Understanding Intestate Probate Procedure: A Legal Guide

[00:00:00]hey I'm Paul rambling and in this video we are gonna talk about exactly how a probate works when somebody dies without a will I'm Paul ramble am i I'm an estate planning attorney I help our clients get and keep their legal affairs in order it happens often people pass away without a will they say something around six out of ten people adults in America have no will so obviously it happens all the time people pass away without a will and when somebody dies without a will the loss declares that they died intestate intestate means they died without a will testate means they died with a will alright so we're going to talk about the intestate probate louisiana we call it succession other states call it probate it's just that that procedure when somebody dies with or without a will if they owned something in their name they've got to go through the court system with attorney involvement and get judges to oversee the administration of stuff to the appropriate people let's jump right into it so to really tell you how that intestate probate works I gotta lay out just an example and I'll try to use a fairly normal example so let's call an IKE I'll call him intestate Ike Ike died without a will he was 75 years old he wasn't Mary when it married when he died maybe his wife died years earlier or maybe he was divorced but I can't three kids and we have to know to give you an example I gotta go through some assets that Ike owned when he died let's say you know you'd like anybody else he owned a home at the brokerage firm he had an individual brokerage account and he had an IRA let's call it a traditional IRA he had some accounts of the bank he had the typical checking account he had the savings account he had a CD he had some US savings bonds he owned a car and then you know he had a few little debts and bills you know and he was 75 so he had he was debt-free you know he didn't have any mortgage on his home but he had some you know monthly housing expenses you know the normal stuff utilities water insurance liability insurance homeowners insurance so we had all that going on and then he had a few credit card bills nothing big but you know five thousand of this credit card ten thousand of that credit card all right so here's what happened when I died you know the first thing that happens is they gotta have a funeral and so the three kids start kind of wondering what to do because I just never got around to planning anything he was 75 it was on his list he was a procrastinator he knew he wanted to get some legal affairs in order but he just never get it got around to it he died suddenly so the first thing the kids got to get through is they've got to figure out how to how to cover Ike's funeral expense and let's say that's you know $15,000 so what they'll do is they may they may call the bank and find out that the bank account is frozen and so they may just pony up the money themselves they may grab one of Ike's credit cards and if that goes through they'll use iyx credit card for his funeral expense so they get through that that's like within two or three days after I died and then maybe a week after I died maybe sooner they go to expect they go to Ike's brokerage firm or one of the three or one or two or three of the children do it and and they're pretty much quickly told I'm sorry I passed away but yeah our state and federal law requires that you know our financial institution freeze Ike's accounts we can't give you any information and so those financial institutions will tell the children that they need either what's called letters of administration or a judgment of possession and and again these are this is this is the Louisiana probate probate procedure other states I'm sure it's similar but you'll need to check with your state if you're not in Louisiana so that's about the time that the kids contact the lawyer's office and maybe now it's ten days after Ike died and so I know at that time there's three three children and I know I died without a will and so I'm like I got to talk to all three and if you all aren't all local if you're not in town let's set up a time where we can do a conference all because I know I'm gonna need cooperation from all three and a really you know good plan up front that everybody can agree on that we can just implement over the coming weeks or months as we try to settle Ike's estate so in that first discussion we'll talk about things like okay so I didn't have a will let's go over what our state intestate law says as to who gets likes things since he didn't have a will and in this case he didn't he didn't have a spouse but he had three kids so likes three kids are his heirs and equal portions I'll go over what did Ike owned when he died that plays a role into the you know steps we have to take and then they tell me all the things that he owned from his home to his brokerage account to his bank accounts to his vehicle to a savings bonds and they'll tell me a little bit about the bills that are currently due the household bills few credit card debts they'll tell me that they paid the funeral expenses on Ike's credit card so now I've gathered some information and so okay and then I'll say okay well here we go here's what we got to do here's the steps to get Ike's estate settled I said number one is we've got to get what's called an administrator appointed and I'll tell the three kids it's usually one of the kids and so the administrators job before you decide who it should be is the administrators job is to really work with our office and gather all of the appropriate asset information collect all the bills the debts needs to be somebody organized that administrator needs to communicate with all of the heirs as we you know progress down down this path I'm getting the estate settled so between the three of you y'all really should pick one of you to be the administrator of Ikes succession or his probate so they decide on maybe one that's local and one who's kind of responsible and I'll tell all three we need Ike to be what's calling or we need let's call the administrator Al I'll say we need Al not just to be an administrator but we need to be we need Al to be what's called an independent administrator meaning he can take a lot of the necessary independent of court approval so I say if al is going to be an independent administrator all of all three of you have to sign an agreement allowing al to be an independent administrator which they do because they've been told and and they're now under the impression that things will go quicker and things will be easier if al is an independent administrator so we prepare a bunch of court paperwork and we get the three heirs to sign it and then we get it back and we take it down to the courthouse and we file this petition to open Ike's probate and have au appointed by a judge as the independent administrator so we file all that paperwork all those pleadings at the courthouse and then we sit around and wait for a while how long do we wait it varies from courthouse to courthouse