A Survivor's Guide
The death of a loved one, whether a spouse, sibling, relative or friend, is a tragic experience. Coping with such a loss is a painful process that is always made easier with the support of family and friends.
It is our hope that you will call us to schedule a consultation at this difficult time. Whether you contact us or another probate attorney, we want to stress the importance of having a meeting as soon as possible with legal counsel and your accountant to discuss the probate and estate planning decisions that must be made in a timely manner after the death of a spouse, parent, or other loved one. The following suggestions may be useful to you.
People and Institutions to Notify
— Family and friends
— Funeral home, which will often contact clergy and place a death notice or obituary
— Organ bank/hospital (if appropriate)
— Newspaper/obituary, if not handled by the Funeral home
— Business associates, partners, etc.
— Decedent's power of attorney (to notify them the power of attorney is no longer valid)
— Personal Representative or Executor named in the Last Will and Testament
— Creditors (after discussions with attorney and CPA)
— Utility companies (once a determination of disposition of real property is made)
— Clubs and associations (possibly at the same time as friends and family)
— IRA and retirement account trustees (after consultation with attorney and CPA)
— Employer's personnel department regarding retirement benefits, accounts or group life insurance (but make no claims until after consultation with attorney and CPA)
— Labor union
— Insurance companies and/or agents (but make no claims until after consultation with attorney and CPA)
— Bank/credit union (but make no transfers or claims until after consultation with attorney)
— Brokerage firm (but make no transfers or claims until after consultation with attorney)
— Veterans Administration
— State Department of Motor Vehicles
— Local property tax department
— Social Security Administration (may require birth, death and marriage certificates)
All of the decedent's interests in real, tangible and intangible property must be reviewed and mustered. This analysis may require a substantial number of documents and records, such as the following:
— Bank account statements covering the month prior to and of death, and ongoing
— Brokerage statements covering the month prior to and of death, and ongoing
— Insurance policies
— Loan documents
— Gift tax returns (IRS Form 709)
— Title to burial plot
— Titles to land owned in their own name or jointly with others
— Information regarding a predeceased spouse or divorced spouse
— Information relating to valuable assets (e.g., jewelry, coins, collectibles), often found in schedules to home owner's insurance policies
— Debts owed to the decedent
— Rental property
— Vacation property
— Property tax receipts
— Real estate leases
— Safe deposit box information
— Mortgages and deeds to property
— Stock and bond certificates
— Income tax returns (past three years)
— Company retirement plan statement
— Titles to automobiles
— Vehicle leases
— Recent credit card statements
— Post office box information
Other Important Information or Documents
— Last Will and Testament - If the decedent has a Last Will and Testament it should be read immediately. It sometimes gives explicit directions about funeral arrangements. Neither a lawyer nor any special formality is required to read a will. If an individual dies without a will, the estate will be administered through the probate process as directed by the laws of the state of his or her domicile at death.
— Trust Agreements - If the deceased has established a trust, it may take effect upon his or her death, or it may already be effective. Quite often, the trust is funded upon the death of the person establishing the trust.
— Military Records and Discharge Papers - A military discharge letter is necessary when applying for any benefits that might be forthcoming from the Veterans Administration. Because many of these records were lost in a fire, it is best to try and find as much specific information as you can before calling.
— Birth Certificate (Decedent and Spouse) - Institutions may request these documents before they process paperwork
— Death Certificate (Decedent and Spouse) - These certificates may be obtained from the funeral director and are required to transfer the decedent's estate to anyone else. Generally, each transaction involving the transfer of property requires a certified death certificate. A good rule of thumb is to order at least 10 copies of the death certificate from the funeral home or the appropriate government agency.
— Social Security Records - Including the social security number for the deceased and their spouse
— Marriage Certificate - Institutions may request a marriage certificate before they process paperwork
— Divorce Records And/or Separation Agreement -Institutions may request these records before they process paperwork.
