Learn what to do after the death of a loved one in our free guide: Seven Steps to Handling Your Loved One’s Estate
The loss of a loved one can be a very traumatic experience. The family is grieving and dealing with the emotional consequences of the loss. However, there are also financial issues that need to be handled on behalf of the deceased person. Knowing what to do when someone passes away can seem complicated, and add more stress and grief to a difficult situation. Understanding the basics of estate administration & how to handle the financial issues of a deceased loved one can make things much easier. It can prevent a very bad time from becoming even worse.
Estate administration is the process of determining what to do with someone’s assets when they pass away. Some steps to take immediately include:
Secure their personal property so that someone doesn’t break into their house and take them, especially if the deceased person lived alone.
Handle the social security check properly, and file for all employer-provided benefits, as well as life insurance benefits, etc.
Most of what you will have to do will involve the probate process.
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The probate process is the court proceeding designed to pass assets of a deceased person on to their heirs, and make sure that all creditors of the deceased have been paid.
However, that does not happen automatically. Each person is a legal entity that has a social security number assigned, which also serves as a tax ID number. When a person passes away, that legal entity passes away as well. Someone must then set up a new legal entity with its own tax ID number. This is known as the deceased person’s estate. Again, all of this is done as part of the probate process.
If someone has a will, then the person named in the will as a personal representative takes that will to the probate court and requests “Letters Testamentary.”
Letters testamentary are orders from the probate court that provide the legal authority necessary for another individual to act on behalf of a deceased person’s estate.
Without Letters Testamentary, there is no legal authority to act on behalf of the deceased person
A power of attorney is no longer effective when someone dies, and therefore you cannot act with the power of attorney, you must have these Letters Testamentary.
To get these Letters Testamentary and the authority you need, the person named in the Will as executor or personal representative will need to file a petition with the probate court to probate the will. There are certain notice requirements that must go out to other potential heirs. That notice is required to see if they agree that you serve as personal representative of the estate. If not, there must be a hearing. If all heirs agree, then you get waivers and consents from each one of them. The personal representative will then file those in and the court will issue the Letters Testamentary.
If there is no will someone has to petition the court for Letters of Administration.
Probating an estate without a will is more expensive and time-consuming, because you have to have a hearing for everything, and some of the legal requirements that are usually waived in a will have to be followed in an estate administration. The administrator basically has the same role as a personal representative in a will, but they have to jump through more hoops and go through more court hearings if there is no will.
Once the Letters of Administration are issued, then that person is responsible for gathering the assets and listing real estate for sale, amongst other things.
They must also post notice in the newspaper to unknown creditors and send actual notice to known creditors so that they can file their claims in the probate court. There is a certain time limit that these claims must be filed. In the meantime, no one should be paying the bills of the deceased person, because those are bills of the estate that are to be paid after six or seven months when the estate is going to be closed out.
Most of the time, it takes 8-10 months to probate an estate, depending on whether the heirs are in agreement or whether there are issues.
It also can take longer to probate an estate if there is real estate to sell, and you cannot find a buyer.
Once all creditors have been notified, they have six months to file claims. Once all the assets are sold, they are to be put in an estate account. Once the six months is up, then all creditors must be paid, and the assets divided according to the terms of the will.
The probate process can be a long & time-consuming process.
However, it is the only way to pass title to assets of a deceased person when those assets are just in their names at death.
If the person had a trust, there must also be a trust administration. Trust administration involves the death trustees gathering assets and distributing them to the heirs. Trust administration is not a court proceeding. Therefore, the court is not involved in a trust administration, unless there is some type of contest filed, which is not as common in a trust as it is when someone passes away with a will.
Estate and trust administration can be confusing.
We recommend hiring a lawyer to handle it so that it’s done correctly. Contact attorney Bill Miller at Miller Estate and Elder Law and learn how we can help you understand your options, make informed decisions about administering the estate of a loved one, and ultimately save you time, money and aggravation throughout what can be a very daunting probate process.