Probate and the Executor, Part 3 – The Next Four Months


So you’ve had your day in court, you’ve established yourself as the Executor (aka Personal Representative) with the IRS and the bank, and you’ve taken care of the most immediate concerns.  Now what?

Next you must officially notify various parties about the probate case and your status as executor.  There are some deadlines associated with this, too, so this is no time to rest on your laurels.  Stay busy, and stay organized.

First up, within 20 days of your appointment, you must officially notify the heirs and beneficiaries.  Because in most cases this must be done by mail, it is a good practice to ensure you have correct mailing addresses for everyone as early as possible.  So, to whom, exactly, are you sending this notice?  Well, obviously, anyone named as a beneficiary in the will must be notified.  Is that it?  Possibly, but also anyone who would normally be considered an heir but who might have been left out of the will, intentionally or otherwise.  In other words, if the decedent died intestate, i.e. without leaving a will, who would be the default heirs according to law?  Any surviving spouse comes first to mind, and any children second.  If any children predeceased, or died earlier, then the children of those predeceased children step into their place.  If there is no surviving spouse and no surviving children (or grandchildren, etc), then the deceased’s parents are next in line, if they are still alive.  If there is no spouse, no children, grandchildren, etc, and no parents, then the brothers and sisters of the deceased, and their children if those siblings are already gone, etc.  It goes on from there, and can get quite complex.  The complete rules are spelled out at wa-probate.com.

Must you notify everyone conceivable on this list?  Not necessarily.  But, if there is a spouse not named in the will, you must notify that person.  If there are children not named in the will, you must notify them (or their guardians if they are minors).  If there are predeceased children, then you must notify the grandchildren in that line, and so on.  You do not need to officially notify surviving parents unless there are no spouses, children, etc, thus making the parents the default heirs of an intestate estate.  You can choose to do so, and certainly one hopes that you will at least have told them what is going on, but you don’t necessarily need to involve them in all the legalities unless they are officially beneficiaries or potential heirs.  The same goes for siblings.

So how is official notification handled?  You will prepare a document entitled Notice of Appointment of Personal Representative and Pendency of Probate & Declaration of Mailing (With Will) (this, and many other forms, can be found in template form at wa-probate.com), sign it, attach to it a Declaration of Mailing in which you list the names and addresses of each heir and beneficiary being so notified (sign that, too), and attach also a conformed copy of the will (meaning the case number and date it was admitted to court are stamped at the top of the first page).  You will send a copy of this combined document to each one, and you will file a copy with the court.

Does that mean you have to go back to the courthouse?  Not at all.  Now that the case is opened, you can file by mail, or, in King County, you can file online.  I strongly recommend this latter approach, as it will save you considerable time as well as postage, and once you learn how to navigate the website, it becomes fairly easy.  Instead of a stamp at the top of filed documents, you will get a ‘receipt’ page, which you simply attach with filed documents for your own files (and any copies you send to others).

This has now put everyone on notice that they have four months from the opening of the probate in which to file a contest if they disagree with anything.  If they are ok with the will and how things are going, they don’t need to do anything yet.

Also within that same 20 days you will publish a notice to creditors in an appropriate legal or business journal and send notice to the Department of Social and Health Services.  Technically you have 30 days to publish the creditor notice, but you need to tell DSHS within 20 days what the date of that publication is, so it’s easiest to do that first.

The Probate Notice to Creditors was one of the documents you originally filed with the court when you opened the case.  The form has fields for Date of First Publication and Decedent’s SSN which you will have left blank up to this point.  The first is because you couldn’t yet know what the date of first publication will be at the time of filing, and the second because a) you must never include an SSN on any document you file with the court (they will fine you if you do), and b) you also don’t want to include the SSN on the notice you publish in the paper or send to creditors.  You do want to include it only on the form you send to DSHS.  So, at this point you have a form with a filing conformation stamp at the top, a case number, and a signature, but two blank fields.

