Actions upon Death or Incapacity
Included below is a brief list of actions which your survivors and/or your Personal Representative and Trustee should take immediately upon your death. Many of these actions may similarly be required in the event of your incapacity.
This is not intended to be an exhaustive or detailed explanation of all actions which should be taken. Rather, it is simply a checklist to help your representative(s) step in and handle as expeditiously as possible those things which demand immediate attention. For a discussion of longer term responsibilities and duties, please see the section entitled “Trustee and Personal Representative Duties”.
Telephone a friend who can spend the next few hours with you. Shock or trauma can take unexpected forms and affects people in different ways.
Call a funeral director and clergy to make an appointment to discuss funeral arrangements. Consult the “Memorial Instructions” section of the decedent’s Estate Planning Portfolio for special requests. Request multiple copies of decedent’s death certificate from the funeral director. (You will need them for the decedent’s employer, life insurance companies and attorney.) If possible, avoid becoming personally responsible for any funeral, burial or cremation expenses unless you are willing and financially able to bear these expenses, perhaps, without full or partial reimbursement.
Call to notify the decedent’s immediate family, close friends, business colleagues and employer.
Arrange care for members of the immediate family, including appropriate child care, safeguarding the decedent’s house around the clock because of public knowledge of the death, etc.
Locate the family’s important papers. Gather as many of the decedent’s papers as possible, and continue to do so over the next few weeks.
Notify the attorney who will be handling the decedent’s affairs. Make an appointment as soon as possible to discuss how to handle assets and pay bills. It is important not to write any checks against any of the decedent’s bank accounts or take benefits from any assets until you have met with the attorney. Even if you think that the decedent’s estate is “perfectly in order”, you should not assume that things are “business as usual.” For instance, it may be appropriate for one or more beneficiaries to disclaim whole or partial interests in certain assets or rights of inheritance for significant post-death planning or tax reasons. Again, early consultation with a competent estate planning and administration attorney is vital.
Notify the decedent’s financial advisor. Decisions may need to be made regarding repositioning financial assets and tax planning. The financial counselor may also be able to assist you with several of the items below.
Call decedent’s employee benefits office so the company can begin to process benefits immediately.
If decedent was eligible for Medicare, notify the local program office and provide all requested information.
Notify life, accident or disability insurers of decedent’s death or disability and request appropriate claim forms. Ask which payment option decedent may have elected, and find out if different options are available. If you need emergency cash before insurance claims are paid, find out if a cash advance may be available from life insurance benefits to which you are entitled. However, discuss these options with the decedent’s financial advisor and attorney before making final decisions in this regard. There may be different and significant income and/or estate tax consequences related to each choice you have.
Notify the Social Security office of the death. A recent Social Security benefit payment may need to be refunded. Also, claims may be expedited if you go in person to the nearest office to sign a claim for survivor’s benefits. Look for the address under U.S. Government in the phone book.
If the decedent was ever in the military service, notify the Veterans’ Administration. You may be eligible for death or disability benefits.
Record in a small ledger all money you or the immediate family spends, plus keep related receipts. These may be needed for tax return and/or reimbursement purposes.
Remember that you are in a highly emotional state. Avoid entering contracts for anything, and avoid spending or lending large sums of money for any reason until you have received appropriate financial, accounting and legal advice.
Trustee and Personal Representative Duties
The following is a brief overview of the responsibilities and duties of your appointed Trustee and Personal Representative. It is intended as a general guide only; and your representatives should consult with an attorney immediately upon taking over your affairs in order to assure that they comply with all legal requirements as well as properly carry out the directions given by you in your Will and or Trust documents.
