The death of a family member or loved one is a difficult time for anyone. The last things you want to think about are the next practical and legal steps. While many of these steps are simple, some can be time-consuming and involve complicated legal issues. Nevertheless, these steps are necessary, and important, and being familiar with them can only help.
The legal process of winding up the affairs of the deceased is generally known as settling an estate, or estate settlement. As with all legal topics, and especially with estate law, there can be significant differences from state to state. Always talk to an experienced estate or probate attorney if you have specific questions about the laws in your area.
An attorney’s assistance is especially important when you begin the probate process (since that’s when the courts get involved) or when you’re confronted with an emergency situation or an unexpected death that requires you to act immediately. But if you’re familiar with the process, you can do some or all of it yourself.
What to Do Upon Learning of the Death
When a family member dies, you or someone else close to that person must take some basic steps fairly quickly. While you’re not generally legally obligated to take these steps, getting them out of the way makes it easier for you and everyone else involved.
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1. Contact Family & Loved Ones
If you’re the first to learn that someone has died, you should reach out to the people closest to the decedent. (Decedent is a legal term for a deceased person.) Contact family members and close friends first, but after that, you should notify anyone closely involved in their life who might have important information, such as their employer, personal physician, attorney, and accountant.
If you’re overwhelmed or unable to contact everyone, ask others to help you. Similarly, if someone contacts you to notify you of a death, ask that person if you should call anyone in turn.
2. Care for Pets or Dependents
If the decedent was the sole caretaker for any animals, pets, minor children, or adults with disabilities, immediately ensure they’re properly cared for.
If the decedent left an estate plan, that plan should directly address what happens to the pets or children after their death. But if it doesn’t or there is no plan, you just have to act.
If the death was unexpected and there are immediate needs you must address, call a local estate planning attorney about your options after you’ve ensured proper care for the child, dependent, or animal. In these situations, you may have to ask a court to issue emergency orders to ensure the protection of the minors or dependents.
3. Transfer the Body to a Mortuary or Funeral Home
One of the most immediate concerns is arranging to transfer the body to a funeral home or mortuary. Health care facilities like hospitals and nursing homes can typically assist you.
An estate plan often includes the name of the funeral home the decedent selected. You can usually find that information in the letter of instruction, advance medical directive, or the last will and testament.
4. Obtain a Pronouncement of Death
The pronouncement of death is a form completed by a medical professional that states when and where someone died. You’ve seen the verbal version of it on TV when the actor playing the doctor calls time of death. In the real world, they have to fill out a form.
State law differs on who can provide a valid one, but in general, only medical personnel, such as nurses and doctors, can declare someone clinically dead. Which specific personnel or officials differ based on where the decedent died and the circumstances surrounding the death. For example:
- In a medical or elder care facility, facility staff can provide you with a pronouncement or tell you how to obtain one.
- In your home, call 911 to report the death and ask if they can send someone who can complete the pronouncement.
- If the death was accidental, the result of a suspected crime, or involved law enforcement, contact the county coroner or hospital where the decedent was taken.
This part should happen automatically in most cases, but if it doesn’t, you need to ensure it does to obtain the death certificate.
5. Obtain Copies of the Death Certificate
The pronouncement of death is the official act of proclaiming someone has died. You need verification a medical professional pronounced clinical death to obtain a certificate of death, which is a legal document that includes the time, location, and cause of death.
It’s usually issued by a mortician, county or state vital records office, or coroner. You need certified copies of the death certificate to notify interested parties, such as banks or creditors, of the death. Without them, many of the steps you have to take will be much harder, if not impossible.
Within a few days of the death or transfer to a mortuary or coroner’s office, contact the appropriate office to request copies of the death certificate. You can find out which office that is by searching the internet for “where to get a death certificate in [your state].”
State laws regarding who can obtain certified copies differ, but if a court (or the will) has already named an executor or estate administrator, that person can obtain copies. If there’s no court-appointed representative, it’s up to a family member to obtain certified copies.
6. Plan the Funeral Service
After you’ve transferred the body to a mortuary or similar facility, you must also begin preparing for a funeral, cremation, or burial ceremony.
You can usually wait a couple of days or more before you begin making these plans. Use that time to determine whether the decedent left behind any instructions. Follow the decedent’s wishes if you know them or the instructions left behind in the estate planning documents.
If you don’t have guidance, make the plans on your own or coordinate with other family members and loved ones.
