Friday
Jan292010

The Death of a Loved One

 

Few life events are more difficult than the loss of a loved one. Along with often immeasurable grief, we are suddenly faced with new and sometimes bewildering legal and financial challenges. The following is a summary of the various issues to be addressed at this terrible time.

 

Funeral and Burial Arrangements

The deceased (who may be legally referred to as the “decedent”) may have already made pre-arrangements for their funeral and burial with a funeral home or cemetery. If no pre-arrangements have been made, most funeral homes will assist you with the formalities of the funeral and burial process.

Sometimes, the deceased has left explicit written directions or general preferences regarding funeral and burial arrangements in their Last Will & Testament (e.g., burial versus cremation). The deceased may also be an organ or full body donor. This may be ascertained by looking at their driver’s license, a special donor card, or other forms of advance directives. If there are no such written directions, or if there is no will, Florida law generally provides that the decedent's next of kin (first their spouse, then children, then parents, etc.) have authority over disposition of the body.

Payment of funeral expenses is given very high priority when it comes time to distribute estate assets, and courts take special care to see that funeral expenses are paid even before any taxes owed or heirs receive their inheritance. Most funeral bills can be paid through credit cards or other means, and, when such charges are advanced by loved ones, they are entitled to be reimbursed from estate assets.

 

Death Certificates

There are two basic kinds of Florida death certificates: a “long-form” death certificate, which states the decedent’s cause of death, and a “short-form” death certificate, which omits the cause of death. Generally, the long-form is only needed when applying for life insurance policy benefits or for certain types of court proceedings, such as wrongful death actions. The short-form can usually be provided to banks, brokerage firms, and the court in typical probate proceedings.

Death certificates are initially obtained through the funeral home. Later, additional certified death certificates may be ordered from the Florida Bureau of Vital Statistics or Health Department. If you do not know how many of each kind you will need, we advise our clients that it is usually safe to initially order six death certificates, two with cause of death and four without the cause of death.

 

Payment of Estate Debts

Few estate bills must be paid immediately, and most creditors will allow a substantial grace period for nonpayment. For example, public utilities will not shut off service, insurance companies will not cancel policies, condominium and homeowner associations will not impose liens, and taxing authorities will usually waive penalties for late payment.

You should notify credit card companies, mortgage lenders, and other creditors, if you will be paying late (of course explaining that the reason is due to the death of the debtor/account holder). These creditors usually always allow sufficient time for you to open a formal estate administration and marshal assets to pay their bills. If there are bank or brokerage accounts in the name of both the deceased and another person, then the joint owner should still have access to those accounts, and they may be used to pay bills and meet short-term needs.

Where the next of kin and heirs at law are not the same, the Personal Representative of the estate has the legal responsibility to see that ongoing bills of the estate are paid. This may present a problem, however, as it can take weeks or months to initiate estate administration, receive Letters of Administration, open an estate account, and transfer funds into that account. In exigent circumstances, it is usually possible for the estate attorney obtain access to estate funds on an expedited basis.

 

Social Security Payments

The funeral home usually notifies the Social Security Administration of the decedent’s death. If the deceased was receiving Social Security benefits, payments to the deceased will immediately stop. Most Social Security benefits are electronically deposited into a bank account, and the SSA will debit back from that account the entire payment for the month in which the deceased died. This is the case even if the date of death was the last day of that calendar month.

Where there is a surviving spouse, Social Security provides a one-time death benefit of $255. In addition, if the surviving spouse is entitled to receive Social Security, and he or she receives less on their own than the amount the decedent was entitled to, the surviving spouse’s benefits will be increased to the same level as the deceased spouse. The increased amount will be received by the surviving spouse in the next calendar month after death. Payment is not automatic and should be confirmed (or applied for) through your local SSA office.

 

Homeowner and Automobile Insurance

One special area of concern in Florida deals with homeowners insurance. Quite often insurance companies will refuse to renew insurance policies, if they discover that a homeowner has died and their residence is now vacant and solely in the name of the deceased’s estate. Steps must be taken to address this issue as soon as possible, as the policy may be scheduled to end during hurricane season (June 1 through November 30), and it is not wise to leave a house or condominium uninsured. Often, vacant property cannot be insured, or the insurance rates will be greatly increased.

Regarding automobiles, whoever is going to be driving the car must either have car insurance or have their names added to an existing policy. There are also separate procedures for the disposition of automobiles and transfer of the title.

 

Securing Property

The estate’s Personal Representative is legally responsible for seeing that all of the deceased’s property – real and personal – is secured and protected. This may involve taking possession of certain property (such as jewelry) and changing locks on real estate, but there are some practical considerations that should be handled immediately:

Vacant property should be secured and monitored regularly. In Florida, the hot and humid climate can easily lead to mold and other weather-related damage. It is advisable to leave air conditioners on at a level that will prevent mold from forming. In addition, hurricanes can significantly damage property that has not been properly protected with hurricane shutters or similar safeguards. If the Personal Representative cannot attend to these needs, professional property managers can be engaged to see that unoccupied property is protected.

