Sometimes when a loved one passes, their spouse or other family member in charge of handling the Estate may not be ready to go through Probate right away. So, what happens to the decedent’s assets during this period of waiting?
It should be noted that any asset that is in the name of the decedent only is considered a Probate asset. Any assets that are in the name of the decedent and someone else (spouse, child, etc.) do not need to go through the Probate Court and can have the name of the deceased removed by the joint owner.
Basically, during the time that the family is grieving or mentally and emotionally preparing for Probate Court, the assets will remain in limbo until the Estate is closed. This means that no one will have access to any of the decedent’s assets (which may include homes, vehicles, bank accounts, and other monetary accounts) during any of this time. While sometimes this may not be an issue, especially if the waiting period to pursue Probate is very short, in many instances, the spouse or other family member may need to have access to these assets and funds in order to pay for funeral bills or other bills left behind, such as a car note, mortgage, or other bills that the assets were used to pay.
While assets such as homes and vehicles could still be utilized, it would be important to obtain new deeds and titles for these larger assets so that the surviving spouse or family member would have the ability to make decisions on behalf of the assets, such as obtaining insurance or selling the asset. Utilizing the assets while they continue to be in only the name of the deceased can be risky because the surviving spouse or family member does not necessarily have any right to these assets, leaving the potential for the vehicles to be repossessed if the car note is not paid or for the home to be foreclosed upon due to nonpayment of the mortgage. It also can potentially pose a problem because technically, at the time of the loved one’s death, the asset basically reverts into the possession of the bank handling the loan. If the assets are paid off, this may not be an issue, aside from the ability to obtain insurance or sell the assets.
There is no time frame or limitation for how long someone can wait before proceeding with the Probate process, but it is important to remember that until the Estate is closed, many of the assets will either be inaccessible or will have limited access, depending on the asset type, which can sometimes cause hardship or undue stress on the surviving spouse or family member if the money or assets had previously been used to aid with financial responsibilities of the decedent. Also, if the surviving spouse or family member dies before the assets were put in their name and new documents were created, the situation will be even more complicated for whoever would be responsible for the assets and opening an Estate at that point because assets that were never transferred over originally will have to go through more of a two-step process
Every situation is different, and the length of the Probate process varies, depending on many factors in each case. If you need assistance or advice regarding Probate Court and your unique situation, please call our office at 740.346.2899 to get scheduled for an in-person or virtual consultation to discuss your options.