A FEW SOBERING THOUGHTS
Acting as an attorney in fact, or as an executor, is more often than not a thankless job, and worse than that, in discharging your duties you can become the object of resentment and the “blamee”. This can arise in the very person you are helping, who may come to resent you as a symbol of their incapacity. Sometimes the child who is closest to home, and does the most to support an ailing parent, can sadly become the object of the parent’s ire as compared to those more distant, as the one who is perceived as restricting the parent and taking control of their affairs away from them. When one is acting as executor, similar problems can arise in how the executor (or trustee) is perceived by other family members, who may resent the fact the parent did not name them as executor / trustee, and who may find it hard to accept the responsibility given by the parent to one child, as opposed to others. It is not uncommon for estate administration to be plagued by long dormant childhood rivalries and old wounds. For this reason we encourage parents to think long and hard about whom they name as attorney in fact, and as executor, in their estate planning documents.
So if you accept the role of attorney in fact for a failing parent or loved one, or the appointment as executor or trustee, give some thought to the way these types of conflicts can develop, and how the way you conduct yourself may exacerbate or lessen the potential for such problems to arise. This often involves “biting your tongue” a lot. And working on one’s “listening skills”. Keep in mind that transparency in the way things are done can sometimes defuse suspicion that can lead to acrimony, and that it is natural for other heirs and beneficiaries to be, well, very inquisitive about how things are done, and to second guess decisions that are made. As is mentioned below, keep excellent records of all you do, so if your conduct is challenged at any point, it is a simple thing for you to respond to the person raising the question by giving them documentation that disproves their fear. There is no one answer, and sometimes no answer, that will work in all situations. And keep in mind that you do bear legal exposure if you fail to discharge your duties in accordance with governing law, and that finding a wise, experienced, attorney to advise you, someone with whom you can easily communicate about the challenges you will face, may be one of the most important decisions you make.
Dealing with the death or incapacity of a loved one can be stressful and overwhelming. You may be in shock and grief, but if you are the person, or one of the persons charged with the responsibility for the loved one’s affairs, there are many things that will need to be attended to, and we offer this article as a way for you to begin thinking about what will need to be done once a loved one becomes incapacitated, or dies.
Before your loved one passes or becomes incapacitated, you may find it appropriate to begin a conversation regarding these matters by asking your loved ones if they have made any plans for their possible incapacity so that if they are not able to manage their affairs, someone can do so for them, without having to go to probate court and seek appointment of a conservator which would be quite expensive. Perhaps the loved one will welcome such a conversation being raised with them, and if they have not done any planning, will find your concern sufficient motivation to do so. (A discussion about planning for incapacity can easily and naturally lead to a discussion about whether any planning has been done for death.)
You may want to suggest to your loved ones that they make a written record of their financial affairs and other wishes, to give to the person they will trust to manage their affairs at their incapacity or death (their executor or attorney in fact). When, and to whom, a person should give such information is a matter that requires deep thought, and there is no one answer for all situations. And certainly no loved one should be pushed or rushed into taking a step they are not ready to take. It may be that in raising the issues, your loved ones will take it upon themselves to find an attorney or other advisor with whom to have a conversation about these matters. You yourself may not be that person (and you may consider yourself lucky if you are not), but whether you are, or aren’t, it would be a great benefit to your loved ones if you can help them address these matters, and take steps to plan ahead.
You may want to give your loved ones the article on our website titled “Be Kind to Your Executor”, which may give them some thoughts, or you may even offer to work with them to complete a workbook that contains the information that an attorney in fact and an executor would need to undertake their duties. The appropriateness of taking any of these steps obviously depends on the nature of your relationship to your loved ones, and serious thought needs to be given to whether you, or perhaps someone closer to them, or some advisor, should broach these matters with them.
ACTION REQUIRED AFTER DEATH
Once a loved one dies, if you are the executor or trustee of their estate, or a close family member, you may need to do some or all of the following, depending on the responsibilities that have been given to you, or that fall to you:
- Be prepared to give information for the death certificate, including:
- Father’s name
- Mother’s name
- Place of birth
- Date of birth
- Social security number
- Whether the decedent was ever in the US armed forces
- Residence address. A common error is to list the address as former home that is no longer even owned when the decedent actually lived in a nursing home or assisted living facility.
- If your loved one lived alone:
- Protect assets from intruders and theft
- Attend to the needs of pets and plants
- Cancel the newspaper and similar items
- Cancel credit cards
- File with the post office a change of address request, or arrange for someone to collect the mail regularly.
- You will need to make funeral arrangements, write the obituary and notify people of the funeral.
- Generally the funeral director will notify Social Security of the death, but you should check to make sure that is the case with the funeral director that you are working with, and if it the funeral director does not notify Social Security you will need to do so.
