by Jeffrey W. Jones, Esq.
When a loved one passes away, it is an understandably stressful time. It can be even more stressful and/or traumatic trying to remember all of the details that must be taken care of after a person’s death. If you are in charge of handling the affairs of the decedent (the person who has died), here is a checklist of some of the more important considerations:
Immediately Following Death
If the individual dies in a hospital or hospice, the medical personnel will take the lead on “next steps” although they will want to know which mortuary or funeral home should be called at the appropriate time. If the individual dies at home, call the paramedics or the police so that the proper pronouncement of death can be made.
Organ Donation/Anatomical Gifts
If the deceased has consented to be an organ donor or the family is willing to consent to organ donation and the individual dies at home, the paramedics should be called immediately and be sure to let the dispatcher know that the person is a potential organ donor as time is of the essence. If consent has been given for the body of the deceased to be an anatomical gift, follow the instructions provided by the institution or organization receiving the gift.
Notify Immediate Family
As soon as possible and practical, notify immediate family and friends about the death of the loved one. This will assist them in making arrangements quickly to be with you during this time. If a family member or close friend can be designated to make these contacts, this could relieve you of a great deal of stress. In order to assist them, it will be very helpful to prepare in advance an accurate listing of the names, addresses and telephone numbers of family members and/or friends to be notified in the event of such emergencies.
There are a number of tasks with which family and friends can lend a hand, such as:
- answering the telephone
- collecting and sorting mail
- caring for pets
- locating important items such as keys, insurance policies, claims forms, addresses for magazine subscriptions, etc.
- staying at the home during the wake, funeral, and/or memorial services to guard against break-ins that commonly occur during that time
- organizing food for family and friends after the services
Notify the Clergy
Contact the deceased’s Pastor, Rabbi, Priest or other designated religious leader, if there is one, in order to facilitate counseling for family members and members of the deceased’s congregation, synagogue or parish. They will also be involved in making arrangements for any final religious services.
Funeral Home and Cemetery/Crematorium
Check to see if advance plans have been made for funeral services, cremation or burial. If no arrangements have been made, contact the funeral home or mortuary of your choice to carry out the final preparations and burial or cremation instructions. Advance preparation in this area alleviates a lot of stress during an already stressful period. Most funeral homes and/or mortuaries are happy to talk with individuals to provide helpful pre-needs information and arrangements. Someone will have to be authorized to make the decisions concerning the disposition of the remains of the deceased. (We recommend putting instructions in the durable power of attorney, instead of or in addition to the will. Maine law has a little-known provision that allows the Agent under a durable power of attorney to control disposition of the decedent’s remains, but only if the POA says so.) A final resting place should be secured if the body is to be buried, and the proper person will need to be notified of the date of interment as soon as a date is set.
Obtain Death Certificate
A death certificate must be completed and signed by either an attending physician, a medical examiner/county coroner, or in the case of persons dying in a hospice program, a registered professional nurse employed by the hospice. In Maine it is common for a funeral home to attend to these details. The death certificate is filed with a local registrar and transmitted to the vital records registration system for recording in the state’s official records. Certified copies of the death certificate can be obtained after the death certificate has been filed with the local registrar. Certified copies will contain something similar to the following language:
“This is an exact copy of the death certificate received for filing in….”
The certified copy must display an official (raised) seal.
Consult a lawyer
A lawyer experienced in estate, trust and probate matters should be consulted before attempting to deal with the decedent’s financial or legal affairs.
Copies of the Death Certificate
Once the death certificate is available, copies need to be sent to all insurance companies, in order to receive the proceeds from any insurance policies, and to investment companies, banks, or custodians of IRAs where accounts have “pay on death” beneficiary designations. The funeral director will usually ask you how many copies of the death certificate you expect to need, and will order then when the death certificate is filed. Additional copies can be obtained later, if needed.
Notifying Employer, Social Security
Notify the employer of the deceased so that the proper paperwork can be completed. This may affect payroll and benefits, as well as the general morale and work schedule of the deceased’s co-workers. Also notify the local office of the Social Security Administration and any other income sources immediately. Any benefits received for the month during which death occurred (and later) must be returned to Social Security. The surviving family member or estate is entitled to a one-time $255 death benefit from Social Security. Pensions, annuities and other income sources will have different rules. Check the plan or contact the administrator of those plans for further details.
Notifying the Guardian, Conservator or Agent
If there is a guardianship, conservatorship, a power of attorney or a durable power of attorney for health care, those persons need to be notified that their responsibilities are at an end.
If there are bank accounts on which someone is a “surviving owner”, (the account may read “POD” or “TOD” or joint owners with “JTWROS”, for right of survivorship) a death certificate needs to be provided to the bank so that the surviving owner can now take ownership. Otherwise, access to the accounts may be blocked until someone is appointed as an official agent on behalf of the estate.
If there is a Will, when the person dies, the lawyer or other person in possession of the original should deliver it to the personal representative named in the will or file it (the law does not require that it be probated) with the Register of Probate in the County where the decedent lived. The Register of Probate will provide the personal representative (in some states, called the “executor” or “executrix”) of the Will with the necessary paperwork, but is legally barred from providing legal advice. In all but the simplest cases, a lawyer well-versed in estate, trust and probate matters should be engaged to file for probate. Expenses of the last illness and funeral should be paid from the estate before any additional disbursements are made. All remaining assets and properties can be disbursed through the probate process.
If the decedent had a revocable living trust, some or all of the decedent’s property may already be owned by the trust. In this case, probate may not be required. Even a person who had a trust usually has a will, to dispose of any property not owned by the trust at death. The will usually says that any probate property is to be turned over to the Trustee named in the decedent’s trust. A properly drafted trust which holds all or most of the decedent’s property will save considerable time and expense by eliminating or minimizing probate.
