Archive for November, 2011

What to Do When Someone Dies
By: Susan G. Parker, Esq.*
*Licensed in New York and Florida

When someone dies, aside from the eventuality of getting your lawyer involved to handle the estate administration, there are practical realities of the death itself, and arrangements to be made from the time of the death, through burial and beyond. In my experience, most of the state law protocols are similar, even if they have different rules concerning how to file a petition, admit an estate for probate, or the time limits on creditor claims.

Here I’ve classified the post-death concerns into three segments.

• The first covers the actual death, through the funeral arrangements – the initial shock phase.
• The second phase, which begins after the funeral, covers getting organized or “the lay of the land” as I call it. If you were a baker, you’d have to have the ingredients in hand before you start the process. That’s a good analogy for phase II.
• In the third phase, you enlist the help of a seasoned professional, likely an attorney, to shepherd the decedent’s estate through probate (if the decedent had a will) or through the jurisdiction’s estate administration process for intestacy – i.e., people who die without a will.

Most jurisdictions have a simplified procedure for decedents who have small estates, with or without a will. If no last will and testament is found, generally a family member in closest relationship of lineage to the decedent is appointed to shepherd the intestate estate administration. If there is no will, state law will determine how the decedent’s assets are distributed.

POST Death – PHASE I – Funeral Arrangements

Call 911. For starters, with respect to the death itself, if your loved one dies at home, call 911 or the Coroner’s Office in the county where you live. The deceased’s body must be picked up eventually through the funeral home, or hospital if organs are to be donated. Decisions regarding burial or cremation may have to be made, and a search should be made of the decedent’s personal papers to determine wishes/instructions.

Funeral Arrangements. Often it’s good to be accompanied by another family member or trusted friend to make arrangements, because you may be in a state of shock or hopeless overwhelm. I’d recommend contacting three funeral homes or mortuaries to determine rates, particulars, etc. The rates can vary wildly in the same geographic area, and these fees are often negotiable. While I’m not recommending you hunt for bargains, I am suggesting you not be gouged at a time when you are emotionally distraught.

In some jurisdictions public assistance may be available for funeral arrangements, or the decedent may have already purchased a package from a religious society or similar group which provides benefits or actual services/burial plot. If the decedent is a veteran or in the military, or the child, spouse or dependent of a member of the military, there is likely a VA benefit available for burial/funeral arrangements upon request.

Guard Decedent’s Property/Communications. When a death is announced in an obituary column, you’re putting the world on notice that a person has died and it’s important to guard against break-ins that may occur when the family is at the funeral. The decedent’s perishable property or property at risk must be specially protected. For example:

• If desired, publish an obituary.
• Check the decedent’s house and make sure house is secured, especially during the funeral or wake!
• If you are unsure whether outsiders (cleaning folks, caretakers, etc.) have keys or alarm codes, change them so you can make sure you know who is authorized. They will contact you if they can’t get in. Contact neighbors if they may have information.

Get Multiple Copies of Death Certificates. As part of estate administration copies of the death certificate is needed for many purposes. For example, it must be submitted as part of any federal or state estate tax return, to claim life insurance benefits and any employee benefits/pensions owned by the decedent. The number of original death certificates you’ll need depends on the nature and complexity of what the decedent owns, and how many agencies, businesses, former employers, insurance companies will request them. It’s a good idea to get at least 5-10 and more can be procured later. In some jurisdictions the cost is less if they are obtained at the outset from the funeral director or coroner’s office.

