Aunt Mabel's house has been in the family for years. Various cousins have lived there on and off, but it needs work and the family is ready to sell. Who actually owns the house? Aunt Mabel died without a will years ago and her succession was never opened. Your real estate agent friend tells you that you will have to deal with the succession issues before selling the house. This type of scenario is faced by clients on a regular basis.
Sometimes people defer opening a succession because they think it will cost a lot and take a lot of time. Sometimes they are correct. However, often it is not as complicated as you might think. Here are the basic steps for opening a succession:
No Will (Intestate)
- Petition the court to appoint an administrator. Administration is basically the inventory, collection, preservation and eventual distribution of the assets of the estate, as well as paying the debts of the decedent and his estate. In some cases, administration is not needed and this step can be skipped.
- Tell the court who the heirs are. This is accomplished by an affidavit attached to the petition.
- Develop a list of the decedent's assets.
- Petition the court for a judgement of possession. This judgement legally transfers the assets to the heirs. If all the heirs agree and no administration is necessary, that's it and can be done in one filing with the court.
With a Will (Testate)
- Petition the court to probate the will (prove its validity) and appoint the executor named in the will. Again, if no administration is necessary, this step may be skipped. If the will is in the proper form, it is "self-proving", so probate is a relatively simple matter.
- Follow steps 2-4 as above.
You're saying, "But, my cousin Vinny's succession took months to complete." Admittedly, some successions are not this simple. Here are some factors that can complicate the process:
- Prior successions haven't been opened. For example, you are working on your father's succession, but your grandparents never opened/closed theirs.
- The decedent didn't tell people where his assets were or did not keep good records.
- You know there is a will, but can't find it.
- The heirs don't agree. This is by far the number one complicating factor. Sitting down with the plan before someone dies and putting those wishes in a will that everyone knows about can save the estate thousands of dollars. For more on this subject, see Discuss Your Estate Plan with Family.
When someone dies, it's best not to defer opening the succession in order to avoid costs. Many times, you can actually save your family money by taking care of the succession early on. Contact an estate planning and administration attorney to find out more before you decide to ignore it.
