What Your Family Should Know Upon The Death Of A Family Member.
Questions are often asked as to what steps and procedures need to be taken upon the death of a family member. This checklist was created by our law firm to aid in addressing the passing of a family member. Remember that every matter has its own special issues, so this checklist takes into consideration the most essential steps but does not cover every situation. Our clients are encouraged to contact us for guidance and advice during this time, especially since this can be an emotionally difficult time.
- What to do immediately upon learning of the death.
- Contact the funeral home and determine what arrangements need to be made. If the decedent pre-arranged funeral and burial, family members should obtain such information in advance of death.
- Notify the funeral home that death certificates will be needed. Obtain at a minimum 10 certificates. Remember, it is easy to obtain the certificates at the time of death but if more are needed at a later time, it becomes more difficult thanks to state regulations.
- Make sure the funeral home notified social security of the passing of the decedent.
- Take time to mourn and reflect. Under present New Jersey Law, one cannot seek to probate a will earlier than ten (10) days following the death of a family member. Use his time to cope with and reflect on the life that has just passed.
- Remember that if the decedent created a power of attorney, that document and the rights provided to the attorneys in fact end at the moment of death. So, if possible, any matters that need the signature of the decedent should be obtained prior to death. This includes deeds, titles to cars and other property (boats, tractors, planes), accounts, stocks, etc. After death, the executor of the estate will have these powers but not until the will has been probated.
- Prior to death, the person who will be paying the bills incurred before death will need to pay those bills after death. We suggest that cash assets of the decedent be transferred prior to death to the person who will be serving as executor so that if the accounts of the decedent are “frozen” there will be cash available to pay funeral bills, medical bills and other bills until the estate can be opened and the executor has access to the funds.
- It is essential in today’s digital world that accounts, user names (or email addresses) and passwords be available to the persons who will have to access the accounts. This is probably one of the most frequent issues which arise and without this information, access to accounts will be restricted. Recently, an episode was aired on TV involving a $59 refund due the estate from Verizon. The estate, consisting of multiple millions of dollars and real estate had been settled easily but the remaining item to close the estate was the Verizon refund. Without the account name and number, it took the family more than a year to obtain the refund and close the estate.
- One of the earliest matters that arises is the distribution of personal property owned by the decedent. This includes cars, jewelry, antiques, furniture, collectibles, and other items which may or may not have intrinsic value (as opposed to sentimental value). If possible, there should be a discussion among the family as to who is to receive these items. We encourage the family to create a list of the significant items that are to be distributed to members of the family. This is called a “separate writing”. It should be in the handwriting of the family member wishing that these items go to specified individuals, signed by the person and dated. It does not need to be notarized. If possible, photos of the most significant items are taken and are then noted to go to specific individuals. The named executor is the person who has the power to decide who will receive items that are not identified to go to specific individuals which if not readily able to be distributed, may be sold and the cash deposited into the estate.
- Firearms are also of a special character. Under New Jersey Law, if the firearm is left to a person who holds a license to possess, carry and transport the firearm, then the executor should be certain of these facts before giving the firearm to that person. However, if the person does not have the credentials or if there is no one named to receive the fire arms, the executor has 2 choices. Find someone who has the licenses to receive firearms or after 6 months, bring them to the local chief of police to hold until arrangements can be made to sell them to persons or to firearms dealers.
- During this time and until an appointment to meet with the county Surrogate can be made to probate the will, the family should begin to collect information about the assets. This includes
- finding copies of deeds for any real property;
- obtaining the most recent statement of accounts held in banks, with financial institutions, and savings bonds;
- IRA and 401 K accounts;
- interests in business ventures;
- credit cards expenses
- amounts owed to banks and others;
- interests in trusts created for the family member by other current and past family members;
- social security information;
- life insurance on the life of the family member.
What follows is a checklist that we hope will help in collecting the information that will be needed to administer the estate.
- What is “Probate”. This term has many meanings but is most commonly used to designate that the last will of the decedent is transmitted to a person who is elected to the office known as the “Surrogate”. It literally means that the original will is brought to the Surrogate’s Office where it is proved and offered to be placed on file so that the last wishes of the decedent can be carried out. The result of this procedure is that the Surrogate will issue documents to the executor known as “Letters Testamentary” but they are also known as “ Surrogate’s Certificates” (the names mean the same document). These documents give the executor the power to take control of the assets and distribute them as required by the will. This person also must pay the debts of the decedent and also pay any taxes which may be due. While this procedure appears to be simple, it is somewhat complicated, and it is best that our law firm assist with the submission of the will and provide the necessary information as will be discussed in the next paragraph. By way of an historical fact, “Surrogate” in Latin means to “step into one’s shoes”. That is exactly what the Surrogate gives to the executor, the power to step into the shoes of the decedent.
- Evan before the 10-day period has elapsed, an appointment can be made with the county Surrogate to submit the will for probate although the Letters Testamentary will not be issued by the Surrogate until Ten (10) days past the date of death. This means that the original will (not a copy) will be brought to the courthouse where the Surrogate maintains offices. The county in which the will is offered for probate is the county where the family member was residing at the time of death (not the hospital where death occurred or the care facility). Each county in New Jersey has its own method of conducting the probate of the estate. Each Surrogate usually has a booklet as to how they conduct the probate. Our law firm is familiar with all of the counties in New Jersey, and we can expedite the process if you wish to engage us to do this. Here is what you will need to complete the process:
- The original will
- A raised seal original death certificate.
- The full name, birthdate and last address of the decedent.
- The name(s) addresses, social security numbers of the executors. You must show proof of who you are so at a minimum you will need your drivers license if the name on the license is the same as the name the decedent used in making the will.
- The names, addresses, social security numbers for, the addresses of all of the decedent’s beneficiaries. If a child had predeceased, you would need the names and addresses of the children of that child.
- Your checkbook since there will be fees to be paid to the Surrogate to probate the will.
- Sometime after all of the information is submitted and payment is made, the Surrogate will send the Letters Testamentary (Surrogate’s Certificates) to the executor (or to our office if we are engaged to handle the probate). Once received, the settlement of the estate can take place. The Letters Testamentary (Surrogate’s Certificates) have a short shelf life. They are only valid for 60 days. New certificates will need to be obtained and the fees paid for the new certificates. We suggest that only a minimum amount that will be needed during the 60-day period be purchased since if more than needed are bought, it is a waste of the estate funds.
- It is necessary for the Estate to obtain a new Employer Identification Number (“EIN”) since the decedent’s social security number will no longer be valid for accounts. Our office will assist in obtaining this new umber. Should the estate also have a trust, a separate number will be needed for the trust. Remember, any Revocable Trust becomes “Irrevocable” upon death and therefore has its own identity.
- The next step in the process is to “Marshall” the estate assets. This imply means to prepare a list of all of the assets the decedent possessed at death. Our office can then assist in proceeding with the administration of the estate. Attached to this memorandum is our Estate Administration Checklist which we hope you find informative.
Of course, members of the firm will always be available to assist with the processing of the estate, answering any questions and to provide guidance