Author: William P. Dale
We, as lawyers, are often asked what steps survivors must take soon after the death of a family member or other person for whom they are responsible. Many of the decisions made in the first hours and days following a person’s death are personal. Sometimes, unfortunately, decisions must be made amid confusion and extreme grief. Some of the confusion can be avoided, if one takes steps in advance of death, to let his/her wishes be known.
To the extent possible, it is very advantageous if a person, while living, clearly sets forth his or her wishes with respect to a funeral, burial or cremation. Some people insist upon putting that type of information in a Will. Although not totally ineffective, that method of information-giving can often be unsatisfactory. It requires that the Will be found, and read, prior to the decedent’s funeral. A far more effective method of transmitting the decedent’s wishes is for the decedent, either orally or (preferably) in an informal writing, to tell close relatives or friends, his or her preferences.
Frequently, the persons who die leave no instructions of any kind. In those cases, it is necessary for the family, or other persons close to the decedent, to meet and to decide basic matters with respect to funeral and burial. Is there to be burial or cremation? Where should the funeral be held? Who should conduct the service? Who should be notified? Are there people living some distance away who should be notified and included in the arrangements, e.g. as pall bearers, honorary or otherwise? Should there be a memorial service? Should there be any service? Is there to be a wake, visitation, or reception following a funeral or memorial service? And then, of course, how much money should be spent on the entire proceeding? And where is it coming from?
The last questions may seem crass. However, it is essential that those persons in charge of a funeral or burial have a pre-determined budget and that they do not exceed it. We must remember that funeral directors, although helpful, are in business to sell their products and services. It is to their advantage to sell people expensive caskets or urns, and to also sell some services that are not entirely necessary. Consumer protection laws now require that all funeral homes put certain explanations of their services into their contracts, but few people who are grieving bother to read the contracts.
Two services, which all funeral homes in this geographic area provide, are important and necessary. They will order death certificates for the decedent. Generally, you should request a minimum of ten (10) death certificates (more can be obtained later, if needed). Also, they will cause a formal “death notice” to appear in The Washington Post, if you choose. The “notice” is the small-print statement that sets forth the name of the decedent, the date of death, the surviving relatives, and the date and time of funeral or memorial services (and burial). The cost of the “notice” depends upon the number of times that it appears and the number of lines in it. Accordingly, it is probably advantageous to put only the most essential information in the “notice.” The Post, however, will also provide, free of charge, an obituary that appears in regular newsprint, and that sets forth some of the decedent’s life history. An obituary is prepared by a family member or close friend and edited by the Post staff. The obituary will include the names of the decedent’s family, but it will not contain any reference to time or place of funeral service or burial. The Post requires that you provide the cause of death for its obituaries. In the case of very famous persons, the obituary will be written by a staff reporter of the Post, and will appear, in some cases, in more than one section of the paper. The reporter will confer with the family, prior to publication, to up-date the information on hand and to make sure that certain facts which will appear in the article are accurate.
We highly recommend that persons going to a funeral home to make the arrangements following death do not go alone. Often, it is advantageous to take someone with you who is not a member of the family, and who can view the arrangements with less emotional involvement. This tends to save money, and expedite the trip to the funeral home. If there is to be a full burial, it would be advisable to take to that first visit those clothes that the decedent will wear.
Although your lawyer should be available at any time for consultation with respect to the decedent’s estate, legal issues relating to the estate process generally do not need to be addressed until after the funeral or memorial service. Legal issues that may arise when someone dies range from matters that are very simple to those that may become complex. Proper handling of these issues by an experienced estate attorney can greatly simplify matters for survivors. The following is a brief summary of some of the issues that may arise:
- Last Will and Testament. It is always necessary to file a deceased person’s Last Will and Testament in the jurisdiction in which the individual was last domiciled as soon as possible. This is true whether or not there will be need for probate of the estate.
- Titling of Property. In most cases, certain actions may be required to re-title personal property that was jointly held, such as title to motor vehicles. In some jurisdictions, real property must be re-titled whether or not there is a formal estate proceeding.
- Probate. Probate is a process supervised by the Court in which a decedent’s assets are accounted for, his or her bills and expenses paid, and the balance distributed in accordance with her/his Last Will and Testament (or if no Last Will and Testament, in accordance with the state intestacy laws). Whether it is necessary to probate an estate will depend upon the nature or ownership of assets and related issues. If the decedent’s estate is small, or extremely simple (as in a case where all or most of the decedent’s property is owned jointly with another), the estate can generally be opened and closed almost simultaneously. However, there are certain facts that you must provide the lawyer, whether the estate is simple or complex, including the names and addresses of the decedent’s heirs and legatees and creditors, the decedent’s social security number and date of birth.
- Tax Returns. Final income tax returns must be filed following the individual’s death. In addition, if a probate estate is opened, the probate estate must also file tax returns. Further, in certain circumstances, depending upon the size of the individual’s estate (both probate and non-probate estate), a federal estate tax return may have to be filed as well. In connection with this, there may need to be a formal valuation of the individual’s property. Early in probate proceedings it is important to discuss what options are available to try to save taxes for those estates which will be filing various tax returns.
- Planning Decisions. Even after an individual has died, the survivors have certain elections that can be made to either save taxes or other costs or even re-direct how assets are to be distributed.
When you first visit the lawyer to discuss the estate proceeding, you should bring with you the decedent’s Will, a copy of the funeral bill (marked “Paid”, if it has been paid), at least one death certificate (if you have obtained one), a list of all of the decedent’s assets (and how they are titled), a list of all of the decedent’s debts, and his or her previous year’s tax returns. If the decedent had automatic deposits or deductions from bank accounts, they will need
to be addressed. Armed with this information, the lawyer can begin the probate process and choose the method that will serve the decedent’s heirs most advantageously.
The general public has been led to believe that all probate takes a long time. It sometimes does, due to very complex situations. Also, there are times when it is to the advantage of survivors to delay the closing of the probate process. However, generally, the entire probate process can be completed, and all necessary tax returns filed, within a year of the decedent’s death. It is good to remember that all three of our local jurisdictions favor early distribution of assets in most cases. Therefore, although the proceeding may take as much as a year (and sometimes longer), it is possible to distribute money and other assets to the heirs during the probate proceeding. The above is just a very general outline of matters that persons face following the death of a loved one. It is not intended to be all-inclusive, but hopefully it will be helpful to you if you are ever faced with such a situation and need to take action.
McChesney & Dale, P.C., has a number of attorneys who have considerable experience in advising and assisting in handling estate matters. Should the need arise we would be very happy to meet with you to discuss in more detail the topics briefly summarized above.