Find out which legal journal is authorized for this purpose in your county; in Seattle the Daily Journal of Commerce is apparently the most popular (and the one I picked).  Contact them and let them know you have a Probate Notice to Creditors to publish, and they will tell you what the date of first publication will be.  Note that this service is not cheap — it might seem as if publishing such legally required notices is the main source of income for these papers — and although technically optional, it is a very good idea and I strongly urge you to do it.  You may get advice from various well-meaning people to not bother with such a notice, but if you don’t, then creditors have two years in which they can legally come after you and the estate for claims.  If you do publish, and proactively notify any possible creditor you can think of, then that time frame is limited to four months.  The usual fear with publishing a notice that literally invites everyone to make claims against the estate is that it will bring the crazies out of the woodwork with all sorts of false, fraudulent, and frivolous claims.  However, it was my experience that this doesn’t actually happen (I did get a couple of letters offering to buy the deceased’s real estate, but that was it), and if you speak to any probate attorneys, they will all advise you to publish, as it protects you, the executor, from legal claims down the road.

So, send the notice to the journal (they will publish it three times, at one week intervals, and afterwards will send you an Affidavit of Publication to file with the court), fill in the date of first publication on your copy of the notice, make another copy of that and write in the SSN, then send that attached to a Declaration of Mailing of Probate Notice to Creditors to WDSHS to the Office of Financial Recovery, WDSHS, in Olympia.  File a copy of the combined document (sans SSN!) with the court.

Now the next timer begins.  Within 3 months of that date of first publication you must send a copy of the Probate Notice to Creditors (with date of first publication but without SSN) to each and every creditor you reasonably expect could have a valid claim against the estate.  Who are these creditors?  Well, hospitals, doctors, and pharmacies come immediately to mind.  Hospitals are notorious for billing for services months after the services were rendered, and you don’t want that to happen, so you will let them know they have a definite time limit.  So, you will want to go through the decedent’s correspondence and financial records to come up with a list of potential creditors.  Even if you’re pretty sure the creditor has been fully paid off, put them on the list to make sure.  The last thing you want is for them to come back months later and say that you didn’t properly notify them when you should have, and so therefore they are not subject to the statute of limitations.  Besides medical facilities, there might be ambulance services (including the fire department), cellphone and cable providers, landlords or assisted living facilities, etc.  So, send them all a copy of the Probate Notice to Creditors along with a Creditor’s Claim form in which you have pre filled out the header with the case information.

The creditors have up to four months from the date of first publication, or one month after you mail them the notice directly, whichever comes later, in which to file a claim.  At this point, if any legitimate bills do come in, you should make the creditor file an official claim with the court.  If claims come in, it is up to you, as executor, to determine if they are valid or not, and pay them or not.  Use your best judgment.  If in doubt, ask the creditor for documentation of the amount owed.  In my case, all the bills had been paid at this point, so no further claims came in.

Now is when you have a bit of a breather.  You have four months to wait for claims to come in, or not.  Better than waiting two years, though, eh?

When the four months have elapsed, and all claims have been disposed of one way or another, you will file with the court a Declaration re Reasonable Review to Ascertain Decedent’s Creditors, in which you will list each creditor you notified.  At this point, as long as you have dotted all the Is and crossed all the Ts, you and the estate are protected against any future claims.

By this point, also, the timer will have run out for any beneficiaries to file a contest, so the way is now clear to close out the probate and, by extension, the estate.  One last thing remains before you can do that, and that is to file any outstanding tax returns with the IRS, and that will be the subject of the next post.

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Probate and the Executor, Part 2 – The Death Checklist


Earlier I referred to something that I euphemistically called the “Death Checklist.”  Out of context, that may sound sinister or macabre, but in this case it refers merely to being prepared, as next of kin and executor, for all the legal, financial, and social things that will need to be taken care of when a loved one passes on.  As such a time is likely to be emotional and difficult, it can be helpful to have prepared in advance a mechanical, methodical checklist of all that must be done, when, where, and how, so that you can just work your way down the list, ticking off entries as they are completed.

