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A Discussion About Probate, Part II: What Happens When a Loved One Dies?

Posted by Elise Buie | Jan 29, 2021 | 0 Comments

This article is the second part of a three-part series on probate. You can read Part I here.

A lot of confusion can occur following a loved one's death. Fortunately, going through probate is a process with very specific steps and need not be confusing or complicated. After the executor's appointment, the following will occur.

Posting Bond

It might be necessary for the executor to post bond before accepting the letters and acting on behalf of the estate. Bonds work as an insurance policy that will kick in to reimburse the estate if the executor commits some grievous error — either intentionally or unintentionally — that financially damages the estate and, by extension, its beneficiaries.

Marshalling the Decedent's Assets

The executor's first task involves locating and taking possession of all the decedent's assets. This step can involve a fair bit of time and sleuthing. Some people own assets they've told no one about, even their spouse, and these assets may be challenging to locate.

The executor must hunt for any hidden assets, typically through a review of insurance policies, tax returns, and other documentation.

When it comes to real estate, the executor doesn't have to move into the residence or the building and remain there throughout the probate process to "protect" it. But they must continue to pay property taxes, insurance, and any mortgage payments to prevent foreclosure.

However, the executor may take physical possession of other assets such as collectibles or even vehicles, placing them in a safe location. They will collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.

Ancillary Probate for Out of State Property

Ancillary probate is an additional, simultaneous probate process required when a decedent owned real estate or tangible personal property in another state or states. The laws of the state where the property is located usually govern what happens to that property when the owner dies, not the laws of the state where the decedent lived at the time of death.

Ancillary probate refers to a probate proceeding required in addition to the primary probate proceeding that takes place in the decedent's home state. This secondary probate is necessary because the probate court in the decedent's home state has no legal jurisdiction over property that's situated elsewhere.

Consider, for example, a decedent who lived in Washington but owned real estate at the Oregon shore. That property cannot be probated in Washington and, instead, requires ancillary probate in Oregon. 

One of the most significant drawbacks of ancillary probate is the added cost of having to administer more than one probate estate, including multiple court fees, accounting fees, and attorneys' fees. This situation can happen even if the process is abbreviated somewhat by cooperation between the state courts, and it can deplete the estate's financial reserves.

If you need assistance understanding what steps the court will require during the probate of your loved one's estate, call us today. We are here to help.

About the Author

Elise Buie

Passionate, creative, problem-solving attorney who crafts solutions rather than obstacles. Elise spends significant time educating her clients on healthy communication skills. Elise also ensures that her clients make informed decisions by understanding the future emotional and financial implications of their decisions. Your family's future is our first priority. Elise teaches her clients new skills to empower them in the future as they adjust to the new family structure. While divorce ends a marriage, it is the beginning of your new, often times, more authentic life. Elise will help you begin that new life with new skills to handle any future challenges.

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