Distributing Assets of the Deceased

By John Cromwell

Probate is the legal process of administering the estate of a deceased person, known as the decedent, by resolving all claims of creditors, paying the appropriate taxes and finally distributing the remaining assets of the estate to beneficiaries and heirs. In the case of a small estate, or if the decedent left his assets in trusts or gifted them prior to his death, probate may not be necessary. Probate laws can vary from state to state.

Establishing the Executor, Beneficiaries and Heirs

The process of distributing the assets of the decedent is the responsibility of an appointed individual known as the executor or personal representative. If there is a will, there is typically a person named as executor in the will; the court typically appoints this named individual as executor. If there is no will, or if the will does not name an executor, the probate court will choose a person to serve as the personal administrator of the estate. Prior to the final distribution of the estate, the executor is required to protect the assets of the estate by staying current on monies owed such as taxes and mortgages. The executor must also obtain information with regard to all beneficiaries named in the will and any other potential heirs.

Establishing Claims

Before assets are distributed to beneficiaries and heirs, it is the responsibility of the executor to settle the decedent’s debts. Many states require the executor to publish a death notice in a local newspaper. In this notice, the executor invites potential creditors to present claims against the estate. Potential claimants normally have a few months to contact the executor and present their cases. If they fail to contact the executor within that time period, the potential claimants cannot collect on the debts.

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Estate Tax

The estate tax is a federal tax on a decedent’s right to transfer his property to his heirs. The tax is assessed based on the fair market value of all of the decedent’s assets as of the day he died. The tax is paid by the executor using the decedent's assets. As of 2012, the federal estate tax only applies to estates worth $5.12 million or more.

Wills

After the decedent’s debts have been settled, an executor will distribute the remaining assets according to the decedent's wishes as noted in his will. Beneficiaries named in a will can include family members, friends, or organizations. A will maker can also use a will to disinherit someone. This ability to disinherit is generally limited with regard to spouses and underage children.

Intestate Succession

Dying "intestate" means that a person dies without a will. In this situation, the probate court requires that the decedent’s property be distributed subject to the state’s intestate succession law. Intestate succession varies by state, but the basis of many of those schemes is derived from the 1990 Uniform Probate Code. Under the UPC, when a person dies, his property is divided among his heirs. Depending upon which family members are still alive, the property is generally divided among the decedent's spouse, children and parents.

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References

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Time Limitations in California State Inheritance Laws

Many deadlines follow a person's death as his estate is being probated in California. Probate is the process by which courts make sure that a deceased person's debts are paid and property distributed to his heirs. Deadlines in this process must be satisfied in order for the process to proceed smoothly. Probate only applies if the combined value of the decedent's real and personal property are greater than $150,000 at the time of death. If the estate's assets are less than this, these deadlines are irrelevant.

Probate Laws for Dying Without a Will in Minnesota

Even when people don’t write a will that dictates how they want their assets distributed when they die, most do leave some property that requires legal transfer to their heirs. Probate is necessary to effect the transfers. This is easiest when there is a will, but the process is similar in Minnesota when a decedent dies intestate, or without a will. The major difference is that without a will, the state distributes the decedent's property according to law and under the terms of its Uniform Probate Code.

What Happens After an Estate Has Been Probated?

Whether a person dies with our without a will, in most cases, his estate must go through the probate process. Although state probate laws vary, the probate process is fairly uniform throughout the United States. It is generally a court-supervised process for gathering the assets of the deceased, paying his creditors and taxes and then distributing his remaining assets to his beneficiaries if there is a will -- or to his heirs, according to the state's laws of intestate succession, if there is no will. During the probate process, real property owned by the deceased is retitled to his beneficiaries or heirs. To open probate and begin the process, an interested party, typically a beneficiary or heir, must file a petition with the state court that handles probate.

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