A practical guide to managing the difficult legal aspects surrounding the death of a loved one offers succinct advice and checklists for a range of practical topics, from funeral arrangements and social security to accounts and taxes. (self-help).
When Someone Dies Introduction
If you’re reading this book, someone you love has just died. We feel your pain. As you’ll read, I recently lost a loved one, and I’ve endured the grief that now consumes you. My heart breaks for you.
Grieving is a uniquely individual process. Don’t let anyone tell you what’s supposedly “normal” or the “best” way to grieve.
Most people find that grief is like swimming in the ocean. It comes in waves. One minute you feel fine, then the next you dissolve in tears. Ride the waves and try not to resist them. If you resist, just as if you swim against the current in the ocean, you might drown.
We urge you to explore all the emotions your grief raises—including relief, if that applies. We urge you to obtain all the emotional support you need—from friends, family, clergy, and perhaps a grief counselor and/or support group. We also urge you to read some of the many books on grieving. Our favorite is quite brief (only ninety pages) but remarkably profound—A Grief Observed by C. S. Lewis.
But this is not a book about grief or grieving. Instead, this is a succinct, step-by-step guide to all the practical things you must do after someone dies to settle the person’s affairs as quickly and cost-effectively as possible. If you follow our advice, your life will be easier, the costs associated with the death will be much lower, and you’ll find that you and other grieving family members and friends will get along much better.
Of course, no one enjoys dealing with bureaucracies—funeral homes, banks, the Internal Revenue Service (IRS), Social Security, and so on. And it’s particularly alienating to have to do it now. But some decisions can’t wait, and if you’re the one dealing with the practicalities—the executor of the decedent’s estate—this book should lighten your burden.
How long does it take to deal with the practical details of death? Expect to spend a considerable amount of time and energy during the first thirty days and more over the next six months to a year. The process is challenging and potentially infuriating, but it’s important—and absolutely necessary. If you’re organized, if you follow the path we provide, it shouldn’t drive you crazy. It’s also part of the grieving process, an integral part of saying goodbye, tying up loose ends, and making peace with your loss.
I stumbled on the need for this book when my mother died in 2009. I’m an attorney. I’d dealt professionally with wills, trusts, and estates, and I knew my mother’s affairs were in reasonably good order. I thought—naïvely, it turned out—that dealing with the practical issues surrounding her death would take only a few days. I was so wrong. It took two years, and I made several costly mistakes because I didn’t have a guide like this one. I thought no one should have to go through what I endured—and if you follow the step-by-step program we’ve outlined, you won’t.
My Mother’s Death
I want to share some details of my mother’s death because they provide a context for this book. When someone dies, people imagine the family coming together and drawing closer to say goodbye. But my family was torn apart. We fought and for a while became emotionally distant. All of the “issues” you’ve had with your loved one, siblings, and other relatives come to the fore, and like my sisters and me, you may revert to the family dynamics you experienced as children . . . even if you don’t want to.
My mother was eighty-five, healthy, and living independently in Santa Rosa, California, when she tripped and fell in a parking lot near her home, smashing her head on the pavement. My sister Tory was with her and immediately called 911. The paramedic said she was bleeding into her brain. The prognosis was grim.
Tory called me from the ambulance. I was at work in San Francisco, sixty miles to the south. My presence was especially urgent because I held my mother’s medical power of attorney (see page 135). I was the one who would have the final say on her medical decisions. I grabbed the file marked “Mom” and jumped into my car.
The emergency room doctor confirmed the paramedic’s diagnosis, bleeding into the brain. He determined that she had only a few hours to live.
“If she were young,” he explained, “we’d open her skull and drain the blood. We could do that for your mother, but at her age, the procedure could easily kill her. What do you want to do?”
I’d helped my mother draft a living will. In it, she’d included a do-not-resuscitate order (DNR), in which she’d stated unequivocally that she wanted no extraordinary measures taken to prolong her life. I informed the doctor, who said, “Fine.”
