My Mom Passed Away and Left Me in Charge

The probate attorneys at Dana Whiting Law understand that when someone has lost a loved one and is named Executor or Trustee, there can be an overwhelming sense of not knowing what needs to be done and which issues are urgent and need to be prioritized. The Executor or Trustee is the person tasked with the duties and responsibilities of the final administration and settlement of the decedent’s Estate and/or Trust. Sometimes the person so designated is a family member or trusted friend. Whatever the circumstances, we know these clients are feeling anxious and worried, which affects their ability to truly mourn the loss. This article will provide some helpful information about what could be done immediately, before you consult with an attorney, as well as ways to prepare for the initial meeting with the attorney and what to expect as the process of settling the Estate or Trust unfolds.

• What Should I Do First?

Funeral Arrangements. Did your loved one leave directions? Will there be a burial or cremation? You may need to contact a Pastor or other religious leader to schedule the services. Regardless, you should contact a mortuary or funeral home to begin making arrangements for the remains.

Death Certificate. Typically, the mortuary staff will assist with obtaining a Death Certificate. There is a small cost to obtaining certified copies of the Death Certificate, but we always recommend requesting more than you think you will need. It will be better to have paid for unnecessary copies than to be in a situation where you need one but ran out. The process to obtain extra copies could take up to two weeks or more.

Social Security. You should notify the Social Security Administration of the death right away, particularly if the decedent was receiving benefits. If benefits are paid through direct deposit, any payments that are made after the date of death may need to be refunded.

• How Can I Prepare for a Consultation with the Attorney?

Documents. Gather any Estate Planning documents, particularly a Last Will and Testament and any Trust agreements. Make sure to locate and bring with you the originals and not copies. If a probate proceeding becomes necessary, the original Last Will needs to be filed with the probate application.

Choose a Lawyer. It is a good idea to consult with an attorney regardless of whether there is a Trust and even if it might not be necessary to open Probate. There are tax implications, potential creditors that need to be dealt with, notice requirements to named beneficiaries, preparation of a list of assets, etc., that need to happen whether or not there is a Probate. In choosing an attorney, you want to make sure you choose a law firm that specializes in the administration and settlement of Probate Estates and Trusts. There is no requirement that you go back to the law firm that originally drafted the estate plan. In fact, many estate planning law firms who draft the estate plan do not administer the plan.

Assets. It is very difficult, and often impossible, for an attorney to discover an asset of the decedent if you don’t tell them about it. Bring copies of deeds for all real estate, recent account statements for any financial accounts, and any life insurance policies or annuity contracts. It is also helpful to provide contact information for the decedent’s financial advisor.

Taxes. As we all know, there are two certainties in life: death and taxes. Your probate attorney will have experience with the “death tax”, but at this initial stage it will be helpful to have information about the decedent’s income tax history. Try to locate and bring copies of the most recent two years of income tax returns.

Contact Information. Whether you are dealing with a trust or probate or both, the law requires that certain interested parties, i.e., heirs and beneficiaries, receive notice that you are the Trustee and/or Personal Representative. Your probate attorney will be able to get the process moving forward much faster if you are able to provide contact information as early in the process as possible.

• What Can I Expect?

Inventory and Accounting. It is important for obvious reasons to avoid litigation and the best way to do that is to embrace the concept of transparency. The law requires that the Trustee/Personal Representative keep all beneficiaries apprised of information regarding assets by providing an Inventory of Assets and Liabilities. As the administration proceeds there will be payments for necessary expenses and gains and losses as assets are liquidated. These items are communicated to beneficiaries in a report called an Accounting. There are some situations where all beneficiaries waive this requirement in order to minimize the cost of preparing a formal report, but this is usually only done when there is a level of trust among the beneficiaries and the Trustee/Personal Representative.

Tax Returns. The Personal Representative is not only responsible for filing the decedent’s final income tax return, but also the estate tax return (the “death tax,” if applicable) and the fiduciary income tax return for the Estate and/or Trust.

Creditor Claims. There are two kinds of creditors when it comes to the settlement of decedent’s estates: known creditors and unknown creditors. The law requires direct notice to the former and published notice to the latter. The good news is that providing this notice gives a deadline to creditors so that if they neglect to file a claim in a timely manner, the assets can be distributed to the beneficiaries without fear that an old creditor that nobody knew about will come out of the woodwork later.

This article is not an all-inclusive checklist of the issues that you may run into when settling your loved one’s estate or trust. However, it should be apparent that there are a lot of moving parts that need to be addressed. An experienced legal team is essential in guiding you through the process.