Law Office of Eric Holk

Certified Specialist in Estate Planning, Trust & Probate Law
The State Bar of California Board of Legal Specialization

60 Garden Court, Ste. 205
Monterey, CA 93940
Phone: 831-622-8808
Fax: 831-655-3660

What To Do When A Loved One Dies

Whether you received a 2 a.m. phone call with news of an unexpected death or you were present and shared your loved one's final moments after a long illness, your initial reaction to the death was likely shock. It doesn't seem to matter how prepared we are – or aren't – a loved one's death often leaves us feeling numb and bewildered. If you're responsible for making the funeral arrangements or executing the will, shock and grief can be immobilizing. Even simple decisions can be overwhelming.

When someone dies at home or at work

If a person dies at home or at work as the result of a sudden illness or accident, first call 911 or the emergency phone number in your area. Emergency personnel will come to the scene to verify the death and inform the coroner. If there is an existing DNR (“Do Not Resuscitate”) order, be sure to show it to the emergency medical personnel. After the coroner's examination, the body will either be transported to the morgue for autopsy (if necessary) or to the funeral home of your choice, depending on the circumstances of death.

If the individual has died naturally after a period of declining health and no trauma (injury or other unusual circumstance) was involved, there is no need for a caregiver to call 911 or the coroner’s office. Instead, a mortuary can be contacted directly, and they will send someone out to pick up the body. If the person was under the care of a hospice program, call the hospice organization as well. If organ donations were desired, be sure to tell the mortuary. The mortuary will take care of finding a doctor (or contacting the decedent’s physician) to pronounce death and sign the death certificate form. If your loved one was under a doctor’s care, be sure to notify the doctor. If you don't know the doctor's name, look for prescription bottles or medical bills. If the death occurs after business hours for the doctor, leave a message with the doctor’s answering service and ask that the doctor be notified and respond.

Note: If the deceased person had a Durable Power of Attorney for Health Care Decisions (DPAHC) or an Advance Health Care Directive (AHCD), the person they named as their agent is the one who has the legal right and responsibility to arrange for the disposition of the remains.

Contacting the funeral director or mortuary

Whatever the circumstances of death, one of your first calls should be to a licensed funeral director. He or she may help you do the following:

  • transport the body
  • order certified death certificates* [see below]
  • select a casket, urn and/or grave marker
  • arrange the funeral, memorial and/or burial service
  • notify Social Security
  • prepare the obituary, if one is desired
  • offer grief support, or direct you to other resources.

Look for instructions the deceased may have left regarding preferences for funeral and burial arrangements. These instructions may be included in the person’s will or Health Care Directive. Determine whether the deceased belonged to a burial, cremation, or memorial society that may make special arrangements for the funeral, such as military honor guards if the deceased was a veteran.

If your loved one did not preplan his or her funeral, consider asking friends and family for referrals or check the Yellow Pages under “Funeral Directors” or “Funeral Information & Advisory Services.” You may want to interview several to make sure you find a funeral director you are comfortable with. Be sure to ask about cost, and don’t let them manipulate you into thinking that cost should not be an issue. (Obviously it is much better to have these arrangements in place prior to death.)

The mortuary will apply for the death certificates for you, but they will require certain specific information about the deceased in addition to the date and cause of death. [See “Information Required for Death Certificate” form for specific details that are required.]

* Certified death certificates are issued by the county in which the person died. It usually takes five to ten days to get them when the deceased was attended by a physician, and it can take six to eight weeks to get them if there was no attending physician or if the cause of death appears questionable.

How many death certificates will be needed? It depends on what assets the deceased owned. One original death certificate will be needed for each separate real property asset. (For example, if the deceased person owned a personal residence, a rental house, an apartment building, a commercial property and an undeveloped lot, a total of 5 original certified death certificates will be needed for those properties.) One original certified death certificate will be needed for each life insurance policy or annuity and possibly one for each pension or retirement account. Banks, brokerage firms, credit card companies, and other financial institutions sometimes accept photocopies of the death certificate and sometimes they want an original. You probably don’t want to order more than the minimum you think you will need – as of Jan. 1, 2006, Certified Death Certificates cost $12.00 each, and you can’t get a refund for the ones you don’t use. Some advisors tell you to get 10 or 20 original death certificates, but for most people this usually is way more than what will be needed in most cases. You can always get more if you need them by contacting the County Recorder. You can’t get a refund for the ones you don’t use.

To Order Certified Death Certificates by mail (Monterey County):

As of July 1, 2003, the law permits only authorized individuals to receive certified copies of death records, including certain family members, the mortuary, and the attorney for the estate. A request must be accompanied by a completed application form, which must include all of the following details as well as a sworn statement that the applicant is an authorized person:

  1. The decedent’s full name at the time of death.
  2. The decedent’s date of death and city of death.
  3. The decedent’s father’s name and mother’s maiden name.
  4. The applicant’s address and telephone number.
  5. Where the certified copy is to be mailed, if not to the applicant’s address.

