My father died in september 2010, my mother (step) died september 2011, neither had a will, my step brothers declared my mother dead and called me to say that someone of his original children (not step) needed to declare him dead which I guess has not been done officially... they received a 4200 check in the mail from the sale of my mothers vehicle which was in both parents names and they want their half. they want to split the check our family - your family which seems ridiculous, what are the ramifications and/or risks with declaring my father dead... do I take on his debt? How do I declare him dead? Do I have to go to the county where he died?
In all likelihood, your father has already been declared dead. This was done when his death certificate was issued. You did not file the death certificate with the DMV, or other authorities. That does not mean that he has not been declared dead. As far as the check is concerned, it should rightfully be part of your mother's estate. She inherited it by surviving your father. Who the heirs are to her estate or who get what depends on whether or not there was a Will, or under State law, if there was no Will, or if the estate is so small that it is treated as if there was no Will.
North Carolina small estate law applies to estates with less than $20,000. There may also be separate statute that deals just with motor vehicles, but it sounds like the car was sold, so all you are left with is the proceeds.
When there is no estate, the creditors are often out of luck. At this point, your father's creditors would certainly be out of luck because, as of his death, he had nothing.
For information on NC small estates, see here: http://smallestates.uslegal.com/affidavits-and-summary-administration-laws/north-carolina-small-estates-law/
and here: http://www.nccourts.org/forms/documents/735.pdf
You can obtain a copy of the small estate affidavit at the clerk's office. I was unable to locate a free form online.
I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.
I am licensed to practice law in North Carolina. Did your parents live in North Carolina at the time of their deaths?
I am unclear what you mean by "declaring" your father to be dead. He is either dead or not dead. The only exception is where a person is missing for a certain length of times. In such cases, a person can be presumed dead.
From your post, I assume that your father and step-mother are actually dead and that death certificates issued. The question then is whether you should probate an estate for your father.
When a person dies without a will, their asses generally pass to their surviving spouse and children - the wife gets 1/3rd and the children get 2/3rd of the estate (assuming there are 2 or more children; if there is only one child and a spouse then they split 50/50). The spouse also gets the first $30,000 of personal property (anything other than land).
You do not indicate what your father and step-mother owned at the time of their deaths or how it was titled or what assets were probate assets. Intestacy law is only concerned with probate assets.
When your father died, your step-mother should have probated an estate for your father. You step-mother then could have got the car assigned to her as part of her spousal allowance. She did not do that. Technically, if the car was in both names, then neither of you can cash this check. The insurer should have issued 2 separate checks, one to the estate of your father and one to the estate of the step-mother unless the car can be included as part of her 1/3rd share. In that case, the step-mother's estate would get all the money and the check would have to be re-issued to the steop-mother's estate.
There are no risks to probating an estate for your father at this time. There is a simplified procedure in North Carolina for small estates under $10,000. To the extent you need to probate an estate, you should look to see if you can use this procedure. You are not personally liable for any debts of your father unless you were a co-borrower on something or you signed something agreeing to be responisble. The debts are paid out of your father's assets (which are at least $2400 here). If there is enough money to pay all the claims/debts, then they are paid and the rest distributed to the heirs, which would be any biological/adopted children of your father, and 1/3rd to the estate of your step-mother. Any assets belonging to your step-mother would pass solely to her biological/adopted children. Neither you inherit from the step-mother's estate nor her children inherit from your father's estate.
Since this is such a mess and neither you nor your step-brothers seem to be handling this correctly, I would suggest that you get together and talk with a probate attorney in the county where your father and step-mother resided at the time of their deaths. Speak with the attorney and see whether estates need to be probated and if, so, find out whether an attorney is needed. It may be simpler and cheaper for the attorney to handle both estates since your father and step-mother died in such a short period. It may be that only an estate needs probated for your step-mother since she was the last to die. In such case, your step-brother can handle that.
Any beneficiary designated assets (like life insurance, IRAs, pensions or annuities) will be paid to the designated beneficiary. The beneficiary can use the funds however they wished. If no beneficiary is designated or if your step-mother was beneficiary but died, then the funds might be paid to her estate, not to you. That is why you need to sit down with a probate attorney - to review all the assets, both probate and non-probate, and see what goes where.
Please, let this be an example of what NOT to do. Make a will or trust or make arrangements to die with little to no assets so that you do not leave your loved ones an expensive headache. Your legacy should not be a lawsuit.
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