Manage & Settle the Estate
Once you’ve addressed the immediate needs that arise after the death, you can begin the process of managing and settling the estate. In legal terms, an estate is the collection of assets, debts, and issues left behind by a decedent.
The estate settlement process is the legal process of disposing of the assets, paying the debts, and addressing any other questions or legal issues that arise, such as who becomes the owner of the decedent’s pets or who is legally responsible for caring for any young children who were in the decedent’s care.
As a general rule, only those chosen by the decedent or granted permission by a court can settle the estate.You can’t simply decide to start taking Grandma’s money out of her bank account after she dies, even if you’re sure you know where the money has to go.
The property belongs to the estate, and until the estate legally transfers it, neither you nor anyone else can use it.
Hire a Probate or Estate Attorney
The estate settlement process can be complicated, lengthy, and expensive, even if there aren’t complications. The larger the estate, the more complicated its holdings, and the more conflicts that arise, the more help you’ll need.
That’s why anyone in a position to manage an estate needs to contact an estate planning and probate attorney as soon as possible, especially if the estate is of considerable value.
The cost of hiring an attorney differs based on where you live and the size of the estate. Estate attorneys can charge an hourly rate, a flat fee, or a percentage of the estate’s final value.
Pay for Estate Expenses
The cost involved in dealing with the death of a loved one is one of the most immediate concerns people face. Who pays for the funeral? Who pays for copies of the death certificate? Who pays for the incidental expenses that must be paid immediately? Who pays the lawyer to take the case through probate?
As a general rule, the estate is responsible for any debts that arise after the death and throughout the estate settlement process.
In practical terms, that means that if you personally incur expenses when you, for example, pay for pet food to care for the decedent’s pets that were left behind, you can bill the estate to receive compensation for those expenses.
The estate won’t pay you back immediately. You must wait for the court to appoint the estate representative and begin paying estate debts). But you’re entitled to compensation for anything the estate should have paid.
Similarly, if the decedent left behind any obligations like debts or taxes, you’re not responsible for paying them unless you were a joint debtor. If you were a joint debtor, you’re still just as responsible for those debts as you are for any other loan or obligation you have.
Types of Probate
Probate is a legal process that applies after someone dies or becomes incapacitated. All states have specific laws that cover probate cases, and though many of these laws are similar, differences between individual states can be significant.
In general, you can divide probate cases into two main types: small-estate (or summary) probate, and traditional probate.
Further, many states have several types of traditional probate, each of which has varying levels of requirements and court involvement.
All states have some process in which you can either skip probate entirely or go through a small-estate probate process that removes almost all the legal requirements associated with traditional probate.
There’s a specific value limit to qualify for a small-estate probate process. The amount varies greatly by state but can be as little as $500 or as much as $200,000. So, if the estate is worth more than the small-estate limit, you can’t use the small-estate process.
Additional restrictions also often apply to small-estate probate. For example, your state might have a small-estate probate process that excludes estates with real property, debts, or those in which the decedent died without a will and left behind more than one descendant.
Small-estate probate usually comes in two forms, each with different processes:
Most states allow for an affidavit process for small estates. In this process, anyone who believes they’re entitled to some of the estate can claim that property without the court’s involvement by creating a sworn document, called an affidavit, that states what property they’re entitled to.
You don’t have to file the affidavit with the court, but you must use it when you claim the property. For example, if you inherit money that’s currently in the decedent’s bank account, you can present the proper affidavit to the bank, and they will transfer the money to you.
It’s worthwhile to note that you have to complete an affidavit under the penalty of perjury. So if you lie in the affidavit and claim property you’re not entitled to, you can be charged with a crime for your actions.
Simplified Small-Estate Process
The simplified small-estate probate process allows you to open a probate case with the local probate court but with much fewer steps involved than in a formal or traditional probate case.
For example, a formal probate case typically requires an executor to submit a list of estate assets and debts before distributing anything to inheritors or using the assets to repay debts. In a simplified process, you might be allowed to skip this step, but you must still file a petition with the court asking it to name you executor before you can begin distributing money or other assets.
Traditional, also known as formal or supervised probate, is a probate process involving some level of court supervision and approval.
Most states have more than one type of traditional probate process, but the requirements and rules for each process differ widely, so check your state’s laws for specifics.
Traditional probate applies to estates that are larger than the small-estate limit, have issues that preclude them from being a small estate, and estates in which there are conflicts or disagreements between creditors, beneficiaries, or the decedent’s family members.
Informal probate is similar to the simplified small-estate process and applies to an estate that wouldn’t otherwise qualify for small-estate probate.
