What happens to your assets when you die?
When you die, any assets you own will be distributed in accordance with your Will. If you die with a Will and you have assets over $50,000 (not transferred on death), then the Personal Representative named in your Will is required to open a Probate case.
What is Probate?
Probate is a court-supervised process with four primary objectives:
- Validate a person’s will;
- Distribute a deceased person’s assets to the legal beneficiaries or heirs;
- Determine any debts and taxes that need to be paid; and
- Determine the claims of creditors.
Through this process, the rights of surviving spouses, creditors, and beneficiaries of the estate will be protected. It ensures that once the property is transferred to heirs or beneficiaries, it is free from any creditors’ claims. This process is guided by a personal representative titled by the deceased or appointed by the court.
What happens if you have assets and die without a Will?
If you die, without a Will and you have assets over $50,000, your heir(s) must open a Probate. It is within the court’s discretion to appoint a personal representative to handle the affairs of the estate. A personal representative is required to post a bond with the Probate court to ensure that they will not take any assets they are not entitled to. This is where fights start between family members and it gets ugly. The best way to avoid this is to hire our office to represent you and to properly prepare estate planning documents before it gets to this level.
What is a Personal Representative?
A personal representative is an individual or corporation named in a Will or appointed by the court to oversee the probate process of an estate. This is both a major responsibility and privilege, the key duties of a personal representative are to:
- Identify and collect the assets of the deceased;
- Manage the assets during the administration of the estate;
- Determine the rights of any surviving spouse under marital property laws;
- Pay expenses of administration, taxes, debts, and claims; and
- Distribute the remaining assets to those entitled to receive them
An application is filed with the Register in Probate in the County where you last lived. All parties interested must be informed of the probate proceedings. If a Will was present, interested parties will have a chance to challenge the Will. Any individual or organization that is owed money by the deceased must have the opportunity to make a claim against the estate. After a personal representative is appointed, he or she must make an inventory of all property that is part of the estate. Once an inventory has been established, the personal representative must collect and distribute assets and pay debts. After all this has occurred the court takes .2% of the estates worth and the remaining assets are distributed amongst heirs and beneficiaries.
Can you avoid Probate?
Absolutely! Probate is not always necessary and each case is unique, at Konstantakis Law Office we understand this and utilize the most effective method of resolving disputes. Depending on one’s financial situation, a Will may be all that one needs to achieve these goals. Or, a revocable trust may be the best option so that estate taxes are minimized or completely avoided, and probate is not necessary. This is why it is important to consult with our experienced firm to determine what type of estate planning instruments are best for your situation. Remember, it is always better to be proactive than retroactive, no one can dictate your final wishes better than yourself. We are here to help you make these decisions. We will meet with you, listen to your concerns, analyze your specific situation, and thoroughly discuss with you, your estate planning options. After you make your decision, we will prepare the necessary documents for you and help you execute your estate plan.