Estate Tasks to Complete After a Loved One Passes

Estate planning clients occasionally ask for a list of steps or estate tasks to take after their passing to give to their loved ones.  I’ve always resisted making such a list because the exact steps change over time and don’t always apply depending on the circumstances at that time.  That said, there are some general steps that your loved ones or your fiduciaries may need to take which I’ll address here.

This is somewhat based upon the recent article, “11 Financial Steps to Follow After the Loss of a Loved One,” from U.S. News & World Report, although I added some of my own estate tasks.

Grieve. I heard a very venerable estate attorney say to a client that this is always the first step.  Many of the tasks on this list are important, but rarely so urgent that you can’t take a week to attend to the funeral or final services, contact family and friends, arrange an obituary and grieve.  So, start there.

Obtain a death certificate. This usually comes from the funeral home. You’ll want to get five to ten original certificates, which will be used for various legal and financial matters.  You rarely need that many, but it is very easy to get them once a loved one dies, very difficult to get more later if you run out, so a few extra is a great idea.  If the decedent was a veteran you can get them for free.

Gather financial documents. This includes estate planning documents, a will, a trust, bank and investment account information, utilities and bills, insurance policies and tax returns.  This is very time intensive so hopefully the decedent had a complete estate plan, let the fiduciaries know how to access the documents, assets and liabilities in advance of their passing.

Reach out to advisors. This includes the estate planning attorney, financial advisor, CPA and other professionals working with the deceased. They will be able to offer guidance as you go through the process of managing the estate.  Do this on the early end and with as much of the financial info on hand as you can so they can provide you with more specific steps to take.

Contact any government agencies. If your loved one was receiving benefits from Social Security, the Veterans Administration, Medicare, Medicaid, or any other government agency, you must notify them of the death. The funeral home may have already sent the SSA a notification, which is most common.  You may still want to confirm if it has been sent, as the ultimate responsibility for notification is the surviving spouse or adult child.  You’ll know it happened when Social Security pulls the last retirement payment out of the account after death.

Contact financial institutions. The financial institutions, including commercial banks, brokerage accounts and insurance companies, will all need to receive an original death certificate. If there is a POD (Payment on Death) order, the balance on accounts will be transferred to the designated beneficiary. If there are life insurance policies, you’ll need to find the policy and identify the designated beneficiary.

This process can occur here, later in an estate administration or both, and can go in many different directions depending upon the assets. Generally, the goal is to remove the decedent’s name from all accounts of every kind and then distribute the remaining assets to the beneficiaries in accordance with the estate plan.

Avoid identity theft. Contact credit agencies, including Experian, Equifax and TransUnion, to notify them of the death. You may need to contact one for the others to become aware. You should also close the social media accounts of the deceased. Depending on the platform, you may only be able to memorialize the account instead of deleting it.

Other important institutions to contact. The post office will need to be notified, although you may first want to have the person’s mail sent to your home directly. The motor vehicle department needs a notification of death to stop renewing licenses. Unions and professional, service, or fraternal organizations should be notified. There may be survivor’s benefits.

Prepare the final tax return. There are two tax returns to be aware of—the final income tax returns and the estate tax returns. Your estate planning attorney will know the deadlines for both if they apply.  There is actually a third, which is the estate’s income tax return, although that doesn’t always apply.

Filing the will with the probate court/estate administration Once the will goes through probate and is approved by the court, the executor will be able to distribute the deceased’s assets in accordance with the will. If there is no will, the distribution will be overseen by the court and follow the state’s intestacy laws.  You may also utilize a trust to avoid most of this work.  This is the main estate task people anticipate.

Settle any remaining debts. In most cases, the remaining liability on a mortgage or car loan will be payable by the person inheriting them. All other forms of debt, like student loans, credit cards and medical loans, will be charged against the decedent’s estate.  However, and I stress this, discuss debts with the estate administration attorney.  Many estate administration clients try to move fast and pay debts without requiring validation or considering whether they should pay it.  Many states, Texas being an excellent example, have laws limiting estate liability for debts, so they may not have to be paid in the first place.  Creditors also (in most cases) can’t collect the decedent’s debts from beneficiaries, so family should avoid paying debts from their own assets.

This is a complex issue, so see this article for more detail:  https://galligan-law.com/do-i-have-to-pay-the-estates-debt/

There are of course more detailed estate tasks to complete, so speak to your professional advisors when the time comes to determine what steps to take.

Reference: U.S. News & World Report (Sep. 1, 2023) “11 Financial Steps to Follow After the Loss of a Loved One”

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What Happens If the Executor of a Will Dies Before the Testator?

While it’s uncommon, an executor or other fiduciary can predecease you.  Naming a successor is one way to ensure you have a person who can fulfill those duties and avoid difficulties that might affect the settlement of an estate, says Yahoo Finance’s recent article entitled “What Happens If the Executor of My Will Dies?”

