FIL died with no will- where to start - Mothering Forums
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#1 of 12 Old 02-08-2008, 05:50 PM - Thread Starter
 
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My FIL passed away a few days ago. We contacted a funeral home in the area (he is in IL, we're in AZ). Dh and his brothers agree on what is to happen with the remains and are next of kin. They know they will have to divide up assets and stuff, but will this need to go through a probate or lawyer, or can they just contact banks and such (for house, car, etc) and have titles transfered or things sold, etc.?

Dh thinks it all has to go through some 3rd party and I'm not sure.

Thanks

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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#2 of 12 Old 02-08-2008, 06:17 PM
 
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You will have to go through some sort of probate, I think, though if all of the heirs are in agreement it will probably not be too bad.


This is from AZlawhelp.com:

Question: How do I begin to file probate if there is no will?

Answer:

When a person dies (called the decedent) without leaving a valid will, that person has died intestate. Each state has laws on how to address intestate estates that involve distribution of decedent’s assets to the spouse (if there is one) and/or living relatives (called the decedent’s heirs), if there are any. If there is no spouse or living heirs to pass the decedent’s estate to, it goes to the state.

One way to avoid this from happening is to encourage everyone to write a will even if their estate is small. Probate is a legal process that is used to determine who the heirs are, and to administer the estate (the property) of a person that has died (called the decedent). There are different types of probate actions that must be followed depending upon factors such as the total value of the estate and whether it is being challenged. There is formal probate, informal probate and small estate administration. Most small estates can use informal probate or small estate administration. These are less expensive and easier ways to administer the decedent’s estate. The small estate administration process can be completed without the use of an attorney by filling out the forms provided by the Maricopa County Court Self Service Center online. The small estate process has specific requirements that the estate must meet before the process can be used and probate avoided. Carefully read the rules before you proceed in this manner. Generally, the majority of estates are addressed through informal probate, and that is the process that is described here.

The same procedure for informal probate is used regardless of whether an original will is located or no will can be found. Application can be made by a variety of people who have a legal interest in the decedent’s property, such as surviving spouse, adult child, parent, sibling, an heir, and others as defined by law in special circumstances such as creditors after 45 days. (A.R.S. § 14-3301(A)).

The first step is to determine who is an appropriate “personal representative.” This involves notifying other potential personal representatives and obtaining their legal permission to act in that capacity on behalf of decedent’s estate. The court may require the personal representative to post a bond in an amount equal to the value of the assets in the deceased’s estate, unless all interested parties have agreed to waive this requirement. After the court appoints a personal representative, the court issues to the personal representative a document that gives the personal representative the legal authority to act on behalf of the estate (this document is called “letters of administration”). The next responsibility for the personal representative is to give notice to creditors to file any claims against the estate for outstanding debts. The personal representative also gathers up the decedent’s assets, files an inventory with the court (or forwards it to all interested parties), manages the assets, and accounts to the beneficiaries (those who stand to inherit as heirs) during the administration of the estate. The personal representative also verifies and pays the decedent’s debts and any taxes that were owed by the decedent or the estate. The personal representative may, but is not required to, file a final account with the court. Typically this process is used only if a formal closing is needed or the personal representative needs to have the court resolve disputes as to how the estate was distributed. Most of the time an informal probate is closed informally, meaning that the Personal Representative sends an accounting to the heirs and if no objections are received, he/she simply files a closing statement with the court which then discharges the Personal Representative from further duties.

If real estate is being distributed, then a Deed Of Distribution must be prepared, it must be filed with the court and a certified copy must be recorded in the county where the property is located. The specific detailed requirements and forms to file for informal probate are available at the Maricopa County Superior Court Self Service Center online.

Generally, this process must be started within two years of the decedent’s death. Note: there are certain limited exceptions to the two-year limitation for informal probate listed in Arizona law. (A.R.S. § 14–3108). An attorney may be of assistance in determining whether the situation qualifies for one of the exceptions or with handling the more complex “formal” probate process for which forms and instructions are not available from the court. A formal probate will always require a hearing in front of a judge.
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#3 of 12 Old 02-08-2008, 07:55 PM
 
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I'm sorry for your loss.

Depending on the circumstances, it is possible that the estate will need to go through some sort of probate. If a probate is opened, it will need to be filed in the city/county where your FIL lived in Illinois.

Probate is a process wherein a court receives the decedent's assets and then passes them along according to a will or the laws of intestacy. When a person dies without a will, it's called intestate. Here's a link to a the statute setting forth the rules of intestacy in Illinois:

http://illinois-attorney.com/intest.htm

This statute is actually pretty straight forward and sets forth the various possibilities for what will happen. If the decedent had a living spouse, the spouse receives half of the estate and the decedent's children receive the other half "per stirpes." If there is no living spouse, the estate goes to the children "per stirpes". Per stirpes means that it is split equally among the heirs.

I am an attorney and I have done some probate work, but not in Illinois, so I don't know the specifics about probate laws there. I did google for Illinois probate information and found quite a bit of good stuff. Increasingly, law firms are putting such information on their websites and it's usually accurate. This site discusses whether a probate is necessary:

http://illinois-attorney.com/lp10.htm

Apparently under Illinois law (and in the state where I live), a formal probate is not necessary if the assets of the estate are under $50,000. Instead, an interested party (one of the heirs) can file an affidavit stating that the estate is less than $50,000 and that it will be distributed according to the laws of intestacy.

