- What to Do When a Family Member Dies – Estate Settlement & Probate Process
- A Relative can Fight for Inclusion After you Die
- Probate Blog Updates
The Federal Trade Commission maintains a straightforward guide on its website regarding the rights and responsibilities of surviving family members. An estate is the sum of the assets of an individual. Those could include things like a home, a car, a boat, a stamp collection, jewelry, a bank account — just about anything that is money or could be turned into money by selling it.
What to Do When a Family Member Dies – Estate Settlement & Probate Process
If someone dies with outstanding debt owed, the assets in an estate are sold and the money is used to pay off those debts. The executor is responsible to pay the debts out of the estate.
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Not every asset someone owns is up-for-grabs when they die. The list of exempt assets varies by state, but two major assets are exempt everywhere: retirement savings and life insurance policies. Those two assets can be distributed to beneficiaries without regard to debts owed by the deceased. Assets that are non-exempt, meaning available to be liquidated and used to pay off debts, would include a house, car, boat, bank account, artwork, stamp or coin collection or anything that has enough value to be sold.
Creditors in search of payment must present their request in writing during a prescribed time frame, which varies from state-to-state. For unsecured debts, the time limit ranges from months in most states.
A Relative can Fight for Inclusion After you Die
State laws require executors to post notice of the death, either in a newspaper or directly to known creditors to give them a chance to file a claim. It is not unusual for debt collectors to use the same tactics they are infamous for — badgering, harassing and intimidating — on relatives of the deceased, hoping somebody caves in and pays the debts.
All they care about is the money. Executors and family members can block debt collectors from harassing them by sending them a cease and desist letter or hiring a lawyer and directing all calls to the law office. However, the estate still owes the debt. If creditors continue to harass you for payment as a family member, write a letter or contact your attorney to write one on your behalf to demand they stop all contact. It does not happen often, but there are times when the owner of an estate dies and with more debt than assets, meaning the estate is insolvent.
Yes, provided that relative has standing to sue.
Any family member or past beneficiary who has been excluded from your Trust or Will can fight for inclusion after you die. But to do so they first must have standing. To have standing means they are an heir or prior beneficiary of yours and they have a property interest they will lose under your Trust or Will. For example, a child who is disinherited can sue because if you had no Trust or Will, that child would have received a portion of your estate.
Probate Blog Updates
But a second cousin, twice removed, cannot sue unless that person would have received something without the newly created Trust or Will. In other words, not just any relative can challenge your Trust or Will.
Instead, it must be a relative of yours that has something to lose under your new Trust or Will. Furthermore, to fight for inclusion in a Trust or Will after you die, the relative must have legal grounds to do so. A relative is not entitled to be included just because he or she is related to you. No one has an absolute right to inherit your property under California law unless you entered into a contract to leave your estate to someone.
Instead, a relative must assert that you either lacked capacity at the time you created the Trust or Will, or you were unduly influenced to do so or subject to fraud, menace, or duress.
Given these rules, there are a few safeguards you can employ to increase your chances that a fight will not commence after your death. In certain cases, the California Probate Code requires estate plans to be reviewed by an independent lawyer to ensure the settlor has capacity and is not being unduly influenced.
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This typically occurs where a person wants to leave a gift to his or her care giver. But you can also use a certificate of independent review even when the Probate Code does not specifically require it. By doing so, you are receiving a second opinion, in writing, from a lawyer that the estate plan is being created at a time when you do not lack capacity and are not being unduly influenced.
You can also seek the opinion of your medical doctor immediately before creating an estate plan. Some lawyers frown on this practice because it may indicate that you were worried about your capacity and therefore knew it was a concern. But why not have as much evidence as possible that you are of sound mind before creating a Trust or Will.