Probate is a legal process that occurs following an individual’s death. This procedure involves validating the deceased’s will and appointing an executor, who is typically a friend or family member. The executor’s role is to manage the estate and distribute the assets according to the will. If no will exists, the probate process determines the distribution of the decedent’s assets.
Guidance from Probate Lawyers on Asset Management
Probate is necessary for assets that are:
- Solely in the decedent’s name, such as a car or property titled exclusively to the deceased.
- Jointly owned as tenants in common, like a storage unit co-owned with a sibling as an investment.
These assets are part of what is known as a probate estate. When assets require probate court proceedings, the executor must consult a lawyer and initiate the case in court. If there is no will or no named executor, the probate court appoints someone to fulfill this role. This appointed individual can hire a probate lawyer to assist with the legal process, with the lawyer’s fees paid from the estate funds.
Assets Exempt from Probate
Several types of assets are exempt from probate. If the decedent was married and owned property jointly or had made arrangements to avoid probate, the probate court’s involvement might not be necessary. Non-probate assets include:
- Retirement accounts such as IRAs and 401(k)s
- Assets held in living trusts
- Securities registered as Transfer on Death (TOD)
- Payable on Death (POD) accounts
- Co-owned savings bonds
- Pension plans
- Real estate with TOD designations
- Unpaid salaries, wages, and commissions
- Community property with rights of survivorship
- Joint tenancy property with rights of survivorship
- Boats and cars registered as TOD
- Household items and personal goods inherited by immediate family members
- Vehicles inherited by immediate family members under state laws
Role of Lawyers in Assisting Estate Executors
Probate lawyers provide essential support and guidance to estate executors by:
- Identifying both probate and non-probate assets
- Preparing and filing necessary probate court documents within deadlines
- Obtaining appraisals and date-of-death values for properties
- Collecting life insurance proceeds
- Advising on the payment of final bills and outstanding debts
- Managing rollovers and elections for retirement plans like 401(k)s and IRAs
- Monitoring the estate’s checking account
- Determining and assisting with state and federal inheritance or estate taxes
- Addressing income tax issues
- Resolving disputes among beneficiaries and executors
- Retitling real estate to beneficiaries if not sold
- Assisting with the sale of estate property
- Distributing remaining assets to heirs after taxes and bills are paid
- Requesting court permissions for actions required by state probate laws
Conclusion
An experienced lawyer specializing in estates, wills, and trusts can help you understand the distinction between probate and non-probate assets. They also manage estate administration professionally.
Lawyers often focus on specific areas of law, assisting clients in creating wills, planning estates, and establishing trusts. They represent estate assets, ensure the proper probate of wills, and facilitate the distribution of assets after the testator’s death.
