Finding and Organizing Documents in an Estate & Legal Concerns
If you have been named as the executor of a loved one’s estate, you may need to collect a broad range of documents to make sure that their wishes are understood and carried out. Creating a filing system can help you in this task. You should organize not only the documents that you collect but also any documents that you send out in your capacity as the executor.
Getting the Death Certificate
Whenever you claim benefits or property based on a loved one’s death, you will need to have an official copy of their death certificate. As an executor, you will be automatically entitled to a copy of the death certificate, which you can obtain through the state or county records office. You can usually order it in person, by mail or fax, or online. Some states, such as California, require that you submit a sworn statement with your request, asserting that you are the executor of the estate or a close family member of the decedent.
Finding the Will
Not every person makes a will, but it provides the main basis for your authority as executor if it exists. A will outlines how part or all of the decedent’s property should be distributed. Once you find it, you will need to make copies and file the original with the probate court. You can look for a will in the home or office of the decedent, and you may also want to check any safe deposit box that they hold at a bank. If you cannot find anything, you can contact the decedent’s lawyer to see if they may be aware of the will’s location. In some uncommon cases, meanwhile, a person may deposit their will with the probate court while they are alive. If you cannot find the will, and nobody is aware of a will’s existence, the decedent may have decided not to make a will and chosen another way to distribute their property upon their death.
You should be aware that you generally will need the actual signed will rather than a copy to go through probate. The will usually will be a typed document, but many states permit handwritten wills. In the event that the decedent changed their will, they may have created a “codicil,” which you also will need to go through probate. Codicils are relatively rare, however, and more often a testator will make a new will rather than adding a codicil. Sometimes wills refer to external documents that list personal property. You should gather these as well. If you find more than one will, be sure to keep both in the event that the newer will is not valid.
If you can only find a copy of the will, you will need to overcome the presumption in probate court that the decedent revoked the will because the original cannot be found. This may involve calling witnesses to testify that the decedent did not change their mind about the will. If the will exists, but not even a copy can be found, you may face an uphill battle in proving the validity of the will. You should consult a lawyer to help you compile the evidence that you need.
Collecting Other Documents
A will may be just part of a decedent’s overall estate plan, especially if they have varied or complex assets. In other situations, a decedent may not make a will at all but instead choose to leave their property through a living trust, which avoids the need for probate. You do not need to file a trust with the probate court.
Certain types of assets may be distributed to beneficiaries without the need for an estate planning document. For example, an individual can name beneficiaries for their bank accounts, cars, retirement plans, stocks, and bonds. You should review bank account statements, car registrations, retirement plan statements, broker statements, stock certificates, and bonds to determine if the decedent named a beneficiary.
If the decedent owned real estate, you will want to collect the relevant deeds and determine how the property was owned. If it was owned in joint tenancy with right of survivorship, in a tenancy by the entirety, or as community property with right of survivorship, that property does not need to go through probate. (Types of property other than real estate can be owned in these ways as well, but this is less common.) You should also check for marital property agreements or community property agreements if the decedent lived in a community property state. These allow one spouse to designate all of their property as community property and leave it to the other spouse when they die. Some states also permit transfer-on-death (or beneficiary) deeds, which is a specific type of deed that transfers real estate to a certain beneficiary upon the owner’s death.
Notifying Others of the Death
Finding and organizing a decedent’s documents may give you a better idea of the different organizations, agencies, and entities that you will need to notify of the death. For example, if the decedent was receiving Social Security payments, the executor is required to notify the Social Security Administration of the death and return any payments made for the month of death. If the decedent was renting their residence, finding the lease agreement will help an executor determine how to contact the decedent’s landlord and learn more about the estate’s obligations under the lease.
An executor may also find information about potential beneficiaries and heirs who must be notified of the death and kept up to date about the status of the estate and probate court proceedings. As the executor, you should keep detailed records of all communications with beneficiaries and heirs, as well as communications with organizations, agencies, or entities on behalf of the estate.
