Trust & Probate Law Group
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Legal Steps When a Loved-One Dies

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After a loved-one dies, there are many legal steps to consider.  The following are common steps to help guide you through the process in California.  To learn how we serve out-of-area clients, click here.

Determine legal residence of decedent:
  • If county of legal residence can't be determined easily, see an attorney.
  • The assistance of a probate attorney is advisable in most cases. 
Within weeks of the death:
  •  Locate the Trust, Will and related estate planning documents.
  •  If Will is found, determine name of executor.
  • If Trust is found, determine name of trustee or successor trustee.
  • If decedent had no Will or Trust, surviving family should decide on one person to take charge of the estate administration.
Perform immediate tasks, such as:
  • Copy and send out Will(s) to beneficiaries and heirs.  Lodge original Will(s) with the Superior Court.
  • Send statutory Trust notices to beneficiaries and heirs.
  •  Have mail forwarded.
  • Protect the estate and/or trust from identity theft: remove decedent's name and social security number from all accounts and credit cards as soon as possible.
  • Cancel subscriptions and memberships.
  • Inform Social Security of the death.
  •  Inform Medi-Cal of the death.
  • Inform County Tax Assessor of the death

Identify and list assets and liabilities:

  • For each asset, list each of the following:
    • Fair market value at date of death.
    • Ownership -- indicate any of the following that apply:
      •             Trust Property
      •             Separate Property
      •             Community Property
      •             Joint Tenancy
      •             Tenancy in Common
      •             Life Tenancy
      •             Community Property with Right of Survivorship
    • Portion owned by decedent
    • Value of decedent's interest
  • Gather information on each of decedent's liabilities, especially those needing to be kept current, such as mortgages.
Determine which assets are subject to probate:
  • Property held in Trust: NO PROBATE
  • Property payable on death to named beneficiary: NO PROBATE
  • Property held in joint tenancy and at least one tenant still lives: NO PROBATE
  • Community property held by a surviving spouse: NO PROBATE
  •  Autos, small boats and mobile homes, if properly registered: NO PROBATE
  • Real estate outside of California? PROBATE PROBABLE, but you must follow the laws of the state where the property is located.
  • All other property: PROBATE NEEDED (yes, even if there is a Will)
Determine which type of probate needed. (There are several types of probates.  The worst is called "Formal Probate"):
  • If decedent was married: Property going outright to surviving spouse (or Registered Domestic Partner) need not go through probate. It may be transferred by Affidavit or by Spousal Property Order.
  •  Add the value of decedent's interest in all property that must go through probate.
  •  If the sum is greater than $150,000: FORMAL PROBATE required.
  •  If estate includes real estate worth more than $50,000: FORMAL PROBATE required.
  •  If sum is less than $150,000, and includes no real estate, a greatly simplified procedure is used.  NO FORMAL PROBATE, but you will need an attorney.
Administer living trusts:  
      Part A: If decedent was married at time of death:

  • Often the Surviving Spouse is named as sole Trustee. Consult document.
    • Trustee must follow the directions in the trust document, and also must follow applicable state and federal law.
    • Trustee is a fiduciary FOR ALL BENEFICIARIES.
    • Trustee must treat all beneficiaries fairly and with loyalty.
  • Trusts created by couples frequently call on the Trustee to segregate assets into separate sub-trusts, e.g., AB, ABC, and Disclaimer trusts. ALWAYS see an experienced accountant or attorney regarding this division.
    • Mandatory funding of Bypass (a.k.a. "Exemption") Trusts and/or Marital Trusts: This must be done. Even if the death occurred several years ago, there may be huge tax benefits to completing the division. See an attorney.
    • Disclaimer funding of Bypass Trusts and/or Marital Trusts.
      • Surviving spouse has 9 months to execute disclaimer to preserve decedent's estate tax personal exemption.
      • If decedent and spouse are worth over $1 million, the surviving spouse may want to execute a disclaimer.
      • Get professional assistance long before the 9-month deadline or your inaction may cost the estate hundreds of thousands of dollars in estate taxes upon the death of the surviving spouse.
Administer living trusts:  
      Part B:  If decedent was single at time of death:

  • Successor Trustee must be properly appointed.
  • Within a few weeks, the Successor Trustee should consult with attorney.

Pay Taxes:

  • Tax preparation fees and taxes due should be paid from estate (or trust). However, the executor is personally responsible for seeing that filings and payments are done correctly.
  •  Income taxes:
    • Decedent's income taxes
      • File File returns for decedent's last partial year of life.
      • File returns for recent year(s) in which decedent did not yet file return.
      • Pay taxes.
    • Estate's income taxes.
      • File fiduciary income tax return.
      • Pay taxes.
    • Document stepped-up basis for transferred property.
    • Business taxes: File and pay taxes for any business in decedent's estate.
  • Death Taxes 

    • Determine if Death Tax issues are likely. Generally, estate taxes are likely if the decedent's estate (including life insurance) exceeded the estate tax exemption for his/her date of death. The exemptions are as follows:
      • 2002 - 2003:   $1 million
      • 2004 - 2005:   $1.5 million
      • 2006 - 2008:   $2 million
      • 2009:   $3.5 million
      • 2010:   No estate tax.
      • 2011:   $5 million
      • 2012:   $5.12 million
      • 2013:  $5.25 million
      • Post-2012:   $5 million + index for inflation, announced annually
    • File IRS Form 706.
    • Pay taxes due.
If you find yourself settling an estate, please consider the following:
  • With professional assistance, the estate will probably be settled much more quickly. Note, however, that even with a good attorney, all probates take at least 7 months, and most trust administrations take at least 4 months. 
  • Even with professional assistance, you will have to do a lot of work yourself. 
  • Good attorneys can help you minimize the risks of liability and family strife. These risks increase as either of the following increases:
    • The value of the estate, and
    • The number of beneficiaries or heirs.

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For a free 30-minute phone consultation with an attorney, please call now.

TPLG Attorneys are licensed to practice law in the state of California only.