Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died. The property that a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned when they died.
To transfer or inherit property after someone dies, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court.
It is not always easy to tell whether you need to go to court or qualify to use a different procedure. There are a lot of new terms in these types of cases that you should know. Click for a short list of words related to wills and estates and what they mean.
This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case
To find a lawyer,click for help finding your bar association's lawyer referral service or call 1-866-442-2529.
What are the different ways an estate can be transferred after someone dies?
It depends. There are some ways that do not involve going to probate court.
Here are some common examples:
- If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.
- If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.
- Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).
- Property in living trusts can be transferred without going to court.
There are also some simplified procedures for estates that are under $166,250. Read Simplified Procedures to Transfer an Estate to find out different ways to transfer property that do not involve going to court.
Any portions of the estate that can’t be transferred more informally will likely have to be dealt with in probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.
What Is “Probate”?
Probate means that there is a court case that deals with:
- Deciding if a will exists and is valid;
- Figuring out who are the decedent’s heirs or beneficiaries;
- Figuring out how much the decedent’s property is worth;
- Taking care of the decedent’s financial responsibilities; and
- Transferring the decedent’s property to the heirs or beneficiaries.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
