I am an attorney who does a lot of probate work in the following Texas counties: Rockwall, Hunt, Kaufman, Dallas & Collin. As a lawyer handling probate and estate work for families, this 2 part series answers some the most frequent questions I get when called about what a family should do when a member of the family has died. If you have any other questions, let me know and lets see if I can help you as well!
My loved one just died. What should I do?
This is a concern for everyone. Immediately after a death there seems to be so much to do. It seems overwhelming, but it need not be.
What’s the first thing I should do?
The first thing to focus on of course is the funeral. It must be planned and paid for, or at least a plan needs to be made for payment. You should look through all the available records to see if there was a prepaid funeral contract. This may be kept with or near a will or estate planning file. The deceased may even have left instructions about what kind of funeral or other service he or she might want. You should look for this information. Texas law gives a priority to claims for funerals, so if you or someone else has to pay for the funeral, you should keep receipts of your expenditures and plan on presenting a claim to be reimbursed.
Whom should I contact? Should I contact his/her employer?
You should tell the employer and find out if there are any death benefits connected with his or her employment. Talk to the human services or personnel department if there is one. You should also notify Social Security Administration if he or she was receiving Social Security. You can find the local number in your phone book.
Do I have to find the will right away?
You should look for the deceased’s will, which probably says “Last Will and Testament” at the top. If it is not easily found, consider telephoning the office of the deceased’s attorney, if he or she had one. Make sure to look in the safety deposit box if you have access to it and cannot find the will anyplace else. There’s plenty of time to probate the will (see below), so your search for the will does not need to be rushed or panicked, but it is a good idea to locate and secure the will when the opportunity is available. If you can’t find the original will but think the deceased had one, contact your attorney for advice.
What should I do with the will when I find it?
When you find the will, you should consider making an appointment with an attorney who is qualified and experienced in probate law. Even with a well-drafted will there are options that an experienced lawyer can help you sort through. You may want to use the attorney who drafted the will, if it is current and the attorney is available. You are not required to use the attorney who drafted the will. You may want to use your own attorney or ask your attorney for a reference. If you do not have an attorney, ask friends or other professionals, like financial planners, CPAs, etc., for a referral.
Do I have to probate the will?
Whether or not you need to probate depends on the nature of the assets and how they are titled (in whose name are they held). Your attorney can help answer this question. There may be shortcut methods to avoid a complete administration if appropriate in your case.
How long do I have to probate the will?
In general, the will must be submitted for probate within four years of the date of death. If more than four years have elapsed since the date of death, it may still be possible to probate the will, but a more complicated procedure is required. Ask your attorney for more information about this. Sometimes people think that because they have access to all the bank accounts, it is not necessary to probate the will. This can cause serious problems. For example, problems may arise later, when the family decides to sell real estate owned by the decedent. If you think it is not necessary in your case to probate the will, you should be sure to discuss this with an attorney before allowing the four-year period for probate to lapse.
What documents will the attorney want to see?
The attorney will need to have the original will, and a certified copy of the death certificate. If you are anxious to begin the probate process and the death certificate is not yet available, you can start the probate process without the death certificate and file it later. The attorney eventually will need a list of all assets belonging to the deceased, valued as of the date of death. This will include bank accounts with the balance as of the date of death and investments and IRA’s and insurance, no matter who it may be payable to. It will include all real estate owned by the decedent, whether alone or jointly with another person. The attorney will need these to determine if the estate is subject to estate tax. In 2003 if the deceased owns assets, including insurance, retirement benefits and the homestead that are valued in total more than $5,000,000, then the estate may be subject to estate tax. Even if the estate is less than this amount, the attorney will still need a list of assets and their date of death value in order to prepare an inventory of the estate. The inventory is filed with the probate court after the will is probated. The inventory is important to the beneficiaries because it can determine their tax basis in the assets they receive.
As a probate lawyer, I often have to explain to people what do you do when someone dies in Texas. If you have questions, concerns or need more information about what do you do when someone dies in Texas, call me. No charge for the initial consultation!
