PROBATE COURT – PART 2: Decedent’s Estates
The most common interaction with a Probate Court most people experience is when someone dies. If a person dies and has his or her name on an asset, with or without someone else’s name on that same asset, then papers need to be filed with the Probate Court to remove the decedent’s name and properly account for the asset for potential future tax benefits.
What papers are needed is determined by the asset(s), their value and their ownership. If all the assets of the decedent were held jointly with a spouse, for example, then you probably only need to file a “TPO” or “Tax Purposes Only” estate which is an estate tax return. If the decedent owned no real estate and less than $40,000 in assets, then only an estate tax return and an “Affidavit in Lieu of Administration” need be filed. (If the decedent had a Will, it too would be filed, but not probated in both of these situations). If real estate was owned exclusively by a decedent or if the decedent’s solely owned assets exceed $40,000, then a full estate is required which will further require multiple filings to finalize the estate and transfer the asset(s) either to the beneficiary under a Will or an heir. Such filings include a Petition for Administration or Probate of Will, an Inventory, an estate tax return, a List of Notified Creditors, a Return of Claims, a Final Accounting and a Proposed Distribution. In addition, a notice will be published in the local newspaper informing anyone who may have a claim against the estate that they should contact the fiduciary. Once completed, there should no longer be any asset in the decedent’s name. Occasionally an asset may be forgotten and the estate will have to be reopened to address this asset.
Although the Probate Court is designed for the non-attorney to be able to process these papers without an attorney, it is usually still advisable to have an attorney represent you depending on how complicated the estate is or simply to relieve you of the stress of doing so in an already difficult time. This is intended as a simple overview and does not describe the exact process for all situations.