Page last updated: 04/19/2023
Unfortunately, some disasters cause deaths. Any time someone passes away, their death can raise questions about who gets their home and land, personal property, money, and other assets. It also can raise questions about who will make decisions for their young children. Resolving these questions could involve a will, other legal documents, a court process called probate, and other methods.
When a person dies, “probate” is the legal process used in court to give what the person owned — their “assets” — to other people (heirs or beneficiaries). If the person had a will, the probate process may be used to carry out their wishes. Assets can include real property, such as a house, condo, or land. They can also include personal property, such as cars, jewelry, furniture, and money in a bank account.
Probate can involve title clearing, which decides who owns a property or home. This can be especially important when a property has many owners. See the “Problems That May Arise During Probate” section on this page to learn more.
Laws vary from state to state on issues that affect probate, wills, title clearing, and related issues. It’s a good idea to ask for advice from an attorney who knows the local laws. Having an attorney can be helpful for other reasons. Perhaps the probate is complicated, or people don’t agree about who gets the assets.
If you qualify, you may be able to get free advice from an attorney through a local legal aid organization or the American Bar Association’s Free Legal Answers website. You can also use Legal Help Finder for lists of resources by state and territory.
Some assets are not passed along by probate. The transfer to a new owner occurs in other ways. Here’s how different types of assets are treated.
Assets that are passed along directly to a named, living person (beneficiary) or joint owner are often called “non-probate assets.” The document that created the asset controls these assets. For example:
An asset can also be a non-probate asset if it’s part of a revocable living trust. This trust is a legal entity that owns the assets the person places in it. The person tells the trust how to manage the assets and names a trustee. The trustee’s job is to manage the assets according to the instructions.
When the person dies, the instructions for the trust say who gets which assets. The instructions also dictate when the property is transferred to them. In most cases, the heirs don’t have to do or prove anything else.
“Probate assets” are everything else the person owned. This personal property may include items such as money in a non-joint bank account and stocks. It also can include cars, furniture, jewelry, art, real estate, and personal items. If two people own a home as “joint tenants in common,” the share of the person who died would go to probate.
“Estate planning” is when a person creates a plan for what will happen to their money, property, and other assets when they die. These plans can include a will, trust, power of attorney, guardian choices, and more. Most people hire lawyers, accountants, or financial advisers to help them create this plan. A person may need this help if they have many assets or if their assets are complex.
A “will” is a legal document. It says what a person wants to happen with their assets when they die. It’s important for anyone with assets to have a will. This helps prevent disagreements and legal battles between people who believe they should get the assets. A will also helps make sure the person’s assets go to the people they want to give the assets to.
A will usually names:
Many financial products are also legal contracts. Examples include retirement accounts and life insurance policies. A will can’t replace the instructions in these contracts. No matter what a person’s will says, the money from these products must go to the people the person named when filling out the forms.
If the person who died made a will, lawyers describe that as dying “testate.” The person who died is a “testator.” When the testator dies, the person named as executor in the will must start the probate process. The executor’s first step is to file the person’s death certificate and the will with a probate court.
States and territories often have a time limit for starting this process. If it’s not started within the time limit, the property is generally treated as though there was no will.
When someone dies without a will, lawyers describe that as dying “intestate.” The probate process distributes the person’s assets according to default laws for the state or territory.
Depending on the state or territory’s law, the court may appoint an administrator to oversee the estate of the person who died and to act as the executor. The administrator is responsible for:
A “power of attorney” (POA) is a legal document that gives someone the power to make decisions on behalf of another person. The person who can make these decisions is called the “agent” or “attorney in fact.” The person the agent is making decisions for is called the “principal.”
People may use a POA for different situations. For example, a service member who is deployed overseas might create a POA so someone can pay bills while the service member is away.
More relevant to a disaster, a person may decide to provide a POA for decisions about their money, property, and children only if the person becomes incapacitated.
However, an agent loses their POA when the person who gave them that authority dies. The executor named in the will or the administrator appointed by the court is the person who oversees the probate process.
Probate is not always simple. For example, sometimes there are disputes about who owns the property. Questions may arise about who should take over the care and decision-making for minor-age children of the person who died.
“Title” refers to who owns a property (home and land) and the rights they have to use, sell, lease, or transfer ownership of the property. Generally, lawyers use two terms to describe whether there’s enough proof that someone owns a property:
“Heirs’ property” describes home and land that was informally passed down from ancestors over many generations. Often, many people own the property. This usually happens because the ancestor died without a will. Or the person died without having some other legal document to transfer ownership.
Heirs’ property often leads to a cloudy title. Also, the various owners can have different opinions about what they want to do with the land or home. These differences can make it more difficult to keep, improve, lease, or sell the home and land. They can also affect probate.
It’s important for family members to talk openly and honestly about their property. These talks can help prevent conflicts and legal issues later. During these talks, family members should:
When it isn’t clear who owns a property, these documents can help establish a clear title:
Guardianship is a legal way for a designated person to make decisions for someone who can’t make decisions for themselves. The most relevant type for probate is child guardianship. A child guardian is someone chosen or appointed to care for and make decisions for a child until the child becomes an adult.
Guardian issues can arise in probate when a person who has minor children dies. The person who died may have named a guardian for their children in their will. But if the person didn’t have a will or didn’t name a guardian in their will, the court will appoint a guardian based on the children’s best interests.
Guardian and conservator issues can also arise when an adult can’t make decisions for themselves. In such cases, a court may appoint a guardian or conservator to manage the person’s financial and personal affairs on their behalf. This process can also involve probate court proceedings. It’s important to talk with an attorney who is familiar with the guardianship and probate laws of a specific state or territory.