Number one, of course, are all the things to do before someone passes on.  In other words, these are the things that you should do to make things easier on those you will leave behind.  If your parents are getting on in years, you might consider talking with them to see what preparations they’ve made, although that can be at best a delicate conversation.
“Dad?”
“Yes, Son?”
“I was just wondering if you’ve got everything covered for your death, and all.  You know, to make my life easier.  Since I’m the one who will have to pick up the pieces when you’re gone.”

Yeah, that conversation isn’t easy.  Not only does it raise an unpleasant specter, as most of us don’t really like to be reminded of our own mortality, but in the case of the aging parent it could mean opening up the privacy of their finances for the scrutiny of their children.  Many of us like to keep our financial affairs to ourselves, but the reality is that after death, everything about our financial lives will be a matter of very public record (unless you have a complex arrangement of trusts, and so forth, and that is far beyond the scope of this posting).  One of the biggest ways to ease the path of your executor will be to ensure that they know how to find and access every financial account you possess.  You don’t have to reveal it all to them in advance, but you will need to ensure they know how to find all the documentation when the time eventually comes.

I didn’t find this planning and checklist website until afterwards, but it’s a great resource for advance planning. Don’t mind the “less-than-serious” title of this site; the information and advice presented is very serious and sober, and easy to follow.  It also includes some free templates for such forms as a will, power of attorney, etc.  Start here.

My father had made one or two smart moves in advance, several years earlier, which made my life easier when the time came.  When his wife died, for instance, and he had to go through all of this to take care of her affairs, it opened his eyes a bit.  At that time he prepaid for his eventual cremation with the Neptune Society.  He didn’t actually tell anyone about this, but fortunately I found the paperwork when I started managing his affairs.  This turned out to be a huge help in the end, not only because everything had been prepaid years in advance (when rates were cheaper, as well), but because the Society provided something of a “one-stop” phone number to call when the time came.

When he moved into assisted living, he sold his house, so now there was no real estate to worry about.  This simplified things considerably.  This isn’t always something you can plan in advance, of course.  In my father’s case, the proceeds from the sale of the house were how he paid for assisted living.  This could be a whole other posting, talking about planning for this kind of end-of-life care, but I won’t go into it now.

When I took over managing his affairs, the first thing we did was execute a Power of Attorney for Finances.  We used the Quicken Willmaker software (which is actually made by Nolo), which did a fine job of creating a legally sound document which was perfectly acceptable to banks and credit unions once it was notarized.  If no real estate is involved, the document does not need to be filed with the county clerk, merely notarized.  If real estate is involve, filing is necessary.  We then consolidated his bank accounts, simplifying things, and added me as a co-owner of the account.  This gave me an ATM card and online access to manage the account on my father’s behalf, and after his death it also meant I had immediate access to the account instead of having to wait for probate to officially begin.  This could be important if there are urgent bills to be paid, etc.

My father already had a Medical Power of Attorney and Living Will set up, with my brother as the PoA for those decisions.

Next was preparing a will.  After spreadsheeting various scenarios and coming to an agreement, we again used Quicken Willmaker to draft the actual legal language of the document.  We had this and the Financial Power of Attorney notarized at the same time.

Once these documents were in place, the next thing I set out to do was create the checklist for actions to take when the ultimate day finally arrived.  I’ll summarize that checklist here.  On my copy I included important details like phone numbers, account numbers, etc, that would be quickly needed, so I had it all in one place.  Bear in mind this list is specific to my father’s situation, and some of the items are also specific to Washington State, but in general, this checklist should serve as a model for most people.

I adapted some of my list from AARP’s How to Handle Death of Loved One – Checklist document, which is another great resource.  Other parts came from http://www.wa-probate.com, a truly invaluable resource for anyone managing an estate in Washington State.