If the executor dies during the probate process, a successor executor can complete the estate settlement. However, if there’s no successor executor named in the decedent’s will, someone else will have to come forward to do it.  That person may not have the beneficiaries’ interests at heart, someone who the testator didn’t want to serve, and might even be a creditor of the estate.

A person who comes forward to administer the estate, if they weren’t named in the will, may have to get consent of others which isn’t always easy or possible.  They may also have to post a bond at their own cost.  A probate bond is essentially an insurance policy against any financial losses that might occur, if the executor abuses their power or otherwise mismanages the estate. The amount of the bond can correspond to the amount of the estate.

If you’re the person who’s making a will, the easiest way to avoid complications that may result from the death of an executor is to name one or more individuals to succeed them. Therefore, if the executor dies before you do or during the probate process, someone else will be waiting in the wings to take up the reins.

To some degree, it’s worth considering placing assets in a trust to avoid complications following the death of an executor altogether. That’s because the trustee would be responsible for distributing them, and can often be handled outside of court, further limiting the time and difficulty of the process.

Most estate planning attorneys can also anticipate this problem, which is why we ask about potential back-up fiduciaries.  We also provide mechanisms to name fiduciaries, where possible, if named fiduciaries cannot or will not serve.  That isn’t as good of a strategy as naming suitable back-ups and updating your estate plan as needed, but can help.

In summary, an estate administration may be disrupted if a named executor predeceases the testator, but naming suitable contingent executors and updating your estate plan as needed can help avoid this complication.

Reference: Yahoo Finance (May 15, 2023) “What Happens If the Executor of My Will Dies?”

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Four Overlooked Elements in Estate Plans

When creating an estate plan, there are details which seem minor but are actually very important.  It is helpful, when creating an estate plan or reviewing your existing one, to check for these key estate plan elements, says a recent article from mondaq, “Four Provisions People Often Forget To Include In Their Estate Plan.”

Don’t forget to name alternative beneficiaries and fiduciaries. If the estate plan names a beneficiary, but they are unable to take possession of the property, or they are deceased, the asset may go to someone untended, or even as though you have no estate plan at all. In other words, the state will determine who receives the property, which may not be in accordance with your wishes. If there’s an alternate beneficiary, the property will go to someone of your choosing. Back-up fiduciaries (executors, trustees, agents under a power of attorney and so on) are also critical. If your primary choice can’t or won’t serve, someone unintended, or undesirable, may have to do it.

I find in initial consultations this is one of the biggest issues to discuss.  Clients consider their estate plan based upon present circumstances, but real life doesn’t always go the way we expect, so it is important to plan for contingencies.

Personal possessions, including family heirlooms. In the past, many families had items with great sentimental value, whether or not they have any financial value. Although this tends to be less common now, it is important to consider who would get those types of items.  It’s often best to have a personal property memorandum, which our firm routinely creates in our client’s estate plans.  This is a separate document providing details about what items you want to give to family and friends. These work differently in different states, so a local estate planning attorney will know the law for your state and can advise appropriately.  Even if this document is not legally binding, it gives your heirs clear instructions for what you want and may avoid family arguments.

I ask about important, sentimental possession in consultations, and clients often respond by saying these items aren’t financially valuable, as though that means they shouldn’t be consider.  But, these are the items that lead to fights in estates because they have an emotional impact on who receives them, and more significantly, who doesn’t.  I had an estate litigation case years ago that didn’t settle over a $600 wardrobe.  The financial value of planning was proven.

As a final thought, please don’t use the personal property memorandum to make any financial bequests or real estate gifts or use it as use it to try to amend the estate plan.  It never works well, and can break your estate plan.

Digital assets. Much of our lives is now online. However, many people have slowly incorporated digital assets into their estate plans. You’ll want to  consider all online accounts, including email, financial, social media, gaming, shopping, etc. In addition, your fiduciaries will need appropriate access to your phone, accounts and devices. The agent named by your Power of Attorney needs to be given authority to handle online accounts with a specific provision in these documents, which we do. Ensure the information, including the accounts, account number, username, password and other access information, is kept safe, and tell your fiduciaries where it can be found.

This is a growing need in today’s digital society.  So, you can learn more in this article:  https://galligan-law.com/does-your-estate-plan-include-digital-property/

Animals. Today’s pet is a family member but is often left unprotected when its owners die or become incapacitated. Pets cannot inherit property, but you can name a caretaker and set aside funds for maintenance. Many states now permit pet owners to have a pet trust, a legally enforceable trust so the trustee may pay the pet’s caregiver for your pet’s needs, including veterinarian care, training, boarding, food and whatever the pet needs. Creating a document providing details or speaking to the caretaker concerning the pet’s needs, health conditions, habits and quirks is advised. Make sure the person you are naming as a caretaker is able and willing to serve in this capacity, and as always, when naming a person for any role, have at least one backup person named.

Checking for these four key estate plan elements will help ensure your estate plan works as intended and to the benefit of your loved ones.

Reference: mondaq (March 16, 2023) “Four Provisions People Often Forget To Include In Their Estate Plan”

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