There might not be a more difficult time in your life than when a loved one passes away. Here are answers to important questions that can help bring you peace of mind during this stressful time.
Q. Should I contact an attorney?
A. Yes. Every estate is unique, so an estate planning attorney can advise on your specific situation.
Q. How do I determine if there is a prepaid funeral contract?
A. Look through your loved one’s documents to see if there was a prepaid funeral contract. The contract may be kept with or near a will or estate planning files. You may also wish to contact the local funeral directors, or your loved one’s attorney, care center or hospital.
Q. Can I gain access to a safe-deposit box?
A. Because banks are subject to state and federal regulations, procedures vary greatly. Contact your loved one’s bank directly to determine its policies for access.
Q. How are assets distributed if my loved one does not have a will or I cannot find it?
A. When a person dies without a valid will, or if you cannot find it, property passes to heirs according to state law. For most states, the share for the surviving spouse is determined first, if he or she was married at the time of death. After allotting for the surviving spouse’s share of the estate, state laws also have provisions for how property should be divided if there is more than one descendant who is entitled to inherit from the estate. Check your state’s laws or contact an estate planning attorney for specifics.
Q. What is probate?
A. Probate, if required, is the formal process by which property and assets are distributed to beneficiaries. Most probates involve filing a petition (and original will, if available) with the proper court, appointment of an executor, notice to heirs, inventory and appraisal of estate assets, payment of debts or taxes and distribution of assets to beneficiaries.
Q. How much does it cost to probate an estate?
A. The cost and duration of probate can vary substantially depending on the value and complexity of the estate, the existence of a will and the location of property owned by the estate. Your attorney will discuss the costs involved for your situation.
Q. What is the role of the executor, personal representative or administrator?
A. The executor or personal representative is in charge of the probate process and provides an orderly method for administering the estate. If there is no will, an administrator is appointed by the probate court.
Q. Where will the estate be administered?
A. The estate—or probate, if required—will be administered in the county where your loved one resided. If your loved one owned property in another state, a separate proceeding may be required.
Q. How do I know if I am a beneficiary under the will or living trust?
A. The law requires the executor or personal representative to give all interested parties and named beneficiaries notice when the will has been filed with the court. It then becomes a matter of public record. You can contact the courthouse and request a copy of the will. If you are a beneficiary under a living trust, the law requires the trustee to give you notice. A living trust is not a matter of public record.
Q. How do I request proceeds for life insurance, 401(k) plans, IRAs and other contract-related assets?
A. The plan administrator for these assets or accounts typically requires a certified death certificate and a fully executed claim form. Contact the plan administrator for details.
Q. Are all assets subject to administration?
A. Probate assets that are titled in your loved one’s individual name may require administration. Property titled as joint tenancy with rights of survivorship automatically passes, by operation of law, to the surviving owner(s) when one owner dies. Assets such as life insurance, 401(k) plans, IRAs and other contract-related assets automatically pass to the named beneficiaries upon the owner’s death.
Q. What if my loved one had a lot of debt?
A. If the estate has no money or assets to satisfy the debt, it is canceled. If the estate has assets, they must be used to satisfy any debts before the assets are distributed according to the will or state laws.
Many do not realize the extensive legal and administrative work that follows the death of an individual. It is best to plan ahead of time, where possible, for these eventualities. If anything, be sure to contact an estate planning attorney to guide you through the process. If we can be of any help to you or your advisors during this time, please do not hesitate to contact LWV. We want to help in any way we can.
Information contained herein was accurate at the time of posting. The information on this website is not intended as legal or tax advice. For such advice, please consult an attorney or tax advisor. Figures cited in any examples are for illustrative purposes only. References to tax rates include federal taxes only and are subject to change. State law may further impact your individual results. California residents: Annuities are subject to regulation by the State of California. Payments under such agreements, however, are not protected or otherwise guaranteed by any government agency or the California Life and Health Insurance Guarantee Association. Oklahoma residents: A charitable gift annuity is not regulated by the Oklahoma Insurance Department and is not protected by a guaranty association affiliated with the Oklahoma Insurance Department. South Dakota residents: Charitable gift annuities are not regulated by and are not under the jurisdiction of the South Dakota Division of Insurance.