  1. Contact Hospice.
    1. In fact, the assisted living facility did this on our behalf, so a hospice nurse was already at my father’s bedside when I arrived on the scene.  This care had been setup about a month before, on my father’s doctor’s advice, when it was clear he was near the end.
    2. Not only did the hospice staff make his final days significantly easier, they also provided a nurse for preparing his body, and they made the initial contact to the cremation society (Neptune).
  2. Contact the cremation society / funeral home.
    1. The funeral home or cremation society will pick up the body, order death certificates, and notify Social Security.
  3. Notify immediate family.
  4. Cancel cellphone (his only remaining recurring bill, so obviously cancel any other monthly utilities or services as well — stop the money from flowing out).
    1. You will probably need either a Death Certificate or a Power of Attorney to do this.
  5. Forward postal mail to yourself.
    1. Also register as deceased with the Direct Marketing Association to reduce junk mail.
  6. If not provided directly by the funeral home, order copies of the death certificate from your county’s department of vital statistics.
    1. You’ll probably need about half a dozen.  I ended up getting twenty, which was far too many and therefore an unnecessary expense.  Still, it pays to get a few more than you think you’ll need for unforeseen circumstances when you need it quickly to avoid delay, and you’ll definitely want one for your records.
    2. Some agencies need official certified copies, and some are fine with photocopies of a certified copy.  You will definitely need a certified copy before you can open probate with the court, so getting this document is the key to getting the legal and financial ball rolling.  Delays in obtaining the death certificate result in delays in everything that comes after.
  7. Social Security
    1. The funeral home should have notified them already.
    2. SSA has their own “what to do” for survivors pages:
      1. How Social Security Can Help You When a Family Member Dies
    3. Also, if a spouse survives, there are benefits that can be claimed, both a one-time cash benefit and an ongoing monthly benefit.  What many people don’t realize is that even a divorced spouse may be eligible for benefits, as long as the marriage lasted at least ten years.  This is true even if the deceased remarried afterwards.
      1. Survivors Planner: How Much Would Your Benefit Be?
    4. Eventually SSA will update their “Death Master File”, which helps to avoid the deceased’s SSN being misused for identity theft purposes, among other things.  They don’t make the file publicly accessible, but you can purchase a copy of it.  I don’t recommend this.  Third-party websites (I’m looking at you, Ancestry.com) make this information available to their members.  What you can do, however, is validate that the SSN has been added to the master file with the free website www.ssnvalidator.com.  It may take a while for their database to be updated, but eventually this site will be able to tell you that the SSN has been marked as belonging to a deceased person, so check back later to ensure accuracy.
    5. It is not necessary to notify Medicare; SSA will take care of that automatically.  Likewise, if the deceased had a Medicare Supplementary insurance plan, Medicare will notify the plan administrator.
    6. There can be a lot of confusion about the final Social Security payment to the deceased.  Some of the literature on this point says payments made in the month of death must be returned.  What they mean is that payments made for the month of death must be returned.  For instance, my father died on the 3rd of March.  On the 1st of March he received his final Social Security payment by direct deposit to his checking account.  That payment, although received in March, was for the month of February, and he (or his estate, in this case) was allowed to keep it.  It was very unclear for a while, however, so if at all in doubt, make sure that enough money remains in the checking account for at least a month or so in case SSA pulls back the deposit.  Yes, in the case of direct deposit, they will automatically pull back the final payment from the bank account if they deem that it must be returned, so you have to ensure the account can cover it if that happens.
  8. Notify any pension plans so that payments stop.  If a payment is received after death, you will likely have to refund it.
  9. Notify any life insurance provider to get the ball rolling to receive any benefits due.
  10. If any services have been prepaid, the estate may be due a refund, so follow these up.  The big one here is likely to be rent.  For instance, if the deceased was living in an assisted living facility, they probably paid a deposit and prepaid a first and last month’s rent and fees, similar to an apartment.  Except in this case the dollar amounts are probably a lot higher than any apartment.  So, the estate may be due a refund on that deposit and on the final month’s rent (perhaps prorated).  Naturally, you will need to quickly clear any personal effects out of the rented room.
