When someone dies owning property, there is a legal process for distributing the person’s assets. This process begins in Probate Court. There are numerous rules and procedures in Probate Court and they differ depending on whether the individual who died (the decedent) had a valid will. Because of the complexity of the process, hiring a probate and estate administration attorney is advisable to help ensure that all issues are handled accurately and efficiently.
How Is Property Divided When Someone Dies?
If the decedent left a will, the distribution of property is carried out according to the instructions in the will. Before the property can be distributed according to the will, the will must be shown to be valid. The process for proving that a will is valid is known as “probating” a will.
In the absence of a will, property is distributed through an estate administration process. How the assets are divided depends on the “intestacy” laws in the decedent’s state of residence. For example, in Connecticut, if you die without a will and have a spouse and children, they will each get a share of your assets according to a specific formula. If you don’t have a spouse or any children, your assets go to your parents. If they are no longer alive, your property goes to your siblings, then nieces and nephews, and finally, your cousins.
Regardless of whether a decedent has a will, the court will ensure that any debts, funeral expenses, estate administration expenses, and taxes are paid before approving the distribution of the remaining assets of the estate.
How Do You Start the Probate or Estate Administration Process?
If you are named as the executor in the will, the first step is to file a petition to begin probate. The petition should be filed in the county or town where the decedent lived at the time of death. Typically you must provide the following information and documentation:
- Original death certificate;
- Original will;
- Basic asset information, including:
- Estimated values and location of real property in the state;
- Estimated value of personal property;
- Estimated value of other property; and
- Full legal name and address of each person named as a beneficiary or fiduciary in the will.
In addition, you must determine if the beneficiaries and intestate heirs (if not beneficiaries) will consent to probate of the will and you serving as executor. If they do, you will need to have them sign a waiver and consent form. If they do not consent (or any of them is a minor or incapacitated adult), you must submit a citation to the court, requesting that the court appoint you as executor.
Where the decedent does not have a will, you must file a petition for administration and provide the same information stated above. However, you will include contact information for any heirs that would inherit under the intestacy law.
What Happens If Beneficiaries Are Minors?
Generally, the Probate Court will appoint a guardian to manage the money left to the underaged beneficiary until they reach the age of majority.
Should You Hire a Probate or Estate Administration Attorney?
A lawyer can handle the necessary paperwork, deal directly with the court to ensure all documents are completed and filed appropriately, and minimize any potential problems or delays. Our attorneys have extensive experience with probate and estate administration and can assist you with your matter. Contact us for a consultation.
For more information, look for our next post on the responsibilities of the executor or administrator during the probate and estate administration process.