Decedent Dies Intestate
It is important to know the laws in the state in which you reside to understand your position involving a death in the family and to avoid the frustration and confusion that results. Take time for family matters and the funeral. Most individuals search the internet to understand better the probate of the will. The information on the internet will provide enough information to acquaint an individual in this position with what will be transpiring in and out of a courtroom in their state. Knowledge is power and because the “baby boomer generation” is passing on and leaving behind substantial wealth it is important to understand the process in which you will be involved. It is also important to hire a knowledgeable attorney specializing in estate and probate law and if necessary a forensic accountant.
In one scenario the sisters of a man with Alzheimer’s disease commandeered him and his estate by moving him from his home in another state and away from his daughter. His only heir, a daughter, was named the Executor in his original Last Will and Testament of which she had a copy. In the move, his sisters went to his safe deposit box removed the contents including his original Will. They also closed his bank accounts and transfer the money to the other state. The man was placed in a nursing home and just over one year he died.
The sisters approached a judge through their attorney indicating there was no will to be probated and that their brother died intestate. The sisters applied for an administration, post a bond, and were appointed co-administrators to finalize the estate. The daughter who was according to the original Will, to be the appointed administrator upon his death was left out. The daughter had a copy of the Will, but state law prohibited a copy of the Will to be probated. The co-administrators pulled all the assets of the decedent together and prepared an inventory leaving out some of the assets. They then converted the assets to cash, some of the cash they distributed to their children and to the daughter. Some of the cash was spent on the estate incurring attorney fees and other expenses. His pickup truck was given to one of his nephews. The co-administrators refused to provide any kind of accounting to the daughter. Therefore, the daughter had to hire an attorney to negotiate with the co-administrators and their attorney. After months of wrangling with the co-administrator’s attorneys, some financial information was released. Unsatisfied with the resulting information the daughter filed suit and had the co-administrators deposed.
During depositions that transpired one of the administrators confessed that they had found the original Will in the safe deposit box and gave to it to their attorney. The attorney retained the Will and represented to the court that there was no Will present. At this time the case is still pending, and the attorneys are still negotiating to settle the matter.
In my opinion, this is fraud on the court and the daughter should be appointed as administrator and take over her father’s estate and should have a full forensic accounting prepared on the assets converted to cash and determine the ultimate disposition of the cash.
Decedent Dies with a Will
If your grandparent or parent dies and leaves a Last Will and Testament, it may be necessary to probate the Will. Initially, take time to tend to family matters and later speak with an attorney knowledgeable in estate and probate and bring the original Will for his review. Also, if the decedent died with a Will and has assets, advise the attorney. He or she will file an application for administration of the person’s estate. The probate judge will grant the issuance of Letters Testamentary appointing an Executor. In that instance, if the applicant is the spouse of the decedents or an adult child and is designated in the Will the court would appoint that individual as Executor of the estate. After 90 days, the Executor may file an affidavit with the probate court with an inventory of the assets or file an affidavit that states that an inventory was prepared and is available to creditors, if necessary. Generally, nine months later the Form 706, Estate Tax Return is required to be filed by the Executor. Also, a Form 1041 Income Tax return for the Estate must be filed and the taxes paid. The website www.irs.gov/forms-pubs/form-706-united-states-estate-and-generation-skipping-transfer-tax-return has instructions and information to help with instructions for filing the returns.
At times, Wills can be contested by family members who have been disinherited. This contestation can be difficult because there must be documented proof for lack of testamentary capacity, undue influence, noncompliance with formalities, ambiguities of language, fraud, forgery, or duress.
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If you or your client wants to avoid the potential perils of not contesting a will timely, consider hiring a licensed private investigator / forensic accountant by contacting Chief Investigator Edmond Martin of Sage Investigations, LLC at 512-659-3189, or email firstname.lastname@example.org. Let our 26 years as an IRS Special Agent and 19 years as a private investigator and forensic accountant benefit you and your clients. Click to read about our team and their CVs