The application form is available online at www.co.monterey.ca.us/recorder/death.htm. Send the completed application form to Monterey County Recorder, P.O. Box 29, Salinas, CA 93902, along with a check for $12.00 for each death certificate.

Caution: If notice of the memorial or funeral service is published in the paper, have someone “babysit” the house during the service to guard against burglary. If a friend or family member can’t handle funerals, house-sitting during the service is a good job for them to do.

Making the first phone calls

What to do first depends on the circumstances of the death. When someone dies in a hospital or similar care facility, the staff usually take care of some arrangements, such as contacting the funeral home you choose, and if necessary, arranging an autopsy. You will need to notify family, friends, the deceased’s employer, if any, and clergy, if any.* It may be easier on you to make a few phone calls to other relatives or friends and ask each of them to make a phone call or two to specific people, so the burden of spreading the news isn't all on you. If you are alone, consider asking someone to keep you company while you make these calls and try to cope with the first hours after the death.

*From “Phone calls after a death,” by Kelly Baltzell, M.A.:

Whoever is handling the phone calls for the grieving family member needs to know the following things:

  1. What people can do for you to help you out the most. This could be bringing over food (if you are vegetarian you need to let people know), washing laundry, picking up relatives at the airport, or even mowing the lawn. If you have a list handy it is easier to get the help you need.
  2. Where people should send gifts, cards, money to charities, flowers etc. [You should also have a trusted person handling the money. Many people have been robbed during times of grief.]
  3. People will want to come visit you. Let the person who is handling the phone calls and answering the door know when it is a good time to have visitors. Some customs vary on this issue. [For example, the Jewish faith has people come and go freely for a week with no forewarning.]
  4. When and where services (if any) will be held once that is decided.
  5. Who you do and don't want to talk to during your time of grief. The person who is handling the phone is your gatekeeper and they should have a simple list of people you wish to talk to. Alternatively, use an answering machine to screen calls and leave a message that tells callers you may not be up to returning all calls for a while.

Within the first few weeks, there will be other tasks to attend to and contacts to make, some of which are more pressing than others. What follows is a summary list of miscellaneous tasks to do and persons or institutions to contact:

Miscellaneous tasks:

Depending on the circumstances, it may be necessary to do any or all of the following:

  • Locate house keys and car keys; secure house and car.
  • Set up an answering machine to screen calls and take messages.
  • Arrange care or placement for pets, if any (check for possible instructions).
  • Take care of perishables and clean out the refrigerator; empty the trash.
  • Collect mail and arrange for mail to be forwarded to someone, if necessary.
  • Arrange for yard maintenance.
  • Water indoor plants.
  • Cancel newspaper and magazine subscriptions.
  • Inform the neighbors.
  • Dispose of prescription medications. [“Flying Docs” will take donations of unused prescription medications and medical equipment – see www.flyingdocs.org or call 1-800-585-4LMD].
  • Locate the decedent’s will and/or trust, if any, and determine who is named to serve as executor or successor trustee.
  • Shred old tax returns, bank statements, investment account statements, etc. when those are no longer needed.

Immediate contacts:

  • Social Security, to report death, stop checks, and check on survivor’s benefits (if the mortuary did not do this for you). Phone the Social Security office and notify them of the death. Stop all payments. You may have to refund an automatic deposit or send back the Social Security check if benefits are received after death. Depending on the circumstances, the deceased’s spouse or dependents may be eligible for certain payments or benefits. A surviving spouse is eligible for a lump-sum $255 death benefit. Contact the local office or call 1-800-772-1213.
  • Veterans Administration, if deceased was a veteran, to check on possible death benefits: 1-800-827-1000. [For V.A. life insurance: 1-800-669-8477.]
  • Defense Finance and Accounting Service, if deceased was retired military, to report the death and check on continued payment of survivor’s benefits to the surviving spouse (SBP, RSFPP): 1-800-321-1080.
  • Civil Service Office of Personnel Management, if deceased was an active or retired Civil Service employee: 1-888-767-6738.
  • Other pension administrators, to report death and check on survivor’s benefits. If the decedent was receiving other pension benefits, that organization should be notified promptly. Post-death pension payments will have to be returned. Also call any unions, professional or service organizations the decedent belonged to. He or she may have had life insurance or other benefits through these organizations.
  • Employer, to notify of death and check on benefits and final paycheck. If your loved one was still employed, you will need to inform his or her employer immediately. Ask about the deceased's benefits and any pay still due, including vacation or sick time, disability income, etc. Ask if you or other dependents are still eligible for benefit coverage through the company. Ask whether there is a life insurance policy through the employer, and if so, who the beneficiary is and how to file a claim. If there is a company retirement plan with death benefits payable to a designated beneficiary, find out how to go about filing a claim. If you are not the beneficiary, you should pass this information along to whoever is the named beneficiary.
  • Police, if the house is going to be unoccupied for a period of time.

