If your brother died recently, it’s a very sad time and you need to take your time to grieve and figure out what to do next. This page is not about the grieving process, it’s about the legal and practical things that need to be done while you are still in one of the hardest times in your life. You may be the person who is left to take care of his final affairs. We often get calls from people whose brother has just passed on, who are not sure what to do next. If you wish to speak with us, you can call (212) 233-1233 or (718) 509-9774. For ease of explanation, we have assembled this day-to-day checklist, which lists some of the typical things that you need to take care of following the death of your brother.
This is not a precise checklist – it’s just here to provide a reference point and an organization device. We hope that it will help you make this process a little easier.
The First Day
- Look for written instructions from your brother regarding funeral and burial arrangements. Pay attention to any religious preferences.
- If he wished to donate body parts and tissue, get in touch with a hospital.
- Notify family and friends and delegate some responsibilities to them.
- Find out if he belonged to a burial or memorial society that makes special arrangements for a funeral, such as a religious burial society or a military honor guard.
- Contact a funeral home concerning burial or cremation arrangements.
- Get the death certificate – you will need it for things like opening a safe deposit box and probating a will. Most funeral directors will help you get you multiple copies. You can order additional copies of your brother’s death certificate online at vitalcheck.com. Or you can apply for a death certificate by mail using this certificate application.
- Complete the funeral and burial arrangements.
- Notify the Social Security Administration and any other government agencies of the person’s passing.
- Gather all of your brother’s legal, financial, and personal documents. Make sure nothing is lost, and do not throw out any paperwork.
- Make sure your brother’s computer remains in working order. Computers often contain important financial, legal and personal information.
- Do not take any property, open safe deposit boxes, or pay debts until the court allows you to do so. After someone gets appointed by the court to be the estate’s personal representative, that person can marshal the assets of the estate, pay attorneys, taxes, and creditors and then distribute the remainder to your brother’s heirs. Until somebody gets appointed by the court, it is not legal for anyone to make distributions of your brother’s property.
Life Insurance, Bank Accounts and Benefits
- You can check if your brother had a life insurance policy. The New York State Department of Financial Services has a free-of-charge search service to assist families in locating unclaimed benefits on life insurance policies. Visit http://www.dfs.ny.gov/consumer/lost_policy_find.htm for more information.
- Find out if there are any benefits available to your brother’s survivors. Contact Social Security, Workers’ Compensation and your brother’s employer to see if benefits are available to surviving spouses or other family members.
- Contact your brother’s bank and find out if he has beneficiaries on any of his accounts.
Start an Estate Proceeding
- You may open your brother’s safe deposit box to get the will only. Only the person who is eventually appointed by the court to act on behalf of your brother’s estate will be allowed to take out the rest of the contents of a safe deposit box. That person has to account to the court for the contents of the safe deposit box.
- If there is no Will, then the court will appoint an administrator. The administrator will distribute your brother’s assets in accordance with New York state law of intestate succession – the court will decide who gets the estate.
- If there is a Will, you will need to bring the will to your County’s Surrogate’s Court. Call us at (212) 233-1233 if you need an attorney to assist you with the probate process.
- The will usually nominates a Personal Representative (an Executor or Executrix). The Personal Representative will be responsible for collecting the property, paying off debts and distributing the property to the heirs of the person who passed on.
Carry Out Your Duties for the Estate
- If you are the Executor of his estate or the trustee of his trust, begin making a list of the assets owned by your brother in his name or in the name of the trust.
- Go through the financial, personal, and legal documents that you’ve assembled, and make an inventory of your brother’s assets and liabilities.
- If you are a potential beneficiary, make sure the personal representative and trustee keep you in the loop. If you think that you are not getting your fair share of the estate, it might be time to challenge the person handling the estate.
- Open a separate bank account for the estate. Keep a record of all transactions on that account.
- Update the inventory of your brother’s assets.
- Look for insurance policies or annuities which may continue for other family members.
- Contact your brother’s life insurance company and follow their process for collecting life insurance proceeds. Deposit the process into the estate account that you’ve opened.
- If your brother owned real estate in a different state, you might have to start an ancillary proceeding in the state where the property is located. You may have to do this in more than one state.
- It might not be a good idea to cash out IRA accounts right away, or you may lose substantial tax advantages. Consult a New York estate lawyer first.
- Annuities, pensions, and profit-sharing plans may provide for payments to your brother’s spouse or other relatives. You need to consult those plans for details.
- If your brother and you had a business together, you will need to figure out the next steps in the business.
- The personal representative needs to pay your brother’s creditors before they can distribute the estate to the beneficiaries. Otherwise, the personal representative may have a problem – being personally liable to the creditors.
- The personal representative is required to give notice of the proceeding to all of your brother’s family members, even if they will not receive anything from the estate.
- You will need to file IRS Form 1040 and pay your brother’s last income tax. If there is a Trust, you will need to file a “Fiduciary Income Tax Return,” IRS Form 1041.
- If you and your brother had minor children, the children’s mother will likely assume care of the children. If not, you will need to file for guardianship for the minor children.
- Watch out for con artists who prey upon vulnerable families in their time of distress. Some fraudsters look for death notices and make unfounded claims against the estate. Some may even attempt to burglarize the home during the funeral service. Be cautious about such matters; perhaps have someone stay at the home during the funeral service, and do not easily accept the claims of unknown individuals that lack documentation.
- If there is a surviving spouse, make sure the surviving spouse or children collect veterans’ benefits or other “joint and survivor” benefits.
- After you complete your duties as the executor of your brother’s estate, you can ask the court to discharge you of your commission.
This is not an exhaustive list, nor is it an attempt to provide detailed instructions. Rather, it is assembled for educational and informational purposes only. It is possible that an important factor that pertains to your specific situation is not addressed here. If your brother died in New York, we hope that this list made things a little easier for you. Our condolences for your loss.
Albert Goodwin, Esq. is an attorney who focuses his practice on wills, trusts and estates. He can be reached at (212) 233-1233 or (718) 509-9774.