Probate and Estate Taxes

 

When two people die, there is often confusion about who gets the property after the death. Often, questions about who gets the property arises because the surviving person was married to the decedent lived in a house, condo, or other ownership agreement. Does the surviving spouse get the house? What about the car? Is the family dog entitled to anything? It is important to understand the basic principles governing the determination of ownership after death.

Determination of title (who now has the legal rights to the property) is an equity-based process. When a person dies, their will must list the person who is responsible for the property (the executor). In most states, the executor is also responsible for providing proof of identity and that he or she is not the claimant for the property. If the decedent had a specific gift agreement in place, such as a revocable trust, it may still be the case that the property is held in trust for one or more beneficiaries. Generally speaking, if the property is not transferred in the named beneficiary's name, then it will pass under the name of the executor.

The testator may choose to name a third person, commonly called an administrator, to control the distribution of the property. Although generally recognized as the official administrator, many times family members or others with less than tie to the decedent may become involved in the property. In some cases, the testator's agent, commonly called a probate court appointee, holds the property while it waits for the intestate testator to die. If there is no valid testament, the testator's agent can act as the administrator. This testator's right to administer the property passes to his or her estate after death. In some states, though, the property must be sold under the laws of intestacy.

In cases where the testator's estate is decedent and beneficiaries are not available, there are other ways to determine the testator's devise. One option is to use the dependency testator's last will and testament. This document is designed to provide instructions about who should control property once the testator has died. Another option is to use the final living trust. This is a document drawn up by the testator's estate and designated as the legal living trust. Under this option, the property is dispersed to named or identifiable beneficiaries according to the testator's instructions.

There are many other options available, as well. For example, when there is a combination testator, one testator's estate becomes the estate of the other, and both testators' revocable trusts are combined. In this situation, the testator's estate takes over the assets owned by the combined trust. There is also a reversion back scenario. When the testator's estate is dispersed under the decisions in the testator's last will and testament, there is a reversion back to the testator's property.

Many states consider a decedent's estate to be distributed either wholly or in part based on the decedents' "equitable share" of the decedents' property. This portion usually takes the form of a percentage of the value of the estate. The other portion of the decedents' share--the "other property" or "revenue" --must be distributed in accordance with state law. In most cases, the portion of the estate that is subject to the testator's decision is the lessor's share. However, if the testator had no other asset, he or she may have left the bulk of the estate to be divided among his or her heirs. Regardless of the percentage distribution, if the testator did not die immediately before distributing his or her property, the determination of his or her proportionate share must be done by a court in its initial state of probate.

When estates are distributed under the provisions of a probate court order, it is referred to as "probate". For example, if the testator died prior to the date of execution of the probate order, the entire estate is subject to probate. If the testator died later in the day of execution, then only the property that was not already subject to probate is considered for distribution. Once probated, the estate becomes a matter of public record.

In general, one who receives assets in his or her will does not have to make payments on those assets immediately after death. Payments on estate must be made to the administering agent or the trustee of the estate. Payment is usually made on a weekly basis within a specified time. The paying off of debts, the settling of all debts, the payment of expenses and other debt obligations are some examples of debt obligation that is not resolved by probate.