Automobiles, boats and other vehicles face greater risk of loss or damage in Florida. Cars should not be left where they may be stolen or damaged. Boats must be secured and kept out of harm’s way. Recreational vehicles require special safeguards to avoid being lost or damaged. Of course, insurance policies on all valuable property should not be allowed to lapse. The Personal Representative of the estate is responsible for seeing to it that all existing insurance is maintained and, where necessary, that insurance policies, sufficient as to type of insurance and amount of coverage, are obtained.

 

Automatic Bank Payments

Often, the deceased has arranged for certain payments to be automatically debited from their account (usually a checking account) on a periodic basis. The Personal Representative or joint owner of this account must ascertain what bills these payments may apply to and whether they should be discontinued. For example, auto-debiting for supplemental health insurance should be ended for a deceased person.

 

Change of Mailing Address

A Change of Address form should be deposited at the local post office of the deceased as soon as possible, providing the post office with the address of the Personal Representative of the estate. This form may also be accessed and printed online.

If the decedent had a post office box, it should be checked periodically after the date of death so that mail does not accumulate.

As bills and other important mail are received, you should fill out and return the change of address form provided with each bill – even if you have already notified the post office of a general change of address. In other cases, you should contact the vendors to advise them of the new address. It is always a good idea to confirm these changes in writing.

 

Internet Security

It is now common to maintain online accounts with companies and service providers (sometimes involving recurring payments from a credit card or bank account). You may or may not have all of the log-in information and passwords for all the decedent’s accounts. You should take steps to protect the security of this information to limit the possibility of the decedent’s identify being stolen or used fraudulently.

 

Safe Deposit Boxes

In Florida, safe deposit boxes are not sealed upon the death of the owner, and co-owners on the box are not prevented from accessing the box. In fact, there is a presumption that personal property (money and jewelry) belongs to the co-owner of the box. Of course, the co-owners must have a key to gain immediate access. If the key cannot be located, the bank will arrange to have the box “drilled.” This involves the services of a locksmith and considerable expense (typically $200 or more).

If there is no co-owner, a court order must be obtained to have the box opened. After the court order is obtained, a bank officer will supervise or monitor entry into the box and prepare an inventory of the contents, which must be filed with the court. Nothing may be removed from the box except a will, codicil, or life insurance policies, and the will and codicil must be immediately filed with the probate court. A separate court order is required to remove any other items from the box.

 

Who Must Be Notified

Typically, only those with an interest in the estate of the deceased should be notified of their death. This includes the surviving spouse, minor children (though their legal guardian), and the Personal Representative nominated in the decedent's Last Will and Testament. During the course of an estate administration, certain persons, businesses, and governmental entities must be provided notice of estate administration as well as other documents. All of these types of notices are usually handled by the estate attorney, and can wait until estate administration is formally initiated, which can often take weeks or even months after death.

 

Estate or Trust Administration

Florida statute requires the custodian of a decedent's will to file the will with the appropriate clerk of the court within 10 days after receiving information of the decedent's death. However, not every person’s death requires an estate administration or formal probate of the Will (“probate” simply refers to the court process by which a will is validated and the decedent's estate is distributed appropriately).

For example, if all of the decedent's assets are held jointly or have named beneficiaries, a court proceeding may not be necessary. Similarly, there may be no need to administer the estate of those who pass away and are indigents. However, assets titled solely in the name of the decedent will require a probate proceeding in order to appoint a Personal Representative, allow for any estate creditors to present claims against the estate, and then distribute the assets to the estate’s beneficiaries.

If more than two years have passed since the date of death, or if the estate is valued at less than $75,000, an abbreviated proceeding, called a summary administration, may be initiated.

Where there is homestead property in an estate, a special proceeding must be undertaken in order to protect the property from creditors.

If the decedent held assets in a trust, or created a trust via their will, then a trust administration will likely be required. You should consult with an estate attorney as soon as practicable in order to ascertain whether an estate or trust administration is required.

 

Dealing with Loneliness

The single biggest problem faced by surviving relatives – after the shock and immediate grief begins to pass – is the loneliness that accompanies the loss of a loved one. This is particularly true for surviving spouses. The mortality rate for surviving spouses is highest in the first year following the death of his or her spouse. There is a vital need for frequent and close contact between the bereaved and his or her loved ones – especially the children. It is not a good idea to allow the surviving spouse to remain at home alone or for long periods of time. This solitude can be as devastating as the loss itself. There is nothing wrong with obtaining grief counseling and grief management techniques through professional advisors and appropriately-trained members of the clergy.

The above discussion does not encompass every circumstance and area concern that may arise as a result of a person's death. Attorneys who routinely handle estate administration can and should be consulted as soon as you feel strong enough to face these issues. Often some other relative or close family friend can make the contact for their grieving relatives or friends.

Death is inevitable, and pre-planning for our own demise is both practical and an act of kindness toward your loved ones. Estate planning attorneys routinely provide pre-planning advice and counsel, and a short consultation may be the surest way to avoid some of the anxiety and confusion (and potential mistakes) that often accompanies the loss of a loved one.