On June 21, we briefly discussed the legal process when a family member dies. Today we will continue where we left off. The process is essentially the same regardless of where you live, although there may be small differences. If you need legal advice or have specific questions, you need to talk to us so we can give you the information you need.
After a Family Member Dies: The Estate Settlement Process/Probate
The legal process of taking everything owned by a decedent and transferring it to new owners is referred to as estate settlement or the probate process. If there isn’t a trust, someone asks a probate court to open a new case and appoint an estate administrator. The administrator, also called an executor or personal representative, will have the legal authority to manage the decedent’s property. The administrator needs to take a number of steps in a certain order. The administrator must conduct an inventory to determine what the decedent owned. Next, the administrator must allow creditors to submit claims if they believe the decedent owed them money. Once all claims have been submitted, the administrator will determine which claims to pay, if any, and in what order. If there is anything left in the estate after the legal fees and related costs have been paid, the administrator has been compensated, and all claims have been settled, the administrator then distributes the remaining property to the beneficiaries. If the decedent left an estate plan, it will determine who inherits the property. Otherwise, the inheritance laws of the state will control who gets what.
After a Family Member Dies: Legal Battles
While most estates go through administration without much trouble, legal disagreements or fights may erupt. These disagreements may involve a court and are known as estate litigation. Estate litigation can arise for any number of reasons, but typically because people disagree with how the estate or trust is being managed, the disposition of estate assets, or similar issues. Someone who dies with a comprehensive estate plan will minimize the potential for estate litigation. Those who die without an estate plan or with a plan that is unclear or made without the guidance of an experienced attorney leave behind estates far more likely to lead to litigation. Larry Parman Author, President and Founding Attorney Parman & Easterday