Whatever the circumstances, the passing of a loved one creates a tremendous amount of stress and pressure on surviving family and friends. It’s an emotional time for everyone, especially when adding in the many issues that need to be addressed: preparing for the burial, safeguarding assets and, ultimately, distributing assets to those entitled to receive them from the estate. The following is an overview of the first steps one should take:
Secure the Original Last Will and Testament or Trust
The individual named as the executor(s) of the Will or successor trustee of a Trust should take steps to safeguard these documents and review them with a trust and estates attorney to determine the necessary steps.
Identify What the Decedent Owned
Make a list of all assets owned by the decedent and categorize the items. Identify the tangible personal property (automobiles, furniture, jewelry, clothes, artwork); real property (home, land, condo); and liquid assets (bank accounts, stocks, bonds, annuities, life insurance). Review how these assets are titled. Title of the assets is critical in determining whether or not the probate of a Last Will and Testament will be necessary and/or whether assets will pass by operation of law to a joint tenant of the property or to a named beneficiary.
Marshal and Secure Assets
Once the assets of the decedent are identified, it’s essential to marshal and secure those assets so a third party is not able to unlawfully take possession of them. If assets are titled in the name of the decedent alone, the marshaling of said assets will require that the executor(s) named in the Last Will petition the court for Letters Testamentary and/or Preliminary Letters Testamentary so that upon issuance of said letters they can title the assets in the name of the decedent’s estate. If the decedent’s assets are in a Revocable Living Trust and/or Irrevocable Trust, probate will not be needed. The same applies if the decedent’s assets have a surviving primary beneficiary and/or contingent beneficiary. It should be noted that if a decedent dies with assets in their name alone and does not have a Last Will, court intervention will still be needed in the form of an Administration Proceeding and an administrator will need to be appointed by the court.
Consult with an Attorney
It’s always advisable to consult with an experienced attorney who can handle the probate and administration of estates to determine what steps need to be taken, depending on the nature of the assets of the decedent’s estate and whether or not there is a Last Will and Testament and/or Trust in place. This individual will also assist in determining the size of the estate and the potential estate tax, capital gain tax and/or income tax considerations that may need to be reviewed relevant to the estate.
An approach that is structured and organized by an experienced trust and estates attorney will help accomplish the successful administration of the estate and the ultimate distribution of the estate assets to the beneficiaries.
Lauren Lauren C. Enea, Esq. is an Associate at Enea, Scanlan & Sirgnano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She graduated from Pace University School of Law Summa Cum Laude and is admitted to practice law in New York and Florida. Ms. Enea is the Sponsorship Chair of the Elder Law and Special Needs Section Sponsorship Committee of the New York State Bar Association (NYSBA), the Co-Chair of the NYSBA Elder Law and Special Needs Section 2020 Fall Meeting and the Publications Committee Production Editor for the NYSBA Elder Law and Special Needs Section Journal. She can be reached at 914-948-1500 or at L.Enea@esslawfirm.com. Please visit www.esslawfirm.com for more information.
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14 Sep 2023
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Whatever the circumstances, the passing of a loved one creates a tremendous amount of stress and pressure on surviving family and friends. It’s an emotional time for everyone, especially when adding in the many issues that need to be addressed: preparing for the burial, safeguarding assets and, ultimately, distributing assets to those entitled to receive them from the estate. The following is an overview of the first steps one should take:
Secure the Original Last Will and Testament or Trust
The individual named as the executor(s) of the Will or successor trustee of a Trust should take steps to safeguard these documents and review them with a trust and estates attorney to determine the necessary steps.
Identify What the Decedent Owned
Make a list of all assets owned by the decedent and categorize the items. Identify the tangible personal property (automobiles, furniture, jewelry, clothes, artwork); real property (home, land, condo); and liquid assets (bank accounts, stocks, bonds, annuities, life insurance). Review how these assets are titled. Title of the assets is critical in determining whether or not the probate of a Last Will and Testament will be necessary and/or whether assets will pass by operation of law to a joint tenant of the property or to a named beneficiary.
Marshal and Secure Assets
Once the assets of the decedent are identified, it’s essential to marshal and secure those assets so a third party is not able to unlawfully take possession of them. If assets are titled in the name of the decedent alone, the marshaling of said assets will require that the executor(s) named in the Last Will petition the court for Letters Testamentary and/or Preliminary Letters Testamentary so that upon issuance of said letters they can title the assets in the name of the decedent’s estate. If the decedent’s assets are in a Revocable Living Trust and/or Irrevocable Trust, probate will not be needed. The same applies if the decedent’s assets have a surviving primary beneficiary and/or contingent beneficiary. It should be noted that if a decedent dies with assets in their name alone and does not have a Last Will, court intervention will still be needed in the form of an Administration Proceeding and an administrator will need to be appointed by the court.
Consult with an Attorney
It’s always advisable to consult with an experienced attorney who can handle the probate and administration of estates to determine what steps need to be taken, depending on the nature of the assets of the decedent’s estate and whether or not there is a Last Will and Testament and/or Trust in place. This individual will also assist in determining the size of the estate and the potential estate tax, capital gain tax and/or income tax considerations that may need to be reviewed relevant to the estate.
An approach that is structured and organized by an experienced trust and estates attorney will help accomplish the successful administration of the estate and the ultimate distribution of the estate assets to the beneficiaries.