Providing effective representation locally, since 1991.
What To Do After the Death of a Loved One in California.
This information is intended to be educational and general in nature and is not intended to be legal advice. We recommend that you consult with an experienced attorney about your individual circumstances.
First and foremost, it important is to take care of yourself, other close friends, loved ones, and any dependents of the person who has passed, physically, emotionally, and spiritually. You have suffered a great loss and this time of grief and transition will be hard. Please be patient and easy on yourself and your loved ones. Unfortunately, many of the necessary administrative tasks involve bureaucracies, are time consuming in nature, and may seem very difficult in light of the highly emotional situation you are facing. Understand that you are grieving and that grieving is a process that takes time.
Once you are ready to tackle the legal and administrative steps, we are here to advise you. We understand that this is a terribly difficult time for you and we are here to help. We’ve provided the following information as an overview because it is helpful for most people who have lost a loved one in California. Many aspects presented may or may not apply to your individual situation, for example, the Decedent may not have owned real property in California or the Decedent may have special circumstances which may differ from the information provided.
Once you are ready to move forward, your first steps will be to gather information and documents. Here is a list of items that will be helpful as well as some initial actions to take:
- Obtain Original, Certified Death Certificates: Death Certificates can be obtained from the mortuary which handles final services or from the County of residence of the Decedent. Current Death Certificates (for deaths this year and last year) can also be obtained from the County’s Department of Vital Statistics; older Death Certificates can be obtained from the Clerk-Recorder’s Office. You will need several original, certified Death Certificates (the number will differ according to the extent of assets of the individuals, a safe rule of thumb is one for each parcel of real property + more for correspondence with banks, life insurers, etc.). It is easiest to obtain Death Certificates directly from the mortuary. Currently the cost of a Death Certificate is $25 but this fee is subject to change. Note: Only authorized individuals are able to obtain a Death Certificate. If you are not an authorized individual, you may be able to obtain an informational death certificate which has certain information blacked out or redacted.
- If the Decedent Had Minor Children: If both parents are deceased, it may be necessary to move forward quickly. Be sure to look for any Guardianship Nomination the Decedent may have and/or a Will with Guardianship Nomination language. A Guardian is a non-parent who is appointed by the Court to care for minor children and/or to manage a minor’s assets. A guardianship of the estate will likely be required if the Decedent left assets directly to a minor child.
- Locate Estate Planning Documents & Beneficiary Designations: Try to locate any estate planning documents that the Decedent may have had including any Wills, codicils, Trusts, Amendments, Restatements, etc. Be sure to gather the original documents and all documents whether or not you believe them to be current. Also look for any beneficiary designations that may pertain to the Decedent’s accounts, life insurance, retirement accounts, etc.
- Determine Decedent’s Assets: It is important to ascertain what the Decedent owned at the time of death. This can be done by reviewing mail, reviewing the Decedent’s records and documents, or reviewing public records. Make a list of all of the Decedent’s assets and be sure to include location, how title was held, whether there was a beneficiary designation, if you know the character of the property (separate or community), and the approximate value. For any bank of financial institutions you will need a statement (be sure to retain all pages) that covers the date of death of the Decedent (e.g., if the Decedent died on April 10th, you will need the April bank statement or 2nd Quarter bank statement).
- Determine Decedent’s Debts: It is equally important to determine what debts the Decedent may have owed. Gather any information that you can, especially for bills that must be kept current, such as a mortgage. It is highly recommended that you speak to an attorney before contacting any potential creditors of the Decedent in order to understand the potential liability involved and whether it is appropriate to pay the debt. Sometimes this analysis may be somewhat complex such as in the case when someone dies in the middle of a court case or who was running a business.
- Determine Who is Going to Handle Administrative Steps: If the Decedent had a trust, the person who is designated successor trustee (if willing and able to act) will act on behalf of any trust assets. If the Decedent only had a will, the nominated executor (if willing and able to act) will act. If a person is a designated beneficiary, the designated beneficiary is most likely the person to act for that particular asset. If the Decedent had no estate planning documents, the family should decide who (preferably one individual) will be responsible for any administrative steps. This is also true if none of the named trustees or executors are willing to act or are not able to act or an asset did not have a designated beneficiary.
Whoever will be acting on behalf of the Decedent should be the person to contact and consult with an attorney if you decide that it is appropriate to consult with an attorney. However, this does not necessarily mean that other family members can’t be involved or possibly present at the meeting. There are several factors that the attorney will consider in order to reach the final decision of who will act in each particular situation and this decision is made on a case-by-case basis. Factors to consider, for example, are the type of administration needed, whether a court process will be required, and whether the person will need a bond to act.
