Vail Daily column: The legal steps to take when a loved one dies
Editor’s note: This is the second of three parts.
In the first part of this series, we looked at what to do immediately after someone dies. In this part, we will discuss who to contact, the intended goals of so doing, and organizing and making sense of what has been left behind.
WHO TO CONTACT
As early in the process immediately following a loved one’s death, you should contact his or her attorney, advise him/her of the death and ask for help or referral to a specialist to deal with property transfers, probate, liquidation of the deceased’s estate and other related matters.
Similarly, the deceased’s accountant and/or other tax preparer should be called to determine what returns are pending or which must be filed. These may include an estate tax return, final income returns or other tax and accounting matters.
Investment advisers and brokers should be called to determine the extent and allocation of the deceased’s holdings and to discuss how they may be transferred. Discussion of such matters should ideally include both legal and accounting counsel.
Banks and insurance agents should be contacted.
The Social Security Administration should be contacted to inquire as to potential survivor’s benefits and to stop “lifetime” benefits to the deceased which may be being paid.
Similarly, the Veterans Affairs offices and any pension or annuity providers should be contacted so their respective accounts may be adjusted.
If the deceased person’s home will not be occupied by someone else after death, then utility services should be canceled (or transferred if the home will be occupied). If the residence is leased, then the landlord should be contacted. If the home is owned and there is an outstanding mortgage, then the mortgagee should be notified of the death and arrangements made (with help of counsel) to continue the loan or pay it off. If a survivor is jointly on the loan, then it will likely be a different circumstance than if he or she is not.
Subscriptions should be canceled. The post office should be notified and mail should be either forwarded or redirected. If the person was still employed, then the employer should be notified. Death-related employment benefits should be explored.
RESPECTING THE WILL
If the person died “testate” (that is with a written will), then a “personal representative” was likely named in the person’s will. If it is you who has been named, then you legally can, and should, take steps to protect the deceased’s property. No property should be removed or distributed until after the will is probated or, if the estate will not be probated, then until advised by counsel.
There may be instances in which a party dies “intestate” (that is without a will). Under such circumstance, who will be appointed as the personal representative will be dictated by the court. A helpful brochure may be found through the Colorado Bar Association at the following Website: http://www.cobar.org/index.cfm/ID/20881.
In any event, Colorado law requires that a decedent’s will be filed with the District Court in which the decedent was domiciled within 10 days of the decedent’s passing, even if no probate administration is expected.
“Probate” is the legal process used to transfer title of property from the decedent to the heirs. All wills and intestate estates must be probated, but the degree of the court’s involvement and the complexity of the process ranges from simple and inexpensive to complicated and costly.
In this state there are three types of probates for both wills and intestate estates — one for small estates (under $50,000 and no real property), one for uncontested estates (“informal”) and one for contested estates and invalid or questionable wills (“formal”). Both informal and formal probates must be open with the court for at least six months. Full administration of the estate may, however, take much longer.
If a person dies with or without a will and he or she has $50,000 or less and no real property (that is, no real estate), then the heirs may collect the deceased’s assets by using an affidavit and will not have to further involve the court. This procedure requires the heirs claiming the property to swear they are entitled to it and will distribute it to any other entitled heirs.
The second type of probate (“informal”) is generally allowed when there is a valid will or clear intestacy, no contests are expected, and there is a clearly qualified personal representative ready to be appointed. The court will have a limited role in the administration, but ensures that the directions in the will or intestacy law are followed. A note is worth mention here; if a person dies without a will, then the law (rather than the deceased) will dictate how the assets are dispersed and to whom.
FINDING THE WILL
Formal probate may be required for several reasons, including when a will is contested, unclear, invalid, or when there are apparent or actual significant challenges (i.e., identifying heirs, property title disputes, etc.) in administration. The court may require that the personal representative get approval for every transaction or may allow the personal representative to administer the estate unsupervised.
Obviously, you should look to see if you can find a will. Commonly, it may be found in the deceased’s attorney’s records; a home safe, desk drawer or file cabinet; or a bank safe deposit box. To be valid, the will must be a signed original. If only a copy can be found, then it may still be possible to probate the estate. It is possible that the will may have been filed with the Court for safekeeping during the deceased’s lifetime. Although this is somewhat unusual, the possibility should be explored by simply calling the District Court.
In the next part of the series, we will discuss locating other relevant documents and successfully administering the deceased’s estate.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.