— Naturalization Papers - Citizenship may need to be established for some estate or other tax purposes
— Adoption Papers - Legal adoption may need to be established to show right to inherit or exemption from some taxes
Steps the Executor May Need to Take
Identify and value the decedent's assets.
List the assets in an organized fashion and value them at the date of death or the alternative valuation date. The assets should be categorized in one of the following categories:
- Joint tenancy with rights of survivorship (including tenants by the entireties with a spouse);
- Assets passing by designation of beneficiary (often including life insurance, retirement accounts and "POD" or "TOD" accounts);
- Assets titled in the name of a revocable trust, assets titled in the name of an irrevocable trust;
- Assets titled in the sole name of the deceased (probate estate).
An attorney's advice will be essential to correctly make these valuations and allocations.
Marshall and Preserve the Assets of the Estate.
Several steps may be necessary:
- Maintain or obtain insurance policies on the properties.
- Pay monthly mortgage payments.
- Cancel any outstanding purchase orders (e g, airline tickets, stock purchases).
- Cancel any credit cards issued only to the decedent.
- File appropriate claims for medical and casualty insurance.
- Pay the claims, expenses and taxes of the decedent and of his or her estate.
- Open an estate checking account or other investment accounts if there are solely owned bank accounts, cash proceeds or income belonging to the Estate. These accounts will need to be opened by the Personal Representative.
- Make a final distribution of the probate assets, which typically involves following the directions of the probate court.
- File all tax returns and pay any tax liability. This may require a federal estate tax return and income tax returns for the years when the estate remains open. State returns may also be required.
— Bills - Some installment loans, service contracts and credit card accounts are covered by credit life insurance, which means that the balance may be paid in lull by the insurance company at the death of the customer.
— Safety Deposit Box - In some states, a safety deposit box will be sealed after a death. A personal representative can generally open the box with supporting documents or Letters of Administration. If the box has a co-owner (as opposed to someone who is merely allowed access to box), it may remain open after the co-owner's death.
— Joint Ownership Change - If items are held jointly with the deceased, ownership may need to be changed on the following items: titles on home(s), cars, homeowners and auto insurance policies, utilities, checking and savings accounts and credit cards.
— Investments - Determine if there are investments held by the deceased such as stocks, bonds, annuities, mutual funds, limited partnerships and certificates. With appropriate documentation, accounts may be transferred into the name of the survivor or other heirs, Be sure to obtain the date-of-death values on all investments. Good resources for information on a decedent's investments are income tax returns, bank statements, consolidated investment account statements and other business correspondence.
Additional Steps for Survivors
— Make sure that medical insurance remains in force. If a surviving spouse was listed on the decedent's insurance policy, make sure the coverage will remain in force.
— Review cash resources and reassess financial needs. A new budget may need to be established due to a likely change in income and expenses for the survivor. Survivors should resist making major financial decisions within the first six months and should speak with their attorney and accountant before taking any action in regard to joint accounts.
— Remove the name of the deceased from bank accounts and credit cards.
— Contact the Social Security Administration (800-772-1213) and make an appointment to go to the local office to discuss survivor's benefits.
— Check for life insurance that may be available via the decedent's credit union, credit card issuers and auto insurer.
— Talk with your attorney about updating your estate plan, including:
- Draft or redraft a will - Assuming the survivor was the first to inherit under the previous will, the survivor may want update his or her own plan of distribution.
- Update plans for minimizing estate and inheritance taxes, including a review of gifting or charitable giving that may now increase or decrease.
- Update any specific burial considerations in light of how the deceased was buried or interred.
- Update or adopt a revised durable general power of attorney to authorize an individual to handle the survivor's financial affairs if he or she is unable to do so.
- Update or draft a health care directive to authorize a new person to make health care decisions for the survivor if he or she is unable to do so. Health Care Directives describe the medical treatment that the survivor wishes to receive if they become terminally ill or can no longer make decisions for themselves and appoints a Health Care Agent to make decisions for them.