Hollywood tends to sensationalize the beginning of settling the deceased’s affairs. The scene typically begins in a darkened attorney’s office decorated with shelves of legal books and a large mahogany desk. On one side sits the beloved family attorney, on the other the family of the recently departed. As a hush falls upon the gathered individuals, the attorney clears his throat and begins, “I, John Wayne Client, of sound mind and memory do make this to be my “Last Will and Testament. . .” The scene then dramatically unfolds with one family member learning he has been disinherited or that a “surprise” beneficiary will receive the bulk of the deceased’s wealth.
While the “reading of the Will” is regularly portrayed in movies, television, and novels, in real life no such function occurs. I have often thought of doing this for clients who request it, but I doubt I fit the part. I have more digital legal resources than books on a shelf and my desk from IKEA has no mahogany (or any wood at all for that matter). If there is no reading of the Will, though, what begins the process of settling the deceased’s affairs?
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 the deceased 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 the deceased attorney as many clients store original documents with the client’s attorney. You can also check with the local Court to see if the Will was placed in the Court’s depository.
Recognition of Authority
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 which becomes his or her official “badge” of authority.
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.
While there is no formal reading of the Will, the Personal Representative is charged with notifying all the beneficiaries named in the will that the estate is opened and he or she is appointed as Personal Representative. Depending upon the interest of the beneficiary, he or she should also provide them a copy of the estate’s inventory of assets. The Trustee of the deceased’s Trust will need to do the same, albeit without Court intervention.
The preceding tasks are only a brief snippet of the Personal Representative or Trustee’s duties. Once appointed, the Personal Representative and Trustee will then be tasked with many other responsibilities prior to distribution to beneficiaries, including settling the decedent’s debts and liabilities and paying taxes. 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. A competent probate attorney can navigate you through all the obstacles involved with settling the deceased’s affairs. For more information about those tasks you should focus immediately, click here.
Our 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.
Jeff is Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation, a distinction held by only a handful of lawyers in Indiana. For almost 20 years, he has focused on elder law, estate planning, long-term care planning, Medicaid planning, Veterans Affairs benefits planning, special needs planning, guardianships, and estate administration.