When a loved one passes away, it is often a concern that the assets they own at the time of their death are now in a state of limbo. For property that is not jointly titled with a living individual, which does not have a named beneficiary, which does not transfer on death or for any property which is owned by the individual alone without any pre-determined method of disposition the Estate must be administered in order to determine who the new rightful owner of such property is. This process is done through the Court in the county where the decedent lived, at the time of his or her death. The type of proceeding which needs to be pursued will be determined by a number of factors relating to the existence and the validity of the decedent’s Last Will and Testament.
In the event the decedent had a Last Will and Testament, a Probate proceeding will be required. In this case, the Will is being presented to the Court so it can be judicially determined that the document is in fact the Last Will and Testament of the decedent. The person who brings this proceeding is the one who is named Executor in the Last Will and Testament. The Executor will be the personal representative of the Estate who will carry out the administration of the Estate by navigating the Surrogate’s Court probate process in order to be appointed. Once appointed, the Executor may distribute the decedent’s property in accordance with the terms of the Last Will and Testament.
If, however, the decedent did not have a valid Last Will and Testament, then an Administration proceeding will need to be brought. In this case, a personal representative is appointed by the Court for the Estate upon the petition of that individual and the property is distributed in accordance with the intestate statutes of the state in which decedent lived at the time of his or her death. The intestate statutes which direct the division of the property differ for each state but they generally will pass property to the closest living relatives in a specific pre-determined pattern.
Additionally, for either of these proceedings, if the decedent owns property in another state at the time of his or her death, additional proceedings will be required in those states.
Although this process sounds complex and difficult, with the help of an experienced attorney, it does not have to be. If you are dealing with the passing of a loved one and need assistance, contact Katz, Smith & Chwat PC today to set up an appointment.
Posted in: Estate Planning