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estate planning10 STEPS TO SETTLING AN ESTATE

Losing a friend or family member is always challenging. Serving as the executor or trustee of their estate plan is a wonderful way to honor them and carry out their wishes. But it can be a long and taxing process.

Here’s how to do it right:

(1) Talk to the Decedent before he/she passes away.
When it comes to estate planning, the written word takes precedence over anything that may be verbalized. However, it’s still valuable to get someone talking about their affairs before he/she passes away. You should ask about his/her wishes regarding funeral and burial, and if he/she has prepaid or planned anything in advance. Find out about his/her banks and investment firms. Ask where original documents are stored.

(2) Search the residence immediately upon the passing.
It is essential to search someone’s residence thoroughly. Even if you know about their will or trust, there could be codicils or amendments of which you are unaware. If people are known to stash and hide money at home, you may need to quite literally leaf through their books and break open the mattresses to be sure that you have found the assets.

(3) Secure the residence and the valuables.
Take any valuables in the residence to a secure location for safekeeping. If there are pets, get them to a safe location, where they will be cared for. Then make sure that the residence is locked and secured to keep prying neighbors and family members away.

(4) Verify before distributing.
Even if the Decedent expressly told you that he wanted you to give his baseball card collection to his friend, you should not go forward with this until all estate planning documents have been thoroughly reviewed. This may seem like a minor point, but if there is a will or trust that expresses contrary intent, the document is almost certainly going to need to be honored. You could be held personally liable for making a distribution that you believe in good faith to be the Decedent’s wish, if there is a testamentary instrument to the contrary.

(5) Claim non-probate assets quickly.
Some assets are not a part of the Estate, and not subject to a probate proceeding at death. For example, life insurance is designed to be claimed and paid out very quickly after someone dies. It can be used to offset other estate expenses like funerals and legal fees. Make sure that the life insurance proceeds get to the designated beneficiaries.

(6) Search the safe deposit box.
You’re likely going to need to get court authorization prior to a bank allowing you access to the box. But this is generally not that difficult, and it is very important. Some of the estate’s most valuable assets (i.e. gems and precious metals) could be in the box, as could original documents required by the court for a probate proceeding.

(7) Gather a list of the Decedent’s debts and creditors.
Check the Decedent’s personal papers and mail. Debts can sometimes be negotiated, but they generally need to be paid down as part of the process of settling the estate.

(8) Talk to the next-of-kin and the beneficiaries.
These parties may or may not be one and the same. In a situation where someone has children and leaves it to them in equal shares, there is unlikely to be any sort of conflict. However, when people do not have children and leave their estates to other family members and friends, or when they leave money in unequal shares, there is a potential for people (regardless of merit) to threaten to contest and litigate. It is valuable to gauge whether there is any potential for conflict and strategize about how best to handle.

(9) File taxes.
You will have to file an income tax return on behalf of the Decedent for the final year of his/her life. Further, if the value of estate is greater than the state or federal estate tax exemptions, then there will be estate tax due off the top, prior to distributions. Meanwhile, if the estate takes a long time to settle and earns income after the Decedent’s passing, there will be income tax filings for the estate.

(10) Consult an attorney.
The steps required to settle a trust or estate vary greatly depending on how it is structured, what the assets are, and who is involved. If there’s a trust and the only assets are the house and some cash, it may be extremely simple and require relatively minimal attorney involvement. If there’s a will with family members all across the country with potentially adverse interests, or if there’s a taxable estate worth millions, then it could be more complex. It is simply always a good idea to consult an attorney and get oriented in the right direction so that you can make informed decisions about the estate.

This article appeared in the August 13, 2021 edition of the Senior Gazette.

This is not intended to be legal advice.  You should contact an attorney for advice regarding your specific situation.  

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Michael Wagner is senior counsel concentrating on elder law and estate planning, wills and trusts.  He conducts several Estate Planning Seminars and Webinars throughout the year.
He can be reached by phone at 845-764-9656 and by email.
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