The word, decedents, is used in legal documents when referencing a person who has died. This term is commonly used in last will and testaments and trusts. Wills and trusts are legal instruments used to bequeath inheritance assets to heirs and beneficiaries.
Decedents can gift financial assets, real estate, privately owned businesses and personal belongings to whomever they desire. Most often, assets are passed along to the surviving spouse, children, and direct lineage relatives such as mother, father, sisters or brothers.
Last wills must undergo probate to ensure the estate is properly settled. A personal representative is appointed within the Will to manage the estate. Estate administrators can have a wide range of duties including contacting creditors, paying outstanding debts, maintaining real estate, filing documents through the court and government agencies, submitting a final tax return, and distributing assets to named beneficiaries.
When decedents die without leaving a Will it is referred to as dying intestate. All assets are suspended through the probate process to determine rightful heirs. The average duration of probate is between six and nine months. Intestate probate can extend estate settlement by six to nine months. Much depends on the estate value, outstanding debts, and family dynamics.
Executing a last will and testament does not avoid probate, but can accelerate the process as long as heirs do not contest the Will. If decedents choose to disinherit direct lineage heirs they should include a ‘Statement of Disinheritance’ within the Will. Doing so provides evidence to the court the decedent knew the heir was alive, but voluntarily elected to write them out of their will.
Probate laws require estate administrators to engage in measures to locate known heirs who are missing. Heirs may have disconnected from the family due to disputes or personal reasons. Even if missing heirs have not been in contact with the decedent for years, they can rightfully lay claim to certain assets unless a disinherited statement is included in the Will.
If heirs are not included in last wills they can elect to contest the Will, claiming decedents did not know they were alive, or stating the decedent was under the influence of another or not of sound mind when they executed their legal will.
Contested wills can suspend probate for months and potentially bankrupt the estate. When heirs contest a last will they are initially responsible for paying legal expenses. The estate administrator will need to retain the services of a lawyer to represent the decedent in a court of law. Should a judge rule in favor of the plaintiff, the estate is responsible for reimbursing legal fees.
Establishing a trust is the only option available to avoid probate. A variety of trusts exist, so it is best to work with a professional estate planner to determine which type is best suited to protect inheritance assets.
Everything decedents own are transferred to the trust and are no longer considered part of the estate. A last will must be executed along with any trust. All trusts are managed by a Trustee appointed within the Will.
With proper estate planning, heirs can be prevented from contesting a Will and decedents can rest in peace knowing inheritance assets will be distributed according to their final wishes. Estate planning is available through probate lawyers and professional estate planners.