  11. Consult any “last wishes” documents and discuss with family members about memorial service arrangements.  Note that if the deceased was a military veteran, military service organizations may want to do something for the memorial.  This can be especially true if they are one of the few remaining WWII veterans.  Unfortunately, in my father’s case, he was a WWII veteran from a foreign service, not the US, so US agencies did not recognize him as a veteran for this or any other purpose.
  12. Consider publishing an obituary.  These can get more expensive than you realize, and there is the consideration that they may bring folks out of the woodwork seeking to cash in on your loss, so consider carefully what you publish.  You will be publishing an official notice to creditors later, however, anyway, so you’ll need to be prepared to deal with this.  Mostly it came in the form of some extra junk mail, nothing serious, so don’t be afraid from scare stories you may hear.
  13. Notify any friends or organizations (clubs, etc) that may have had a connection to the deceased and haven’t already been told.
  14. Begin now to obtain and/or confirm the addresses for all beneficiaries named in the will.  An informal “heads-up” notice is not out of line, before you start mailing them official documents, but it’s not required.
  15. Within 40 days of the death, open the probate with the court (http://www.wa-probate.com/Instructions/Opening/Opening.htm).  Really, do this as soon as you have a death certificate in hand.  You will need to appear in court in person to do this, unless the will was filed with the court in advance of the death.
    1. You will need the following documents in hand for your day in court, so obtain and/or prepare these in advance (www.wa-probate.com is a great resource for legal form templates); bring copies of each to ‘conform’ and keep for your records (conforming is the process of officially stamping copies as received by the clerk, with a date and case number):
      1. Death Certificate (may or may not be required, so be sure to have it with you)
      2. Case Assignment Designation & Case Information Cover Sheet
      3. Will
      4. Petition for Probate of Will, Letters Testamentary, & Nonintervention Powers
      5. Order Admitting Will to Probate & Granting Letters Testamentary & Nonintervention Powers
      6. Oath of Personal Representative (With Will)
      7. Waiver of Compensation by Personal Representative
        1. Optional, but to avoid any questions, it’s probably best to not plan to pay yourself for your time.
      8. Probate Notice to Creditors
    2. An appointment is generally not required, but there are certain times of the day when the probate court is ready to hear new petitions, so check your county’s website and/or call the clerk of the court the day before you plan to go.
    3. Each court has their own procedure, of course, but in King County’s Seattle courthouse, it goes something like this (I adapted the outline below from a similar outline published by http://www.wa-probate.com and modified it per my own experience):
      1. Go to the Attorney’s Information Bureau on the 6th floor, sign the Oath of Personal Representative there and have your signature notarized (minor fee required); obtain a copy for your records (in fact, get a copy of everything that you file with the court for your own records).
      2. Go down the hall to the clerk’s windows and file the Case Assignment, Will, and Petition for Letters (the clerk will keep the original of the petition).  The clerk will stamp the originals and hand you a prepared stamp to conform your own copies.  While you have the stamp, conform the three just mentioned, plus the other documents you brought with you (not the death certificate).  The filing fee to open the case is $240, so be prepared for that.
      3. The clerk will advise you which courtroom to go to; it will probably be on the 3rd floor.
      4. In the courtroom, another case will probably be in session, so quietly walk up the side of the room and approach the judge’s clerk, who will be at a desk off to the side of the judge’s bench.  These clerks are amazing at juggling things, so they’ll see you approach and let you know to come on or wait.
      5. Tell the clerk you have a Petition for Letters and are there to be appointed as a personal representative.  Hand him/her the originals of the Case Assignment, Will, Petition for Letters (probably the conformed copy, assuming the county clerk kept the original), and Order Admitting Will.  Wait nearby.
      6. When called, say “Ready, your Honor” and walk up in front of the judge’s bench.  Say “Good morning, your Honor.  My name is <xxx>, and I am here requesting appointment as a Personal Representative.”
      7. After this point, the judge runs the show, so there’s no script.  He or she may have some questions, so respond simply, directly, and concisely.  The entire point here is to keep things short and simple, as the entire affair should not take more than five to fifteen minutes.  Don’t launch into long-winded and embellished stories (like my brother did when he went with me!); that said, the judge runs the show, and in our case she asked questions of personal interest because she actually seemed to care, so go with the flow.