But just then, my mother suddenly regained consciousness and seemed remarkably lucid. (I learned later that among those with brain trauma, this happens fairly frequently.) The doctor spoke to Mom, explaining the situation, and asked her if she wanted surgery or no treatment.
Without hesitation, she replied, “Open me up! I don’t want to die!” Then she slipped out of consciousness into a coma-like sleep.
I was aghast. She’d overruled her living will—but was she competent to make the decision? My other sisters, Kim and Terry, arrived, and the four of us had no idea what to do.
Someone called the hospital’s medical ethicist—the patient ombudsman—who met us in the emergency room. She asked the doctor, “If you operate, what are her chances of returning to her previous quality of life?”
The doctor replied, “Near zero.” My siblings and I split two to two. One sister and I wanted to follow the living will’s instructions. The other two wanted surgery. But I held the power of attorney, so ultimately it was my decision. I decided against surgery, reminding everyone that Mom had emphatically said “no extraordinary measures.” That did not sit well with the two opposing sisters.
I felt awful. Our mother was critically injured and dying. I’d hoped the four of us would come to a consensus—but here we were seriously divided.
Then things got worse. Since I’d decided against surgery, the issue became how to make Mom comfortable. The doctor wanted to prescribe large doses of morphine because brain injuries like my mother’s cause excruciating pain. But Mom was drifting in and out of consciousness, and two sisters argued that morphine would crush her remaining lucidity. “If she can talk,” they said, “I want to talk to her.”
I saw their point, but the doctor said, “If this were my mother, I’d give morphine. I wouldn’t want her in pain.”
I said, “Okay, morphine.” My sisters became furious and didn’t speak to me for several days.
With the doctors united in the opinion that nothing could be done to save my mother, they could not keep her in the hospital and sent her to hospice care at a skilled nursing facility. The nurses there gave her regular high doses of morphine. But one sister felt an overpowering need to talk to Mom. She hated seeing her “drugged” and tried to interfere with the nurses, at one point even ordering them to stop administering the morphine.
When I heard about it, I exploded. “This is cruel,” I screamed, but my sister felt frantic—we all did—and she couldn’t hear me. We were at each other’s throats, and worse, we were hurting our mother, whom we all dearly loved.
I called the neurosurgeon, who graciously offered to stop by the facility. He sat the four of us down and said, “Your mother is going to die—and very soon. There’s nothing medicine can do to change that. Recovery is impossible. She’s virtually brain-dead right now. If you want her comfortable, you must give morphine.”
At that point, everyone accepted the inevitable.
We kept looking at Mom, expecting every breath to be her last. But somehow she survived for ten more very sad, tension-filled days. The only thing that kept us halfway sane was the steady stream of visitors who cycled through Mom’s care unit. She had lots of friends. She’d had a long career as a psychotherapist, and she’d mentored many younger therapists, dozens of whom visited. No one came empty-handed. We had more food and flowers than we knew what to do with. Finally, Mom died.
We were raised high Episcopal, but I’d been attending a Catholic church with my spouse. Meanwhile, one sister had practiced Buddhism for many years, and she arranged for Buddhist death-related ceremonies. They were compassionate, extraordinary rituals, but they included leaving the remains in the home for seven days to insure safe passage of the soul to heaven. To my way of thinking, having Mom lie dead in her home for seven days was simply wrong—impractical and unhealthy, given the speed of postmortem decomposition. But to my sister, the ritual was a moral imperative. She believed deeply that seven days of rest were essential for the safe passage of Mom’s soul to heaven. What if she were right and I was wrong?
After much discussion, we agreed on two days with Mom’s body packed in dry ice. Our compromise worked. Many people came to the house and sat with Mom and said goodbye. It turned out to be a beautiful passage for Mom, for our family, and for her close friends.
When Mom died, I thought, naïvely, that her death would bring closure. Actually, it brought the flood of responsibilities and critical decisions that led to this book.
