This article includes suggestions to make probate easier for the ones you leave behind and some suggestions if you are administering an estate. I am writing this from my own experience. I am currently going through this process. My father died in January and I am a co-executor for his estate.
Most people either intentionally or unintentionally own some property when they die. Some or all of this property must go through probate. Probate is the legal process by which a recently deceased person’s estate (e.g., property) is passed to people who survived them. This process includes having a court validate a will, or, if there is no will the court will appoint a personal representative to distribute the person’s property pursuant to state law. If there is a will, the will usually names the person to manage this process. In North Carolina this is called an executor. A court oversees this process.
The following are a few pointers to help the people who survive:
1. Minimize the property that must pass through probate. Many financial accounts, such as retirement and bank accounts allow you to avoid probate for those assets by naming specific beneficiaries. Take the time to fill out these beneficiary forms. Many states have ways a deed can be written to have real estate or a car pass on to others without probate. See an attorney about the possibility of redeeding your property. Depending on the state and an individual’s situation, a trust could be a valuable tool to avoid probate.
2. Designate ONE person to administrate probate. I am a co-executor for my father’s estate. My other co-executor is also an attorney. Having co-executors causes problems because many organizations need both our signatures on documents. While our problems are magnified by the fact that we live in different states, it is always difficult for two busy people to find time to be in the same place at the same time. Not being in the same place requires additional efforts to get documents notarized and sent to the other executor. It is best to name one person and designate a back up if the first person is unwilling or unable to perform the duties.
The following are suggestions if you have the opportunity/obligation to administer someone’s estate:
1. Give yourself time. Probate is a time consuming, sometimes mind numbing experience. This process includes doing a detailed inventory of the tangible and intangible property of the deceased, a list of all financial institutions that have the deceased’s money, and receiving and paying claims from the deceased’s creditors. Also, if the deceased had professional licenses or other memberships these organizations must be notified. Take the time you need to feel you have done right by the deceased. Also, take the time in small chunks if you can. Remember you are also grieving and large chunks of time can put a strain on your emotions.
2. When you get official documents from the court get at least ten copies. Many organizations that will need to be contacted demand original copies with raised seals. Each copy does not add that much expense and getting copies when you are in the court can save significant time.
3. Get experts to help. This is not the time to learn to do taxes or write legal documents. Hire accountants and lawyers if you have any issues. Many experts can be hired on a consultation basis at an hourly rate or a reasonable fixed fee. It can be a cathartic experience to personally wrap up your loved ones affairs. Just make sure its done correctly or it will use much more time and money to redo.
4. Keep records. Start keeping receipts from the time of the funeral. Track all your time and expenses as you go. Keep all your receipts together. Buy a dedicated file holder for these papers. This will save time later.
5. Locate a notary. Most of us go though our lives seldom needing a notary. Not so with the paperwork needed for probate. Find several notaries nearby who know you and will willingly notarize documents for you. You will be grateful for this attention after needing multiple documents notarized at different times.
6. Only pay the decedent’s debt with estate assets. If someone dies, put their estate through probate. Some people die with few assets so relatives believe that probate is unnecessary. Probate not only distributes the deceased’s assets but it also discharges their debts. Probate gives creditors a limited time to come forward and request payment. In most circumstances, after probate closes creditors have no legal claim to be paid. Probate provides survivors an end to creditors claiming on the estate. In most circumstances all of the decedent’s debt can only be paid from their estate’s assets. Unless a survivor has specifically signed as a co-borrower a survivor has no obligation to pay the deceased debts out of their own pocket(s). After probate as closed, some creditors have contacted family members to pay the decedent’s debts. Unless you have some personal reason, do not pay this debt.
Fred Small, lawyer, songwriter and Unitarian Universalist Minister sings, “And the only measure of your words and your deeds, will be the love you leave behind when you're gone.” While some people may only leave love, others leave more tangible items or substantial debt. The assets must go through probate to be passed on to others and survivors need to manage the debt. Please make this as easy as possible for the people you leave behind or for yourself.
Note: This is not legal advice. I'm not your attorney. Some of this information will vary in your state. This provides general information and a start in deciding what to tell your lawyer.