First steps to take when a loved one passes

Lauren Enea

'Once the assets of the decedent are identified, it will be most important to marshal and secure those assets so that a third party is unable to unlawfully take possession of them.'”

-Lauren C. Enea, Esq., Partner at Enea, Scanlan & Sirignano, LLP

Obviously, the death of a loved one creates a tremendous amount of stress and pressure on their surviving family and friends.

It is an emotional period of time when many issues need to be addressed, including preparing for the wake, burial, safeguarding assets and ultimately distributing assets to those entitled to receive assets from the estate. The following are an overview of the first steps one should take:

1. 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 Trusts and Estates Attorney to determine the necessary steps.

2. Identify what the decedent owned

Make a list of all assets owned by the decedent and categorize the items. Did the decedent own tangible personal property (automobiles, furniture, jewelry, clothes and artwork); real property (home, land and condos); and liquid assets (bank accounts, stocks, bonds, annuities and life insurance)? You should also review how any of these assets are titled. Title of the assets is critical to determining whether or not the probate of a Last Will & 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;

3. Marshal and secure assets

Once the assets of the decedent are identified, it will be most important to marshal and secure those assets so that a third party is unable 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;

4. Consult with an attorney

One should consult with an experienced attorney that handles 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.

In conclusion, 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 C. Enea, Esq. is a Partner at Enea, Scanlan & Sirignano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She believes that it is never too early or too late to start planning for your future and enjoys working with individuals to ensure that their plan best suits their needs. She is admitted to practice law in New York and Florida. She can be reached at 914-948-1500 or at www.esslawfirm.com.