I felt so disoriented. One day, Mom was fine, and then, suddenly, she’d sustained a fatal brain injury. I couldn’t think straight. Meanwhile, I was her executor, and people started asking all sorts of questions: Was she an organ donor? How would you like to dispose of her body? Which funeral home? Burial or cremation? What kind of service?
Mom had answered many of these questions in her living will and other documents. I’d helped prepare them, but at the crucial moment when this information became necessary, I was lost in grief and couldn’t find it. Fortunately, I recalled the name of her attorney, and he had copies.
The moment someone dies, it suddenly feels like everyone wants you to decide something, and they’re big decisions. For example:
Hospitals give you only a few hours to deal with organ donation, and less than twenty-four hours to dispose of the body.
Which mortuary? Hospitals want the body removed as quickly as possible.
How do you move a body? Only a licensed mortuary, a hospital, or law enforcement can legally move a body. The mortuary can charge a surprisingly large amount.
Cremation? Or burial? Closed casket? Or open? The funeral home needs to know very quickly.
Doctors and hospitals don’t inform Social Security about deaths. You have to—and if you don’t, the government can fine you. Who knew?
If you tell the bank about the death the right way, you can close the accounts, withdrawing assets and emptying any safe-deposit boxes. But if you tell the bank the wrong way, all funds are likely to be frozen for months. I did it the wrong way and gnashed my teeth.
Everyone you deal with demands a death certificate, and many families run out of copies, which becomes a costly, time-consuming hassle. (Shortly after Mom died, a friend’s father passed away. I called him and said, “I’m so sorry.” Then I implored, “Order twenty-five death certificates right now. Trust me, you won’t regret it.” He later said this was the single best piece of advice he received.)
Who pays for the funeral home? They don’t take the body until someone commits to paying for the funeral.
You have to write the obituary yourself and pay the newspaper by the word to publish it.
I had to learn all this—and much more—the hard way. Now you don’t have to.
Who Should Read This Book
When Someone Dies is for everyone who finds themselves contending with the logistics and practicalities of closing out a loved one’s earthly presence. In particular, we’ve written this book with executors (or trustees) in mind. These are the people (usually) named by the decedent while still living to deal with the aftermath of the death and the myriad tasks and decisions that follow from it. (We explain the terms “executor,” “trustee,” and “power of attorney” in the following pages.) When we say “you,” we mean the executor or trustee, though you may choose to delegate some of the responsibilities we discuss. That’s fine; however, if you’re the executor, you should understand that you and only you are legally responsible for the timely settling of the person’s estate, including payment of all debts and taxes due, distribution of all net assets, termination of Social Security and other benefits that end at death, and many other tedious chores. This involves real work, time, and effort, which is why executors are paid a fee.
By law in most states, the executor or trustee is entitled (and sometimes required) to take a fee, typically 2 percent of the value of the estate. I was my mother’s trustee, but some family members objected to my taking the fee. Fortunately, I did not need the money, so I offered to donate my fee to Mom’s favorite charity. That made everyone happy.
If the person did not name an executor, the law requires that someone step into that role—first the spouse, and if there is no spouse, then the children, typically in descending age order.
Answers to Key Questions
This book provides clear, concise answers to the key questions that arise when someone dies, among them:
Who has the authority to act on behalf of the decedent?
How do I get access to the person’s financial assets—bank accounts, investments, and so on?
Do I—or does anyone—have to pay the person’s debts, for example, the mortgage and credit card debts?
How do we decide who gets to live in the house? Who pays the mortgage?
How do I transfer ownership of the house? The car? Other assets?
How to Use This Book
We’ve organized this guide temporally to cover what you need to know and do as the death becomes imminent, the immediate aftermath of the death, the few days to a week or so after, several weeks to several months after, and months to a year or so after. We’ve arranged the book this way because that’s how the responsibilities confront you, the executor: first this list of tasks, then the next list. We’ve also provided checklists at the beginning of each chapter to provide an overview and to help you get organized.
In addition, we’ve provided a Quick Reference Guide to key elements of the process. For example, we discuss the tasks related to the funeral and any memorial tasks in C...