No Will or Trust
If there is no Will or trust, the decedent’s property passes by “intestate succession”. The Maine Probate Code dictates who is to receive the decedent’s property. In most cases, the decedent’s estate must still be administered in the county Probate Court. Expenses of the last illness and funeral or final arrangements should be paid from the estate before any additional disbursements are made. All remaining assets and properties can be disbursed through the administration of the estate.
If there was no property left in the decedent’s name and no other assets that need to be transferred, then there are probably very few estate matters to be handled. However, it may still be advisable to file for probate in some cases, such as in the case of an accidental death in which a lawsuit might later be filed by the Estate and the survivors of the decedent.
Joint or Survivorship Property
If property or accounts were in the name of the decedent and another person as joint tenants “with the right of survivorship”, then ownership automatically passes to the survivor(s) without the need for probate or administration of the estate.
Letters should be sent to all known creditors informing them of the decedent’s death. If any life insurance coverage exists on open accounts to pay off the remaining balances, a copy of the death certificate will be required. Do not agree to personally be responsible for paying the balances on any outstanding account. The estate is liable, not individual family members unless that family member was a named account holder, regardless of the insistence of the creditor. If nothing remains in the estate to pay off debts, then creditors should be so informed. Timely legal advice is very important if the decedent has significant debts.
Local utilities (telephone, gas, electricity, cable) should be notified only if someone else wants to be substituted on the accounts. Otherwise wait until you decide whether or not and when the utilities are to be discontinued. In any event, the utility bills must be paid in order to keep the utilities on.
Newspaper and Mail
The newspaper subscription should be discontinued if no one else resides at the home of the deceased. The Post Office should be directed to forward all of the decedent’s mail to the personal representative, especially if there is no surviving spouse. Newspapers or mail piling up at a decedent’s residence is an invitation to criminals.
Any Tax refunds that arrive after the decedent’s death will be a part of the estate and will have to be distributed according to the Will or the Administration process.
Any taxes owed will have to be paid out of the estate, or by the surviving spouse if joint returns are filed. Like all other creditors, if the estate is insolvent and the debt is not jointly owed by some other person, IRS or Maine Revenue Service will have no means to collect.
Any homestead exemptions from real property taxes are based on the individual if that person was a veteran or otherwise qualified for an exemption. The exemption may no longer be available unless the new homeowner meets the requirements.
Things like titles to automobiles, automobile insurance and house insurance will have to be changed eventually. Homeowner’s insurance policies should be reviewed carefully for instructions concerning coverage of unoccupied premises.
If property is owned out-of-state, the Will should be probated or the estate Administrated in the state of residence first and the Letters Testamentary or Letters of Administration (they may be called something else in another state) used to handle the property in the other state. “Ancillary probate” may be required in every state in which the decedent owned real or tangible personal property. Estate taxes may be owed on property located in another state, even if the decedent’s home state (state of domicile) does not levy estate taxes.
Disposing of Personal Items and Clothing
Although one of the most heartbreaking tasks when a loved one dies, as soon as emotionally possible, every effort should be made to dispose of those items which will no longer be used by the survivors. This is the duty and legal right of the personal representative. The timing of this is handled differently from person to person. If too soon, it may prevent survivors from having adequate time to grieve, while if it takes too long, it may seriously delay the ending of the grieving process, acting as a very painful and constant reminder of the person’s death. Only a few items should be retained as mementos.
No items should be moved, sold, given away or otherwise disposed until it is clear that they have not been identified in the person’s Will as items to be distributed as a part of the estate. Only the legal beneficiary of those items is entitled to make the decision as to their disposal.
Documents to locate
There are some documents that may be needed or at least helpful in settling the estate of the deceased. These documents should be located and kept together in one place until they can be turned over to the personal representative, trustee, attorney or other person with the legal right to wind up the affairs of the deceased. Included in the list of documents that should be located are:
- funeral and burial plans/contracts
- safe deposit rental agreement and keys
- trust agreements
- pre- or post-nuptial agreements, marriage licenses, divorce papers
- life insurance policies or statements
- pension, IRA, retirement statements
- income tax returns for the past three years
- gift tax returns if ever filed
- birth and death certificates
- military records and discharge papers
- budgets/bookkeeping records
- bank statements, checkbooks, check registers, certificates of deposits
- deeds, mortgages and mortgage releases, title policies, leases
- motor vehicle titles
- stock and bond certificates and investment account statements
- unpaid bills, notes
- health/accident and sickness policies
- bankruptcy papers: filings and releases
This is not intended to be an exhaustive list of every detail to which attention must be given nor does this alleviate the need to ask questions about topic areas that may not have been mentioned. It is an attempt to provide some initial guidance about some of the more fundamental practical and legal items to those having responsibility for handling the affairs of a deceased loved one. The emotional issues are equally important, but for the most part, not addressed here. Special care should be taken when a loved one dies leaving young survivors or elderly survivors. Support groups and counselors should be contacted at the initial signs of depression.
This information has been prepared as a source of general information, and is based primarily on the laws and practices of Maine. Although it may be helpful to people in other states, where specific laws are concerned, persons are urged to seek legal advice from attorneys licensed to practice in the decedent’s state of residence. In the vast majority of cases, you will require the advice, and most likely the services, of a trust and estate attorney to assist with some of the items on this checklist. When in doubt, consult a local attorney with a reputation for expertise in such matters.
The information presented on this website is general in nature and not intended to be legal advice. No attorney-client relationship will exist with Jones, Kuriloff & Sargent, LLC unless we agree in writing after a personal consultation. Please contact us for a consultation on your particular situation.