ABOUT LIVING TRUSTS

 

law offices of merwyn j. miller
191 calle Magdalena, suite 270 • encinitas, San Diego County, ca 92024 • 760-436-8832

Merwyn J. Miller
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Thoughts shared here do NOT constitute legal advice.

What Do I Need to Do After Mom Passes Away?

One of the most difficult things to deal with in life is the passing away of a loved one. The emotions are powerful.  I know, because I just lost my mother-in-law.  Make all the jokes you want about the mother-in-law, but it doesn’t apply here.  We had a great relationship and I consider it to be have been a privilege and a pleasure to have known her.  Of course, I’m not the only one who feels the loss.  The whole family does and seeing your family sad just really makes your own emotions that much more powerful.  So it’s a difficult time but, with the help of friends and time, we’ll all get through this.

Besides the emotions, there are a myriad of financial matters to resolve.  And this is true whether or not a living trust exists.  But I am giving myself the same advice I give my clients; it doesn’t have to be done immediately.  Take the time to attend to family matters and handle what’s most important. Usually a few weeks later is soon enough to begin sorting out the estate issues. Just don’t do anything in the way of finances (other than pay for the funeral) until you talk to your attorney.  And remember, when you’re going through this process you’re probably going to hear a lot of different things from a lot of different people;  most are well intentioned, but often times they are simply wrong. So don’t take your medical advice from your attorney and don’t take your legal advice from your CPA.  Lastly, everyone wants all of the details completed tomorrow at the latest, but this process is a process and it takes as long as it needs—generally 4 months at an absolute minimum.

So what are some of the things you need to accomplish:

  1. Decide whether the Will should be filed with the county probate court.
  2. Determine to whom notice should be sent.  This involves a determination of what State agencies and what family members, heirs, Will/Trust beneficiaries need to be notified.
  3. Determine if there are any creditors and whether they should be notified.
  4. Identify and value the assets.
  5. Determine how to gain control over each asset
  6. Of course, if your parent owned real property, you have to decide whether to sell it or transfer title to the beneficiaries.

And this is just what I call the “organizational phase?  There are a number of phases that follow that.  And with every case there are often hidden issues that can pop up, which if not discovered at the beginning can cause a host of problems. What if the beneficiaries don’t get along? What if one of the children is disinherited?  What if the the bank refuses to allow access to mom’s account? On my website there is an estate administration Frequently Asked Questions page.  You might find questions 21-24 useful to get a feel for how to select an attorney.

If your parent did not have a living trust and owned a house or had assets with a gross value of more than $100,000, then you will have to take the estate through probate.  This is a court process which can escalate the cost and increase the amount of hoops through which you will need to jump.  Here is a brief answer to what is probate,  and as you’ll see the following FAQs talk about the difference between probate and a private trust administration. All estates are different in their own unique way so it’s a good idea to speak with an estate planning attorney as soon as possible after a loved one passes.

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