First Steps When a Loved One Passes
6:42 AM, Jun 26, 2012 | Written by Carissa Giebel
In most cases, nothing needs to be done immediately. Sometimes in an effort to do something right away, mistakes are made which can cause later problems, such as increased taxes, lost time, family discord, etc. However, you should contact legal counsel as soon as possible to assist you during this difficult time. It’s important to remember that the assets of the deceased are not yours.
Some things you might want to look for right away are any funeral or burial instructions left by the decedent. Look for cemetery plot deeds, evidence of purchase of mausoleum niches, prepaid funeral receipts, etc. You will want to order death certificates from the funeral director. I recommend ordering at least 10. You will need one for each issue of stock, brokerage account, life insurance policy, retirement account, piece of real estate, etc.
Do not change any brokerage or bank accounts, or withdraw any funds from them, even if an account is held jointly. Do not cash or deposit any checks. Don’t make any distributions to any of the heirs or beneficiaries and do not try to use a Power of Attorney. Powers of Attorney become void at death.
Probate is the first step in administering an estate of a decedent. During this process, creditors are given notice and any debt is paid, any taxes that are due are paid, and eventually the assets are distributed to the beneficiaries named in the Last Will. If there was no Last Will, then the assets are distributed according to state law. The Last Will must be filed with the Register in Probate within 30 days of death.
The person named as the Personal Representative in the Last Will is the person who will likely be given the authority by the court to manage the assets of the decedent during the administration process. However, this authority doesn’t begin until the court authorizes it. If there is no Last Will, the court appoints a Personal Representative. If there is real estate involved, that will likely be put up for sale, unless one of the beneficiaries wants to keep it. When sold, the proceeds become an asset of the estate and are eventually distributed according to the terms of the Last Will. If real estate is owned in another state, another probate needs to be administered in that state as well.
If the decedent has a funded living trust, there may not need to be a probate. The successor trustee is the person who has the authority to manage the assets in the trust. That authority begins right at death and does not need to be authorized by the court.
If the decedent had less than $50,000 of total assets, there may not need to be a probate. Any assets with a beneficiary named on them will be paid out directly to the beneficiary named. The process depends on the institution holding the asset, but a copy of the death certificate will likely be required. These assets will not go through probate, as long as the estate was not named as a beneficiary, but they are still considered for tax calculation purposes.
When losing a loved one, many thoughts and emotions can influence decisions that are made. Try to remain calm and seek legal counsel to help you through this difficult time.
Carissa Giebel is an estate planning attorney and partner at Legacy Law Group LLC. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it., www.legacylawllc.com or (920) 560-4651.
