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Law Offices of Ronald W. Rutz
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April 12, 2003: What to do When a Loved One Dies: An Update

Because the following is the most widely requested column since it first appeared last August, I decided to do a modified update. Many of you have indicated that you have clipped it out and put it with your estate documents as a guide to make things easier for your personal representative.

Q: I noticed in other publications that you have written about what to do after a loved one dies. Why haven't you ever shared that advice with your Coloradoan readers?

A: Legally, there is nothing that has to be done right away. Thus, have the peace of mind to focus on handling the funeral arrangements rather than worrying about the legalities. Remember the durable power of attorney ends at death, so that legal authority is no longer available. Paying for the last arrangements is always an immediate concern. Most creditors understand and are willing to wait for payment, but hopefully, someone was added to the deceased's checking account so bills can be paid.

If not, a small estate affidavit can be submitted to the bank if probate is otherwise unnecessary or, if needed, a court proceeding can be quickly started to provide authority to handle such things. Here I must be candid with you: Larimer County Probate processing is very slow and it might take two to three weeks to receive authority. In other counties, except for Denver, only a few days are normally required.

Usually death certificates (obtain at least ten) are ordered by the funeral home and social security is contacted and any available death benefits are applied for at the same time. If there is a surviving spouse, a small sum may be available to help with burial expenses. A few funeral homes even help apply for any insurance benefits. Utilizing these services reduces what otherwise needs to be done and removes a lot of stress and frustration.

If the person lived alone, secure the living space, not only from people who might take notice of the death, but also from "relatives" who, I am sorry to say, feel they have a right to help themselves.

Locate the original Will and also look for a list of assets and for legal papers such as deeds, car titles, insurance policies, etc. Hopefully, the deceased made such a listing and consolidated the location of such documents. If no list can be found, an "inventory" must be constructed in order to insure that all of the assets are identified and the proper transfers have been handled.

If the deceased used a safety deposit box, he or she should have added another person to the signature card and disclosed where to locate the key to the box. That person can then pick up the key and access the box's contents. If the foregoing measures were not taken, the box may be locked up, frozen, or even inventoried.

Do not immediately close out bank accounts or transfer property, especially if no Court proceedings are needed. Wait until after meeting with an attorney to receive some direction. In fact, it might be a good idea to maintain a checking account in the deceased's name for six months or so after death, so if a check comes with his or her name on it, it can be deposited and not have to be returned. In addition, maintaining the account will assure that automatic deposits and withdrawals continue.

Even if no probate seems necessary (for example, everything was owned in joint tenancy or there are beneficiary, payable-on-death designations), make an appointment with your attorney to review everything and determine if a court proceeding might be necessary or, if not, at least spot where technical steps might need to be done. For example, recording a death certificate for real property held in joint tenancy may not be enough, if the name on the death certificate does not exactly match the name on the deed (e.g., middle name versus middle initial).

It is a myth that just because there is a Will a probate must happen. And just because an attorney did the Will does not mean that he or she has to be involved in settling things, even if so stated in the Will or if the attorney kept possession of the original Will. If the deceased's attorney kept the original of the Will or the living trust and either refuses to tender the document or insists on being involved, report that lawyer to the bar association.

Finally (out of space but not points), use the free services of others, such as insurance agents, stockbrokers, financial advisors, etc., to handle the paperwork and transfer estate assets. Having these people help you makes following the right steps and filling out forms much less stressful and frustrating.

Remember the old saying, the good Lord gave us nine months to come into the world and the IRS gives us nine months afterwards to file estate tax returns. Do not feel rushed, but it is better to start as soon as you feel emotionally ready.

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