In general, all Trustees and Personal Representatives (referred to collectively as “representatives”) face similar duties and responsibilities, regardless of the size of an estate. All steps in the administration of the estate are more or less directed toward three goals:
Identification, collection and management of assets;
Payment of debts, taxes and expenses; and
Distribution of the balance of the estate assets to the named beneficiaries
Collection and Management of Assets
The first duty of a representative is to protect and preserve the estate assets. The representative should attempt to put together an inventory of all assets and their values as of the date of death. Refer to the “Trust Assets” and “Personal Information” and “Property Agreements” sections of the decedent’s Estate Planning Portfolio, which may indicate how assets have been titled in particular ways or how beneficiary designations have been made. It may also help identify which assets are subject to the jurisdiction of the probate court and the Personal Representative, different from the Trustee.
The next step is for both the Personal Representative and Trustee to check the powers which they will have over property by referring to the Will and the Trust documents. An attorney should be consulted if there are any questions as to the extent of each representative’s powers.
The next step is to collect the various assets. Valuables, such as securities, jewelry and other personal items of substantial value should be kept in a safe place, such as a safe deposit box, to which only representatives have access. If title to some assets are already in the name of the Trust, there will not need to be any change of title immediately, though there may be need to obtain a new federal tax identification number. However, bank, savings and brokerage accounts may need to be closed or have their ownership changed to reflect the representative’s name. In order to change accounts into the representative’s name, the representative may need to provide an updated certification of trust document similar to that which may appear in the “Affidavit of Trust” section of the decedent’s Estate Planning Portfolio. The representatives should maintain an accurate record of all deposits into and withdrawals from these new accounts, reflecting the amount and sources of each deposit and the amount and purpose of disbursement. Claims may need to be filed in order for the representative to obtain certain properties to which the decedent’s estate is entitled, such as life insurance proceeds, employer pension and insurance benefits, Social Security benefits and Veterans’ Administration benefits.
Management of assets entails several duties. First, a representative should be sure to maintain adequate insurance on valuable assets by making sure that existing insurance coverage will continue after the decedent’s death and making a note of expiration dates on applicable policies, while also checking that coverage reflects current market values. Investment decisions will need to be made. Cash income not needed immediately for purposes of administration, such as payment of expenses, should be placed in short‑term, income‑producing investments. The Will and Trust documents should be consulted by the representatives for further direction regarding longer term investments. In due course, it may be necessary to sell some of the estate’s property, either because an item should be disposed of to avoid needless expense or loss through depreciation in value, or to raise cash for payment of expenses, taxes or legacies to beneficiaries. Assets should not be sold before first consulting an attorney to ensure that appropriate authority exists or can be obtained. Holdings in a closely held corporation, partnership or sole proprietorship may pose special concerns and problems. The representative may be required to continue or wind‑up a business in order to avoid a serious risk of loss to the estate. Again, an attorney should be consulted before the representative acts with regard to any businesses.
Payment of Debts, Taxes and Expenses
The first step in this area is for the representative to consult the appropriate estate planning documents in order to clearly define the representative’s duties and powers. Creditor claims may need to be paid and, depending on whether they are paid from a probate estate or from the Trust, the representative may have different responsibilities and latitude. Death taxes may need to be paid and, even if taxes are not due, many estates will nevertheless be required to file a federal or state estate tax return. The estate tax return must be filed within nine months of death. Certain elections and disclaimers must be timely made prior to filing the estate tax return, the failure of which may result in adverse tax consequences. Also, income taxes and returns may be due for the probate estate and the Trust. An attorney or accountant should be consulted early and often. Professional fees may be paid to the attorney, accountant and others, including the Personal Representative or Trustee, but the Will or Trust document must also be consulted in this regard. Some fees and expenses may not be payable until certain times or under certain conditions.
Distribution to the Beneficiaries
Beneficiaries may be entitled to ongoing payments of income and/or principal for a period of time beginning with the death of the decedent, or may be entitled to lump sum payments. The representative may be allowed to distribute property in kind or sell properties and distribute cash. The provisions relating to the distributions to beneficiaries are contained in the Will and Trust documents, supplemented by state statutes, perhaps. Upon final distributions of ultimately remaining assets, it is advisable, even if not required, for the representative to obtain a receipt from each beneficiary, including, perhaps, express approval of a full accounting.