This process typically requires you to file paperwork with the court at various stages but doesn’t involve court hearings or supervision.
Informal estate probate is appropriate in cases in which there are no legal disputes or disagreements over the will, the disposition of assets, or the payment of debts.
Unsupervised Formal Process
Unsupervised formal probate cases typically involve special circumstances, such as underage inheritors, an estate with significant assets but no will, or beneficiaries who disagree about how to manage or distribute estate assets.
Unsupervised formal probate requires executors to get court approval for specific actions, such as using estate funds to pay creditors or distributing assets to beneficiaries.
Supervised Formal Process
Formal probate is the most rule-intensive probate process and has the most court involvement and supervision.
Supervised formal probate can involve multiple hearings before a probate court judge, require court approval for specific executor actions, and even involve jury trials and lengthy appeals.
The formal probate process is typically the longest and most complicated form of probate — and also the most expensive.
The Probate Process
Regardless of the type of probate case you have or the state laws governing it, the probate process generally goes through the same basic steps.
In simplified probate cases, these steps are simple or nonexistent, while in traditional or formal probate, the steps have more requirements.
The estate administrator, also called the executor or personal representative, is usually the only person with the legal authority to manage the estate through the probate process — or at least manage the estate after it’s been submitted to a probate court.
Administrators almost always have a probate attorney advising them throughout this process, though small estates and informal probate cases may not require an attorney or an appointed administrator at all.
Regardless of the probate type, expect to follow these basic steps.
1. Locate the Will
If the decedent left behind a last will and testament, that document is at the heart of the probate process.
If you know the decedent left a will, find it and submit it to the probate court when you ask the court to open a new case. You can also start a new case if you don’t have the will or have an old will or a copy of the will.
If you don’t believe there is a will at all, you should try to verify as much to the best of your ability before submitting anything to the court.
2. Initiate Probate
Before anyone can begin selling, transferring, or using estate property, someone has to initiate the probate process.
The process begins when you file a document (usually called a petition or application) with the probate court in the county in which the decedent lived.
The document asks the court to open a new probate case and name an estate administrator to manage it. When you file the petition, you usually ask the court to name you as executor, but you can also ask the court to name someone else.
3. Notify Heirs, Beneficiaries, & Creditors
Once you’ve submitted the will to court and begun the settlement process, you must notify interested parties. That includes mailing notices to anyone named in the will, anyone who would inherit if the court determines the will is invalid, and estate creditors. You may also be required to publish a notice in the local paper.
4. Manage the Estate
Because the probate and estate settlement process can last a long time, the administrator must properly manage the estate assets until they can transfer them to new owners.
For example, you must pay bills on time, hire caretakers to manage real property, notify police to ask them to periodically check on any vacant property, and ensure the protection of all assets throughout the process.
As administrator, you’re entitled to receive compensation from the estate for any time you spend and expenses you incur performing your duties, so it’s vital you keep track of both.
5. Perform an Inventory
One of the most crucial parts of the estate settlement process is conducting an inventory or assessment of exactly what the decedent left behind. Whether it’s real estate, investment accounts, cash, valuable personal items, or anything else, the estate inventory must include it all.
This inventory and the determination of the estate’s final value become the basis for most of the remaining process. You use it to determine how much the estate is worth, whether the estate owes taxes, whether there are enough assets to pay creditors, and how much you must distribute as inheritances.
6. Liquidate Assets
In some situations, you’ll have to liquidate (sell) some or all of the estate’s assets.
Liquidation of assets is common when the estate is insolvent (has more debts than assets), when the decedent died without a will (known as dying intestate), or when the estate has a lot of personal property that isn’t directly addressed in the will and needs to be disposed of.
Liquidating assets can require you to have valuable personal items appraised by an expert or hire an estate auction or estate sale company to dispose of personal property.
7. Pay Debts
After making the inventory, you then have to determine if the decedent owed any debts. Luckily, the debtors must contact the estate to notify it if they believe the decedent owed them money.
This claim process has several steps, including publishing one or more notices to creditors, allowing creditors to submit claims, accepting or rejecting claims, and determining what creditors, if any, receive repayment.
If the estate is insolvent, some creditors lose out on repayment or receive only partial payment. State probate laws determine the order in which creditors receive payment. For more information, check out our article on what happens to debts when you die.
8. Distribute Assets
With all estate debts repaid, it’s time to begin distributing assets.
