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Law Offices of Ronald W. Rutz
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March 10, 2007: Step-by-Step Probate

Q: I just need guidance on what to do when Dad dies. I am concerned that I do not violate any laws.

A: Except for the requirement to lodge a Will within ten days of death with the Court in the County where he resided, there are no other legalities that pose an immediate problem. Lodging the Will does not mean that a probate must then begin.

Ask whether social security will be notified by the funeral home and whether the social security burial benefit might be available. Even though the number seems high, have the funeral home order at least ten to twelve death certificates because you will probably need that number during the settlement of the estate. Also determine what additional services are provided by the funeral home, such as applying for other benefits like insurance, notifying the Veterans Administration concerning benefits, etc.

Remember that authority granted by a Durable Power of Attorney ends at death but legal power will continue over assets if a survivor is a part owner.

Try to locate the initial important papers such as a burial policy, Will, asset list, instructions from the deceased, etc. Keep the checking account open for six months so checks with the deceasedŐs name on them can be deposited. Begin compiling the paperwork to apply for proceeds from insurance, to transfer stocks, etc.

If no asset list can be found, it will be necessary to begin constructing one as soon as possible, noting information such as any other owners and beneficiary designees.

Set up a meeting with an attorney as soon as practical. It is not necessary to use the attorney who drew up the Will, even if that attorney has the original document or is even named in the Will as the estateŐs attorney. The Personal Representative is in charge and has the right to work with anyone. The Personal Representative can also discharge the attorney anytime.

The initial meeting with the attorney usually is a general review of the estate and provides the basis to determine the necessary estate proceedings. A list of assets is very important because the nature of the work to transfer assets will determine whether a Court proceeding is necessary.

If the assets are held in joint tenancy with someone else or have beneficiary designations, then no probate will be necessary, with only the clerical steps to transfer assets and process beneficiary claims needed. If the deceased had less than $50,000 of non-real estate assets in his or her name, then the assets can be transferred by tendering a document popularly known as a Small Estate Affidavit. The attorney will also advise on matters such as obtaining date of death values of appreciated assets such as real estate, stocks, etc, to establish the new basis for capital gains purposes.

If the deceased held a non-joint tenancy interest in real estate or a non-joint tenancy, non-beneficiary designated asset or assets in excess of $50,000, then a Court proceeding would be necessary. But in Colorado the probate is easily within the capability of a non-lawyer to handle, resulting in a cost of less than $300 if an attorney is not involved.

Thereafter, the settlement work involves paying bills, transferring assets to recipients, filing any tax returns, etc. But if the Personal Representative has started out properly, this next stage will go much more smoothly.

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