It is a pretty common scenario: an individual calls our office asking about whether they need to go through a probate for their recently departed loved one. Let’s see if we can give some guidance on this question.
If you want more information on what probate is, why it would be needed, or the probate process, then check out these articles below:
- Help!!! My Sith Lord Died Without A Will (If you want to read a movie recap whilst learning about probates, you have arrived!)
- I Am Probate And So Can You!
- Probate Only Cares If You Put A Ring On It
- Probating An Estate: Where To Begin
- Mr. Deeds Showing The Need For An Estate Plan
- Probates: What Happens When Someone Dies
- The Probate After A Probate
- Can I Skip Probate If I Have A Will?
- What Happens To My North Dakota Mineral Interests When I Die In A Different State
The first question you need to be able to answer concerning your loved one’s estate (property and debts) is what did the loved one leave behind for assets? Did the recently deceased leave behind:
- Real estate in North Dakota?
- Real estate in another state?
- Bank accounts?
- Investment accounts?
- Personal property (cars, jewelry, etc.)
- Was the deceased owed money?
Make a list of the assets you are aware of.
How Was This Property Owned?
Next, try to find out how this property was owned. Did the deceased own his/her own home? Was the home jointly owned with someone else? Do the deceased’s accounts list someone other than the deceased on them? Does the deceased’s car list someone else on the title? Did the deceased have a trust? When searching for this information look for the following terms:
- Was the deceased’s real estate jointly owned, deeded in a Transfer on Death Deed (ToDD), or Life Estate Deed (LED)?
- Was the deceased’s real estate in a trust?
- Ask the financial institution whether the deceased’s account listed you as a Payable On Death (POD – Like the band) beneficiary of the account.
What Is The Value Of Deceased’s Property?
Try to ascertain the total value of everything the deceased owned. This will be important later.
What Did The Deceased Owe?
You will also want to find out what the deceased owed for debt. Was the deceased receiving any government assistance prior to death? Did the deceased have a mortgage or a car loan? Did the deceased finance the purchase of any personal property (furniture or T.V. loan)? Did the deceased regularly file taxes?
Can You Skip Probate?
The answer to this question depends entirely on the answers to the above questions. For example, North Dakota has an abbreviated probate process (somewhat of a misnomer because it’s not really probated at all) called a Collection By Affidavit. In North Dakota, if an individual dies owning less than $50,000, no real estate, and no debts (for example), then the next of kin (or devisees if the person did not have a will) can use a system of affidavits to serve as bills of sale to transfer the deceased’s property from the holder of such property to the ultimate beneficiary of such property.
In addition, depending on what the deceased owed upon his/her death, it may be more advantageous to enter into probate. In some circumstances, probate can be a more organized way to address numerous creditors claiming amounts owed against the deceased (his/her estate).
Should You Call An Attorney?
Yes. Due to the complexities of the unfinished business deceased people leave behind, every person’s estate will be different. You need a professional who can ascertain the status of the deceased’s estate and recommend a course of action, whether that be no probate, formal probate, or somewhere in between.
The succession of a deceased’s assets is a necessary and albeit complicated step in coping with a loved one’s death. If you need assistance in how to move forward concerning the estate of a loved one, please contact us!