Certain assets of the decedent may pass to the survivors without going through court, probate, or even through a trust. Those are usually assets held in joint tenancy, tenants in common, or community property. Joint tenancy means that two or more people own a particular asset with the specific provision that should one of the owners die, the entire property passes to the other owner or owners. In a Tenant in Common, each person has a designated portion that passes to that persons heirs while their co-owners interest in the same property passes to their heirs, almost the opposite of the joint tenancy situation. It is common for real estate, especially residences to be held in joint tenancy, tenants in common or community property. Bank accounts are also often held jointly so the survivor takes all and no probate has to be done other than file a certificate of survivorship.
Other assets that can transfer outside the probate process are life insurance, where a beneficiary is usually designated in the policy. There are also provisions for transferring a car without going through probate. And often people will have bank accounts or other financial assets that they can pass by listing it as “POD” which means “payable on death”.
Transfer of joint assets is not necessarily automatic. For example, for real estate to transfer to the surviving owner, a document often called an Affidavit of Survivorship or similar documents needs to be completed and filed with the County Recorder’s office of the county where the property is located. Other types of assets held jointly may require completion of specific forms and usually include sending a certified copy of the death certificate with those forms.
The Will usually designates a person to be the personal representative of the estate. The personal representative will oversee distribution of the assets of the estate and the payment of any outstanding bills. Presumably, the deceased discussed taking over this responsibility with the person named as the personal representative and that person agreed to accept the responsibilities. The law provides for payment to the personal representative for accepting these duties, but sometimes an heir to the estate may waive that fee.
The court will issue “Letters” to the personal representative which give the Personal representative the power to take care of the assets of the estate and make decisions relating to maintaining, selling and/or distributing the property of a deceased person leaving a will and in certain cases not leaving a will. It takes time before such Letters are granted so it is important to begin the probate process as quickly as possible. We can help.
Once the bills are paid and the time has passed for creditors to submit their bills, the personal representative will be able to distribute the assets of the estate according to the terms of the Will.
If there is no Will, the process is somewhat similar, except that the law has provisions that states who gets the property. Eventually, the probate process will come to a close. The personal representative will give an accounting to the court of all the assets, expenses and distributions. Therefore, it is very important to keep accurate records.