Be prepared to sort through some legal papers for the deceased - or if you are in pre-plan mode, you may consider formalizing a Power of Attorney (PoA), a Healthcare Proxy (HPC), or a Living Will.
The deceased's lawyer will have a copy of their final will, but Powers of Attorney, Healthcare Proxies, and Living Wills expire upon the death of the principal.
Hopefully, the deceased preplanned and provided copies of these legal papers to the designated Executor/Executrix and/or the designated "Person-in-Charge" (PIC).
Consider these circumstances: if a long-distance relative was named the Executor /Executrix of the final will, but due to the distance, someone closer was designated for the HCP. Both should be aware of the legal papers and arrangements prior to the passing and understand the legal authority afterwards.
All three documents - the Power of Attorney (POA), the Healthcare Proxy (HCP), and the Living Will - expire at the death of the principal. These legal documents apply to situations where the deceased has been ill or incapacitated and could not take care of medical or non-health-related issues (like financial payments).
At the death of an individual, the Final Will & Testament becomes the governing document.
One of the advantages of preplanning legal details prior to death is being prepared for subsequent legal changes.
For example, if you have a Power of Attorney that allows someone to access your banking and/or financial transactions, you may want to consider a joint account. Typically, a joint bank account would allow them continued access to the funds after your passing. At death, the executor of the estate handles the personal and financial matters of the deceased, according to their last will and testament.
If you still want that person to have access to your banking or financial account after your death, ensure that your lawyer, the Executor/Executrix, and the bank are aware of your wishes. Banks have regulatory guidelines that they must follow, but a joint account may be the solution.
Your Final Will & Testament will name the person (an Executor or Executrix) who will ensure your final wishes are followed and administer the closing of your estate (legal matters, property, financial assets, bequests, etc.)
It is always in your best interests to speak to a lawyer, financial or estate adviser, or specialist for collection items. A lawyer will ensure your final wishes are written legally and clearly to minimize disputes after your death (who get great-Granddad's gold pocket watch?).
If you want your personal items to go to specific people, these gifts should be individually recorded.
If you are a business owner, you should have a separate document detailing how your business assets should be distributed and what your contingency plans are should something unexpected happen to you.
Also, if you are leaving dependents and/or pets, are you making financial arrangement for their care?
Lastly, don't forget to sign your Final Will & Testament in front of witnesses! Without a signature, there can be legal ramafications.
A good friend of mine had been friends with an English couple since they first came to the United States. In same ways, they were like godparents to her three children since they had no children of their own.
Over time, the husband had a heart attack, and the wife was diagnosed with multiple sclerosis. Both individuals worked. They owned their home and had insurance and investments to cover their growing medical expenses.
Over the course of the next 15 years, both became more and more incapacitated. They asked my friend to be the Executrix of their wills. Eventually, the wife died, and the husband was bedridden.
He asked my friend to be the Executrix of his will and told her that everything would go to his brother in England. Since there had been no complications with his wife's will, my friend didn't think twice of saying yes.
However, upon his death, she found the will and realized that it was not witnessed. Therefore, the brother in England was the only person who could make the final arrangements. He wasn't able to be in the States to take care of the disposition of all the financial accounts, property, and pets (two cats)., etc.
They needed to arrange for my friend to become the "Administrator" of the estate in order for her to legally open an estate account for the disposition of all assets. An totally unnecessary and costly step that would have been unnecessary if the husband had remembered to have his Final Will witnessed!
Too many people leave this earth unprepared – unfortunately leaving behind a mess for family and/or friends to deal with. My sister's story shows the necessity of learning when to help and when not to.
· Make the will!
· Make sure your financial and legal situation are clearly laid out
· Designate a Person-in-Charge
· Leave a list of “To-Dos”
MAKE THE DAMN WILL!
When my sister and her husband retired to Tennessee, he (we’ll call him Sam) lived next door. He lived alone with no family close by, having moved east from California. Over the next couple of years, he became part of the family – coming for dinner every night, joining all of us for Thanksgiving and all of the holidays. House keys were exchanged.
Over time, Sam must have felt he was getting on in years. He mentioned he was thinking about writing a will and asked my sister and brother-in-law to act as the executors of his estate. They readily agreed, encouraging him to move forward.
At the beginning of April 2020, the weather turned to an early spring, and that Tuesday, they saw him mowing the lawn before lunch and waved their greetings to each other. Dinner time came, and he did not appear. My brother-in-law called him, but there was no answer. After dinner, he went to check on him and found him dead, appearing to have fallen as he tried to rise from his bed after lunch.
My sister was dealing with her own health issues that week, but she called the police and the ambulance, and answered all of the questions, as the coroner did his work. She then called his three sons and estranged wife with the sad news.
But, as far as they knew, Sam had never made his will. And the world was in quarantine because of COVID-19.
