In the midst of activity and grief after the death of a loved one, no one wants to think about drawn out, expensive legal proceedings, especially if it means giving the state control over your loved one’s assets. If you find yourself in this difficult situation, it may help to know that not all assets are subject to probate. Depending on the state and the estimated worth of your loved one’s estate, certain assets may be protected from the probate process. Even if the deceased owned stocks, real estate investments, and valuable personal possessions such as boats or cars, it’s not necessarily a given that they will flow to intended beneficiaries through the court.
However, just because specific items aren’t required to go through probate or may fall under various state thresholds, that doesn’t mean it’s a good idea to avoid estate planning or the establishment of end of life documents. Doing so while healthy and mentally capable is the best gift one can give loved ones. There are many means by which assets can be passed without subjecting a larger estate to probate, and a qualified legal professional can be of great help to families looking to efficiently pass them on.
First, even if the estate of your loved one is tangled in the probate process and you share a certain relationship to the deceased, know that you may be eligible for what is known as “the family allowance.” This allows part of the estate to become immediately available to surviving spouses, dependent children, disabled adult children who are dependents, or a dependent parent.
Life insurance is a popular and almost always smart investment to help protect loved ones because, as long as the policy has not been voided and payments are up to date, its payouts are not subject to probate. However, it’s important to realize that life insurance companies don’t automatically begin sending payments upon the death of the policy holder. Each individual beneficiary must contact the company, fill out claim forms, and prepare to submit a death certificate.
For the most part, the families of veterans, particularly if they served long ago, are not included as beneficiaries where monetary benefits are concerned. However, with the Dependency and Indemnity Compensation program, if the service member died of a disability received while in service or was entitled to treatment or compensation by the Veterans Administration, a pension may be available for spouses or minor children.
Allowances for burial of deceased veterans may also be available if the person died due to a service-related injury or under the care of the VA. Spouses should be ready to present the deceased’s discharge papers, death certificate, and marriage certificate if they are applying for this benefit.
Many are surprised to learn that family members can be eligible to claim back wages or other forms of income. Certain government agencies or privately held companies allow for pension payments to spouses, minor children, or those who are legal dependents. While the payment may or may not be the full amount of the pension, it can still be a form of assistance. Since decisions about pension programs are usually made at the time of completing hiring paperwork, its details can be easily forgotten. Revisions might also apply to your specific situation. Signed, original paperwork regarding pension plans should be located as soon as possible and placed in a secure location.
In addition to pension remainders, if the deceased had not retired prior to death, family members may be eligible to claim back wages from private companies. These may include sick or vacation days which were not used. Surviving spouses or designated beneficiaries can contact the deceased’s former employer with such information as his or her social security number, as well as dates of employment and death. While state law can differ, this might also apply to group life insurance, expense or travel reimbursements, ownership of company stock, or shared medical benefits.
When the probate process beings, beneficiaries usually cannot attempt to claim money or property by any other means. In most states, if no last will and testament has been left by the deceased, legal spouses and children automatically stand to inherit. If the deceased was not married and had no children, his or her parents and siblings usually do.
Although any object or bank account a person owned comprises an estate, most states have a threshold which an estate must meet before it is open to probate. Small estates are usually not subjected to a state’s probate process. If the amount of the estate is low enough and certain conditions are met, beneficiaries are entitled to sign a legally valid sworn statement—an affidavit—and take possession of the asset. Usually, giving a notarized copy of the affidavit to whoever might be holding the asset is enough to complete the process.
However, since real estate is usually worth at least a few thousand dollars, the vast majority of U.S. states do not permit possession of it by affidavit. In states that do allow it, the beneficiary will probably also be required to file a variety of paperwork, including the affidavit, with title agencies or the court. In the event the deceased leaves behind vehicles or small sums in bank accounts, individual state agencies or banks may require affidavits of their own in addition to a general one sworn out by the beneficiary. It’s helpful to have a copy of the state statute allowing for this process along with the affidavit.
This procedure helps to streamline the estate disbursement process for those who have passed away without a valid will. In this case, beneficiaries explicitly state that they are using the affidavit method to inherit under state law. While a brief waiting period of approximately a month may apply, it is far faster and less expensive than the process of probate.
Founded in 1975 by L. Rob Werner and serving California for over 48 years, our dedicated attorneys are available for clients, friends, and family members to receive the legal help they need and deserve. You can trust in our experience and reputation to help navigate you through your unique legal matters.
Whether you need help creating a living trust or navigating probate, our living trust law firm's compassionate team of estate planning lawyers and probate lawyers are here to help you and ready to answer your questions.
Our goal is to make your case as easy as possible for you. Hiring a lawyer can be a daunting task, but it doesn’t have to be. From the moment you contact our firm, through the final resolution of your case, our goal is to make the process easy and understandable. We cannot change the fact that probate is a long and complicated process, but through our Werner Law Firm Difference, we strive to go out of our way to keep you informed of your case through every step of the way. We are constantly refining our processes and procedures for a more streamlined and calm client experience. Our goal is to have you feel like a burden was lifted from your shoulders, and that we made the whole process an easy one
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