What steps to take when a loved one dies? As an attorney who does a lot of probate work in Rockwall County as well as Hunt, Kaufman, Collin and Dallas counties, this is a question I often get after the death of a loved one.
This three (3) part series answers some the most frequent questions I get when called about what steps to take when a loved one dies. If you have any other questions, let me know and let’s see if I can help you as well!
Do I have to probate the will?
Whether or not you need to probate depends on the nature of the assets and how they are titled (in whose name are they held). Your attorney can help answer this question. There may be shortcut methods to avoid a complete administration if appropriate in your case.
How long do I have to probate the will?
In general, the will must be submitted for probate within four years of the date of death. If more than four years have elapsed since the date of death, it may still be possible to probate the will, but a more complicated procedure is required. Ask your attorney for more information about this. Sometimes people think that because they have access to all the bank accounts, it is not necessary to probate the will. This can cause serious problems. For example, problems may arise later, when the family decides to sell real estate owned by the decedent. If you think it is not necessary in your case to probate the will, you should be sure to discuss this with an attorney before allowing the four-year period for probate to lapse.
What documents will the attorney want to see?
The attorney will need to have the original will, and a certified copy of the death certificate. If you are anxious to begin the probate process and the death certificate is not yet available, you can start the probate process without the death certificate and file it later. The attorney eventually will need a list of all assets belonging to the deceased, valued as of the date of death. This will include bank accounts with the balance as of the date of death and investments and IRA’s and insurance, no matter who it may be payable to. It will include all real estate owned by the decedent, whether alone or jointly with another person. The attorney will need these to determine if the estate is subject to estate tax. In 2003 if the deceased owns assets, including insurance, retirement benefits and the homestead that are valued in total more than $1,000,000, then the estate may be subject to estate tax. Even if the estate is less than this amount, the attorney will still need a list of assets and their date of death value in order to prepare an inventory of the estate. The inventory is filed with the probate court after the will is probated. The inventory is important to the beneficiaries because it can determine their tax basis in the assets they receive.
Do I still have access to joint accounts even before I probate the Will?
In most cases, the bank or brokerage firm will allow a co-signer on accounts to access funds after the death of one of the co-signers. However, not all accounts with two co-signers automatically belong to the surviving co-signer. Who owns the property in these types of accounts is a complicated subject. Also, if the estate is large, there may be serious tax problems that need to be addressed before the funds are accessed. Therefore, it is a good idea to consult an attorney before using funds from these accounts for personal purposes, and it is a good idea to keep good records of how these funds are spent.
I know that my loved one did not have a will. What do I do to settle his/her estate?
What needs to be done will depend on the nature of the assets. Sometimes a full court procedure, called a “Determination of Heirship,” is necessary. In other cases, a less complicated approach, such as an affidavit of heirship or small estates affidavit, can be used. The difference and complexity of each of these processes can be explained by your attorney.
I am an attorney who does a lot of probate work in Rockwall County as well as Hunt, Kaufman, Collin and Dallas Counties. If you have any questions about what steps to take when a loved one dies, call me. I will do my best to answer your questions and get you pointed in the right direction on what steps to take when a loved one dies.