Q: Who is responsible for what legal issues after someone dies?
A: Here’s a quick look at different roles involved at someone’s death:
Executor—The executor (or “executrix”), also known as the personal representative, must collect, safeguard and manage whatever assets the decedent owned at death, in accordance with the will. The executor will make distributions as directed in the will, and is responsible for filing income tax returns and federal estate tax returns, if necessary.
Trustee—The trustee is the person in charge of managing and distributing any assets held under a trust. The decedent may have established one or more trusts while alive. The trustee must follow the trust document, which says how the assets are to be held and distributed. The trustee must work with the executor; often they are the same person.
Agent or “attorney-in-fact”—The person who was acting under a financial power of attorney or a health care power of attorney, called the agent or attorney-in-fact, no longer has any authority once the individual who signed the financial or health care power of attorney has died.
Guardian—A guardian is a person appointed by the probate court to care for the decedent’s minor children. While it is up to the court to decide who will get custody of the minor children, the decedent’s choice of guardian is nominated in his or her will (or separate instrument) and is given much weight by the court in determining the appointment.
Q: How does a family decide what to do first?
A: The first step for the family usually is to make any funeral arrangements. Also, immediately after death, the executor or trustee will need to make sure any assets are safeguarded. For example, if the decedent lived alone, it would be wise to change the locks to prevent someone from gaining improper access to the home.
Q: What’s next?
A: Next, the executor and/or trustee should consult with an attorney skilled in estate planning and administration matters who can provide guidance through the next steps, including gathering the assets and following the terms of the will and/or trust. An appointment usually should be made with an attorney within two weeks after the death occurs. In the meantime, it is important that no assets of the decedent are re-titled, no life insurance is collected, and that no distributions are made to any beneficiary, including the executor/trustee. The next steps in administering the estate will depend upon the decedent’s circumstances.
This “Law You Can Use” legal information column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by Akron attorney Richard W. Ashley, and updated by Paul S. Klug, partner in the Cleveland firm, Ziegler Metzger LLP.