10 Things to Remember Following the Death of a Loved One

Perry A. Pirsch, Esq.

PIRSCH LEGAL SERVICES, PC, LLO

            When it comes to reminding clients of the need to plan their estates, I tell them that incapacity and death are as inescapable as unsolicited credit card offers and calls from telemarketers.  Having been in practice for over two decades, I am now in the position of advising the spouses and children of my clients who have passed.  What should you do when your spouse or parent has passed?

            First, give yourself a little time to grieve.  While many clients want to action upon the death of a loved one, the first advice we generally give is not to make any important decisions.  Don’t make any plans regarding major assets, don’t gift away portions of the estate, or make any promises to family members or let them take items from the estate.  Probably nothing is as important as being in a clear head.

            Second, you can also take time to consider how to honor the wishes of the deceased.  Were wishes specified in a healthcare power of attorney?  Funeral or cremation?  Generally, a durable power of attorney, or other documents contained in the Decedent’s estate plan, will contain instructions for organ donation, burial, or cremation.  Consider whether Masonic or veteran’s arrangements are applicable.  The Department of Veterans Affairs and the Masons are often very helpful with providing guidance and benefits.

Third, be sure to convey these decedent’s wishes to the funeral home.  (For example, my own father did NOT want to be buried with shoes on when his sons both had the same sized feet as him; he did not want to waste the shoes.)  At this time, also be sure to arrange to get additional copies of the death certificate.  We often find as many as ten or more may be required depending on the size of the estate and the nature of the assets.

Fourth, notify all your financial institutions, including credit card companies.  This may not only help guard against fraud but may provide ready sources of cash for a celebration of life and other expenses.  Most accounts will pass by operation of law where a beneficiary is designated or there is a joint account with rights of survivorship and thus the funds will avoid the time and expense of probate.

            Fifth, schedule a meeting with your attorney and tax preparer to answer any questions regarding the outstanding decedent’s estate plan and tax planning.   For example, while surviving spouses are exempt under Nebraska’s inheritance tax, children of a decedent and other close family members have to pay a percent over the first hundred thousand dollars of inheritance if they are over twenty-one years.  Nebraska has no common-law spouses and unmarried partners and others not related by blood or marriage face a higher rate of 15 percent after the first $25,000.  (Aunts, uncles, cousins, nieces, and nephews have a middle rate of 11 percent after the first $40,000.)  It does not have to be in the first week or two.  (See Rule First.)

            Sixth, in regard to Social Security, a surviving spouse (even if divorced) may have a right to a reduced retirement age and the better of the decedent’s retirement benefit or their own.  There may also be a benefit for minor children.  It is important to consult with Social Security to ensure you are maximizing your benefits.  If there are additional pensions through employment, be certain to contact those providers.

Seventh, review the Decedent’s health insurance and cancel accordingly.  Similarly, look for life insurance policies and file your claims.  The funds are generally income, inheritance, and estate tax-free when paid to beneficiaries outside of the estate.

Eighth, the decedent may need to file a final tax return.  Additional returns may be warranted depending on the business interests of the decedent, how long the estate is open, income received, whether relatives over the age of 21 are inheriting and are not a spouse, and other factors.

Ninth, some assets in the name of a decedent may need to be retitled, generally in conjunction with the use of the death certificates.  For jointly held real estate with right of survivorship, death certificates may need to be filed with the Register of Deeds.  For automobiles, the Department of Motor Vehicles should be contacted.  Some assets may need to go through probate if they cannot be transferred by operation of law.  In these instances, you may need to file a will or petition the probate court to proceed intestate (without a will).  This gives an individual the lawful authority to wind up the affairs of the decedent under the supervision of the Register of Wills and/or the probate court; however, if probate assets amount to less than $50,000 in Nebraska, a transfer may be possible through a small estate affidavit.

Tenth, if the decedent had assets over $100,000 in his probate estate, whether the decedent had a will or not, the estate will have to be probated.  If it was under $100,000 in probate assets, a small estate affidavit might be all that’s needed.  It is a separate analysis, however, in regard to the filing of an inheritance tax return, which considers not only the probate assets, but the augmented estate.  Basically, everything but life insurance payable to third parties.  Even gifts during the lifetime of the decedent without consideration must be considered.

Finally, in the years that follow the death, look for unclaimed property at www.MissingMoney.com.  Any unclaimed bank accounts, insurance policies, refunds, or other items of value should end up there following the requisite discovery periods.

For a free, initial consultation, please call Pirsch Legal Services, PC, LLO: 402-521-0930.