If there’s a last will and testament, its terms determine who inherits and how much. If there’s no will, state intestacy laws determine who the inheritors are.
9. Close the Estate
Once all the steps are completed or ready for completion, the administrator must file a report with the probate court for approval.
The report details the inventory, lists the creditors, and shows how all the assets will be disposed of. Once approved, the administrator transfers the assets and the estate is closed.
10. Resolve Conflicts
At any point in the probate process, it’s possible for conflicts or legal challenges to arise. These necessarily extend the amount of time it takes to settle the estate and usually result in more estate expenses.
For example, if a relative challenges the validity of the decedent’s will, you can’t resolve the probate process until the court holds a hearing and makes a ruling.
Similarly, creditors can challenge an executor’s decision to reject a claim; family members can challenge the appointment of a guardian over a minor child; and interested parties can challenge the executor’s inventory, distributions, or expenses.
Other Issues to Consider
Most probate cases are relatively simple and straightforward. While they all involve specific processes and procedures, they don’t usually involve legal battles or lawsuits. However, some circumstances fall outside probate or are part of some cases and not others, and those can either complicate or simplify the process.
Not all the assets a decedent owned become part of the probate estate. For example, if the decedent had a transfer-on-death bank account and named a beneficiary, the beneficiary inherits the funds in that account automatically and does not have to wait for the probate process before inheriting. That’s one reason you must obtain copies of the death certificate.
It’s easiest to understand a trust fund by imagining it as a small company that exists for one purpose: to own money or property on behalf of someone else.
There are many kinds of trusts and many ways to create them. One of the most common is when someone writes a last will and testament that calls for the creation of a trust to own assets on behalf of minors (children) who can’t legally own property.
Since trusts are independent legal entities, they can continue to exist after the death of the person who creates them. Trusts can usually skip the probate process, and if the trust owns property that passes to new owners after the trust creator dies, that inheritance process won’t be a part of the probate process either.
If a relative dies and leaves a trust, it’s essential to understand that the probate process has only a small role in how the trust operates. Unless there’s a legal conflict, a problem with the trust property, or some kind of issue you can’t otherwise resolve, probate courts are not involved. Instead, it’s up to the individuals who are part of the trust to manage and use its property.
Trusts typically own property on behalf of someone else (the beneficiary). The trustee manages the property the trust owns and uses it only in a way that benefits the beneficiary.
For example, a will might direct that part of the estate’s money be transferred to a trust you manage so it can pay for the care of the decedent’s dog. That’s known as a pet trust, and is a common type of testamentary (will-created) trust.
Other common types of trusts include those that protect inheritances received by minors, those for property to care for people with disabilities, or those that stipulate the money be used for charitable purposes.
If the trust came into existence before your relative died, what’s called a living trust, there’s already a trustee (manager) who runs it. But if the decedent was the trustee, someone new must step in. The trust document typically names that new trustee. In this situation, you must find the trust document and identify who the new trustee is.
But if the trust is created through the decedent’s last will and testament that document names who the trustee is. The court must also determine if the will is legally valid before the trust can begin managing any property.
Each trust has its own terms and conditions, and if you’re a beneficiary or involved in trust management or the management of the estate, you must understand how these conditions affect you.
In most situations, talking to a trust attorney is necessary if an estate has one or more trusts. For more information, see our article on wills versus trusts.
When the parent or guardian of a child dies and there’s no surviving parent or guardian, the probate case may also address the child’s care and material needs.
For example, if your sister dies, leaving behind a daughter under the age of 18, the child will be cared for by her father, assuming that the father is still alive. However, if your niece is left without a living parent and your sister didn’t leave a last will and testament that named a guardian, the court must determine who the new guardian is.
Also, because the child is not old enough to own property, any inheritance she receives will be held in trust and managed by a trustee until she’s old enough to become the owner.
Estate & Inheritance Taxes
In general, you as an individual are never responsible for paying estate expenses. That includes any estate taxes the estate owes.
But inheritance taxes are different. If you receive an inheritance and live in one of the few states with an inheritance tax, it’s your responsibility to determine if the tax applies to you and how much you have to pay.
Managing an estate, navigating the probate process, and dealing with all the issues that arise after a relative dies can be difficult. That you’re also grieving when you’re expected to manage these issues makes the experience that much harder.
Asking others for help, talking to an expert, and giving yourself a head start by doing some basic research on what you’ll face can help you manage the task more easily. With a simple road map, an understanding that the process will take time, and lots of patience, you’ll get through it.