Losing a loved one can be a tragedy at any age. On top of going through the death of a relative, having to sift through documents and legal issues can be a daunting task. It can be downright intimidating if done independently.
Susan Friedman, a partner in the estate planning group at KJK in Cleveland, and Stephen Gariepy, chair of the estate planning department at Hahn Loeser & Parks LLP in Cleveland, said having an attorney can make a huge difference in the process.
Friedman said the family member who died sometimes was very organized, but some weren’t organized at all. And whether they were organized or not, the family usually would benefit from calling an estate attorney, probate attorney or trust attorney, she said.
“So, the family would contact an attorney, and then the attorney would probably have them come in for a consultation,” Friedman said. “They’d go over whether they had an estate plan, if they had a will or if they had a trust. They would go through those documents, review them, find out what the person’s assets were, make a list of all the assets and get as much information as the family members can find with accounts, statements, real estate and personal property.”
Gariepy said attorneys will also help get the executor appointed. The person named executor has to be appointed by the probate court. So, an attorney can help in that process. If there is a trust, often the decedent was the trustee while living, but the trust was named the successor trustee.
“So, the attorney would help in transitioning the trusteeship to the successor trustee,” Gariepy said. “The attorney could help in terms of identifying the ownership of various assets, plotting out who has authority to administer those assets and who the beneficiaries would be with these assets. And the attorney can help in determining whether there would be any estate taxes due to evaluate the value of the assets, and whether the assets are in excess of the state exemption and will require a state tax return.”
Gariepy said it’s important to know who has authority to act for the estate, which means to determine where the will is, and who in the will is deemed as executor of the estate. That’s a good starting point, he said, because whoever the executor is the one who has the ability to make decisions and to handle the assets. So, obtaining a copy of the last will and testament is important, Gariepy explained.
“It’s important to determine what the assets are and exactly how they are titled,” he said. “Are the assets in the name of the decedent personally? Or are the assets joint in survivorship with somebody else, like to the spouse or children? Are the assets payable on debt or transfer on death to certain individuals or the assets of trust?”
Friedman said if the deceased had documents, then the attorney will counsel the family on how those documents work, and help them through the process – whether or not it’s necessary to open a probate estate or a trust administration.
“Sometimes, all the assets aren’t easily accountable for, so the family has to really try to gather everything,” Friedman said. “Sometimes, assets can show up much later in the process. So, it really helps that individuals are organized to make things easier for the families. Also it helps if they kept all their passwords somewhere so that families can easily access online accounts.”
To make the process easier, Friedman said, it’s important to make an estate plan whether one has a high net worth or if they are a low-income. Having a well-made trust can avoid probate and make the process much easier, she said.
Friedman said a big mistake people make is they often create a trust, but they don’t fund the trust, meaning they don’t title their assets in the trust.
“And the reason that’s the problem is if assets are titled in a trust, then the assets don’t need to go through the probate process with the probate courts,” Friedman said. “But if they created a trust, and they never funded or titled their assets in the trust, then the assets that aren’t titled in the trust still need to go through the probate process.”