Legal Rights and Responsibilities after a Death
Powers of Attorney and Guardians Have Little or No More Work To DoAll powers of substitute decision making lapse after death. Guardians and conservators lose all of their powers.
Guardians of the Estate, Conservators and financial powers of attorney no longer have authority. They have no say in personal or business affairs after death. They cannot write checks, make deposits, open mail, lease property or allow anyone -- even family -- to take control of the decedents property.
Guardians of the person and health care powers of attorney have no say over disposition of remains (except that , in WIsconsin and possibly other states, either a guardian or a healthcare power of attorney may make organ donations).
TrustsTrusts are legal agreements giving another person control of property for the benefit of family and/or other beneficiaries. Some of the earliest trusts were agreements with the Church to hold land for use by the family when there was no legal heir (i.e. no son).
The terms of the Trust dictate how the Trustee is to manage the property and distribute income earned by trust assets and/or all of the assets of the trust.
In contrast to powers of attorney and guardians, a trustee has the same legal rights and responsibilities over trust property as he or she had before the death. Since the middle ages, that has been one of most important purposes of trusts.
Last Will & Testament (or Will)The decedent's will designates one ore more personal representatives who will have power to administer the decadent's probate estate. The provisions of the will dictate what must be done with property.
However, there powers are not effective until a judge signs an order (called a domiciliary letter) giving the personal representative(s) power to act. If there is no will, the decedent's estate is distributed according to the provisions of state law (In Wisconsin, Wis. Stats. 852, Intestate Succession).
Gross EstateThe gross estate is all of the property the decedent owned at death, all property in revocable trusts, proceeds of life insurance owned by the decedent and any other property or rights the decedent can transfer to his or her heirs. The terms probate property and non-probate property are explained below. The gross estate may be subject to federal and state estate (death) taxes. The amount due will depend on current law, the identity of the heirs and beneficiaries who accept their inheritances, the size of the estate and whether personal representatives or trustees are able to make tax elections on behalf of the decedent.
The Gross Estate is made up of probate property and non-probate property (includes assets in trust and all other non-probate property).
Probate propertyThe decedent's probate estate contains all property (including legal rights) for property that has a legal or other legal designation stating who is to receive the property after death. Probate property includes furniture, clothing and the right to sue. Non-probate property includes joint bank accounts, life insurance policies that name beneficiaries and property in Trusts. Non-probate property also includes accounts that are payable on death (POD) or transferable on death (TOD) to heirs. Probate property is whatever property is not non-probate property. The table below gives examples of how property might be classified.
ProbateProbate is the statutory process of paying a decedent's debts (including funeral arrangements) and distributing any remaining assets to heirs.
There are three main categories of probate.
Summary procedures allow any interested person (generally family, heirs or creditors) to probate small estates (In Wisconsin, with net assets valued at less than $50,000) without court supervision.
Informal probate allows the personal representative to administer the estate with minimal court supervision such as requesting domiciliary letters, filing an initial inventory and filing a final accounting.
Formal probate means there is a need one or more court hearings because of some disagreement that the heirs or personal representative cannot resolve outside court. Most often the disputes are over the existence, validity or interpretation of a will. However, there can also be disputes over who is personal representative, guardian, or trustee or whether those people did their jobs.
Examples of What is Probate PropertyProbate property includes cash, clothing and jewelry, household furnishings, art, other movable property and legal rights such as the right to sue and collect debts. Anything else may be probate property unless there is a title or designation that is effective to transfer ownership of the property immediately on death.
Examples of Non-Probate PropertyNon-probate property includes all things whose beneficial or actual ownership transfers immediately on death. Examples include life insurance proceeds payable to beneficiaries, property held in trust, money in joint bank accounts, money in bank accounts or brokerage accounts or mutual funds with beneficiary designations, survivors rights to collect annuities, motor vehicles that transfer by law (in Wisconsin to surviving spouses) or by joint title, and real estate (if titled as survivorship property or if there is a Transfer on Death Deed).