When a loved one passes away, settling their estate can be a complex process, especially if you're not familiar with their financial affairs. As a San Diego probate lawyer, I often hear concerns from family members worried about missing assets or incomplete information. Let's address these common worries and explore what happens in these situations.
The Challenge of Incomplete Information
It's not uncommon for the person handling an estate (often called the executor or personal representative) to have limited knowledge of the deceased's financial situation. This can happen for various reasons:
- The deceased was very private about their finances
- Assets were acquired long ago and forgotten
- Documentation was lost or misplaced
- The will or trust is outdated or there are no estate planning documents at all
Steps to Uncover Assets
If you find yourself in this situation, don't panic. There are several steps you can take:
- Thoroughly search the deceased's home: Look for financial statements, tax returns, and any documents related to assets or debts.
- Check mail and email: Look for statements or correspondence from financial institutions.
- Review tax returns: Past tax returns can provide clues about income sources and assets.
- Contact known financial institutions: Banks and investment firms may have information about other accounts.
- Use online tools: There are websites designed to help find unclaimed assets.
- Hire a forensic accountant: In complex cases, a professional can help track down hidden or forgotten assets.
The Probate Process and Asset Discovery
The probate process itself can help uncover assets. Here's how:
- Public notice: Part of probate involves publishing a notice to creditors. This can sometimes lead to institutions or individuals coming forward with information about assets.
- Court authority: As the executor or administrator, you'll have the legal authority to access the deceased's financial information, making it easier to uncover assets.
- A Stirred Pot: When a pot of soup is fully stirred, almost everything hidden from sight at the bottom of the pot swirls up into view. As part of the probate process notices are sent to everyone listed in any will or trust which was left behind and to all potential heirs. The named individuals and heirs are also told what assets have been gathered into the estate. This is often enough to get named persons and heirs to talk about those things that aren’t listed and that they feel must be out there or been wrongfully taken.
What If Assets Are Discovered Later?
It's not unusual for assets to be discovered after the initial probate process is complete. If this happens you may need:
- California Omnibus Clause: In California a probate estate’s final distribution order is required to include what is called an Omnibus Clause. The Omnibus clause directs who is to receive any after discovered assets. Although this settles who will get the after discovered assets, depending upon how much is found, it may or may not allow the heirs to collect the assets.
- A reopening of the estate: Not infrequently a probate case must be reopened to re-empower the executor or administrator to take control over the newly discovered assets.
- Supplemental accounting: If a probate estate is reopened, you may need to file additional paperwork with the court to account for the new assets and their disposition.
- Distribution to beneficiaries: Under certain circumstances the court’s original order for distribution or a signed affidavit can be used to have the assets distributed directly to the estate’s beneficiaries.
The Importance of Due Diligence
As the executor, you have a fiduciary duty to make a reasonable effort to uncover all assets. This doesn't mean you're expected to be perfect, but you should be thorough and act in good faith.
Seeking Professional Help
Navigating these complexities can be difficult, especially during a time of grief. Just remember that it's okay to not have all the answers right away. The probate process is designed to help bring clarity to these situations. If you're facing these challenges, don't hesitate to seek professional legal advice from a San Diego probate lawyer. We can help you navigate this complex process with confidence and ensure that your loved one's affairs are settled properly and legally. If you have questions or need assistance, please contact us at 619-281-1888 to schedule a consultation.