When a parent dies, the surviving family members are typically at a loss as to what needs to be done legally, to handle their assets. Here’s a step-by-step guide to get you started on what you need to do when a parent dies. The best advice, though, is to first consult with an experienced and qualified estate planning attorney to make sure you have covered everything. He or she can help guide you through the process, comply with the many legal requirements of estate administration and help you to avoid costly mistakes. If you are an estate administrator, will executor or trustee of a trust, you are held by the law to a very high standard of conduct and responsibility known as a fiduciary standard. If you do this on your own and fail to meet your fiduciary duties, you can be held personally liable to the heirs and beneficiaries for your mistakes and other wrongful acts and omissions.
What to do in the first few days following your parent’s death
Before you can really start taking official actions on behalf of your deceased parent, you need to obtain a certified copy of the death certificate. You can obtain a certified death certificate from the California Department of Public Health. Only authorized individuals are allowed to obtain this record, in order to deter identity theft. Children are considered authorized individuals. You may need to obtain several copies, as there are various organizations that will need a copy in order for you to carry out certain transactions.
Within the first few days following your parent’s death, you will also need to arrange for their funeral or other services, depending on what your parent wanted.
Managing your parent’s assets in the short term
If you were an agent for your parent, through a power of attorney, at the time of their death, that authority will no longer be valid upon his or her death. That means you should not attempt to use their assets or access their accounts until you have obtained the proper authority to do so. If you are to serve as your parent’s executor, then you need to open a probate for their estate in order to get the court’ authority to proceed any further.
How to be prepared ahead of time
Understanding that your parent’s death is inevitable, you can decrease the burden on you at such a difficult time by being prepared. Discuss with your parents ahead of time where you can find the following information:
- The will, trust or other estate planning documents
- Information regarding bank accounts and any investments
- Contact information for the executor if it’s not you
- Mortgage details if there’s any payment outstanding
- Information of any other debtors
- Information regarding their desired final arrangements (i.e., funeral, cremation)
Having this information on hand, or at least knowing where to find it, can make those first few days much easier to handle.
What to expect if you are the executor of a will
There are some basic duties that an executor is required to perform. But, the full extent of an executor’s duties depends entirely on the nature of the estate being probated. The duties of an executor officially begin with the application for probate of the estate. As executor, you will need to obtain letters testamentary when a will is involved, or letters of administration if there was no will. Once that has been done, you need to locate the relevant documents, including estate planning documents and information regarding assets.
What to expect if you are the trustee of a trust
Like and executor, there are some basic duties that a trustee is required to perform. Again, the trustee’s duties depends entirely on the nature of the assets in the trust estate. The duties of a successor trustee often officially begins with the death of the original trustee. Fortunately, unlike the executor of a will, you will not need to commence a formal probate proceeding to obtain letters testamentary from a judge. Your power is automatic upon proof of death.
Managing your parent’s assets
One of the primary duties of an executor or trustee is to protect your parent’s assets from loss. The first step in doing that is to create an inventory of all of your parent’s assets. That includes money, personal property, and real estate. The next step is creating a list of financial or legal liabilities and valid creditors. All valid creditors must be notified and then paid before the remaining estate can be distributed to heirs. Taxes must also be paid, if applicable.
The final steps in administering your parent’s estate
In the case of a probate proceeding, all steps are done under the supervision and with the approval of the judge in charge of the probate. You cannot act on your own. That is not true of a trustee. After the creditors and taxes have been paid, the remaining assets can then be distributed to heirs and beneficiaries. In some cases, it may be necessary to sell property or create trusts, if required by the provisions of the will or some other estate planning documents. It is important to remember that the executor will be expected to provide a final accounting of every transaction related to the estate. Therefore, it is crucial that you keep accurate records of those transactions as you go. Once the accounting is filed and approved by the court, the estate can be closed.
Seek the advice of an attorney
It can be difficult dealing with the death of a parent. Add to that the responsibility of being an executor, administrator or trustee, and it can be quite overwhelming. For these reasons, and because of the high fiduciary standard you will be held to, it is in your best interests to work with an experienced and qualified estate planning attorney. The costs of the attorney’s services is a cost of administration that is payable by the estate, not you personally.
If you have questions regarding estate administration or any other elder law matters, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.