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- Ronald J. Axelrod
“Mom passed without a Will. Now what?”
Updated: Mar 20
Mom or dad has passed away and despite your requests over the last few years for them to see an attorney and make a Will, they just never got around to it. What should you do now?
Initial Steps to Take
Search diligently for a Will anyway. Check file cabinets, desk drawers, safe deposit boxes, contact any former lawyers they might have had, ask their close friends or other relatives to see if they know if your parent had made out a Will. There may not be any reason to panic if you can’t find a Will as the State of New York has already written a default Will. The State’s proposed distribution is often what the family wants. This process is called an intestate probate or administration.
Gather a list of your parents’ assets, bank and financial statements, and tax returns. Identify what your parents owned and what assets require probate. Bank accounts, real estate, stocks, and securities may have survivorship or payable-on-death provisions. If this is the case, they don’t have to go through probate. Check to see how these assets or the statements relating to these assets are titled. Look for joint tenants with right of survivorship or a statement indicating the asset was owned as husband and wife.
Download from any life insurance company’s website proof of claim forms and submit them with copies of your parent’s death certificate. The insurance company will take care of transferring proceeds and retirement plan benefits directly to the beneficiaries named on the policy.
If your parent was collecting Social Security, notify the Social Security Administration of his or her death. They will automatically deduct any payments that were deposited after the date of his or her death.
If the only property owned is personal and worth less than $50,000, it may not be necessary to open a full probate proceeding. There is a simple procedure called a Voluntary Administration when the total value of assets is less than $50,000 and excludes real estate.
Make an appointment with a lawyer. This can be your parent’s lawyer, your lawyer or a new lawyer you have been referred to by a trusted advisor. The lawyer will review the information you have gathered and will advise you what next steps are needed. A lawyer is initially looking to see if probate is even necessary. If all of the assets were owned jointly with a surviving joint owner or had a named beneficiary, there may be no need to have any probate at all.
Next Steps – Opening Probate
Probate
Probate procedures are basically the same with or without a Will. If you’ve already identified the property that requires probate, the next step is to complete an inventory for the Court, listing the assets and determining their values. Some property might require professional appraisals. You will also have to send notice to your parent’s creditors that their estate is in probate, advising them to make claims for the money they’re owed. You’ll have to prepare a final income tax return for your parent as well as an income tax return for the estate if any funds come in after her death; an accountant can help you with this. Check to see if your state has an estate tax. Federal estate taxes are only due if the value of the estate in 2023 is over $12,920,000 -- after subtracting debts, liens and the costs of probate – and in New York State it is $6,580,000.
Closing the Estate
Finally, you must file a final accounting of the estate with the Court before you can make distributions.