The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
This week, I thought I would provide a list of what you should pull together after a loved one dies. Sometimes it is tough when you are dealing with grief and all the events related to funerals or celebrations of life. My hope is that this provides a quick and easy reminder to keep you focused. First, it should go without saying, send thank-you notes.
Gather Important Records:
Death Certificate (can be provided to probate attorney after initial meeting)
Social Security Card
Driver’s License
Marriage Certificate
Birth Certificate
Birth Certificates of Children
Insurance Policies
Business Documents and Agreements (consider if the business had a succession plan – this will be apart from the probate process)
Auto Titles and Registration
Deeds & Titles to other Property
Bank Account Information
Bank Safe Deposit Box Information (Who can access the box and where is the key?)
Financial Account Information (stocks & bonds)
Retirement Account Statements
Tax Returns (last three years)
(Consider tax filing deadlines for the current year)
Loan Documents & Debt Information
VA Information (discharge papers & VA claim number)
Digital Account Information (account information, passwords)
Information regarding Intellectual Property Rights
Social Media Account Information (access, information & legacy programs)
Estate Planning Documents (powers of attorney end upon death)
It is important to consider if any of the above Assets have Beneficiary Designations.
Locate the Will. There is no formal requirement to file a Will before death. If you cannot locate the original Will, you should also check with the attorney who prepared the Will – sometimes Attorneys will maintain the original Will. Other places to look for an original Will include the following: bank safe deposit boxes, safes, gun safes, safe rooms, fireproof boxes, and the freezer. Many estate planning & probate attorneys use blue ink to help us determine whether the document is an original. Original documents also often have colored jackets. You should also check with other advisors, such as CPAs, tax preparers, financial advisors, and insurance agents. As mentioned below, in certain circumstances, a copy of a Will may be admitted to probate. Consider that a few companies offer digital vaulting of important documents, such as Wills.
Review the Will or Trust – read it. In Texas, the Will must be signed by the testator and witnessed by two individuals over the age of 14. Don’t assume the Will is valid or invalid. Don’t assume that because it's old, it's invalid. Don’t assume that because it was prepared by an online company that it’s valid.
Generally, the original Will is admitted to probate, meaning it is filed with the court and retained in the court file. However, in certain circumstances, a copy of a Will can be probated. Note, Texas also recognizes the existence of a “Holographic Will” – this Will needs to be “entirely” in the handwriting of a testator and signed. Just signing a typed document doesn’t count. Once you locate the Will, keep it safe, as your probate attorney will need to review it at the initial meeting. You will need a probate attorney. You cannot represent yourself in a Texas probate.
Another tip is to keep beneficiaries informed. There is no formal requirement to make a Will public to the beneficiaries by “reading” a Will in Texas. However, there is a requirement that the beneficiaries be furnished with a copy of the Will. Your probate attorney will take care of that and other legal requirements.
As always, check with your attorney to decide which method of estate administration is right in your particular circumstance. It could save you time and money.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas. www.moakandmoak.com ©