The Elrod Firm


Dealing with the Unexpected

The Elder Law Practice extends its deepest condolences to those who have lost loved ones in the recent tornado disasters.

Unfortunately, natural disasters, accidents, and illnesses unexpectedly take the lives of people we love. For anyone who has to deal with this type of situation, we offer the following steps to get you started on handling an estate.

  • 1st step:  Determine whether a guardian is needed for any minors.

The first and most important step is to determine if any minor children need a guardian. If both parents are deceased, someone will need to be appointed to take care of the children.  You should determine whether the parents nominated a guardian to care for their children to know what their preference was.  This would have been done through their estate planning documents.  There will have to be a guardianship proceeding through a court to have a guardian named, whether a guardian was nominated or not.  If there was no nomination, any close family member can petition the court to be named guardian.

  • 2nd step:  Determine if the decedent left any estate planning documents.

You should determine whether the decedent had a trust or a will prepared before he or she passed away.  These documents will be a set of instructions on how to handle the estate and will tell you who has authority to act on behalf of the estate.  Any assets that are owned in the name of a trust will not have to go through a probate proceeding and can be distributed by the trustee.  Any assets that are owned solely in the name of the decedent will be an estate asset and will have to go through a probate proceeding.   A probate proceeding will be necessary even if the decedent left a will if there are estate assets.  The will, however, will give the court instructions on how the estate should be distributed.

  • 3rd step:  Determine what assets the decedent had.

It is good to inventory what assets the decedent had when he or she passed away, so you know what needs to be handled.  The assets could include, but are not limited to, real estate, bank accounts, vehicles, investment accounts, and life insurance policies.  Looking through the decedent’s mail is a good way to know what assets he or she had.  Other ways to determine assets would be to go through the county assessor’s office to search real estate records.  Investigators can also be hired to research and discover what assets a person had.

  • 4th step:  Determine how the assets were owned.

The ownership of the asset is key to determine how it will be distributed.  Any asset that was jointly owned with another person will automatically be owned by the surviving owner—regardless of what the estate planning documents might say.  Any asset that is owned by a trust will be distributed by the trustee as set out in the trust document.  Any asset that is owned in the name of the deceased will be an asset that will have to go through a probate proceeding.

  • 5th step:  Determine if there are any death beneficiaries on the assets.

Another key determination is whether an asset has a designated death beneficiary.  An asset that has a death beneficiary does not have to go through probate proceedings, as long as the beneficiary is living or is a trust.  A death beneficiary will override estate planning documents.  If there are death beneficiaries on a bank account, the beneficiary can simply go to the bank with a death certificate to receive those funds.  For life insurance policies, the beneficiary can contact the company and complete a beneficiary claim form.  Other assets that could possibly have death beneficiaries are real estate and vehicles.  In addition, people often name their trust as the death beneficiary on assets.  When this is done, the asset does not have to go through probate, and the trustee can distribute it as set out in the trust.


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