- Other Immediate Tasks:
- The Designated Person should forward the Decedent’s Mail and monitor it. Please note that you will have to be able to prove your authority to act on behalf of the Decedent to complete the mail forwarding process with the USPS (so you may need to consult with an attorney if you encounter any difficulty or to ascertain who is the correct individual and to obtain the proper proof required).
- Cancel Subscriptions. These may be print materials, monthly entertainment subscriptions, gym memberships, wine club, shopping memberships, you name it. If the Decedent was in a care facility or renting, be sure to inform the landlord or administrator of the death. **Please see above for information regarding potential creditors, or people who the Decedent may owe money or a debt to**
- Inform Social Security of the Death. Social Security will mostly likely directly/electronically withdraw the Decedent’s last Social Security payment from the Decedent’s bank account.
- Inform any Pensions, Life Insurance, Retirement Account Administrators of Death. You will need to review the Decedent’s records to determine any organizations or institutions that will need to be informed.
- Designated Beneficiaries should contact the account holder, retirement plan administrator, life insurer, etc. to being the process of having the asset transferred to the named beneficiary pursuant to the rules contained in the account agreement governing the asset. You will most likely need an original, certified death certificate. Please note that if the designated beneficiaries are deceased, are minor children, or there is not a designated beneficiary an alternative procedure will be needed and an attorney can assist you to determine the easiest way forward.
We frequently assist with the following initial steps:
- Lodge Will with the Court: California law requires that any original Will(s) must be delivered or lodged with the Superior Court of the County where the Decedent resided within thirty (30) days of death or knowledge of death. A copy of the Will(s) must also be delivered to the named executor. If a petition for probate is filed earlier, then the original will may be submitted with the petition for probate. Currently the fee for lodging a will is $50, however this fee is subject to change.
- If there is a Trust, Send Required Notification and Copy of Trust: Within sixty (60) days of death, the trustee must send out a Notification to all named beneficiaries under the trust and any heirs at law. The required contents of the Notification are provided in California Probate Code section 16061.7. A copy of the Trust may also need to be provided to the beneficiaries and heirs, as well as the Attorney General of the State of California if the trust is a charitable trust.
- Inform Medi-Cal: of the Death if the Decedent or the Decedent’s predeceased spouse received Medi-Cal benefits, according to the requirements.
- Inform the County Assessor: by filing the appropriate forms reporting a Death of Real Property Owner in each county in which the Decedent owned real property. Important: Any applicable exclusion requests must also be filed (such are Parent-Child Exclusion or Grandparent-Grandchild Exclusion) or else the real property will be re-assessed and property taxes will increase as of the Decedent’s date of death. It is highly recommended that competent legal or property tax advice be obtained before submitting any required forms.
- Determine How Title to Each Asset Will Be Transferred: Based on how the Decedent held title or whether there was a joint owner or beneficiary designation the answer will differ. It is important to analyze each asset to determine how title will need to be transferred and the administrative steps needed.
Important: Identify any assets held in the name of the Decedent only (or jointly with persons already deceased) which do not have a beneficiary designation or living joint owner. It is possible that formal probate administration will be necessary or there may be an exception to formal probate available (e.g., if there is a surviving spouse or assets are less than $150,000, or the current small estate exemption amount).
- Administration and Distribution or Transfer of Assets: The next phase after the initial steps is the administration phase. The general idea of the administration is to ascertain and value the assets of the Decedent, pay any necessary debts and costs of administration, file income tax returns and pay taxes, submit necessary notifications, account for the assets and expenses, and distribute the remaining assets to the appropriate individuals. It is imperative to understand the potential tax consequences involved, the required rules, and potential liability involved. How this process will take place depends on the individual circumstances and is evaluated on a case by case basis.
At our offices it is our practice to offer a free one-half (1/2) hour consultation whenever there is a death of a California resident. To make the most of your consultation, we recommend that you bring the following documents with you:
- Death Certificates, including for any pre-deceased spouse;
- Any Estate Planning Documents;
- Be sure the person who is authorized to act is the person who is contacting us;
- Any Asset and Debt information;
- Any special circumstances you are aware of (e.g., if the Decedent had any dependents such as minor child or dependent adult, or pending foreclosure, a business, tax liens, complicated family relationships, etc.).
Everyone is different and is ready to move forward at different times in the grieving process. Sometimes there are circumstances which necessitate immediate action (such as in the case of minor children, an on-going trade or business, rental properties, pending foreclosure, an adult child or dependent with disabilities or special needs, etc.). One thing that we have learned is that everyone grieves differently and each circumstance is different. Some situations are far more complex than others. It is our practice to get to understand you and your situation in order to be as efficient and helpful as possible.
We hope this information has been of some help to you and we are sorry for your loss. If you would like to schedule a consultation, please contact us at (925) 831-0636.