“Mom or dad has passed away and despite your requests over the last few years for them to see a lawyer and do a will, they never did. What do you do now?”
A recent Wealth Advisor article asks a very practical question you may face someday: “Your Parent Didn't Have A Will: What Should You Do Now?” For starters, the article advises you to make a diligent search for a will, when a parent passes away.
That includes a look through your parent’s paper records and file cabinets. You should also speak with their good friends and other relatives and ask their accountant and any lawyer they worked with in the past. It’s a good idea to see if there are any business cards of attorneys, CPAs, or financial advisors. It is important to remember that wills don’t expire. If you find an “old will” and it wasn’t revoked by the parent, that’s the will that will be probated.
See if your parents had a safe deposit box, since the will might be in there. However, you’ll need the authority to gain access to the safe deposit box (which may be in the box!). If you are lucky, mom or dad will have named you as a signatory on the box, and you will be able to access it. If not, you’ll have to comply with state laws to get into the box.
You should also create a list of your parent’s assets, as well as finding their financial statements and tax returns. It’s especially helpful if you have financial statements covering the date of death, because date of death values of assets will be needed for probate and estate tax returns. The financial statements will often indicate the ownership of the account. If there was a joint owner of the account, ownership will pass to the surviving joint owner Probate of that asset won’t be needed. The same is true for any “POD”—Payable on Death accounts, where the asset gets paid on death to that named person listed and avoids probate.
Make an appointment with an experienced estate planning lawyer. He or she will review the information you’ve gathered and advise you what steps are needed. The attorney will be able to determine whether probate will be necessary.
If any assets had a named beneficiary, those assets won’t need to be probated. Ownership passes by operation of law to the named beneficiary, such as with life insurance.
If there is no will, you’ll need to bring a petition under the laws of the state where mom died (or where she owned assets), asking the court to appoint you as Personal Representative of the estate. When this is granted, the beneficiaries are determined by state law, which dictates who inherits in what order and what percentage.
Reference: Wealth Advisor (June 4, 2018) “Your Parent Didn't Have A Will: What Should You Do Now?”
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