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By Roy Schneider, Esq.  

The loss of a loved one is a difficult time, often made more stressful when one has to handle the affairs of the deceased. This may be a great undertaking or rather minimal work, depending upon the level of estate planning done prior to death.

Tasks that have to be performed after the passing of a loved one will vary based on whether the departed individual had a trust or will, or died intestate with no estate plan in place. In determining whether probate (a court-managed process where the assets of the deceased are managed and distributed) is needed, the assets owned by the individual, and whether these assets are held by a trust, titled in joint tenancy or under a “payable on death” arrangement, must be considered. It’s important to understand that assets titled jointly with another person are not probate assets or assets subject to the terms of a trust and will normally pass outright to the surviving joint owner. This may or may not be what the decedent intended.  Also, assets such as life insurance and retirement assets that name a beneficiary will pass to the named beneficiaries outside of the court probate or trust administration process.  Such transfer could be problematic if any of the beneficiaries are minors.  If the deceased relative had formed a trust and during his or her life retitled the assets into that trust, those trust assets will also not pass through the probate process and be administered according to the explicit terms of the trust instrument.

If property is held in other states, it is important to note that each state’s rules may be slightly different so it is important to seek proper legal advice if you are charged with handling the affairs of a deceased family member or friend. Assuming probate is required, there will be a process that you must follow to either file the will and ask to be appointed as the executor (assuming you were named executor in the will) or file for probate of the estate without a will (this is referred to as dying “intestate” which simply means dying without a will). Also, there will be a process to publish notice to creditors and you may be required to send each creditor specific notice of the death. Those creditors will have a certain amount of time to file a claim against the estate assets. If a legitimate creditor files a claim, the claim can be paid out of the estate assets. Depending on the location of assets, some state’s laws impose a state death tax (sometimes referred to as “inheritance taxes”) that have to be paid and, if the estate is large enough, a federal estate tax return may also have to be filed along with any taxes which may be due.

Only after the estate is fully administered, whether through the probate or trust administration process, creditors paid, and tax returns filed and taxes paid, can the estate be fully distributed to the named beneficiaries or heirs. Given the many steps, and complexities of probate, you should seek legal counsel to help you through the process.  If you are facing the prospects of handling the affairs of friend or relative and wish to understand your fiduciary and other important obligations, please contact the estate planning attorneys at Schneiders & Associates, L.L.P., to arrange for a consultation.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.