known to automatically freeze joint bank accounts when one of the joint owners dies. To avoid problems, contact your bank directly, to determine the amount of money accessible and learn the procedures for releasing these funds, and to establish a new account for funds received after the death.
At least one joint checking or savings account should be left open for at least six months. This will allow you to deposit any checks that you are entitled to but are in the deceased's name. For instance, "Insurance Reimbursement Check". This check would be endorsed on the back as follows: "Deposit Only" with the deceased's name PRINTED underneath, followed by the bank account number.
If after six months you want to take the deceased's name off the account, the bank will want to have a Certified Copy of the Death Certificate.
A Certified Copy will also be necessary for any accounts that are left "In Trust For" someone. (I.T.F.). Your bank can advise you regarding IRA's or CD's (Certificates of Deposit). Both will need a Certified Copy of the Death Certificate before they are released.
If the safety deposit box is in the sole ownership of the deceased. Banks will require a Certified Copy of the Death Certificate and Letters of Administration to gain access to the contents. On co-owned safety deposit boxes, the rules vary from state to state. Call your attorney or bank for their requirements.
