How to Create an Estate for a Deceased Parent

By Cindy DeRuyter, J.D.

How to Create an Estate for a Deceased Parent

By Cindy DeRuyter, J.D.

Your estate is made up of everything you own, including tangible personal property, financial assets, real estate, insurance policies, and more. Being proactive about estate planning usually includes preparing a will or a trust to govern estate administration and distribution.

Man in glasses writing on document at desk

If your mother or father died without preparing a will or trust, you, unfortunately, cannot create such documents for them. Your parent's estate, which consists of the assets they owned at the time of their death without joint owners and without beneficiaries, will pass according to your state's laws. In some cases, you or another family member might need to initiate probate proceedings to gain title to estate assets. In other situations, particularly in small estates, you might be able to use an affidavit to claim estate assets.

Assets Passing Outside the Probate Estate

Certain assets that are part of your parent's estate are automatically exempt from probate administration, even if other assets inside the estate require probate. It is generally simple and fast to transfer title for these nonprobate assets.

Nonprobate assets include:

  • Property and other assets owned as joint tenants with rights of survivorship
  • Bank accounts with pay on death designations
  • Investments with transfer on death designations
  • Retirement accounts with named beneficiaries
  • Life insurance or annuities passing to individuals or charitable organizations through beneficiary designations
  • Real estate for which the deceased person created a life estate
  • Real estate with one or more designated transfer on death beneficiaries (in states where allowed)

Understanding Probate Requirements

Assets that are not exempt under one of the above exceptions are probate assets. However, this name does not necessarily mean you need to deal with the probate court to retitle or receive the assets. The laws of the state or states where your parent lived at the time of death determine whether you need to initiate probate proceedings. If your parent owned probate real estate in another state, you may need to open a probate matter in that state too.

When you open a probate matter, the court appoints a personal representative, called the executor or administrator in some states. The court-appointed personal representative is responsible for administering and distributing the probate estate assets according to state law. This process typically includes safeguarding assets, notifying interested parties, paying valid debts, handling tax matters, and distributing assets according to the state's intestacy laws.

Small Estate Exemptions

In some states, every estate must go through probate administration, although state law may provide for streamlined or simplified probate processes for small estates. In other states, estates under a certain asset threshold can avoid probate entirely, even if the deceased person did not do any estate planning. For example, in Minnesota, children handling their parents' estates can use a small estate affidavit to collect their deceased parents' assets if there was no probate real estate and if the value of other probate assets did not total more than $75,000.

If you have specific questions about a deceased parent's estate and your rights and obligations under your state's laws, consult an attorney.

Although you cannot create an estate plan for a deceased parent, you can create your own estate plan to make things easier for your loved ones when you die. To create your own will, trust, or other estate planning documents, work with an attorney in your state or use an online service provider.

Resources:

American Bar Association: Wills and Estates

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.