The probate process is the legal procedure which protects heirs or beneficiaries and creditors by ensuring the orderly transfer of property when someone dies.
If someone has died and had property which was solely in his or her name without a beneficiary designation, it is necessary to have the probate court decide who should have the right to that property. The individuals who share in the distribution of property are determined by a valid will, if there is a valid will, and it has been presented to the court in a timely fashion. If there is no will, the determination will be made pursuant to state law. The probate court is designed to ensure the proper and orderly distribution of property and payment of valid debts.
Dean Law Office, LLC can assist you with this court process including deciding whether probate is necessary, whether you need the court to supervise the administration of the estate, and whether there is an expedited process that can be used to distribute assets.
If all assets of the deceased person passed by means of a trust, were jointly titled, passed by a beneficiary deed or other beneficiary designation (i.e., payable on death, transfer on death) you may not need probate. The question that must be asked is: is there any asset solely in the name of the deceased person or was the estate of the deceased person made the beneficiary of an asset?
No one is legally obligated to open a probate estate. This is true despite what the deceased person’s creditors may tell you. If the deceased person left no assets, the family members of a deceased person are, generally, not personally obligated to pay the bills of the deceased person absent their agreement to do so. A spouse may be obligated to pay medical bills.
If the deceased person’s debts exceed assets and a compromise cannot be worked out with creditors, it may not make economic sense to open an estate.
It is important to consider whether Medicaid (Mo HealthNet or KanCare) provided benefits to the deceased person. Medicaid will generally have a lien for the cost of services provided to a deceased person. If the deceased person was receiving Medicaid benefits, the amount of the lien can be obtained, and a decision about whether to proceed in probate can be made.
Two terms that are heard frequently when speaking of probate are: testate and intestate.
Testate means there is a valid will and it has been presented to the court in a timely fashion.
Intestate means there is no will and the property of the deceased person will be distributed according to state law.
If you decide to open a probate estate, Dean Law Office, LLC can assist with all legal procedures and help you in finding trustworthy companies to manage the everyday issues. Call Margaret Dean at 816-753-3100 or email attorneyA@aol.com.
There are a number of estate proceedings but two types of probate administrations.
In a supervised estate, the court monitors the actions of the personal representative. The personal representative will need court approval to sell real estate and take other actions. The court will require annual accountings or settlements which are reviewed and audited by the probate division of the court.
In an independently administered estate, the administrator is given greater leeway in disposing of assets.
If an individual opens an estate, that person is known as a personal representative (older wills referred to this person as executor or executrix).
There are a number of probate procedures which are less time consuming, less expensive, and quicker than administration.
If the assets of a person who has died are less than $40,000.00, it may be possible to wrap up final affairs by hiring an attorney to file a small estate affidavit.
If more than one year has gone by since the decedent died and no administration has been commenced, Dean Law Office LLC can file a petition to determine heirship on your behalf.
If the equity in the deceased person’s assets is less than is allowed for maintenance and support of the surviving spouse and/or unmarried minor child for one year, the spouse or someone on behalf of the minor children can hire an attorney to file an Application for Refusal of Letter.
Dean Law Office, LLC can determine if it is possible to dispense with administration by means of a refusal of letters, a small estate affidavit, or another expedited procedure.
After someone dies, the first legal step to take is to determine if there is a valid will. Dean Law Office, LLC can review the will to determine if it is valid, properly signed, and properly witnessed.
The will must also be reviewed to see who is appointed personal representative. Is the personal representative named, competent and willing to serve?
The will must be reviewed to see if an independently administered estate is permitted by the will. If an independently administered estate is permissible, a decision needs to be made whether that is the best way to proceed. If heirs or legatees are not on good terms, if there is a possibility of a will contest or for a number of other reasons, it may be wise to have the estate supervised by the court.
If the will does not provide for an independently administered estate, a decision needs to be made as to whether to obtain waivers to proceed with independent administration.
The will needs to be reviewed to see if a bond is waived? If bond is not waived, is the person named the personal representative bondable?
The will needs to be reviewed to determine if any of the beneficiaries are minors or under a disability? If so, conservators may need to be appointed.
Debts and assets will need to be determined.
The will must be reviewed to determine if it is self-proving? If not, commissions from the witnesses must be obtained.
If there is pending litigation involving the deceased, certain notices must be promptly filed.
Once the concerns set forth above are addressed, the personal representative needs to be appointed by the court. Although someone may be named in the will as personal representative, that person has no authority to deal with the deceased’s affairs absent appointment by the court as the personal representative. Individuals can get themselves into trouble, by dividing the household goods, only to find that a will provides a very different distribution or that a debtor has a claim on an asset or the debts are so great that the assets need to be sold.
Responsibilities of the Personal Representative
Once a personal representative or administrator is appointed, that person must: inventory and safeguard all property. This includes inventorying the safe deposit box. If it is believed that someone may challenge what is in the safe deposit box, it is important that a bank employee or someone with no interest in the estate, who would make a credible witness, be present at the opening and inventory.
Look for documents that let you know what assets and debts the deceased person had: bank statements, tax returns, stock brokerage statements, insurance policies, cancelled checks, etc.
Check that the house and car are adequately insured and that the insurance agent has been informed of the death so the proper insurance is in place.
Although probate takes at least six months to finalize, use caution in renting out the house or letting someone live in the house. Because you allow someone to live in the house, does not mean they will leave the house when requested.
Assemble unpaid bills and discuss with your attorney whether they should be paid.
Check financial institutions for savings accounts, checking accounts, safe deposit boxes, c.d.s, money market accounts, loans, and other assets or debts.
If the beneficiary of the life insurance is the estate of the decedent, an estate needs to be opened.
If an individual is named as a beneficiary, the policy or a copy of the policy can be provided to the individual and he or she can call the life insurance company for instructions.
A will or trust can be challenged in some cases. A will or trust cannot be challenged on the grounds that it is unfair or a person is unhappy he or she did not receive some assets or distribution. A spouse who is left less than 50% can challenge the will or trust to receive his or her spousal share in most cases.
There must be a legal basis for a will or trust challenge. One such basis is that the person whose will or trust is at issue lacked mental competency at the time the will or trust was drafted and signed. Generally, the drafter of the will or trust and witnesses will have their depositions taken. Medical records and a medical expert will generally be necessary. A will or trust can also be challenged on grounds of fraud, coercion or undue influence.
It is important to ensure that the attorney that is selected to challenge a will and trust, has solid experience in wills and trust as well as litigation experience. You should not hesitate to ask the number of cases she has tried and the amounts at issue in those cases.
Elder law refers to a legal practice that emphasizes wills, trusts, estate planning, probate, trust administration, Medicaid planing, guardianships and conservatorships.
Dean Law Office LLC has a solid background and proven results in these areas.
Call Margaret Dean at 816-753-3100 or email attorneyA@aol.com.