        1. Since my father’s will named minors as beneficiaries, at this point the judge ordered that a Guardian ad Litem be appointed to ensure their interests were adequately protected, so the clerk quickly prepared this document from a template.  If there are minors in the will, ask that the nominees named in the will as custodians be appointed as fiduciaries.
      8. Eventually the judge will sign the Order and hand the documents back to either you or the clerk.  Say “Thank you, your Honor,” and step away.
      9. The clerk should stamp the signed Order for you with the judge’s seal, and then return all the documents to you for filing.
      10. Return to the County Clerk’s office on the 6th floor and hand the clerk the signed Order and the other original documents.  These will now be filed into the case (you kept your own conformed copies, right?).
      11. The clerk will give you a certified copy of the signed Order and of the Letters Testamentary (minor fees are associated with these certified copies).  Ask for a couple certified copies of the Letters, as you may need to leave one with the bank (or they may just photocopy it).
      12. You’re done!  You have now been officially appointed as the Executor.  Unless something unusual occurs, this will probably be your last physical court appearance.  Everything else can usually be handled online or by the mail.
      13. Go have a beer or a coffee.
  16. Now you must file a few documents with the IRS:
    1. First, file a Form SS-4, Application for Employer Identification Number.  The EIN becomes the estate’s tax ID, sort of a business-version of an SSN, and you will need this number before you go to the bank.
      1. Instructions for Form SS-4 are here.
      2. No need to mail anything!  Apply online here and get the number immediately.
    2. Once you have an EIN, the next order of business is to file a Form 56, Notice Concerning Fiduciary Relationship.  This tells the IRS that you are now acting on behalf of the decedent for tax purposes, and allows you do things such as file a final Form 1040 for the year of death, plus any estate tax forms that may be required.  Also, the IRS will now come to you with any matters they have regarding the estate or the deceased.
      1. Instructions for Form 56 are here.
      2. Unfortunately, there’s no online application for this one.  You must fill in the PDF, print it, sign it, and mail it in the old-fashioned way.  The form is here.
  17. Time to visit the bank.  Take your Letters Testamentary, the Death Certificate, and your EIN just obtained from IRS, and of course your own identification.  Ask the bank to open a new estate checking account, as well as give you control over any existing accounts.  Assuming the estate is not too complex and the probate should be wrapped up within a year, you may want to consider consolidating everything into the estate account, which should be a non-interest-bearing account.  Many banks will treat estate accounts like small business accounts.  Earning any interest other than small amounts may complicate the estate tax handling, so if it’s not going to be significant, it’s probably easier to avoid having any estate income.  The timing of closing out the original accounts is up to you; you’ll want to ensure that any legitimate final direct withdrawals are made before you do so, of course, but once any such services are cancelled and final payments made, there’s little reason to keep the original accounts open.  From now on, whenever possible, use checks from the estate account to pay for any estate expenses, as this will simplify bookkeeping and keep a clean audit trail, should it ever become necessary to produce one.
  18. Notify the credit reporting agencies.  At this time, all three require a mailed letter, copies of the death certificate, and at least one wants a copy of your Letters Testamentary.
    1. Equifax
    2. Experian
    3. TransUnion
  19. Notify the Department of Licensing and the local county and/or state elections divisions.  However, in all these cases, the procedure is unclear.  They may or may not be automatically informed by DSHS or other state agencies.  I contacted them by letter directly anyway, just to be sure.
  20. Cancel any other accounts and memberships, such as email, AARP, etc.  Some of these may require copies of the death certificate.

At this point, you have most of the immediate concerns completed.  There are court-imposed timelines for your next activities, but I’ll go into those in a future post.  Just be aware that within twenty days of being appointed as Executor you must officially notify DSHS and all the beneficiaries, and within thirty days of appointment you must publish a Probate Notice to Creditors in a local business journal.  That last kicks off a four-month timer that mostly determines the duration of the rest of the probate.