When rock musician Prince died in April 2016, chaos followed. The size of the singer’s estate made things complicated and involved. With a little more forethought, the issues which were fought, publicly, in court could have been handled quietly. There many not have been any issues to deal with.
Prince, his family, and his attorneys may have forgotten Ben Franklin’s law:
“Nothing is certain except death and taxes.”
Often, the first triggers the second and throws a person’s estate into probate when they die. The result is predictable: hurt feelings, angry family members and potentially an insolvent estate where no one — even valid creditors — receives anything.
A few tips may ease the way when the final trip is taken by a family member or loved one.
When a cherished one, such as a mother or father dies, the priority is family. Nothing precedes that. The estate business comes later. Everything is put on hold. Estate liabilities can wait. If a mortgage exists, it can wait — credit scores don’t matter for the decedent. Focus on the family and gather and sort the mail. Nothing can be done until the death certificate is received and when that arrives estate administration can begin.
Papers and Effects
In the days after the funeral, search the decedent’s papers for the last testament. If they left one, it is usually stored in a secure place at home or in a safety deposit box. When someone dies with a true will, they are said to be “testate.” If they do not create a legitimate will, they are known as “intestate.” The will names the executor. For someone intestate, the spouse or next of kin will take the appointment’s priority.
Title to Real Property
If the deceased own physical property, such as a home, the property can’t be marketed until the administrator has been designated by the court. If the administrator isn’t sure how to find out about the title, an experienced probate attorney can help.
Arrival of the certificate triggers the start of managing the estate. Each estate is unparalleled with many moving parts so a probate lawyer should be consulted. Take a copy of the will, the death certificate, monetary records and proof of the deed. An inventor of personal property, such as jewelry, will be helpful, but not required.
Petition for Probate
The ‘supplication for probate’ is recorded in the courthouse in the county where the deceased lived. In most jurisdictions, a hearing is scheduled for thirty to forty-five days from the date of filing. The conference is meant to ensure that anyone with business with the estate has been notified, including creditors. At the hearing, the executor has issued letters authorizing them to transact estate property.
Selling personal property such as jewelry, artwork, and chattels can be accomplished without much formality. The next of kin should be consulted, and the decedent’s will leave certain items to specific persons. The executor needs to track who gets what as well as each item’s value. Following the initial distribution, the family may conduct an ‘estate sale’ which does not need court guidance.
Selling Real Estate
A qualified attorney can guide in the sale of the decedent’s residential property. The executor maintains the fiduciary responsibility to market the property for its fair price. Probate sales involve procedures which ordinary real estate agents are unfamiliar, so hire a specialist. When the property is sold, the proceeds should be placed into a separate estate account maintained by the executor.
Unsecured creditors must submit a lender’s claim to the probate process. The window of opportunity for unsecured creditors is normally 120 days following the testamentary letters being issued. Any creditors failing to submit a timely claim cannot take any legal action to collect from the estate. One call valid claims and liabilities have been covered, and the estate is solvent, then the estate can be distributed to heirs and beneficiaries.
Being the Executor
The executor has a fiduciary responsibility requiring care, reliability, and responsibility. Inadequate accounting often results in arguments and conflict. A well-meaning executor can be held individually accountable for errors or omissions, and an experienced attorney should be consulted.
Jerry Nelson has been working with writing challenged clients for 20-years. He provides ghost writing, travel content and native journalism and his work has been seen in some of the planet’s more prestigious media outlets.
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