WILL THIS ESTATE HAVE TO BE PROBATED?

After the death of a loved one, the nearest relative usually has the responsibility to determine if any probate issues resulted from the death. For many estates, several matters must be discussed with an attorney. This article provides some ideas to consider in determining whether any legal action needs to be taken regarding a deceased person’s estate.

Before contacting an attorney, it is best to locate various documents and papers that would show whether the deceased owned an interest in any assets. If decedent alone owned no interest in a particular item of property, it will not be a part of the estate.

Documents and other papers to search for include banking documents. These should include both checking and savings account books and records. The last several months of statements for both accounts should be located and carefully examined. 

These documents can disclose other assets like investments, certificates of deposit, and miscellaneous sources of income.  These accounts should be examined to determine if any are titled in the name of the deceased alone.

The financial institutions where the accounts are located should always verify how each account is established on the account signature card. It is not recommended to rely only on documents found in the deceased’s home. The bank record usually is the source for determining how the accounts are last titled. 

Other important documents to locate are titles to vehicles and boats. These should be examined to determine if any vehicle or boat is titled in decedent’s name alone. These could also include mobile homes, trailers, campers and other assets having a title of ownership.

If titles cannot be found, a search can be made through the Secretary of State’s office in the state where the vehicle is registered. The license plate is issued by the state of last registration.

All documents representing an interest in real estate must be located and carefully examined. These include the last deed to the property and any mortgage. Usually the attorney advising the survivors recommends a search of the Register of Deeds records to verify the latest recorded instruments. Notices from taxing authorities that state the real estate taxes due for the year will give a description that can then be verified at the Register of Deeds office in the county where the real estate is located.

Many people own life insurance policies at the time of death. Life insurance is a contract between the owner of the policy and the insurance company. This means that the insured can determine who is to receive the insurance proceeds upon his or her death.

Most life insurance policies are issued with the insured having named the persons to be the primary beneficiaries. Normally they also name the contingent beneficiaries. That is, the policy contains the names of the persons to receive the policy proceeds if the primary beneficiaries fail to survive. Regardless of who the beneficiaries may be, it is important to note the total amount of insurance proceeds being paid under each policy.

Investment records are very important documents to locate and keep safe. If no stock certificates are located, records of dividend payments and periodic reports from the corporation may be very useful. Brokerage records may be found. Telephone calls in accordance with the documents found should result in determination of decedent’s interest in such investments.

Retirement and pension benefits may terminate upon death of the retiree or they may be fully vested and owned by the decedent. Only a record search will determine this. Often it is necessary to contact the former employer to obtain the necessary information.

When the deceased owned an interest in a business, special considerations and action will be required to determine the value of the interest and its transfer.

There are numerous other assets that decedent may own an interest in at the time of death that are not included in this article. This should only be considered as a sampling of possible property interests of a decedent.

Sometimes in searching the home and records of decedent a will is found. Every original will must be promptly delivered to the probate court in the county of residence of the decedent. This must be done even though the finder knows there are no assets to be probated and therefore no probate court proceedings.

All records of the deceased’s property interests should be taken to an attorney to examine, evaluate, and indicate their status because of the death. A copy of the will, if found, and any other document that appears like it may be a testamentary instrument should also be taken to the attorney.

The value of each asset is very important because the attorney must determine whether a Federal Estate Tax return is required. This year, a return is required if the decedent owned an interest in assets, including life insurance and jointly held property, of $675,000 or more.

The attorney will determine how each asset was titled at the moment of death. A recommendation will then be made as to whether any further legal steps need be taken, including any legal process to transfer title to property. This may or may not include probate court proceedings.

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