By: Attorney Gina C. Ziegelbauer
This is the question our clients have when they’ve just experienced the loss of their spouse, parent, or other family member. It is a difficult time and everything can feel overwhelming. The answer depends on each individual’s situation, what assets they had, and the planning they had in place for those assets.
Not everything needs to be done immediately. I tell my clients to take their time to grieve and avoid making big decisions immediately if they don’t need to or they don’t feel ready (i.e. should I sell the house? How should I invest the money I just received?). While some decisions can wait, there are some things that should be addressed more timely, such as:
Obtain death certificates: If a funeral home is involved, they will usually help with this. You should obtain several copies which you can provide to banks, life insurance companies, etc. to evidence that your loved one has passed away. Depending on the types of benefits your loved one received, you may need to inform the Social Security Administration (although again, many times funeral homes will take care of this step), pension companies, life insurance companies, banks, or creditors.
Determine all assets and how they are titled: This can be an easy or a very difficult step depending on how much you know about the decedent’s assets, how many assets the decedent had, the value of the assets, how organized he/she was, and what planning was in place. You should determine how the assets were titled—jointly, individually, in the name of their trust. Then determine whether they had payable-on-death/transfer-on-death/beneficiary designations, were held in a Trust, or subject to a Marital Property Agreement. This will allow you to determine how those assets will transfer from the decedent (the person who died) to the beneficiaries.
Figure out if a “probate” is necessary: Probate is the legal process for the transfer of a decedent’s property that doesn’t otherwise transfer. If there are assets that don’t pass to beneficiaries in one of the ways above, and the total value of those assets “stuck” in decedent’s name exceed $50,000, some type of court proceeding will likely be needed.
Determine whether there is a Will and who is in charge: If your loved one had a Will in place, you’ll need to locate the original document. The Will lists the person(s) the decedent chose to be the “personal representative,” also called an executor. Basically, it’s the person in charge of administering the estate if a probate is required. But even if no probate is required, Wisconsin statutes do require the original Will be filed with the Register in Probate in the county the decedent was “domiciled.” If there is no Will, the rules of intestate succession (the default rules for distribution of assets) will apply.
Consider whether you want or need a lawyer to assist: Whether you need to get a lawyer involved and what will need to be done will depend on the situation. If a formal probate is required, Wisconsin statutes require that a lawyer be involved. But even if a formal probate is not required, a lawyer can still assist you in the non-probate transfer of assets or to advise you on what needs to be done. In the case of a trust, there are a number of administrative actions the trustee needs to take, so you may want a lawyer to advise you on the trust administration.
What needs to be done when someone passes away can depend so much on what type of planning and organizing was done beforehand. While every situation is different and unexpected circumstances can always arise, planning ahead can make the post-death administration of your assets more efficient and reduce the number of surprises your loved ones will need to deal with.
The information in this article is specific to Wisconsin law and general in nature. It is not intended to be legal advice.