This is an article from Amen, Gantner & Capriano (http://www.yourestatematters.com/) in St. Louis, Missouri, that we thought others may find helpful.
The death of a loved one is usually followed by a period of grief and other heightened emotions. Along with the emotional impact of the decedent’s death, however, there are also some practical and legal ramifications. The biggest of those is the distribution of the decedent’s estate. If you are a beneficiary or heir of the estate, you probably have a number of questions about your inheritance; however, you may feel it is disrespectful to ask or you may be unsure who to ask.
Probate Basics – The First Step in Receiving Your Inheritance
Contrary to the way things are often portrayed on television, when an individual dies there is not usually a melodramatic “reading of the Will” to let everyone know what the decedent left them. Instead, the decedent’s estate goes through the legal process known as probate; during which time you will find out what, if anything, the decedent left you. Probate is typically required following the death of an individual because the law wants to make sure that estate assets are accounted for, valued, and eventually transferred to the intended recipients or legal heirs of the estate. Probate also ensures that creditors of the estate have the opportunity to file claims against the estate, as well as requires the payment of gift and estate taxes before assets can be released to beneficiaries or heirs. If the assets included in your inheritance are required to go through probate, you will not receive those assets until the conclusion of the probate process.
Probate vs Non-Probate Assets
Not all assets are required to pass through probate. Assets that do not need to go through probate can be distributed to the intended beneficiary shortly after the death of the decedent. Some common non-probate assets include:
- Proceeds of a life insurance policy
- Property co-owned as “joint tenants with rights of survivorship”
- Assets held in a trust
- Assets held in an account designated as “Payable on death (POD)” or “Transfer on Death (TOD)”
Testate vs. Intestate Estates
If the decedent left behind a valid Last Will and Testament the estate is referred to as a “Testate” estate. If the decedent failed to leave behind a valid Will the estate is an “Intestate” estate. If the decedent died intestate, then his respected state’s laws of intestate succession will be used to determine what will happen to the decedent’s estate assets. It can take longer to probate an intestate estate than a testate estate because the legal heirs of the estate must first be identified and then located. This alone can slow down the probate process considerably if the decedent was not survived by close relatives and the law has to look to more distant relatives to find heirs.
Challenges to the Will
Sometimes, a Will contest is filed by a beneficiary or potential heir of the estate. When that happens it effectively brings the entire probate process to a halt until the challenge has been litigated because if the Will is invalidated the court must locate another valid Will or the estate becomes an intestate estate and the intestate succession laws are used to distribute the assets.
Creditor Claims
Finally, if the estate is required to go through formal probate, it will take a minimum of six months before your inheritance can be distributed to you because creditors of the estate have that long to file claims against the estate.
Ultimately, the best way to obtain an estimate for the amount of time it will take before you receive your inheritance is to consult with the estate planning attorney representing the Executor and the estate.
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