The Death of a Loved One

Few life events are more difficult than facing the loss of a loved one. Beyond the grief accompanying the loss, we are faced with new and often bewildering legal and financial challenges. The following is a brief checklist of the steps and procedures that must be addressed at this terrible time:

1. Funeral Issues:

Quite often, pre-arrangements have been made regarding funeral and burial wishes, and (even if they have not), most funeral homes will assist you with the formalities of the funeral and burial process. One important issue, discussed further below, relates to the number of death certificates to be obtained.

Where pre-arrangements have not been made, it is up to the next of kin or the designated Personal Representative under the deceased’s Last Will and testament (the “Will”) to see that such arrangements are promptly made. Sometimes, the deceased has written either explicit directions or general preferences regarding funeral and burial arrangements (e.g. burial versus cremation, location of cemetery plots, choices as to religious services, etc…). The deceased may be an organ donor, which may be ascertained by looking at their driver’s license or advance directives. If the deceased had no Will, and there is a surviving spouse, he or she usually has the legal say as to funeral arrangements. If there is no Will and no surviving spouse, then the next of kin of equal consanguinity (that is, blood relations of equal standing in terms of inheritance) have authority to make and carry out funeral arrangements. These next of kin are (in this order): children, parents, grandchildren, grandparents, siblings (brothers and sisters), nieces and nephews, aunts and uncles, first cousin, second cousins, and so on. If there are no pre-arrangements and no written directives of the deceased, and the next of kin of equal sanguinity cannot agree upon the arrangements, resort to legal proceedings may be necessary.

Funeral expenses are a second priority claim against the estate (after estate administration expenses), and the Courts take special care to see that such expenses are paid even before taxes are paid or the heirs may receive their inheritance. Most funeral bills can be paid through credit cards or other means and, when such charges are advanced by loved ones, the estate must first reimburse the loved ones for any such advances before the inheritance can be distributed to designated heirs.

2. Death Certificates:

There are two basic kinds of death certificates issued by the State of Florida: the “long-form” death certificate, which sets forth the cause of death, and the “short-form” death certificate, which redacts out the cause of death. Generally, the long-form is only needed for certain kinds of claims (i.e., claims involving life insurance and other kinds of insurance claims, certain types of court proceedings – such as wrongful death actions, etc.). The short-form can usually be provided to banks, brokerage firms, and the court in customary types of probate proceedings (although this varies from State to State). Florida prohibits the recording of the long-form of death certificate due to privacy concerns. You can always order additional certified copies when they may be needed. If you are unsure as to which form is needed, it is safe to initially order six death certificates, two with cause of death and four without (i.e., two long-form and four short-form); however, if you were to become aware of six life insurance policies for which claims may have to be made, you would initially order at least six long-form death certificates.

3. Handling Financial Matters:

Where there are bank or brokerage accounts in the name of the deceased and his or her spouse, or if there are other jointly held assets which allow either joint owner to sign checks, the decedent’s death will have no impact upon the survivor’s ability to pay bills and meet short-term needs. Where the next of kin or 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 be a problem, because – among other things – it can take up a month or more to initiate estate administration, open an estate account, and transfer funds into that new account. Your lawyer should be consulted in this regard as soon as practicable, as there are means for accessing estate funds in such exigent circumstances.

Remember, however, that there are few bills which 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 insurance (for automobiles, real estate, etc…), condo 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, etc., if you will be paying late (of course explaining that the reason relates to the death of a loved one), and these creditors usually always allow sufficient time for you to open a formal estate administration and marshal assets to pay their bills.

4. Social Security:

The funeral home usually notifies the Social Security office as to the death of your loved one. The Social Security Administration then stops making further payments in the name of the deceased and provides a one-time death benefit of $255 to the surviving spouse, if any. If payments of monthly Social Security benefits have been being made through direct deposits to the deceased’s bank account, the entire payment for the month in which the deceased died will be automatically debited back to the Social Security from that account. This is the case even if the date of death was the last day of that calendar month.

Where there is a surviving spouse, and his or her Social Security payments are less than the deceased spouse’s Social Security payments, the surviving spouse’s payments will be increased to the same level as his or her spouse’s – received in the next calendar month after death. Of course, no further payments will be received under the deceased’s account.