The person who would file this document is similar to what's called a personal representative or executor in a formal probate. Generally, it is one of the heirs who is trusted to make the correct decisions regarding the trust and treat all other heirs fairly. In your situation, if your FIL has children living in Illinois, it would probably be easier for them to deal with the probate because they will be able to take care of things in person.

I think the biggest question here is whether you need to retain an attorney to handle this. Most of the websites you'll find about probate are from attorneys and (surprise) recommend hiring one. If the estate is under $50,000, you may not need to hire one because you can use the small estate affidavit process. However, this requires that there be an heir that everyone trusts to make sure that everyone gets their share and that the assets are not wasted in some way.

If the estate is larger or if there are complicated assets that none of you feel comfortable with dealing with (properties held in joint tenancy with non-family, annuities, etc.), it would probably be in everybody's best interests to hire an attorney. Although it may seem like a large amount of money, it is usually worth it so that everything gets done right. Also, it should be noted that the estate will pay the probate attorney fees.

Finally, one other thing to consider about hiring an attorney is that the attorney does not have emotional or familial connections to the estate. I have seen some really sad cases where families have been torn apart over probates. Attorneys can't always prevent that, but there's a better chance that it would devolve into squabbling if there's a third-party and neutral person that can make sure that everything is done according to law.

Here are a couple of other sites that have some good information about Illinois probate:
http://www.probateillinois.com/
http://illinois-attorney.com/probate.htm

Whoops, I seem to have written a novel! Hope this helps!
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#4 of 12 Old 02-08-2008, 08:47 PM - Thread Starter
 
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Thanks- there is a house that is almost paid for and a car- I think that would total over $50k. They are going to go through the house and look for sentimental items, etc., and maybe drive the car from IL to AZ- is that illegal? Or, would they just be 'using' it until the stuff is completed? We don't want them to take something and find out they shouldn't have, you know? I mean, we wouldn't be trying to register it or sell it or anything- just keep it from being vandalized, etc.

Also, I think there is a safe deposit box- they can just go and get the contents, right? (as long as they're listed as co-owners or whatever)

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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#5 of 12 Old 02-08-2008, 08:49 PM - Thread Starter
 
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Oh, and yes, this is all very helpful.

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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#6 of 12 Old 02-15-2008, 08:32 PM - Thread Starter
 
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Thanks everyone for the help.

Update- dh and his brother hired a probate lawyer- they were able to get into the safe deposit box (bank employee went in) to see if there was a will- there wasn't. So, dh will be named the administrator to help get things sorted out, decided, etc. He'll make sure it's fair for all the brothers and his aunt (FILs sister).

Only slight problem is FIL let his sort of girlfriend move in a few months back 'to get on her feet'. She's been staying there- paying no rent. The brothers have no problem letting her stay there if she pays the mortgage/utilities. She says she can't afford that- so they're going to have to make her move. She said FIL told her she can stay as long as she needs to and that 'those were his wishes'. Well, if he were still around, I'm sure he'd pay her way as long as he needed to, but he's not and his kids certainly aren't going to support a woman they don't know.

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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#7 of 12 Old 02-15-2008, 09:39 PM
 
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Eek thats a bad situation. I don't think she has any legal ground to stand on though since they weren't married. I understand how you feel. My DH's dad died without a will 12 yrs ago and we just got the property actually in his name last year. We had a lot of family (Dh's grandfather, ex step mom, etc) trying to take the land from him even though he was the only legal heir. I'm glad your DH's family is being sensible about this. I'd ask the probate lawyer about the girlfriend. I don't think she can get anything but you may be forced to give an eviction notice or something? I hope it all works out for you.
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#8 of 12 Old 02-15-2008, 09:44 PM
 
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If she won't move, you can have her evicted. Unless FIL told someone he wanted her there...doesn't sound that way, ethically it might not be cool, but it sounds like she doesn't have a leg to stand on legally, she should leave.
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#9 of 12 Old 02-15-2008, 09:45 PM - Thread Starter
 
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The lawyer is going to send her a letter telling her she has to move, but she can choose to ignore it, of course.

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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#10 of 12 Old 02-16-2008, 12:55 AM
 
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My mom died without a will or life insurance this past Thanksgiving.. She didn't own much, though. So basically what happened with us was that my brother and I picked what we wanted out of her stuff and my husband & I got stuck paying for her whole funeral costs because my brother was going to "donate her body to science" and was like, "Umm no, please..." I couldn't imagine my mom NOT getting a proper service... So my husband and I + my grandpa paid for her service and that was that.
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#11 of 12 Old 02-16-2008, 02:05 AM
 
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Quote:
Originally Posted by shelbean91 View Post
The lawyer is going to send her a letter telling her she has to move, but she can choose to ignore it, of course.
Usually you pay the person (cash money!) if they move out by a certain date without destroying the house. When you offer cash, they will hopefully take the thousand bucks and walk away. I would first move out all the furniture and other possessions, though, that you want to keep.

Ask the lawyer if you can legally shut off water, cable, electricity, etc... to help her leave. Or you could ask her to sign a rental agreement and stay on. The rent is negotiable, but the lawyer will make the rental agreement so it favors you ... greatly.
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#12 of 12 Old 02-16-2008, 02:41 AM - Thread Starter
 
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We can't shut off anything yet. We can have someone else move in. She won't sign a rental agreement- says she can't pay. They can't do anything until everything is transferred from FIL to the sons.

But, we will make sure everything is taken care of. I do have family relatively close if they need to go there and help out.

Michelle -mom to Katlyn 4/00 , Jake 3/02, and Seth 5/04
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