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The loss of a parent is always difficult. Beyond the range of emotions that you experience, you may also have to deal with your parent’s estate.
Your parent’s estate is all the property they owned when they died. This includes their real property as well as their personal property. Real property includes real estate, like a house or land. Personal property includes pretty much everything else, like furniture and jewelry.
After a parent dies, you cannot just take the property. You must properly transfer the property after going through the necessary steps. The steps depend on the state your parent lived in and whether or not they had a will when they died.
Keep in mind that some property transfers automatically. This includes accounts with named beneficiaries and payable-on-death accounts. When someone dies, the assets automatically transfer to the named beneficiary.
The documents and information that you need in order to transfer property after a parent’s death depend on where your parent died, whether or not your parent died with a will, and the value of your parent’s estate.
Each state has its own laws regarding the transfer of property after death. That is why where your parent died matters when discussing what documents or information you need.
Additionally, the transfer process can vary depending on whether your parent died with or without a will. Most estates must go through probate. Probate is the court-supervised process of administering an estate after a person’s death.
If a person dies with a will, then property contained in the will is distributed in accordance with the will. If a person dies without a will, then property is distributed in accordance with the laws of the state where the deceased person resided.
Not all estates have to go through probate. Some states have laws regarding small estates that do not have to go through probate. This can impact the transfer process as well.
When you transfer property after a parent’s death, you are most likely going to need some or all of the following documents:
If you have questions about what documents you need to transfer property, contact a probate attorney. The probate attorney can advise you regarding the transfer and assist you with the paperwork if necessary.
The executor is the person who is in charge of managing an estate after someone dies. This includes transferring property. In some states, this person is called the personal representative or administrator. The executor cannot legally perform their duties until they are appointed by the probate court.
If your parent had a will, then they may have named an executor in the will. If they were married, this is often their spouse. It can also be an adult child or another trusted adult. The named executor has to petition the court to be appointed as the executor.
If your parent died without a will, that does not mean that the family can do whatever they want. It still means that someone is going to have to petition the court to be appointed as administrator.
The person who petitions the court must be over 18 and should meet the qualifications to be an administrator in the state where they are filing the petition. If there is a conflict and more than one person petitions the court, then the court is going to decide who is the administrator based on the priority of appointment.
The priority of appointment varies by state. It generally goes in order of relationship to the deceased, such as the surviving spouse and the heirs. It may also be decided based on the best qualified. Once the court appoints an administrator, that person is responsible for transferring the property.
Each state has its own requirements regarding who can be an executor or administrator. A person may be disqualified from being appointed to the role if they are a minor or incompetent. They may also be disqualified if they are unfit to serve as a fiduciary. This may be due to substance abuse issues or if they have been convicted of certain crimes.
Each state has its own laws regarding the transfer of property after a person’s death. How long you have to transfer property depends on the laws of the state where you are administering probate.
Most states have a minimum amount of time that an executor must wait before property can be transferred. This timeline is to ensure that debts are paid from the estate before property is distributed.
An executor must also complete certain probate tasks by certain deadlines. If an executor fails to meet the deadlines, then an interested person may ask that the executor be removed and replaced.
An executor has a duty to timely administer the estate. This ensures that funds are not wasted, debts are timely paid, and those entitled to an inheritance timely receive their property. What is timely depends on the laws of the state and the size and complexity of the estate. A large estate with a lot of assets may take longer to administer than a small estate with relatively few assets.
After a parent’s death, before property can be distributed, an executor is going to have to complete the following steps:
If you have questions about transferring property after a parent’s death, you should ask a probate attorney. The probate attorney can answer your questions and assist you with the probate process if necessary.
The steps for transferring property after a parent’s death without a will can vary depending on the type of property and how it was owned. The transfer process can get complicated quickly. If you’re in charge of transferring property, you may want to get legal advice before you do anything.
Just because a person died without a will, that doesn’t mean that you don't have to go through the probate process. As mentioned above, some smaller estates may be able to bypass some or all of the probate process. However, this varies by state. In most instances, you are only going to be able to transfer property if you’re appointed to be the executor of the estate. For this to happen, you must petition the probate court.
Once you have been given the right and responsibilities over the estate by the probate court, you can begin estate administration. One part of estate administration is the transfer of property, however, that step is often one of the last to occur. First you must complete your duties, which often include those discussed in the earlier section.
Keep in mind that notifying and paying creditors must often occur before transferring property. That is because the property of the estate must sometimes be used to pay debts.
Once the proper notices have been provided and other debts have been paid, the executor can transfer the estate’s property to the proper individuals. The executor may be able to do this with or without the permission of the court depending on the probate proceedings.
If a person dies without a will, then the property is distributed in accordance with the state’s intestacy laws. These laws say who is entitled to receive what. If there is a surviving spouse, then the surviving spouse is often entitled to some if not all of the property. The deceased’s children, grandchildren, and other kin may also be entitled to some of the property.
The process for transferring the property depends on the type of property. As discussed in an earlier section, depending on the type of property, you may need certain documents to effectuate the transfer.
If you are going through a bank or business, they may have their own requirements regarding documentation. It is perfectly normal to ask a bank or business what documentation they require for the transfer of property after death.
Property transfer may require additional steps if you’re dealing with real estate, and especially if your parent died with a mortgage. What happens to a mortgage when someone dies depends on a number of factors.
This includes who else participated in the purchase and what is going to be done with the mortgage. There are a number of options available when it comes to the mortgage. The availability of these options depends on the estate and who is inheriting the property.
Property transfer may also require additional steps if you are selling a parent’s house after death . If you are going to sell a parent’s house after they die, then you need to do the following:
When it comes to large items like real estate, it is best to consult with an attorney before you begin the process. An attorney can answer your questions and make sure that you properly complete all of the necessary steps.
Some property is easier to transfer. Household items and even furniture may not require additional paperwork like a vehicle or house. Once the item is available to be transferred, the person receiving the item can simply pick up the item and take it with them.
The executor should keep a record of the property transfers (even of the small items). Depending on how the estate is being administered, they may have to submit a final accounting to the probate court. The final accounting generally includes the estate’s income, expenses, inventory, and inventory distribution.
If you are the executor, you should check with a probate attorney to ensure that you have adequately completed all of the necessary steps to transfer the estate’s property.
The steps for transferring property after a parent’s death with a will are very similar to the steps for transferring property without a will. The only step that is different is to whom you are going to transfer the property.
If a person dies with a will, the property is distributed in accordance with the will. The will should say who is entitled to receive the property.
If there is any property that is not accounted for in the will, then that property may be distributed in accordance with the state’s intestacy laws. A well-drafted will usually includes language so this does not occur.
If you have questions about who is an estate beneficiary and entitled to receive property, ask an attorney. The sooner you obtain legal advice, the sooner you can transfer the property.
Transferring property after a parent’s death can feel overwhelming. In addition to dealing with the legal aspects of the transfer, you may also be dealing with difficult emotions and the challenge of dealing with family.
As you go through the transfer process, remember that you don’t have to do it alone. There are online and local resources available to help you including the Cake website. You can also hire a professional, such as an attorney, for assistance. When dealing with estate matters, the best time to ask for help is now.
