The first minutes and hours after a loved one dies are very emotional for everyone. Before even having had a chance to process the death, grieving loved ones need to take certain steps and are faced with some very important decisions. This time can be made a little easier by taking out some of the guesswork, for example by making use of a simple checklist that you and your family can use to keep track of the details. We make such a checklist freely available among our estate planning and elder law resources — look for the guide entitled, "When a Loved One Passes Away: What to Do Next."
But, based on our 25 years of practice in this area, we believe also that what is done before one dies can greatly ease the burden family members may face later. Here we offer some insight into both what steps to take when a loved one dies and what steps you can take, now, to make it easier on your own family later.
We live at time when it is possible to keep people technically alive for a very long time through artificial means. Most hospitals and paramedics will use all extraordinary measures at their disposal to keep a person's heart beating for as long as possible. It is what they are obligated to do. Many people wish to avoid these kinds of measures, at least under some circumstances, such as when there is little chance of recovery or future quality of life.
If you have a Patient Advocate Designation or Do Not Resuscitate Order in place, make sure that your doctor, hospital, lawyer, spouse and anyone else who may need it, has it.
The answer is a Patient Advocate Designation (also called a Durable Power of Attorney for Health Care or a Medical Power of Attorney). This document gives the person(s) you select certain powers to determine what medical treatments may be used and when they should cease. Another document which may be considered is a Do Not Resuscitate Order. This document states that there should be no attempt to resuscitate using extraordinary means, under certain circumstances.
After a death, the first call is to a doctor or medical examiner to certify the death (in practical effect, the place where the person passes away, such as a hospital or nursing home, will already have procedures for this). With regard to organ donation, most driver's licenses now indicate whether the deceased is an organ donor. If not, their Patient Advocate Designation or other estate planning documents might state so. If there is no indication of the person's wishes, the family will be permitted to make the decision.
To prevent family disagreements over organ donation, please check the box on your driver's license.
The next call is to the funeral director. Having pre-arranged funeral services can be a great relief. If the deceased has pre-planned their funeral, this will often short circuit any potential disputes about some of these early decisions. If you have pre-planned your funeral, please make sure your family and/or attorney is aware.
The funeral home arranges for transportation of the body and preparation for burial. If the arrangements were pre-planned, the funeral home staff also will likely know the deceased's views on such things as:
The funeral home also usually arranges for the death certificates to be ordered and commonly files for the social security burial benefit. Further, whatever other questions may arise, funeral home staff have helped guide many families through this process with sensitivity and experience; they can be an important resource, both practically and emotionally.
The next concern becomes the payment of bills and dealing with property and assets. The initial question is often the location of the Last Will and Testament (and trust or other estate planning documents, if they exist). Historically, Wills were often filed by the probate attorney with the county Probate Court. Even if the Will has already been located and filed, the next phone call should be to the attorney, who will start advising you on what the appropriate next steps are.
A safety deposit box can be accessed after death by any joint owner — or when the court grants an order to open it or has appointed an executor. Because it may take several days to access a safe deposit box, individuals should not put their only copy of their Will, burial instructions, organ donor cards, or Medical Power of Attorney in the box.
Bills are still due. For many surviving spouses, this compounds their anxiety. Our experience is that most companies allow for a reasonable delay in paying bills once they understand that a death has occurred. Most funeral homes for instance allow for at least 30 days to pay their bills. As a practical matter, most individuals have a joint bank account from which the first necessary bills can be paid. Those bills can later be reimbursed from the estate of the deceased. Note that any power of attorney over the accounts of the deceased is no longer effective after their death.
If the deceased did not have a joint account, the best answer is to make sure your attorney has begun the process of getting someone appointed as executor or personal representative of the estate. As your attorney, Estate Planning & Elder Law Services would file the Will with the Probate Court and ask for an appointment from the Court. The Probate Court then issues Letters of Authority which are presented to the institutions that control the deceased's assets. We then work with the executor to begin collecting and safeguarding assets, including establishing a checking account from which the debts may be paid.
There is a statutory priority by which the debts and bills of a deceased person should be paid. Bills relating to preservation of estate or trust assets should continue to be paid. For example, property taxes and liability insurance associated with a home should continue to be paid. However, creditors, such as credit card companies, should be made aware of the person’s death, but those bills should not be paid until such time as an assessment of the person’s overall estate is made. The executor of an estate can get into trouble if there are insufficient assets to pay all creditors, and the executor paid some but not others.
Locks should be changed on the deceased person's place of residence. If there is a surviving spouse, they or someone they choose can have it changed for them. If the deceased was living alone, the presumed executor should have the locks changed as soon as possible but, in the meantime, they should try to determine who has keys and take possession thereof.
Again, from our experience, two things often occur — especially for the surviving spouse — after the death of a loved one.
First, sometimes they begin the process of planning their own estates. The motivation is to save their loved ones from having to deal with such things right away during a time of immense grief. This is usually a good thing. But beware of two things: not completing the process; and making impulsive estate decisions in the aftermath of intense emotions. In some cases, not completing the process can be more confusing than having done nothing; so it's best to work with someone who will explain the full process and assist you to follow through. And, of course, impulsive decisions made in the haste and haze of emotions may not be the best.
By sticking with your competent estate planning professional, who is well aware of the above drawbacks, you can get a well-designed plan that will relieve your heirs from some of the anxieties that can accompany a loss.
Second, the surviving spouse sometimes will make an impetuous decision to sell the house and move. This is almost never a good time to make such a decision. Perhaps going to live with family for a few weeks or longer as they adjust to the loss of their spouse will be helpful. Regardless, the spouse should be given plenty of time to grieve, to seek advice, and to really ponder what is best for them in regards to keeping or selling their residence. In the end, they will be happier with their decision.
With our experience and service, we invite you to contact us to help you plan your affairs after your death.