How Can an Attorney Help When a Loved One Dies?

by | Aug 12, 2022 | Decedent's Estate | 0 comments

woman grieving loss of husband when a loved one diesThe emotional trauma when a loved one dies one often comes with a bewildering array of financial and legal issues demanding attention. It can be difficult enough for family members to handle the emotional trauma of a death, let alone taking the steps necessary to get these matters in order.  Only 21 percent of Americans have discussed their last wishes with their loved ones and just one in three adults have arranged advanced directive documents such as a living will with medical instructions or power of attorney naming a person responsible for financial affairs.

We frequently get calls regarding what to do when a loved one dies- planning for death is not a popular topic.  The laws in Indiana regarding wills, trusts, and probate differ from other states.  You should know that rarely are there legal tasks that need to be completed right away.  For those tasks that you should focus immediately after the death of a loved one, click here.

Locating the Will and Other Legal Documents

The first thing to do is locate the Last Will and Testament and other legal documents of the deceased.  Hopefully, the deceased notified the named executor or Trustee where they kept these important documents.  If not, look in the deceased’s safe deposit box or anywhere the deceased filed important documents.  You should also contact their attorney as many clients store original documents with their attorney.  You can also check with the local Court to see if the Will was placed in the Court’s depository.

When Should I call an Attorney?

When it comes to completing your loved one’s legal and financial affairs, you do not want to take short cuts.  You want to make sure that you are aware of all that is involved in wrapping up your loved ones final affairs.  You want to avoid unintended results such as owing additional taxes, paying unnecessary claims, or putting yourself in a position of legal liability.  An attorney experienced in estate settlements can outline what actions are required and help you avoid any missteps along the way.

Recognition of Authority

Personal Representative

A Personal Representative, also known as Executor (or the feminine version Executrix if we want to get fancy), is in charge of administering the individual’s probate estate. The Personal Representative named under the deceased’s Last Will and Testament will need to be appointed by the Court.  The Court will accept a copy of the deceased’s Will into probate and issue Letters of Testamentary to the Personal Representative.  The Letters of Testamentary become his or her official “badge” of authority.

Trustee

A Trustee is the person named in the decedent’s Trust and who will be responsible for property held by the Trust.  If the Trustee had not been serving prior to the death of the decedent, the Trustee will need to provide notice to each holder of a trust asset that he or she is the Successor Trustee.  This is typically accomplished by an affidavit of the Successor Trustee.  The Trustee may or may not be the same person as the Personal Representative.

Once appointed, the Personal Representative and Trustee will then be tasked with many other responsibilities prior to distribution to beneficiaries.  It is a good idea to hire a professional to ensure that you are following all legal requirements and that you are not conducting yourself in a manner that could open you up to legal liability.

Is Professional Assistance Always Necessary When a Loved One Dies?

While not all estates will require Court intervention because probate has been avoided through trusts, joint ownership arrangements, or beneficiary designations, whoever is left in charge still has to pay all debts, file tax returns and distribute the property to the rightful beneficiaries.  These are all tasks where you should have an attorney guide you when a loved one dies.   You do not want a legal battle because family members did not follow precise Will and Trust instructions or otherwise failed to follow statutory estate procedures.

Even the smallest estates are likely to have legal issues that the person in charge of the decedent’s final affairs should be aware.  A professional may not be needed to complete each step of administration, especially in smaller estates, but it is a good idea to review the decedent’s affairs with a professional before starting administration to ensure that you are following all legal requirements in Indiana and that you are not conducting yourself in a manner that could open you up to legal liability.

What Assistance will the Attorney Provide?

When you are ready, you should meet with an attorney to review the steps necessary to administer your loved one’s final affairs. The key actions include:

  • Review any estate plan documents, including a will, trusts, and beneficiary designations.
  • File the will and petition in probate court in order to be appointed executor, if necessary.
  • Collect the assets. This means that you need to find out about everything the deceased owned and create an inventory of assets including how each asset is titled and whether the asset has a beneficiary.
  • Clear title to assets.
  • Notify service providers and government agencies.
  • Pay the bills. Different creditors have priority over others. Failure to precisely follow the creditor claim statute can open up the personal representative or Trustee to personal liability.  An attorney can outline which claims to pay first, if at all.
  • Pay income and estate taxes. If an estate tax return is due, it must be filed within nine months of the date of death.
  • Distribute property to the beneficiaries. Generally, distribution does not occur until the period for creditors to make claims runs.
  • Finally, you must file an accounting listing any income to the estate since the date of death and all expenses and estate distributions.

Who Pays for the Assistance of the Attorney, Accountant, Financial Advisor, Etc.?

Funds of the estate or trust will pay for the professional services needed to carry out the Personal Representative or Trustee’s duty.  Such costs are considered expenses of administration and are part of the normal estate process.

Stinson Law Firm has extensive experience in assisting family and friends through the sometimes emotional and overwhelming experience of settling the estate of a deceased loved one.  If the Stinson Law Firm can assist you, please do not hesitate to contact us at 317-622-8181 or www.stinsonelderlaw.com.  We look forward to meeting with you to start this process.