The death of a loved one is often a tragic, emotionally charged event.
When a family member dies, it's important that you and your family take an appropriate time to grieve. However, there are important steps that need to be taken, sometimes quickly, and an experienced North Dakota probate and estate administration attorney can help.
This list is intended to provide an overview of the basic first steps to take when a family member dies. However, every situation is unique, and a list like this cannot possibly address every situation.
When a family member dies, one of the first steps is to determine whether the deceased was an organ donor. If the deceased was an organ donor, someone will need to make arrangements almost immediately.
If you’re not sure whether the deceased was an organ donor, check their driver’s license and any healthcare directive such as a living will or health care power of attorney.
If the deceased was an organ donor, the hospital will have procedures in place and will appoint a coordinator to guide you through the process. If your loved one did not die in a hospital and instead died at home or in hospice, contact the nearest hospital for answers to questions of what to do next.
Planning for when a family member dies is never easy; however, the end-of-life process can be made less difficult if you and your loved one have discussed it in advance. Having these conversations beforehand often makes the process easier.
When a family member dies, look for any instructions regarding funeral and burial arrangements, including prepaid funeral contracts. If the deceased was a veteran or member of a fraternal order, contact the organization and give consideration to special ceremonies.
A person’s Last Will and Testament or healthcare directive might specify their wishes with regard to funeral and burial arrangements. They may also have a prepaid burial plan. Sometimes life insurance policies include provisions for funeral and burial expenses.
It's important to bring other family members up to date as quickly as possible when a family member dies. This provides an opportunity to comfort one another, and to share information about important next steps. It also helps to avoid alienating people who might feel left out.
To make the process easier, delegate as much as you can to other people, and rely on your support network, such as other relatives, friends, and neighbors.
As the dust begins to settle, family members should determine whether the deceased had a Last Will and Testament. Begin by checking the personal papers of the deceased. You might also check with the bank where the deceased maintained an account to see if there is a safety deposit box that might contain a Last Will and Testament. Other times people will file their Will with the probate court of the county where they live. The deceased's attorney may have information on the Last Will and Testament, but often the original document is retained by the client. Keep in mind that the attorney may be restricted by the attorney-client privilege as to what information he or she can reveal regarding the attorney's representation of the deceased.
Many people incorrectly believe that a Power of Attorney can continue to handle the affairs of the deceased. This is simply not the case.
When a family member dies, a Power of Attorney is no longer valid. The only person who is permitted to act on behalf of the deceased is the person who is appointed as the personal representative (formerly the "executor") by the court during the process of estate administration - otherwise known as "probate".
While it is critically important to protect the assets of the estate, you should not take action to distribute assets until the Will has been admitted to probate and the personal representative has been appointed.
The death of a loved one can often create chaos within a family, and an opportunity for people bent on personal gain. Therefore, the family of the deceased must act quickly to protect all assets that belonged to the deceased. No one, not even family members, should begin to take or distribute assets until a probate proceeding has been opened, a personal representative has been appointed, and the assets of the deceased have been inventoried.
You will need multiple copies of the death certificate to submit to financial institutions, government agencies, and insurance companies. You can obtain these from the funeral home.
You should also gather other documents that you will need to probate the estate. These may include:
If the deceased had a Last Will and Testament, the document probably named a personal representative who will be in charge of carrying out the last wishes of the deceased.
If the person died without a Will (this is referred to as “intestate”), North Dakota law and Minnesota law identify who should serve as the personal representative and provides for the division of property.
Some property will transfer automatically upon death. However, it’s important to work with a skilled and experienced North Dakota probate attorney or Minnesota probate attorney to be certain that the appropriate people and agencies are notified, and so that the property transfer is carried out properly.
Some people mistakenly believe that they do not need to open a probate proceeding, especially if their loved one did not have a lot of money. Not opening a probate proceeding can lead to unpaid debts and taxes, even if there are assets available within the estate to satisfy these debts. To avoid this situation, a probate should be opened and a personal representative must be appointed. This person, in conjunction with a probate attorney, will properly handle administering the estate to be certain that all valid and legally enforceable debts are paid.
Your probate attorney will also advise you on when and how to contact the Social Security Administration and any other government agencies that may be making payments to the deceased. It’s important that this step be completed because, in some cases, overpayments may need to be refunded if they were improperly paid.
Debts and taxes will follow the estate of the deceased, and are not the responsibility of the heirs or beneficiaries of the deceased. Even if there are not sufficient assets in the estate to cover all the debts and taxes, the family members will not become liable for the debts of the deceased.
The death of a loved one is never easy. For assistance moving you forward when a family member dies, contact a skilled and experienced probate and estate attorney at Fremstad Law today. Call us at (701) 478-7620 or complete our online form.
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