This is the second of two writings that are generally about transferring assets at death. This writing discusses in a bit more detail the different ways that the assets of a decedent can transfer.
As discussed in the last writing, there normally are four ways to do that:
- A properly setup trust.
- Having assets that are set up to transfer automatically.
- Having assets that are low enough in value to be considered a “small estate”.
- A probate decedent’s estate court proceeding.
The remainder of this writing will discuss these four ways in a bit more detail.
First, if the person who died had a properly setup trust, then the process should be relatively smooth and quick. There is a relatively small amount of legal work that needs to be done. This legal work is required by law, and it will protect all people involved.
There should not really be any single time-consuming or expensive task. Rather, normally it is simply a matter of providing certain notices, filing certain forms and documents with various government agencies, and communicating with everyone involved. And it is a good idea to have an experienced attorney do these things to make sure that they’re done correctly.
Second, if someone has died and did not have a trust but his assets are set up to transfer automatically, then the process again may be relatively smooth and quick. Specifically, if he owned any financial accounts such as bank accounts jointly with someone else, then the funds in those financial accounts automatically became the funds of the other co-owner. This type of co-ownership is called joint tenancy.
Similarly, if he died owning financial accounts that included a designation of who would receive the funds at death, then the designated person will receive the funds automatically. This designation is known as a “pay-on-death beneficiary” designation.
In both of these cases, collecting the funds normally is a simple process. The other joint owner or the pay-on-death beneficiary simply needs to contact the financial institution and provide a certified copy of the Certificate of Death of the person who died. The financial institution likely will provide some paperwork that also needs completing.
Be careful because the financial institution most likely will freeze the financial account as soon as it learns about the death. That can be a problem if the person who died had arranged for certain bills to be paid automatically from those financial accounts. Someone needs to notify the financial institutions of the death. Just be sure that there is another way for paying any bills that still need to be paid.
Cars and real estate also can transfer to a joint co-owner. The process for cars is not very difficult, and the DMV or AAA / Automobile Club can help with that process. With real estate it is best to have an experienced attorney help.
There are good reasons not to plan to transfer assets automatically through joint tenancy co-ownership or pay-on-death beneficiary designations. There are significant risks and limitations when doing that. It is much better to have a properly setup trust.
That is planning, and this writing is about transferring the assets of a decedent. If a person is deceased, then it is too late to do any of that planning by, for example, drafting a trust. After the death, one can only play the hand that he or she was dealt.
Third, the process also can be relatively smooth and quick if all of the assets of someone who has died (or all of her remaining assets after the transfers by trust and automatic transfers discussed above) total less than a specific amount. This is called transferring the assets of a “small estate”.
In that case, the people who are to receive the assets of the decedent may be able to sign an affidavit to have the assets transfer. The affidavit requires very specific language.
Also that specific amount of assets that is a small estate changes occasionally.
In all other situations, a probate decedent’s estate court proceeding will be necessary to transfer the assets of a decedent. It is the default process in cases when the assets are more than what is a small estate after any transfers by trust and after any automatic transfers.
There is a bit to talk about regarding probate decedent’s estate court proceedings. And that will be the subject of the next series of writings that will be available soon.