judge to judge but let's just say for purposes of our example in a month or a month after we file the paperwork we get the order back from the judge the judge where the judge's office reviewed all of the paperwork and agreed to sign the order that al was the independent administrator of Ike's succession now what now we do the paperwork to get the s state a tax ID number now we get these court orders or what we call letters of independent administration we get certified copies from the courthouse we give administrator al several certified copies of these letters of independent administration kind of crazy term but that's what it is and now al goes to his goes to Ike's brokerage firm and establishes an estate account so that account will be titled something like a state of Ike with Al as independent administrator and with the appropriate court orders or quite frankly with the appropriate letters of independent administration that the clerk of court issued the brokerage firm will move the assets that Ike and from Ike's frozen account into the new estate account I'll may also set up an estate checking account at I expand and with these letters of independent administration of the bank will move Ike's bank account money from the frozen checking account savings account and CD into the estate bank account that that al can oversee so then so that was a process of moving assets from frozen accounts into one or more new estate accounts and in that first meeting of it I would said kids what do y'all plan to do with the home and in most circumstances like that they say we want to sell it we got our own home we don't need dad's home we don't need Ike's home we want to sell it so as the independent administrator al know maybe he puts a sign in the yard he gets a realtor whatever but he puts the house up for sale he has the authority to do it as the independent administrator at some point probably a few months down the road because he's got to find a buyer they've got a sign a purchase agreement that buyers got to go get all this financing in his loan and so there's a closing maybe a few months later and at the closing the the cheque is payable to estate of Ike and independent administrator al will deposit those proceeds into one of the estate accounts at the bank or the brokerage firm in the meantime independent administrator al is going to use those estate accounts to reimburse whoever paid for the funeral to pay off Ike's credit card bills to continue paying the monthly expenses at least until the house is sold they'll content you'll use the estate funds to pay for the utility bills and the homeowners insurance and maybe even the car insurance until the vehicle is sold now may sell the vehicle and when he does that check will be payable to estate a bike I will deposit that into an estate account and in the meantime the probate court rules require that US attorneys prepare an inventory of all the assets that existed on the on the date that I died along with a list of all the debts and all the other appropriate pleadings that US lawyers have to prepare to follow the procedural rules that our state requires and in the meantime I will probably take care of Ike's final income tax return let's say he died in November of 2019 well Ike's final income tax return is going to be due on April 15th of 2020 so I was gonna go see the accountant or the tax preparer of the CPA CPA and make sure that Ike's final income tax return is is all done and then we'll go back to court with another set of pleadings asking that all the all the heirs will sign off on so we want to maintain real good communication with those three kids through the whole process so they don't have any problems signing all of the court pleadings that we get them to sign from time to time and all of the other financial institutions forms that the three kids will have to sign from time to time really want to keep real open and transparent communication the whole way through so now we're getting towards the end and the kids have signed the final court pleadings that we prepared we file them at the courthouse and then we wait and maybe we wait a month or so and maybe we don't hear anything from the judges office so we call the judge's office say I know it's sitting there on your desk will you sign it that judgment of possession ultimately they sign it we get certified copies of it and then that's that final order that orders really Ike or Al four orders out to disperse or transfer any remaining estate assets to the three children equally in accordance with our intestate rules that exist so that in short or in long really is how an a probate with no will gets handled a little bit different procedure from when there is a will because when somebody does have a will they name the executor in there but when somebody doesn't have a will then somebody has to step up step up and ask a judge to be appointed as the administrator or as I referenced independent administrator earlier now a couple of scenarios where things can be different let's say I may be yeah let's say all he had when he died was his health and he had no bills no nothing nothing that really needed to be what we call administered then we maybe could have just skipped the step of Al being appointed as an administrator and then really just petitioned the court in one set of pleadings and in those in those pleadings we would have laid out the fact that I died without a will he had three kids based on our intestate rules the three kids are the heirs and we'd ask a judge to sign an order ordering that that house be transferred to the three kids a judge would sign it and then the order would be recorded in the real estate records and that would be what would transfer title of that home to the three kids that might be if the kids want to keep the home for the long term maybe they want to rent it or whatever and so sometimes when there is no what's called administration necessary we skip the step of having an administrator appointed and all right so there you have it for what it's worth it's it's you know you may need to watch this a couple of times to really get the gist of it but I've done I've done this so many times over and over and over again that I just kind of flew through it because I didn't want to take too much time of your time or mine quite frankly but to give you an idea some people who may be watching this video might be before they watch it they they're like I have no idea no earthly idea what a process could be to deal with a probate when somebody dies without a will so there you have it every state's a little bit different I work and help our Louisiana clients you may very well be in a different state your state may have want different procedural rules you'll just need to check with somebody in your state to see what the procedure is like to handle an intestate probate in your state last thing make sure you hit the subscribe button so that you don't miss anything tune in 10:00 a.m. Central time every morning more state planning education I'm out of here we'll see you tomorrow take care