If someone dies with no spouse, how do his children go about obtaining his property and assets?

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If someone dies with no spouse, how do his children go about obtaining his property and assets?

Asked on October 8, 2012 under Estate Planning, Iowa


Catherine Blackburn / Blackburn Law Firm

Answered 11 years ago | Contributor

If this person died without any life or estate planning, his children will likely have to open a formal probate to distribute his property and assets.  There are several ways to transfer assets upon death that do not require probate, and you should check to see if any of this was done before opening a formal probate.

First, check the deed to any real property.  If another person or persons are listed on the deed, the property may pass automatically to that person(s).  The way the title is written determines whether all of the property passes to the other.  In general, if the deed says that the property is transferred to Person A and Person B "as joint tenants with right of survivorship," then it will pass automatically.  (PLEASE do not use this general answer to prepare a deed. Check with a proper authority to make sure the language meets exactly the requirements of your state.)

Next, check the titles to any other assets to see if another person or persons is listed.  In most states, including Florida, a second "joint owner" owns the asset if the first passes away.

Next, check the bank and investment accounts to see if a second person is listed on the account, or the account was designated as a "pay on death" (POD) or "transfer on death" (TOD) account.  If so, the funds in this account will be paid to the beneficiary listed on the POD or TOD paperwork.

Next, look for insurance policies and call the carrier to find out if the deceased listed a beneficiary.  If so, the carrier will pay the beneficiary directly.

Finally, call the administrator for all retirement accounts to find out who is listed as the beneficiary on those accounts.  IRA's, 401k's, and other retirement accounts usually require a beneficiary, so there should be a beneficiary listed.  The beneficiary may be the deceased person's estate, but usually an individual is listed.

All of these methods "avoid probate" and do not require a formal estate administration ("probate").  If the deceased did none of this, and had no will or trust, the children will have to hire an attorney and open an estate to transfer the assets.  If the assets are few, your state may have a quicker/easier procedure to handle this.  Florida, for example, has a "summary administration" procedure that is quicker and easier than a full administration.

Hope this helps.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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