Gavin Howe
Probate law is the field of law that determines how a person's estate must be divided after their death. The probate process involves reviewing and validating the deceased person's assets and will (if there is one) and distributing the assets to the rightful beneficiaries. The process varies depending on the state, the size and complexity of the estate, and whether the deceased had a will. During probate, a personal representative or executor is responsible for ensuring that the deceased's creditors are paid and preparing tax returns. Family members of the deceased may have access to various benefits, such as life insurance, Social Security, pensions, and unpaid wages or employment benefits. These benefits can provide financial support and help alleviate some of the stress experienced by beneficiaries in the aftermath of a death.
Explore related products
What You'll Learn
Life insurance, pensions, and annuities
Life insurance policies with up-to-date beneficiary designations do not have to go through probate. It is important to keep beneficiary designations updated, as failing to do so is a common mistake that can lead to the proceeds of a life insurance policy going through probate. For example, if a husband and wife list each other as beneficiaries and the husband dies, the wife must remember to update her beneficiary designation after his death. If she does not and subsequently dies, her life insurance proceeds will have to go through probate because her beneficiary is no longer alive to receive the benefit. In cases where the beneficiary is a minor, the court may need to appoint a guardian, which would require probate. To avoid this, one option is to name a trust created for the minor as the beneficiary of the policy.
Retirement accounts, including pensions and annuities, can also bypass probate if beneficiaries are designated properly. Naming a spouse or an adult child as a beneficiary ensures that the account will not have to go through probate. However, if no beneficiaries are named, the account is left to a minor child, or the estate is named as the beneficiary, the retirement account will have to go through probate.
In the context of probate law, it is important to understand the distinction between a designated beneficiary and a non-designated beneficiary. A designated beneficiary is a specific person or entity named as the recipient of the benefits, such as a spouse or adult child. On the other hand, a non-designated beneficiary occurs when there is no named beneficiary, and the estate becomes the default beneficiary. Properly designating beneficiaries is crucial to ensuring that benefits such as life insurance, pensions, and annuities are efficiently distributed and do not unnecessarily go through probate.
Creating Viruses: Understanding Criminal Law and Bioethics
You may want to see also
Explore related products
Unpaid wages and employment benefits
The death of a loved one can take a toll on family members, both emotionally and financially. While the estate proceeds through probate, family members may be able to receive a family allowance to cover their short-term expenses. Family members may also have access to benefits through life insurance, annuities, Social Security, pensions, and unpaid wages or employment benefits.
A spouse or another close family member of the decedent may be able to claim any unpaid wages of the decedent if they were working when they died. Family members may also have access to reimbursement for the value of unused vacation days, unused sick days, unpaid bonuses and commissions, and other factors. The employer’s director of human resources usually handles this matter. In some states, the spouse or other family member will need to submit a signed affidavit with their request for wages. The state may impose a limit on the amount that can be collected.
In California, Probate Code sections 13600-13606 address when and to whom an employer should pay wages owed to a deceased employee. If an employer refuses to pay wages under Section 13600, the surviving spouse can sue to recover the wages, and, if the employer “acted unreasonably in refusing to pay,” they may be able to claim damages. Upon the death of an employee, a California employer must pay the deceased’s spouse the earned “salary or other compensation … including compensation for unused vacation, not in excess of fifteen thousand dollars." The surviving spouse must state under penalty of perjury that they are entitled to the earnings of the decedent under the decedent’s will or by intestate succession and that no one else has a superior right to the earnings.
If the deceased employee had a will and/or trust, the executor of the deceased employee’s estate will contact the employer. The employer is lawfully entitled to disburse the monies as directed by the executor of the estate. If the deceased employee died without a will or trust, the employer can disburse the funds only if they receive an affidavit (no sooner than 40 days after the death of the employee) signed by all the potential beneficiaries of the estate. Receipt of such an affidavit acts as a bar to any claims by other individuals.
The Evolution of Breed-Specific Laws: A Historical Perspective
You may want to see also
Explore related products
Property rights of the surviving spouse
The probate process involves dividing a person's estate after their death. The laws regarding this process vary by state, and the presence of a will, as well as the number of heirs, can significantly impact the process.
In the context of probate law, a surviving spouse is generally prioritised in terms of inheritance rights. In the state of North Carolina, for example, a spouse is the one person who cannot be disinherited and has a right to inheritance by the simple fact of their marriage. However, it is important to note that marriage in North Carolina is distinct from common-law marriage, and a lifelong partner does not accrue rights to property in the same way as a spouse.
