Is Probate Necessary?

When a loved one dies there are many issues which need to be addressed to wrap up the person's legal and financial affairs. The following is a checklist of issues to consider:

• The funeral home should provide you with certified copies of the death certificate. The number of death certificates you need will depend on the assets remaining at the time of death.
• The funeral home should contact the Social Security Administration to report the death. If there is a surviving spouse, the spouse will be entitled to a one-time death benefit of approximately $250. In addition, the surviving spouse may begin receiving the deceased spouse's monthly social security payment if it was higher.
• If there are any life insurance policies on the decedent, you will need to call the insurance company to report the death. The company will send you the required claim forms to complete and return with a certified copy of the death certificate. The death benefit proceeds will then be issued to the beneficiaries. (Retirement plans, such as IRAs, 401(K)s and annuities, work much the same way. )
• If your loved one was receiving a pension from the VA or a former employer, you should contact the institution and report the death. If there is a surviving spouse, it is possible that the spouse may receive a death benefit or be eligible to receive a monthly pension check.
• If your loved one owned real estate in joint tenancy with another individual, a certified copy of the death certificate should be filed with the county register of deeds office. The same is true if they owned the real estate alone but had designated a beneficiary.
• Any other assets remaining like bank accounts, CD's, stocks and bonds should be handled pursuant to the probate laws.
• Those assets with Payable on Death (POD) or Transfer on Death (TOD) beneficiary designations will require that a death certificate be provided to the appropriate financial institution or company.

Finally, you may be wondering if anything will have to go through probate. Only those assets that were titled in your loved one's name alone (with no beneficiary designation at the time of death) are subject to probate proceedings. If there are such assets, then your loved one's Will should be filed with the appropriate probate court. If there was no Will in place, a probate estate will need to be opened and state law will determine the distribution of the assets. (There are exceptions to this procedure which may simplify the process if the assets remaining in the deceased person's name at the time of death are relatively minimal.) If, on the other hand, some or all of the deceased person's assets were held in Trust, a trust administration will have to be conducted.

Regardless of the amount of assets and how they are titled, it is always wise to contact The Law Office of William M. Yates for guidance after the loss of a loved one.