My loved one has died, where do I begin?
Don‘t feel overwhelmed. Each state has different rules when a person passes away. You should follow the laws of the state where the decedent lived.
Before taking the following steps, you must first consider whether you are an “interested person” or named executor in the decedent‘s last will and testament (“will”). An interested person is one who has a direct financial interest in the outcome of a probate proceeding. Oftentimes, an interested person is an heir, legatee or devisee, spouse, or creditor of the decedent. If you are not an interested person or named executor, then it may not be in your best interest to go further with administering the decedent‘s estate without first consulting with an interested person or attorney.
The Steps
1
Find the Original Will
Determine whether the decedent had a will. This is one of the first steps to help you determine whether probate is required. You may want to search through the decedent’s Legal Suite through Legacy Suite, access safety deposit boxes, contact prior known attorneys, or contact close family and friends who may have been aware of the decedent’s estate planning.
Note
The keyword is original will. Many states will only accept the original form of the will because, without it, the court may assume that the original will was destroyed or revoked. If you cannot locate the original will but can locate copies of the original will, some states will allow copies to be admitted in court. You should contact an attorney if you can only locate a copy of a will.
Identify the Decedent's Assets and Liabilities
When a person dies, it is important to be aware of their assets and liabilities if you are poised to be their personal representative. At this point, you may go through the decedent’s files to discover what they had when they passed away. By understanding their liabilities, you will be able to anticipate any potential issues with creditors. Additionally, by having an idea of their assets, you can begin to determine which assets can immediately be transferred without the involvement of a probate court and which assets must go through the probate process. For example, joint accounts and accounts with beneficiaries can generally avoid probate. If assets do not have a joint owner or a beneficiary, do not give anything away until you are certain that debts and taxes have been paid and that probate is not required. Remember, some states may require probate, even if the estate has a low value.
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Keep Good Records
Keep every receipt from any expense you have paid, either from your own assets or from the decedent’s assets. You will have to provide an inventory and accounting to the court if probate is required and your accounting will have to include transactions before the probate process began. If probate is not required, it is still good practice to have an inventory and accounting available for beneficiaries. If you have spent your own money on funeral expenses, attorneys, utility bills, etc., you will be entitled to the reimbursement of those expenses.
Make a Family Tree
Even if a person passes away with a will or a trust, some states will require the personal representative to create a document called an “affidavit of heirship”. This is essentially a formal, notarized family tree. It names all of the decedent’s living relatives to the nearest generation. For example, if a person passes away with a child and spouse, the affidavit of heirship may only name the child and the spouse. If the person passed away with no children and no spouse, but living parents, then the person’s parents may be listed. The more complicated the lineage, the more complex the affidavit, so to prepare, having a family tree for more complex family structures will be beneficial.
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Get Death Certificates
Many financial institutions will not accept photocopies of death certificates and will require the original or certified copy of a death certificate. You should have several death certificates available because they are necessary to transfer assets or close accounts whether or not probate is required.
Contact an Attorney
Once you have conducted your due diligence, if you have not already done so, you should contact an attorney to help you determine the next steps and whether you will need help with administering the estate. Many states require that an attorney is present for probate. For cases involving minor children, blended families, complex wills or trusts, or creditor issues, you will likely need an attorney to guide you through the administration process. Funds that are in the estate will pay attorneys’ fees, therefore, if you suspect an estate is insolvent, please inform the attorney in advance.
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Are you ready?
Ensure your legacy is truly passed in accordance with the owner’s personal intent.
Identifying Life Insurance Policy
01
Locate the decedent’s life insurance policies
02
Be prepared with the paperwork
03
Identify beneficiaries
04
Determine whether life insurance proceeds belong to the estate
The decedent may have life insurance policy information in a safety deposit box or a safe. It may also be beneficial to contact the decedent’s previous employer, financial advisor, or insurance agent to determine whether they had life insurance.The National Association of Insurance Commissioners has a free tool that allows individuals to locate life insurance policies through participating insurance companies. Your state’s Department of Insurance may also offer resources to locate policies for free. Finally, there are private companies that can identify whether a decedent had a life insurance policy. Oftentimes, these companies charge a fee.
Some Do‘s & Don‘t‘s
This guide will help you begin the process of managing and settling your loved one‘s estate. This list is not exhaustive. You should refer to the probate laws of the state that the decedent died in or contact an attorney if you require additional assistance.
Do's
Get several copies of the death certificate
Keep records of all administrative tasks related to settling the decedent’s estate
Locate the last will and testament (“will”) or trust (if any)
Notify creditors that the decedent has passed away
Take an inventory of all assets
Categorize the assets by real and personal property.
Identify which assets have beneficiaries or are jointly owned
Secure all assets that the decedent owned
Note: In most states, jointly owned assets will be owned by the surviving joint owner. These assets are excluded from the estate and do not need to be secured by you.
Contact an attorney to determine whether you need probate to manage and settle the estate
Probate is likely necessary if it is required by law, there are minor children, the family is blended, or the value of the estate is high
Obtain an Employer Identification Number (EIN) for the estate
Don'ts
Make distributions until you understand whether probate is required and whether there are claims against the estate
Pay any of the decedent’s debts from your own funds
The decedent’s debts are the responsibility of the estate, not you personally
Use estate funds for your personal needs
Comingle the decedent’s money or assets with your assets
You will use the EIN to set up an estate bank account, if applicable. You may also need letters of testamentary (a court order) to set up the bank account. You can navigate through these steps with the help of a lawyer
Delay the estate administration process. If you are unable to take on the role of executor, trustee, or administrator, then you can decline and allow someone else to manage administration
LegacySuite (Legacy Suite Inc) is not a law firm and only provides “self-help” informational and educational forms distributed on an as-is basis for common estate planning needs.
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