Do I need to go through probate when my loved one passes away?

So many people have asked me this question. Let me first say that it is the law to go through the probate court system every time someone dies. However, there are many variables that will come into play. What you hear from one friend's experience, may not be the same for your individual situation.

Here's one variable: It depends on the amount of assets in the decedent's own name. If they have $40,000 or less in their own name (with no named beneficiaries, in general this would not include an annuity that may be owned by the decedent but has named beneficiaries other than the estate), then this is what we would call a short estate "Affidavit". http://www.ctprobate.gov/Forms/PC-212.pdf Even if everything is joint, but there's $200 worth of checks in the decedent's own name, you will have to do the short estate Affidavit. You would still have to file the Will (if there is one), along with a certified death certificate, the proper probate forms, including the CT Estate Tax Return (due 6 mos. after death), and pay the probate court fee. http://www.ctprobate.gov/Documents/Sec%2045a-107.pdf Thereafter, the court will issue a Decree to Transfer Personal Property allowing you to transfer the assets to the proper individual or beneficiary (close bank accounts, sell stocks or bonds, transfer the car, etc.). This process takes longer at the onset, but should not take any longer than 6 months if all information is available in a timely manner.

Here's another variable: If there is real estate in the decedent's own name, jointly owned or In Trust, you will need to apply to the court to receive tax clearance. When someone dies, there is an automatic "inchoate" lien on the property for probate court fees and CT estate taxes that might be due. The only way to get that lien released is to obtain a Certificate Releasing Liens from the probate court which must be recorded on the land records. This is the case even if the decedent had NO assets in their own name, but did have jointly owned real estate or In Trust. To reiterate, whenever there is real estate, solely owned, jointly owned or In Trust, you will have to obtain tax clearance. To obtain that, you will have to file the proper probate forms, based on the type of estate, file the CT Estate Tax Return (due 6 mos. after death), pay the probate court fees and any CT Estate Tax that might be due, and finalize the estate.

Other variables: If there are more than $40,000 of assets in the decedent's own name, you will have to apply for full estate administration procedures. I will talk about that in another blog. Stay tuned!

*Disclaimer: This post does not constitute legal advise and does not establish a business to client relationship. If you need legal advice you should consult with an attorney.