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What to Do When Someone Dies in New York City
When a person you care about dies, you need time to grieve, and this page is not about that. It is about the legal and practical things that have to be done in the weeks after a death in New York, because you may be the person left to take care of their final affairs. We often hear from people whose loved one has just passed on and who are not sure what to do next. If you would like to talk it through, call us at 212-233-1233 or email [email protected].
What follows is the order in which things usually happen: the funeral, the death certificate, the paperwork, the court, the assets, the debts, the taxes and, at the end, the distribution. It is a reference point and an organizing device, not a precise checklist, and something important to your situation may not be here.
The First Day
Start by looking for written instructions from the person who died about funeral and burial arrangements, and pay attention to any religious preferences they expressed. If they wished to donate organs or tissue, get in touch with the hospital right away, because that cannot wait. Then notify family and friends and delegate some of the work to them. You do not have to do everything yourself.
Find out whether the person who died 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. Then contact a funeral home about burial or cremation arrangements. Very little of the legal side can happen on the first day, and it should not.
The Death Certificate and the Paperwork
The death certificate is the document you will need for almost everything that follows, from opening a safe deposit box to probating a will. Most funeral directors will help you get multiple copies. You can order additional copies of the decedent’s death certificate online at vitalchek.com, or apply by mail using the New York City Department of Health’s death certificate application.
Once the funeral and burial arrangements are complete, notify the Social Security Administration and any other government agencies of the decedent’s passing. Then gather all of their legal, financial and personal documents. Make sure nothing is lost and do not throw out any paperwork, even mail that looks unimportant. Keep their computer in working order; computers often contain financial, legal and personal information that is very hard to reconstruct.
What Not to Do Before the Court Appoints Someone
Do not take any property, open safe deposit boxes or pay debts until the court allows you to. Until somebody is appointed by the court, it is not legal for anyone to distribute the decedent’s property, however clear it may seem who should get what. Once the court appoints a personal representative, that person can marshal the assets of the estate, pay attorneys, taxes and creditors, and then distribute what remains to the decedent’s heirs.
The safe deposit box is the one exception, and a narrow one. You may open the decedent’s safe deposit box to get the will only. Only the person eventually appointed by the court to act for their estate may take out the rest of the contents, and that person has to account to the court for what was in the box.
Watch out for con artists who prey on vulnerable families in their time of distress. Some fraudsters look for death notices and make unfounded claims against the estate; some even attempt to burglarize the home during the funeral service. Consider having someone stay at the home during the service, and do not accept the claims of unknown individuals who lack documentation.
Life Insurance, Bank Accounts and Benefits
Before the court proceeding starts, it is worth finding out what passes outside the estate and what benefits the survivors can claim. This is where we tell families to look first.
| Where to look | What to ask about |
|---|---|
| New York State Department of Financial Services lost policy finder | A free search that helps families locate unclaimed benefits on life insurance policies, if you are not sure whether the person who died had a policy. |
| Social Security | Survivor benefits for a surviving spouse or other family members. |
| Workers’ Compensation and the decedent’s employer | Benefits available to surviving spouses or other family members, and annuities, pensions and profit-sharing plans that may provide payments to their spouse or other relatives. The plan documents have the details. |
| The decedent’s bank | Whether they named beneficiaries on any of their accounts. |
| Veterans’ and “joint and survivor” benefits | If there is a surviving spouse, make sure the spouse or children collect veterans’ benefits and any other joint and survivor benefits. |
Also look for insurance policies or annuities which may continue for other family members after their death.
Is There a Will?
If there is a will, bring it to the Surrogate’s Court of the county where the person who died lived. The will usually nominates a personal representative, called an executor or executrix, who is responsible for collecting the property, paying off the debts and distributing the property to the heirs of the person who passed on. Call us at 212-233-1233 if you need an attorney to assist you with the probate process; our sample NYC probate timeline shows what to expect along the way.
If there is no will, the court will appoint an administrator. The administrator distributes the decedent’s assets in accordance with New York’s law of intestate succession. In other words, the court, not the family, decides who gets the estate.
Carrying Out the Fiduciary’s Duties
If you are the personal representative of the estate or the successor trustee of a trust, begin making a list of the assets they owned in their own name or in the name of the trust. Go through the financial, personal and legal documents you have assembled and make an inventory of their assets and liabilities. You will update that inventory more than once as things turn up.
Open a separate bank account for the estate and keep a record of every transaction on it. Contact the decedent’s life insurance company and follow its process for claiming the proceeds. Life insurance is paid to the beneficiary named on the policy and passes outside the estate; only if the estate itself is the beneficiary, or no beneficiary survives, are the proceeds deposited into the estate account.
Retirement accounts, real estate and a business
It is usually not a good idea to cash out IRA accounts right away, because you may lose substantial tax advantages. Consult a New York estate lawyer first. If the person who died owned real estate in a different state, you may have to start an ancillary proceeding in the state where the property is located, and you may have to do this in more than one state. If the person who died was a partner in a business, check for buy-sell agreements that allow the partners to purchase the decedent’s share of the business from the estate.
Creditors, notice and taxes
The personal representative must pay the decedent’s creditors before distributing the estate to the beneficiaries. A representative who distributes first and pays later can end up personally liable to the creditors. The representative is also required to give notice of the proceeding to all of the decedent’s family members, even those who will receive nothing from the estate.
Someone will need to file IRS Form 1040 and pay the decedent’s last income tax. If there is a trust, a fiduciary income tax return, IRS Form 1041, is also required.
Minor children
If the person who died left minor children, the guardian named in the will must assume care of the children. If the decedent did not appoint a guardian, the court will.
When the work is done
After the personal representative completes their duties, they can ask the court to discharge them from their commission.
If You Are a Beneficiary
If you are a potential beneficiary rather than the fiduciary, make sure the personal representative and any trustee keep you in the loop. You are entitled to know what the estate holds and what is being done with it. If you think you are not getting your fair share of the estate, it may be time to challenge the person handling it.
Talk to Us
This is not an exhaustive list, and an important factor in your situation may not be addressed here. If someone close to you died in New York and you are not sure what to do next, call us at 212-233-1233 or email [email protected]. We handle probate and administration in the Surrogate’s Courts of New York, Kings, Queens, Bronx, Richmond, Nassau, Suffolk and Westchester counties. Our condolences for your loss.
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