- You also will need to notify:
- The VA if the deceased was a veteran and find out about any benefits
- Any employer and other income sources
- The executor and attorney if known
- In Connecticut it generally takes about a week to receive the death certificates. The work to settle the estate generally cannot begin until you receive the death certificates. Once you receive the death certificates you should meet with an attorney to help you settle the estate. If you are a named beneficiary or co-owner of an asset with rights of survivorship you will need to:, you should:
- Inform the executors of the estate (and/or trustees of the trust) as to the nature and value of the asset, since they will need that information for the preparation of the estate tax return.
- File claims for life insurance.
- If you are the beneficiary of an IRA or other retirement plan, notify the institution and request forms to claim the asset.
- We strongly urge you NOT TO TAKE ANY OF THE MONEY until you have thoroughly reviewed matters with a financial advisor who can advise you on the options available to you in regard to the account. If you act prior to getting good advice, you may lose valuable options that would otherwise be available to you.
- If you are the surviving spouse, you should consider rolling the inherited IRA into your own IRA, but this is not always the case, so this option also should be discussed with your attorney and/or financial advisor.
- If you are not the surviving spouse, generally you can keep the inherited IRA and withdraw the account based on your own life expectancy. However, the IRA rules are VERY complicated and you should always work with your attorney and/or financial advisors on these issues.
- If you are the co-owner of a bank account or other investment held jointly with rights of survivorship, you should take the account information, your picture ID and an original death certificate to the bank to get the account put into your name.
- If you are the co-owner of a vehicle that is titled with “or” between the names, take your picture ID, an original death certificate, the title and registration to the DMV to get the vehicle put into your name.
- If you are the designated executor or trustee:
- Contact your attorney to get help administering the estate.
- When you meet with the attorney, take with you:
- The death certificates
- The original Will and any codicils to the Will
- The original or a copy of any trust and any amendments to the trust
- A list of the beneficiaries and their addresses
- A list of heirs (and their addresses) even if they are not named in the Will. “Heirs” will include the surviving spouse, children and descendants of any deceased children. If there is no spouse or children or other descendants, you need to go up the family tree and then back down. If parents are living, they are the heirs. If there are no parents, then you look to siblings and the descendants of any decease siblings, etc.
- All of the information you can readily locate as to the decedent’s assets. It is best to bring in the most recent statement for every account (even if there was a co-owner or named beneficiary and even if the assets was owned by the trustees of a trust), copies of deeds, titles to vehicles, etc.
- Pay the obligations from the estate or trust assets, including any legitimate claims, funeral expenses, administrative expenses and taxes, but we strongly suggest that you make such payments only after an attorney has been retained to assist in the administration of the estate or trust, so that payments are not made that later one wishes hadn’t been made. BE CAREFUL IN ADVANCING ANY OF YOUR OWN MONIES, AND FIND OUT BEFORE ADVANCING FUNDS IF YOU CAN BE REIMBURSED OUT OF THE ESTATE FOR ANY ADVANCES YOU MAKE. If these expenses were advanced by you out of your own funds, or by someone else out of their funds, the person making the advances should be repaid. However, if there is not enough money in the estate to reimburse the person who made the advance, the person who advanced the money may not get reimbursed. Also, if the Department of Social Services has a claim against the estate, in some cases there are limits on how much the estate will be allowed to reimburse for such expenses. .
- Keep complete and thorough records. If there is a probate you will need to file an account with the court. Even if there is no formal probate, you should be prepared to be able to render a full accounting. Most trust agreements require the trustees to render accounts and even if that is not in the trust it is good practice to let the beneficiaries know what had happened to their money. In Connecticut any beneficiary can go to the probate court and request that an accounting be rendered. Therefore, you need to have records that will give your attorney sufficient information to be able to prepare an account that shows all income and other receipts (including the source, date and amounts), all claims and other expenses that are paid (including who was paid, the reason for the payment, the date and amount of the payments). Your attorney will also need to know about any distributions that are made and what assets are left in the estate to distribute. You should give your attorney copies of every statement for every account in existence at the time of death or created after death, from the date of death forward.
- Note that in Connecticut, even if no property is subject to the probate process, you must file the original Will with the court and you must file an estate tax return. In Connecticut the probate fees are based on the taxable estate, so probate fees will be due even if no assets are subject to the probate process.
- This article is only a brief outline of things that will need to be attended to upon the death of a loved one, but we hope you find it of some assistance. It is very important to find an experienced person to assist in the administration of a loved one’s affairs, and keep in mind that if affairs are not handled in accordance with the requirements of the law (and we do not mean to unnecessarily frighten anyone), that you may find yourself individually liable for improperly dealing with the loved one’s property and assets.