Post Death Phase II – Gathering Information

Make a List. To make sure you’ve got everything prepared to delve into estate administration, you need to get an idea of what you have to get in order. A truly organized decedent has left a list of all important documents, locations, and they are easily retrievable by next of kin or trusted friends in a nice tidy folder that says “open when I die.” Since this is rare in reality, most likely it will be up to you to get the lay of the land. Following is a list of items you may want to address sooner rather than later:

• Forward the mail.
• Contact the decedent’s employer, as applicable.
• Read the mail that comes in so you’ll be able to expand the list of who to contact.
• Discontinue unneeded services related to decedent’s home. For example, discontinue telephone, cable, internet; continue utility services.
• Formulate list of decedent’s advisors (accountant, attorney, broker, etc.)
• Stop subscriptions.
• Stop credit cards.
• If applicable, determine if decedent has internet use/accounts requiring passwords and getting access to those online accounts to discontinue or monitor, as needed.
• Discontinue government benefits such as social security, etc. Benefits will only be paid until date of death and overages must be repaid.
• Prepare list of names for monthly benefit items such as: pensions, IRA distributions, annuities.
• Create a list of accounts from bank, brokerage, investment account statements.
• Compile contact information for decedent’s attorney, accountant, investment advisors, insurance brokers. Contact executor/trustees or others who will be responsible for estate administration if known or named in testamentary documents.
• If no testamentary documents are found, determine if decedent had a “family” attorney or filed a will with a local government (county) which may permit such practices.
• Locate safe deposit box.
• Obtain claim forms for any outstanding benefits or insurance which decedent owned or in which he had an interest.
• Contact major credit bureaus to report the death to protect against fraudulent post-death transactions. (Equifax (888) 766-0008, Experian (888) 397-3742, TransUnion (800) 680-7289).

Review Incoming Mail. This will provide a lot of information as to who the decedent had business or other interactions with that may have a bearing on the estate.

• Send change of address forms, as necessary.
• Determine contacts who may be relevant for purposes of starting or stopping any benefits or services.
• Beware of fraudulent invoices that may be attempted once notice of death is published. When you review incoming mail, you’ll get an idea of credit card payees. Make a list of the credit cards/outstanding balances.
• Formulate list of vendors who the decedent may owe money and who may owe money to the decedent.

Locate Legal Documents and Important Papers. As you begin looking through the decedent’s belongings, keep hold of any of the following documents which will be needed.

• Locate the decedent’s important papers:
  • Last will and testament
  • Trusts, if any
  • Other estate planning documents
  • Marital certificates, divorce papers, birth certificate, social security card and other legal documents which have a bearing on the estate and beneficiaries.
  • Mortgages and deed/title to real estate, if applicable
  • Loan documents
  • Military discharge papers
• Secure automobile owned by decedent and locate insurance policy

DO NOT TRANSFER TITLE TO ASSETS OR MAKE ANY DISTRIBUTIONS OF ANY KIND TO ANYONE WITHOUT CONSULTING AN ATTORNEY!

Phase III – Launching Estate Administration

To launch estate administration, you need to appoint a personal representative, identify the estate assets and be prepared to deal with government agencies, such as the IRS, Veteran’s Administration and Social Security Administration to finalize accounts on behalf of the decedent. Depending on the nature and extent of the decedent’s assets, there may be issues as to “cash needs” during the period of administration and availability of assets that affected survivors need to live on. These will be the initial concerns of the personal administrator.

Following is a list of items which impact this process:

• Final wages owed the decedent which may include:
  • Accrued vacation, sick days
  • Compensation per employment agreements
  • Unemployment or disability benefits

• Medical bills outstanding and payments due from insurers, Medicare, Medicaid and workers compensation claims or disability policies.
• Debts which may be due to or owed by the decedent. Also consider assets that may be encumbered by debt (e.g. home mortgage.)
• Death benefits
• Begin to inventory major estate assets including:
  • Homes
  • Investments
  • Business interests
  • Artwork/Collections
  • Trusts

As the process begins, the personal representative should open a new checking account in the name of the estate which is used to receive decedent’s assets, sell securities, pay debts and administration expenses, insure the family cash needs (e.g. for spouse and children if applicable) are available to them and to distribute assets.

If you have any questions or concerns, and I can be of assistance, please contact me in New York at (914) 923-1600 or in Florida at (561) 625-9946.