Filing a Heirship Proceeding

Posted by Winifred "Wini" Cannon | Mar 31, 2021 | 0 Comments

I believe that information and knowledge help us to make intelligent choices and decisions. So we've talked about what kind of proceeding you file when there is no will involved. This time, I'm going to talk about the why. Why would you need to file an application for heirship determination, application for independent administration and request for letters testamentary?

Why Would You File an Application for Heirship Determination?

You would probably need to do this if there's real estate or property that needs to be divided because you definitely want to make sure that you're able to take the property out of the name of the decedent and put it into the name of those people who have inherited it.

I do want you to understand that upon their demise, you have an equitable interest in the property. But if that is not recorded anywhere, then you could end up losing your property interest because nobody pays the taxes or some scenario like that. Or the decedent is named in a lawsuit, and as a part of the judgment, they lose, and as a part of the judgment, they could put a lien on the house.

The Reasons You Would Want to File a Probate Proceeding

There are different reasons as to why you would want to file the application because you may need to be a representative of the decedent's behalf, or maybe there is life insurance policies and bank accounts and other annuities or wages that were not paid and that the decedent didn't designate a beneficiary. Say the amount of this stuff is more than $75,000, then certainly, to be able to collect or gather these assets, you would have to file the probate proceeding that is allowed for people who do not have a will.

Contracts

So, these are the whys. We already told you what the application is, but I need to point out to you as an aside that if your loved one has a life insurance policy and/or bank accounts, et cetera, and they have designated a beneficiary, those things are contracts. And by virtue of a contract, all you need to do is prove death and prove who you are and the company will pay you whatever is in the 401K. Whatever the value of the insurance policy is, they'll pay you that, if you have been designated as the beneficiary.

The Importance of Heirship Proceedings

The heirship proceedings are important where there is no designation. Because if a person fails to designate a beneficiary, it automatically goes to their estate. But you cannot collect on it until you file something to report in the estate.

So when you filed the application for determination of heirship, independent administration and request for letters testamentary, the case is filed in the matter of the estate of your loved one. So you're opening up the estate so that when you get these letters testamentary, you could take that to the bank and say, "Okay, you made this payable to the estate. I'm the executor. Pay the money over." And then you put it in the estate account and you abate those distributions in accordance to a percentage of proportional shares designated by the court and its judgment for declaring heirship.

About the Author

Winifred "Wini" Cannon

Winifred “Wini” Cannon knows how business owners may be impacted when retirement, incapacity, or death occurs without a good plan in place. One example that is very common is in the instance where one partner dies leaving the other trying to stay in business complicated by the...

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