When a person dies, the settling of his or her estate and the closing of his or her financial affairs begin. The entire process can be overwhelmingly stressful for grieving family members and quite time consuming, depending on the size of the decedent’s estate and the plans put in place before his or her passing. Following are five critical steps surviving spouses and executors/personal representatives must take to close a decedent’s estate, distribute assets to beneficiaries and protect themselves from legal liabilities.
The process of settling a decedent’s estate is governed by state laws, which can vary significantly from one jurisdiction to the next. Following a person’s death, the local probate court will “open” his or her estate (upon the presentation of proper filings) by identifying the existence of estate-planning documents, including a will naming beneficiaries to receive assets and designating an executor (referred to as a personal representative in Florida) to administer the decedent’s estate. Should a person die intestate (without a valid will,) the probate court will appoint an executor/personal representative to carry out the duties of closing the decedent’s personal affairs and managing important tasks, such as paying off debts and distributing remaining assets to beneficiaries. While trusted financial advisors may help executors/personal representatives navigate these processes, more often, a lawyer is recommended. Legal fees for such advice are payable by the estate.
When a person passes, his or her financial liabilities will not always be cancelled. A full accounting of the decedent’s assets and liabilities are required to ensure debtors are paid before any assets are distributed to heirs. This requires an inventory of a decedent’s personal and business financial documents, including bank, brokerage and retirement account statements; real estate deeds and mortgage lending statements; prior year income-tax returns; and prenuptial and divorce agreements. It is also critical to locate the decedent’s life insurance policies and identify whether he or she established a trust for his or her beneficiaries. Under most circumstances, life insurance proceeds, trust assets, IRAs, and qualified plans pass to beneficiaries “outside” of probate.
Executors have a responsibility to notify a decedent’s creditors when the court opens a probate case. This allows utility companies, banks, mortgagees and other lenders and creditors the time to make a claim to pursue payment of outstanding debts owned by a decedent before assets are distributed to beneficiaries. In addition, if the estate is subject to federal or state estate tax, executors should be prepared to pay that liability from the estate’s assets.
Executors also should report a decedent’s death to government agencies, such as the Social Security Administration, Medicare and the Veteran’s Administration, to stop benefits from being paid to the deceased. Notification should also be made to the Department of Motor Vehicles and Supervisor of Elections in the county where the decedent resided in order to cancel the decedent’s driver’s license and remove their name from the voter roll.
The executor of an estate is responsible for collecting the assets included in a decedent’s estate and paying bills and debt obligations before final distribution of assets to beneficiaries. Some states require a detailed inventory of a decedent’s assets and an appraisal conducted by a qualified professional. These valuations of a business, real estate, collectibles and other personal property can help to determine whether those and other assets, including stocks and other investments, need to be sold to settle a decedent’s outstanding debts and/or tax liabilities. However, property appraisals and subsequent sales of assets can take a considerable amount of time, thereby delaying the executor’s ability to distribute a decedent’s assets to his or her heirs.
After an executor/personal representative completes the preliminary tasks (and overcomes all the unexpected challenges) required to close an estate, distribution of assets to beneficiaries can begin. Partial distributions can be made to beneficiaries before a final distribution is made (subject to court approval,) but one must assure enough assets remain to pay potential claims or for unexpected liabilities. First, an executor will contact the decedent’s heirs and provide them with the details of their inheritances and an accounting of the estate. Should a beneficiary challenge the will or the accounting of the estate, the executor may file for a judicial accounting and allow the court to make a final decision concerning any dispute. In these matters, executors may request the court relieve them of any liabilities in carrying out the terms of the decedent’s will.
Typically, the probate process can take a year or longer to complete, but there are sometimes simpler, faster procedures for smaller estates. For example, an expedited probate process is available in Florida when a decedent’s assets total less than $75,000, or if he or she has been deceased for more than two years.
Many individuals who are named as executor or personal presentative will feel a moral or ethical obligation to accept the role and assume with the duties of helping to settle the final affairs of a deceased relative(s) or friend(s), although they may decline to serve. However, no one should take lightly the time requirements and personal liabilities they assume when accepting such responsibilities. While executors/personal representatives are entitled to compensation for taking on these roles, (in Florida up to 3 percent of the probate assets) they should consider whether the effort is worth the payment they may receive. Naturally, the motivation to serve usually is not about the compensation but rather fulfilling the wishes of the departed.
About the Author: David L. Burg, CFP®, JD, LL.M., MBA, CLU®, ChFC®, RICP®, CRPS®, ADPA®, CASL®, is a is a financial planner with Provenance Wealth Advisors, an Independent Registered Investment Advisor affiliated with Berkowitz Pollack Brant Advisors + CPAs and a registered representative with Raymond James Financial Services. He can be reached at the Firm’s Miami office at (305) 379-8888 or via email at email@example.com.
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David L. Burg, CFP®, JD, LL.M., MBA, CLU®, ChFC®, RICP®, CRPS®, ADPA®, CASL® is a registered representative of and offers securities through Raymond James Financial Services, Inc., Member FINRA/SIPC.
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This material is being provided for information purposes only and is not a complete description, nor is it a recommendation. The information has been obtained from sources considered to be reliable, but we do not guarantee that the foregoing material is accurate or complete. There is no guarantee that these statements, opinions or forecasts provided herein will prove to be correct.
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Posted on June 8, 2022