5. Homeowner and Automobile Insurance:

Unfortunately, Florida is currently going through somewhat of a crisis with respect to liability insurance – particularly due to recent hurricanes. Several major insurance companies have even threatened to cancel all policies in the State and pull out of the homeowners insurance business in Florida. Where the insurance company learn that a homeowner has died and their residence is now vacant and solely in the name of the deceased’s estate, many companies will not renew the insurance. Steps must be taken to deal with this issue as soon as possible, as the policy may be scheduled to end during hurricane season (June 1 through November 30, and you do not want to leave such a substantial asset as 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.

6. Securing Property:

The 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 a few things that must be dealt with immediately:

Real property: In Florida, climate-related factors can easily and significantly damage vacant property, if such property is not secured and monitored. Humidity can lead to mold and hurricanes can utterly destroy property that has not been safeguarded (e.g., where hurricane protection systems such as shutters are not attended to). If the Personal Representative cannot attend to these issues, professional property managers can be engaged to see that unoccupied property is protected.

Automobiles, boats and other vehicles: These types of vehicles, too, 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. Most importantly, insurance must not be allowed to lapse. The

Personal Representative of the estate is the legal responsibility for seeing to it that this insurance is maintained.

7. Automatic bank payments:

Often the deceased has arranged for certain payments to be automatically debited from his or her account (usually a checking account) on a periodic (usually monthly) basis. The Personal Representative or joint owner of this account must ascertain what bills these payments apply to and whether they should be discontinued. For example, auto-debiting for supplemental health insurance should be ended for a deceased person. In many cases, the amount being debited should be reduced (e.g., for certain other kinds of insurance).

8. Mail – Change of Address:

A Change of Address form should be delivered to 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. In addition, post office boxes should be checked periodically after the date of death so that mail does not accumulate. Usually, the local letter carriers will be advised and will not allow mail to accumulate in postal boxes (but not always).

As each bill comes in, you should fill out the change of address form provided with the bill – even if you have already notified the post office of a general change of address. In other cases, contact the vendors to advise them of the new address. You always want to confirm such changes in writing.

9. 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 precluded from accessing the box. In fact, there is a presumption that personal property (money and jewelry) belong 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 entails the services of a locksmith and considerable expense ($200 or more). In the absence of a co-owner, a Court order must be obtained to have the box opened. In such case an attorney can obtain the Court order at a special type of hearing. There are additional legal fees for this proceeding (usually costing $1,000 or more). A less expensive way to obtain a Court order allowing entry into the safe deposit box is through the mail, in which case a Court appearance is not necessary and the cost can be less than $500.
Even after obtaining the Court order, a bank officer must be present and must supervise (or closely monitor) entry in to the box and must then prepare an inventory of the contents of the box which must be filed with the Court. Nothing can be removed from the box except a Will, Codicil, and life insurance policies, and the Will and Codicil must be immediately filed with the Probate Court. A separate Court order is required to remove anything else from the box.

10. Who must be notified of the death:

Only persons with an interest in the estate of the deceased must be notified. Such persons always include the surviving spouse, minor children (though their legal guardian), and the putative Personal Representative. Beyond that select group, no other persons must be immediately notified. During the course of an estate administration, other persons, classes of persons, and certain business and governmental entities must be provided formal notice of estate administration as well as other documents. All of these persons and entities, however, can wait until estate administration is formally initiated, which can often take weeks or even months after death. The Will, Trust and other legal instruments dictate the identities of these persons and entities.

11. Dealing with Loneliness:

The single biggest problem to be dealt with – after the shock and immediate grief begins to pass – is the loneliness that accompanies your loss. This is particularly true for surviving spouses and is one of the reasons that the mortality rate for surviving spouses is very high, especially in the first year following the death of a spouse.

As a result there is a vital need for frequent and close contact between the bereaved and his or her loved ones – especially 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 providing grief counseling and grief management techniques through professional advisors and appropriately-trained members of the clergy.

The foregoing list of topics and suggested ways of coping with the loss of a loved one is not intended to encompass every circumstance and concern. Attorneys who routinely handle estate administration can and should be consulted as soon as you have suffered the loss and feel strong enough to face these issues. Often some other relative or close family friend can make the contact for other grieving relatives or friends.

One thing you should learn from this essay is that it is wise to do pre-planning. Death is inevitable, and pre-planning makes extremely good sense. To pre-plan you need about one hour with an appropriate professional who can provide planning advice and a planning checklist for your review. Besides your attorney, the funeral service can and will provide such pre-planning advice.

Elder law attorneys routinely provide pre-planning advice and counsel, and a short consultation with such an attorney 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