SORT YOUR LEGAL AND FINANCIAL SITUATION OUT!
Sam had adopted the son of his first wife, had two sons with his second wife, and had left her many years before, when he moved east. But he had never divorced her.
His sons were out west – California & Oregon. After having spoken with all three, one of the sons in California said he would be out as soon as possible. His adopted son started driving from Oregon, arriving 5 days after his father passed.
When I spoke to my sister, she said that she was going to tell the son to go to the bank to get a Power of Attorney, so he could access the accounts. I explained to her that a Power of Attorney was not possible at all, and he would not have any access to the bank accounts. They would be frozen pending the establishment of the estate.
Her concerns increased – Sam had financed his new truck, and there were only a few payments left on the loan. He also had a mortgage on his house. She worried that with the accounts frozen, they would both be repossessed, as he had set up recurring debits to his bank account for both loans.
I doubted that the house would be repossessed, but in either case, one of the family members would need to notify the banks/lienholders of Sam's death. I suggested that the only advice she give any of them would be the name and telephone number of a lawyer. And then she should stay well away from what would quickly become a family quarrel.
What are the lessons learned?
- When someone dies intestate, that is without a will, the determination of inheritance is governed by state law. And in many states the spouse becomes one of, if not the, primary beneficiary. So, in this instance, the largest share of this estate would go to his estranged wife, since they were still legally married.
· Funds are frozen at death, until the estate is created. No payments can be made, jeopardizing any and all of the assets that are not owned out-right
Open a joint account with a trusted person to ensure cashflow can be protected
DESIGNATE A PERSON-IN-CHARGE
- While Sam had spoken with my sister and brother-in-law about being executors for him, the only thing he had discussed with them was a military funeral at Arlington Cemetery (he was a veteran and Purple Heart recipient). He was lucky with his choice of neighbors – my family took a lot on themselves, even though their role was not officially designated, AND they had no authority. They were under no obligation to notify the family nor to take care of his animals.
- The Person-in-Charge needs to understand your wishes and be able to act upon them. Sam's family had no idea what to do, and none of them were able to step into the role. You need to have agreements with friends or family as to how your responsibilities will be handled.
What are the lessons learned?
· Plan, plan, plan – ask someone to take this role on for you upon your death
· Document this, either by making him/her the executor of your estate, and/or joint signer on an account
LEAVE CLEAR INSTRUCTIONS BEHIND – A LIST OF “TO-DOs”
Sam left behind two dogs and a cat. In the intervening days my sister and her husband had been caring for these animals, my sister walking the dogs, despite her pain from knee surgery.
Having arrived on Sunday evening, the son met with my sister and brother-in-law on Monday morning, and the lawyer in the afternoon, and then had dinner with my sister and brother-in-law that evening. Earlier that morning he had told my sister:
· He would be staying until Thursday or Friday
· He would take one of the dogs and the cat with him; the older, arthritic dog he would have euthanized
· He would arrange for a viewing for local friends and the cousins further east to say their farewells
He called my sister the following morning to tell her that he was leaving as soon as possible to return to Oregon. He would NOT be taking any of the animals with him and basically said goodbye – with no explanation.
My sister responded saying that she was in the process of working with her veterinarian to find a home for the older dog, and that she and her husband could not take the responsibility for the animals. Luckily, the vet she called graciously instructed her to bring all of the animals, and homes would be found for all.
What are the lesson learned?
· Leave instructions behind for the Person-in-Charge
· Make a list of utilities, bank accounts (including loans and mortgages), investments, insurance policies (life, property, vehicle, recreational vehicles), and all contacts (name, address, telephone number, account id) to faciliate necessary actions
None of us know when we are going to die –
as the COVID-19 pandemic has sadly proven, age, race, social standing or wealth are irrelevant
We all will die at some point
Please think lovingly about those you leave behind,
and complete the “When I Leave You” form
It's okay to stop and breathe. The journey will take more than one day.
AND ASK FOR HELP - UNTIL YOU GET WHAT YOU NEED
The Estate Attorney is your new best friend.
What is your full legal name, etc.
Life insurance may be the first type that comes to mind, but there are more...
These are the critical elements of what you leave behind and your bequests
During your life, circumstances change. Remember to update pre-planning documents and your final wishes periodically
Leave instructions for special items and collections. You probably understand their value better than others
Step-by-step guide on what to do first. Calls, paperwork, care arrangements, etc.
Where do you start? Physical remains, funeral options, death certificates, memorial services and more
Next hurdle - how to handle financial records and accounts
Key reminders on securing residences - owned or rented, apartments or houses - after a loved one's death
What you need to know to protect and eliminate the deceased's ditial presence
Magazine subscriptions, memberships and more...
Funny, helpful, and special stories that others have shared to help you through the process
For each section, download and personalize a pdf checklist