Asset Transfer & Asset Identification

How an individual’s assets are transferred to their heirs after they die is a pivotal issue in estate planning and probate administration that most people don’t quite understand. One of the biggest misconceptions regarding asset transfer is that, most people assume if your Last Will and Testament says that your assets are to be transferred in a particular way, then all your asset will actually be transferred in that way. However, this is not always the case.

Good estate planning requires you to understand that the way an asset will be transferred when you die will first and foremost be determined by the way in which it is titled at the time of your death. Thus, for your estate plan to work the way you want, it is extremely important that title to your asset be aligned with your ultimate estate planning objectives.

The first step in the probate process is locating or identifying any assets associated with the decedent, and the second step is to determine how those assets are titled in order to ascertain how they are to be distributed. Assets will fall into district categories depending on how they are titled as follows:

  • Non-probate assets that pass via joint ownership, rights of survivorship or via beneficiary designations;
  • Probate assets controlled by the Last Will and Testament, or intestate statutes;
  • Trust assets controlled by a specific trust document.

How to Find Estate Planning Documents and Asset Information

Here is where those detective skills really come in handy. Most people are surprised to discover that there is no centralized depository for Wills to be safeguarded before someone’s death, at least in the state of Florida. What this means is that most original Wills are held by the decedent in their home, or in a safe deposit box, but if the exact location is unknown to the surviving beneficiaries, then the Will may be lost forever. If there are no estate planning documents to be found, you’ll need to look through personal papers, address books, checking account statements, and email contacts for evidence of a personal attorney, financial advisor, accountant, or insurance representative. If the Will was executed with an attorney, the next place to check is with the attorney’s office to obtain the original Will or a copy of the executed document.

Any mail that the deceased is still receiving may also provide a few clues. You should also check with any banks where the deceased had accounts to see if he or she also had a safe deposit box where documents, information, or assets may have been stored.

Steps For Identifying Assets

  • Have the decedent’s mail forwarded to the residence of the personal representative, since the mail will have clues as to what financial institutions may be holding assets, as well as potential creditors;
  • Request the decedent’s tax returns to backtrack where assets may be held;
  • Hire a private investigation firm to conduct a bank account search, brokerage account search and life insurance policy search.

The Florida Probate Firm routinely works with out of state and out of county beneficiaries and executors upon the passing of a family member in Florida. We assist beneficiaries in identifying assets, even when the parties have very little information as to the location or identify of the property. If the family members do not have time to travel to Florida to handle the investigation and collection process, our firm can be delegated with such tasks. An attorney with our firm can even serve as the court appointed personal representative if necessary.

How Assets are Transferred at Death

How an asset is titled at death will ultimately determine how the asset will be transferred:

  • Non-Probate Assets: Pass directly to a third party via joint ownership, rights of survivorship or by beneficiary designation;
  • Probate Assets: Titled directly in the name of the decedent and must be part of the probate process in order to transfer or sell the property, and effectively clear title to the new owner. Only probate assets are controlled by the provisions of the Last Will and Testament.
  • Trust Assets: Titled in the name of a trust and must be administered or distributed according to the terms of the relevant trust document.

Typical examples of non-probate assets include IRAs, 401Ks, and similar retirement plans, as well as, life insurance policies and annuities which generally pass directly to the decedent’s heirs via beneficiary destinations. Similarly, assets such as financial accounts, brokerage accounts, checking accounts, and securities may be transferred directly the decedent’s heirs via POD or TOD designations, but these designations must be completed before the passing of the owner. The decedent’s interest in any property owned jointly with another person, also bypasses probate and passes directly to the surviving joint owner(s).

All other assets held in the decedent’s sole name will be considered part of his or her probate estate and will be transferred in accordance with the provisions of the decedent’s Last Will and Testament towards the end of the probate process.

Finally, if the decedent has a trust in place when he or she dies, any assets owned by the trust will bypass probate and be distributed according to the terms of that trust.

Listing the Decedent’s Assets

One of the first steps the personal representative will undertake after their appointment in settling an estate is inventorying all of the deceased’s assets and debts. If a clear estate plan does not exist with those lists already compiled, you may need a few detective skills to help you search for the following documents that you will need in order to prepare an inventory and final accounting for the estate:

  • Bank, brokerage, IRA, and 401(k) statements, plus any beneficiary designations;
  • Life insurance policies;
  • Real estate deeds, titles to cars, boats, etc.;
  • Appraisals for jewelry, artwork, or other unique assets;
  • Business documents, such as corporate bank accounts, corporate charters, and titles for business properties that the deceased owned interest in;
  • Federal and state income tax returns for the past three years, including any gift tax returns;
  • Contact information for the deceased’s CPA, financial advisor, and/or attorney.

How an Experienced Probate Attorney Can Help

If you’re thinking there must be some sort of centralized database or website where you can find a list of the deceased’s assets, you’d be wrong. If the decedent didn’t provide the information to their estate planning attorney, often the family will need to search through the decedent’s residence for the relevant paperwork. Persistent legwork and digging is the main source of uncovering the necessary information. The Florida Probate Firm offers the additional services of professional asset searches for bank accounts, brokerage accounts and life insurance policies, which is optional for our clients.

The assistance and guidance of an experienced probate attorney can make the process a lot less burdensome on yourself and your family. As you uncover outstanding assets, your probate lawyer can assist in creating an accurate accounting of the deceased’s assets and liabilities and help you submit the documentation necessary to comply with state probate laws.

For assistance with this and any other probate matter in Florida contact the Florida Probate Firm to arrange a free consultation with an experienced Florida probate and estate planning attorney.