Avoid common pitfalls when a loved one passes

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Category : Other
31 - Jan - 2013

When a loved one passes away it is not a natural reaction to immediately begin thinking of the administrative issues that result from the death. A period of reflection and grieving is a normal part of the human response to loss. I’m not writing this blog entry in an attempt to advocate that those normal emotional responses should be downplayed or abbreviated in any way. I do, however, want to convey the importance of consultation with an estate professional within a reasonable amount of time after the loss in order to avoid larger problems that can result from inaction.

Even surviving spouses need to consult with an estate/probate attorney.
It’s often thought that when a spouse dies, the surviving spouse, who may be a joint owner of nearly all of the couple’s property, doesn’t need to seek counsel or carry out any type of estate administration. This is, unfortunately, a misguided belief. While it’s possible that no formal probate administration is necessary, there are still many tasks that must be completed in order to completely resolve all the asset and tax issues that may arise from one’s death. Affidavits of survivorship should be completed in a timely fashion to transfer property solely to the survivor. In addition, there may be federal estate tax, state inheritance tax, or other tax issues that arise which will be spotted by a qualified attorney. While transfers to spouses are generally not taxable, there may be other issues that require the filing of a return. These tax issues come with strict filing deadlines, which can carry penalties for delay.
Don’t delay in probating a will.
If a decedent dies leaving a last will and testament, it is imperative to offer it for probate with your county’s probate court soon after the death. In Indiana, a will cannot be admitted to probate if it is not offered for probate within 3 years of the date of death. I have, unfortunately had clients bring in a decedent’s will to me at Halcomb Singler, LLP, well over 3 years after the date of death, and ask how they can get the decedent’s property legally transferred to the persons designated in the will. The excessive delay in offering the will for probate can result in the will no longer being admissible into probate, and the decedent’s property will then pass NOT according to the decedent’s wishes as set forth in the will, but will pass according to Indiana’s laws of intestacy. Talk with an attorney soon after the death to ensure that all of these administrative tasks, including the probating of the will if necessary, are completed in a timely fashion.
Even if there’s not a will, there’s still a way.
While it is certainly my advice that a will is a mandatory piece of almost any estate plan, if your loved has passed without leaving a will it’s not “the end of the world” for purposes of administering the estate. There are many things that a good estate attorney can do to help with the administration process regardless of whether there is a will. Indiana’s laws of intestacy still allow the probate court to appoint a Personal Representative for purposes of administering the estate, and the attorney can guide that Personal Representative through the process.
Don’t be an ostrich.
While the administrative burden of estate business may seem overwhelming, especially in tandem with the emotional strain of losing a loved one, ignoring these issues will only exacerbate the problem. Sticking one’s head in the sand and hoping that the issues resolve themselves is not an acceptable strategy. When the loss of a loved one strikes you or someone you know, please seek qualified estate counsel immediately to ensure that you don’t fall victim to the many pitfalls that can result from inaction or delay.
If you have questions about any of these topics, or regarding estate planning, estate administration, probate, guardianship or other related matters, please feel free to contact me at (317) 575-8222.
Also, check out our website at: www.HalcombSingler.com