When a family member or other loved one dies, the natural response is to feel overwhelmed. However, there are some very practical and legal matters that need to be attended to “immediately, if not sooner.”
Secure the property
Sad as it may seem, when a person dies, his property becomes at risk. Sometimes friends and family use this as an opportunity to help themselves to what they believe they should get, and will help themselves to personal property. Who gets a person’s property on death should be determined by his/her will or trust. Once the toothpaste is out of the tube it is hard to get it back in. The same is true for a decedent’s tangible personal property. Once it is gone, it is hard to get it back and into the hands of who is legally entitled to receive it.
Burglars read the obituaries. While friends and family are at the funeral or otherwise unoccupied, burglars will be happy to break into the house and steal both what is and isn’t nailed down. It is a good idea to have someone stay at the house to protect the property. At a minimum, consider changing the locks.
Credit cards, debit cards and checks need to be protected. Mail needs to be collected. Automobiles and other motor vehicles should be locked up or otherwise protected.
Plan the funeral
If you are fortunate, the newly departed left a written Appointment of Burial Agent with specific instructions. That will make your job incredibly easy. Texas law allows a person to appoint an agent to be in charge of funeral arrangements and to describe the arrangements. A lot of estate planning attorneys draw up this document as part of general estate planning. Take a look through the papers to see if this document was included. If you are the agent, then present the paper to the funeral home and follow the instructions. You have the final say, within reason. You also get to front the costs, unless the funeral was prepaid or you go to court to get an emergency order for funds.
If there are no written instructions, then the law determines who has authority to make arrangements for the disposition of the body and plan the funeral. They are, in this order: the surviving spouse; any one of the surviving adult children; either one of the surviving parents; any one of the surviving adult siblings; any one or more of the duly qualified executors or administrators of the decedent’s estate; and finally the next of kin in the order named by law to inherit the estate.
There is a time period for the designated person to act.
Note who is not included in this list: the decedent’s domestic partner; best friend; or the person to whom the decedent gave verbal instructions.
See your lawyer
When a person dies, there is an awkward lapse in authority. The decedent’s power of attorney is no longer operative, and the executor named in the will does not have any authority to act until the will is admitted to probate and the executor is appointed by the probate judge and qualifies by taking the oath of office and filing a bond, if required.
You will need some direction, earlier rather than later, on what you are permitted to do.
Probate of a will takes time. It is best to get started promptly so that there is an executor in place with power to handle the affairs of the decedent.
If there is a trust, there is usually a successor trustee named in the trust. However, remember a trust only operates on property that is owned by the trust.
Many financial accounts pass to a named beneficiary. Retirement plans such as IRAs and 401(k) accounts usually have a named beneficiary and the account passes to that person, not under the will.
There is more than one way to have another person “on a bank account.” If the account holders are joint tenants with right of survivorship, then the other holders become the owners of the account. If the other person on the account is a convenience signer, or an agent under a power of attorney, then the account doesn’t pass that way.
Documents the lawyer will want to see include: the original will (not a copy); the death certificate (if available); the decedent’s driver’s license number and Social Security number; any trust documents; any “lady bird deeds” or transfer on death deeds; account agreements with rights of survivorship; beneficiary designations and the like.
But don’t wait. At a minimum, there is going to be a two-week delay between filing a will for probate and going to court. A more realistic estimate is four to six weeks and even longer in some counties.
Recently there have been unexpected delays in getting death certificates. In this case, if you can obtain a copy of the application for the death certificate, that information will be helpful to your lawyer.
The moral? Call Hammerle Finley immediately to speak with one of the firm’s probate lawyers. Hammerle Finley have been handling probates and trusts for over 35 years and are well-versed in handling both simple and complex matters.
Robert Morris contributed to this article.
