Whether you die with a will or without a will, the only way to have the deceased persons belongings lawfully divided and transferred to others is to go through a legal process called probate. The person going to the probate Court must qualify to serve as the Executor. The Probate Court then gives that person legal authority to start transferring assets out of the deceased person’s name. All too often, the family jumps the gun, not knowing there is a barrier that stands in the way between them and their loved one’s last wishes. They start acting on the wishes of the deceased, all without the right to do so, which can create a nightmare of costly mistakes!
Below are the top 13 mistakes people make, but you can avoid such errors with some professional guidance!
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Family Taking Items From The Home: The executor of the estate has to account for and distribute the assets according to a will or by law. When family members take assets and property from the home, resulting in the proper heirs not receiving according to the wishes of the deceased, and may result in additional expenses to the estate.
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Using a Power of Attorney After the Death of Your Loved One: The Executor of the estate, not a family member with a Power of Attorney, must take sole charge of the estate’s cash assets and bank accounts. Failure to do so can result in significant losses to the estate and have negative consequences in heirs’ allotment.
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Cashing Checks and Spending Money: Cashing a check of the deceased before checking with the issuing party such as The Veterans Administration or The Social Security Administration can result in timely delays in administering the estate and additional expenses. Furthermore, if a family member forges the signature of the deceased even to pay bills of the deceased estate, doing so is fraudulent and subject to criminal charges.
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Failing to Open the Estate Probate Promptly: While there is no deadline to file a probate, as time passes, property tax will pile up, creditors and heirs may become impatient. Because losing a loved one is devastating to family, moving forward at times may be difficult. The family should give themselves time to mourn, but should also realize that waiting to begin the probate process can place even more demands and stressors on everyone.
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Driving the Loved One’s Car: For reasons of liability and depreciation, any motor vehicles owned by the deceased should not be driven, as the vehicle may not be insured; action should be taken as soon as possible to have the vehicle titled to the designated beneficiary.
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Not Communicating with all Concerned: From the outset, it is important that all family members (heirs) are in agreement with whom is to handle the estate (if one is not mentioned in the will). Once decided, the Executor should communicate the status, setbacks and progress, so that any problems that do arise will have less of a negative impact on all heirs.
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Listing Items Inaccurately or Incompletely: When items are inaccurately listed on the probate application, extra documentation and accounting to the Clerk of Court will be required to explain why items initially listed as estate assets are now not listed. Furthermore, if assets such as bank accounts or beneficiary accounts are not identified until after an estate is closed, the estate will need to be re-opened, draining additional assets and time.
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Neglecting Mail: Mail should be forwarded to an address or P.O. Box in which the Executor has access. If not, important notices and claims from creditors may be missed which could result in costing the Estate significantly more in time and expenses to administer. Also, when mail begins to pile up, it is a sure sign that the property is vacant and can be inviting to burglary and vandalism.
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Leaving Bank Accounts Open in the Name of the Deceased: Not notifying the bank promptly of the decedent’s passing will allow automatic deposits and withdrawals/payments to continue, and other people authorized to an ATM or debit card may be still be making withdrawals.
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Not Paying Taxes: Various taxes may be required to be paid, which may include taxes of the deceased for the year in which they passed, and any unfiled returns for the prior years, income earned on the estate, and estate gift taxes.
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Not Seeking Legal Counsel: Although all estates don’t require the assistance of legal counsel, having the assistance of legal counsel may prevent many of the above problems and many more that can happen during the probate process.
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Paying Bills Owed with Estate Money: The deceased’s debts must be handled in a particular manner and paid in a certain order of priority; if the Executor fails to follow the proper procedures and order, he/she may be personally liable for the financial discrepancy that results.
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Not Keeping Detailed Records: The Executor of the estate is required to record receipts and disbursements coming in and out of the estate, and show gains and dividends from estate investments; failing to account accurately will likely result in grievances from heirs and even objections from The Clerk of Court - resulting in prolonging the probate process.