In the case of intestate (dying without a will), the court will refer to intestate succession laws to determine which heirs will inherit the estate. The surviving spouse generally inherits first, followed by the decedent's children, parents, and siblings. However, stepchildren may sometimes have priority over other heirs.
Certain assets may automatically pass to the surviving spouse, even if the decedent's will or trust states otherwise. For example, if a property is designated as community property with a right of survivorship, the surviving spouse will inherit it without the need for probate. Additionally, some assets pass to the surviving spouse through beneficiary designations, such as payable-on-death (POD) and transfer-on-death (TOD) designations.
The probate process can be complex, and seeking legal advice from a probate attorney or lawyer is often recommended to ensure that the rights of the surviving spouse and other heirs are protected.
Harvard and Constitutional Law: Is It Necessary?
You may want to see also
Explore related products
Transfer of assets to beneficiaries
The probate process involves distributing a person's property and assets after their death. This includes transferring assets to beneficiaries. The process varies depending on the state, the size and complexity of the estate, and whether the deceased left a will.
If the deceased left a will, the will is "proved" and delivered to the court, and the executor is responsible for initiating the probate process and filing the will with the court. The executor is typically a family member or friend named in the will. They collect the decedent's assets, pay any debts and claims, and distribute the remaining assets according to the will. The executor represents the interests of beneficiaries and creditors, and they may need to prepare and submit an account to the beneficiaries, heirs, and the court, detailing all money paid out and collected by the estate.
If there is no will, the estate is considered intestate, and an impartial administrator is appointed by the court to distribute the assets. This process involves finding and contacting legal heirs, starting with surviving spouses, then children, and then other family members. Heirs must claim their inheritance within a specific timeframe, after which the state takes possession of the assets.
Certain assets do not need to go through probate and can be transferred directly to beneficiaries. These include jointly-owned assets, where the surviving co-owner(s) gains ownership; assets in trust, which can be set up to transfer funds to a designated beneficiary; and contract-based financial assets such as life insurance policies, IRAs, and pension plans, which name a designated beneficiary.
Beneficiaries of a life insurance policy will need to contact the insurance company to make a claim, and they may be able to choose whether to receive payments in installments or as a lump sum. In the case of a minor beneficiary, an adult will oversee the money until they reach the age of majority.
Unraveling Law Enactment Dates Through Credits
You may want to see also
Explore related products
Probate without a will
The legal term for dying without a will is "intestate". In such cases, the probate process involves a probate court overseeing the distribution of a deceased person's assets according to state laws. The first step in probating an estate without a will is to file a petition with the probate court. The court will then establish that the decedent died without a will, determine the heirs, and appoint a personal representative to administer the estate. The personal representative, usually a spouse, an adult child, or another close relative, ensures that creditors are paid, and prepares and submits an account to the people named in the will, the heirs of the deceased, and the court.
The probate court will assess what assets need to be distributed among the legal heirs and how to distribute them. The distribution hierarchy typically starts with the surviving spouse, followed by any surviving children, and then other relatives. Assets of the estate that need to be distributed can include personal property, real estate, life insurance proceeds, retirement accounts, or just a share of a family cabin.
Some common assets that often transfer ownership to beneficiaries even without a will include jointly held properties, such as real estate or vehicles, which will have a right of survivorship where the deceased party's share of the property will be transferred to the co-owner upon death. Other assets that can bypass probate include payable-on-death or transfer-on-death accounts, where assets are transferred to named beneficiaries.
Probating an estate without a will is typically costlier and takes more time than probating one with a valid will. However, there are ways to avoid probate without a will, such as giving away assets, establishing a right of survivorship, or establishing a trust.
Written Laws: Rome's Legacy of Order
You may want to see also
Frequently asked questions
Probate law is the field of law that determines how a deceased person's estate must be divided. Probate involves a good deal of paperwork that must be filed in a timely manner.
A deceased person's estate includes all assets they owned or held an interest in. This includes land, real estate, vehicles, capital, and any other assets owned by the decedent.
A benefit under probate law can include life insurance, annuities, Social Security, pensions, and unpaid wages or employment benefits.
The executor of the will is responsible for initiating the probate process. The executor is typically a family member or friend and needs to initiate probate by filing the will with the court.
If there is no will, the court will appoint an impartial administrator to distribute the assets. This process can involve finding and contacting any legal heirs, starting with surviving spouses, then children, and then additional family members.
