I was recently contacted by a close friend of friends who were at a loss. Their mother just passed away and they didn’t even know where to start. I was asked, “Where do you start when someone you love dies?”
This is an extremely difficult time for the family and friends of someone who is no longer with us. Since this has been a recurring request, I decided that now is the perfect time to at least provide some guidance and direction regarding this very difficult and heart-breaking situation.
The laws in every state differ. This article is for general educational purposes only, but hopefully will alleviate some pain with regard to an understanding of what may be expected.
My previous articles dealt with how we can help our loved ones make this difficult time a bit easier through the creation of an estate plan. However, this topic is one that most people save for a later date. That date may be too late, but maybe not. Once you uncover what estate planning documents your loved one left, I recommend that you reach out to a probate attorney in your area.
First
Your first step is to discover whether your loved one left a Will or other estate planning documents. If there is a Will, do you have the original? If you do have the original Will, life may be a little easier. For example, in Colorado, if there is an original Will, the estate can most likely go through informal probate (unless circumstances dictate otherwise). Without the original, it’s a longer, formal probate process.
The Will should identify the beneficiaries as well as the personal representative/executor (depending on which term your state uses). Believe it or not, a Will came to my attention recently that provided conflicting terms. It was an online will that the person attempted to complete without legal counsel and ended up with a nightmare for those left behind.
Second
Are there other estate planning documents your loved one took time to provide? Perhaps you were aware of how your loved one wanted their remains to be handled — burial? cremation? … They may have left a document regarding the disposal of their remains.
Is there a trust? If yes, your attorney will need to see this document.
Your attorney will also need to know what the assets of the estate are and their worth. Is there real estate involved? If yes, how was title to the real estate held? If jointly held with rights of survivorship, is there a survivor? If there is a survivor, merely filing the death certificate may be enough to transfer title, but it depends on your state laws.
Some states provide for small estates. For example, in CO and FL, if it’s a small estate as defined by the statute, and no real estate is involved, you may be able to transfer title to the assets with just an Affidavit. However, every state is different, and the amount at issue to determine whether it is considered a small estate differs. Additionally, there may be circumstances at issue where other options are preferable.
Third
Are there any creditors? If yes, they need to be identified and the attorney advised so that notice can be provided. Even if creditors cannot be identified, notice will need to be published so that any potential creditors have an opportunity to come forward.
Obtaining any documents left by your loved one is a critical first step. A trustworthy probate attorney can help you handle the rest.
Please feel free to reach out to me if you need assistance in either Colorado or Florida.
© 2021 Karen Van Den Heuvel Fischer
