1. See if there any estate plan documents, such as a will, powers of attorney, or memorial instructions.
Sometimes, the memorial instructions are contained in the will. Sometimes, they are in their own document. If you are suddenly having to plan a funeral or memorial service, or having to make decisions about how to lay your family member to rest, those instructions can be a real help. Especially if family members are not seeing eye-to-eye on how any part of that should go.
If you find a will — or, to be more accurate, a document “purporting to be a will” — Colorado law requires that it be “lodged” with the decedent’s county probate court within 10 days.
Note: That any document that appears to contain instructions from the decedent about what should happen to his or her assets after his or her death might qualify as a will, and maybe should be lodged, even if it does not appear to be official. Handwritten notes can qualify as wills in certain circumstances. Lodging a will does not initiate a probate process. It is done simply to ensure that the will is safe and cannot be lost or modified.
2. Secure the decedent’s property.
It is not unusual for families to immediately start taking personal property out of the residence. Maybe that is okay, but it should be done in some sort of systematic process in which it is determined who has a legal right to the property and a written record is kept of what each person is taking.
People underestimate how often personal property can become the subject of fighting down the road. When that happens, it can be difficult because the value of the property is often sentimental, not monetary, and so you can’t necessarily split the difference with a cash distribution, or by buying a similar item for the other operation who wanted it.
Start Figuring Out What the Decedent Had
It may seem impolite to begin asking about money and finances soon after someone passes away, but the reality is that there may be things that need to be dealt with immediately.
If there is real estate, someone needs to figure out whether there is a mortgage that needs to be paid and when the next payment is due. Even if there isn’t a mortgage, somebody needs to figure out how property taxes, insurance, and home owners association dues are being paid. You don’t want a house going into foreclosure, or having liens to be put on it, because no one was paying attention to the financial obligations associated with real estate ownership.
Plans also need to be put in place for ensuring that the house is maintained until decisions get made about what will be done with it. Is there a lawn that needs to be mowed and watered? Does the heat need to be kept on? Does the water need to be turned off? Is there food that needs to be removed? Are there pets that need to be re-homed? If there are other family members living there, will they need to pay the estate rent?
More broadly, someone needs to figure out whether a probate process will be necessary.
Probate is the court-supervised process for transferring assets from a deceased person to the survivors entitled to receive them. It is not needed for everyone. Assets that the decedent owned jointly with a survivor transfer to that survivor automatically (a death certificate may need to be filed or recorded with the entity that keeps track of title).
Assets that have designated beneficiary instructions attached to them (usually life insurance benefits and retirement accounts, but also sometimes real estate and cash accounts) get directed to the named beneficiaries. Assets that are inside of trusts or business entities are handled according to the entity’s governing document.
Now the question is, what’s left?
If what’s left includes real estate or assets that, combined, are worth more than $50,000 (adjusted for inflation from 2000), a probate case will have to be opened to get those assets transferred. If neither of those conditions are true, it is possible that you will be able to get possession of the assets with a “small estate affidavit.”
A small estate affidavit is a document that you sign on which you promise, under oath, that the estate does not exceed the thresholds above, that you have an interest in the estate, and that you will deliver the property to the people legally entitled to receive it (that last part is critical; a small estate affidavit sites not entitle the person who receives the property to keep it).