FAQ - After-Death Administration
IMMEDIATE ACTION STEPS UPON THE DEATH OF A FAMILY MEMBER
WHAT IMMEDIATE ACTIONS DO WE NEED TO TAKE ON THE DEATH OF A FAMILY MEMBER?
Upon the death of a loved one, the most important thing to understand is that there are usually no emergencies. There will be plenty of time in the days ahead to handle the necessary business and legal matters. Initially, it is most important to take care of yourself and to satisfy the needs of others as together you grieve your loss.
WHEN MY GRANDMOTHER DIED, I CALLED HER LAWYER AND ASKED FOR A PROMPT APPOINTMENT TO TAKE IMPORTANT PAPERS TO HIM SO THAT HE COULD ACT IMMEDIATELY. THE ATTORNEY WAS COURTEOUS, BUT SCHEDULED THE APPOINTMENT FOR AFTER THE MEMORIAL SERVICE. WHY DIDN’T HE ACT MORE QUICKLY?
A skilled estate planning attorney attends first to emotional and spiritual needs of the family and second to its financial affairs. If the attorney foresaw no need to an immediate conference, it was proper to defer the conference to a more suitable date.
WHAT ARE SOME OF THE FIRST LEGAL STEPS THAT SHOULD BE TAKEN UPON THE DEATH OF A FAMILY MEMBER?
After a loved one is buried, and after appropriate time is devoted to personal grieving, the following actions should be taken:
*Important legal papers, most particularly the decedent’s will or trust, should be located.
*The attorney who drafted the documents should be contacted and an appointment set. If the attorney cannot be ascertained or if the decedent did not have an estate planning attorney, the person or institution named as trustee of the decedent’s living trust or as personal representative of the decedent’s will should retain a competent attorney.
*If there are assets that will be passing under a will, the personal representative named in the will should, with the help of legal counsel, proceed to see that the will is probated.
*An inventory of all assets should be made, and assets which need immediate attention should be reviewed. These assets include life insurance policies, stock options, and retirement plans.
*If the decedent was principal in a business enterprise, care should be taken to determine what obligations and responsibilities the trustees have to continue its operation. A review of business succession planning documents detailing the ownership, operation, and control of the business should be undertaken immediately.
*If probate is necessary, the estate’s attorney may have to petition the court to take swift action in areas such as selling assets that are perishable or that are time-sensitive and subject to sharp fluctuations in value (e.g., stock options).
WHAT IMMEDIATE LEGAL ACTIONS DO WE NEED TO TAKE IF A LIVING TRUST WAS UTILIZED?
If the decedent left a living trust-centered estate plan, the transition is normally orderly and simple. The successor trustee can take over the management of the trust affairs without interruption or delay. No court proceedings are required, and business and financial affairs can continue in the customary fashion.
SHOULD WE PAY OUTSTANDING BILLS IF A LIVING TRUST WAS UTILIZED?
Bills should not be paid until complete inventories of assets and debts have been made along with a list of all the decedent’s creditors.
IF A WILL NAMES ME AS THE ESTATE’S PERSONAL REPRESENTATIVE, AM I EMPOWERED TO ACT ON ITS BEHALF?
No. Before you have any authority to act, you must file a petition with the probate court to request that it appoint you to act as personal representative. This will entail the court’s acceptance of the will as valid.
Ultimately, the probate court will enter an order which gives you or some other person the power to act. It is the probate court’s order which empowers you to act, not the decedent’s will.
WHAT HAPPENS IF AN INDIVIDUAL DIES WITHOUT LEAVING A WILL?
When a person dies without a will, that person dies intestate. If the individual is married and his or her spouse is living, all property that was owned as joint tenants with right of survivorship or as tenants by the entirety passes to the surviving spouse without any court process.
If the decedent owned assets individually, a court proceeding called an administration must be started by a family member, friend, or next of kin. An administration is similar to a probate proceeding, but there are additional steps. The court will appoint an administrator, or personal representative. For the most part, the administration proceeding request is initiated through a legal document called a petition that calls for the naming of an administrator. In the administration process, unhappy relatives or other interested persons, such a creditors of the decedent, can challenge the petitions of would be administrators.
Once appointed by the court, the administrator generally must post a bond equal to the value of the gross estate. In addition to other duties, the administrator must prove where the decedent resided and who the decedent’s heirs are, because the decedent’s domicile will determine which heirs receive his or her property.
HOW DOES THE GOVERNMENT KNOW WHEN A PERSON DIES?
In most states, the professionals handling the funeral or memorial arrangements or the physician who pronounces death is required by law to notify the State Departmentof Vital Statistics.
To discuss your specific needs, call 1-614-760-1801