The next contacts (death certificates are needed for some of these):

  • Banks/Credit Unions, to locate and re-title accounts and safe deposit box and cancel ATM card. If accounts were joint accounts, those should be re-titled in the name of the surviving joint signer and that person’s Social Security number now should be the number on file with the bank or credit union.
  • Life insurance agent or company, to obtain claim forms and instructions. Look through the deceased's paperwork for any life insurance policies. Call the agent or the company and ask how to file a claim. The beneficiary (or the person's guardian, if the beneficiary is a minor) must complete the claim forms and related paperwork. The beneficiary will need to submit an original certified copy of the death certificate and a claimant's statement to establish proof of claim. Remember to ask about payment options. There is usually a choice between receiving a lump sum or having the insurance company place the money in an interest-bearing account from which you can write checks. [If the estate is subject to estate tax, get advice before submitting the claim.] The same procedures apply to annuities.
  • Investment advisor(s), to re-title accounts and determine date-of-death asset values and to determine whether any assets should be sold.
  • IRA custodian, to determine whether the required minimum distribution amount was taken out for the current year (if decedent was over 70). If not, the IRA beneficiary must make sure that this gets done before year end to avoid a 50% penalty. Also arrange for remaining account balance to be distributed to designated beneficiaries.
  • Attorney, to assist with estate settlement and asset re-titling.
  • Accountant or tax preparer, to determine tax returns to be filed.
  • Utility companies (PG&E, phone, cable TV, trash pickup, etc.), as needed, to discontinue service or change the name for billing purposes.
  • Credit card companies, to get final statements and close the accounts.

Contacts to defer until later:

  • Mortgage company, if there is a mortgage on the house. Keep the payments current, but defer notifying the lender until you know whether the house is to be sold or transferred to a beneficiary (unless there is mortgage insurance in place).
  • Homeowner’s insurance company, especially if the house will be empty for a time. Many insurance companies will cancel the policy if they know the house will be unoccupied. Once the house is sold or transferred to a beneficiary, the policy can be cancelled.
  • Medical insurance company. Until all final illness expenses have been processed for insurance purposes, it is usually best to keep the policy in force. Any premium refund will be retroactive to date of death, anyway.

Locate and gather important papers

Determine whether decedent left a Will or Trust by checking in safe deposit boxes*, searching through personal and financial papers, or contacting the deceased’s previous attorneys. Also, be sure to gather other important papers, such as deeds, business agreements, tax returns, bank account statements, investment account statements, birth and marriage certificates, military discharge papers, Social Security number, vehicle ownership papers, loan payment books, bills, insurance policies, credit card statements, receipts for charitable contributions, and any other important papers pertaining to the deceased’s affairs. These will be needed to file a final tax return and settle the estate; if the deceased had an accountant, that person should be contacted.

* Determine whether or not the decedent had a safe deposit box by contacting the banks where decedent had accounts. If you determine that the decedent had a safe deposit box, you will need to find the keys. Without the keys, the box lock must be drilled, and this typically costs $100. Note that the law permits a person who presents the safe deposit box key and a certified death certificate to access the box for the purpose of inventorying the contents and removing and copying any will or trust documents in the box [Probate Code §331].

Surviving Spouse: Probate may be avoidable

If the surviving spouse was a co-signer on accounts (bank, credit union, brokerage firm, etc.), those accounts will NOT be frozen, but will remain accessible to the surviving spouse. Eventually, these accounts should be re-titled in just the surviving spouse’s name, under the surviving spouse’s Social Security number. Simply present a copy of the death certificate to each financial institution and get the account information updated.

If title on real property was held as Joint Tenants, it will be necessary for the surviving spouse to prepare and record an “Affidavit of Death of Joint Tenant” along with a Preliminary Change of Ownership Report and a Death of Real Property Owner form for each property in California. An original Certified Death Certificate must be attached to each Affidavit. This is usually done either by an attorney or a title company.

If title on real property was held as Community Property, it will be necessary for the surviving spouse to prepare and record an “Affidavit of Surviving Spouse Succeeding to Title to Community Property” along with a Preliminary Change of Ownership Report and a Death of Real Property Owner form for each property in California. An original Certified Death Certificate must be attached to each Affidavit.

Assets that name the surviving spouse as the designated beneficiary (life insurance, IRAs, other retirement accounts, pension plans, annuities, etc.) will transfer to the surviving spouse without probate, but a separate claim process must be followed for each such policy or account. Each of these likely will require an original Certified Death Certificate. For IRAs and other tax-deferred retirement accounts, the surviving spouse may be able to “roll over” these funds into her or his own such account, cash the account out in a lump sum (all of which will be taxable income in most cases), or take the money out over a period of years. Talk to a qualified financial advisor.

If the deceased spouse had assets that were in his or her own name alone (and no designated beneficiary), it still may be possible to transfer those assets to the surviving spouse without probate if the total value of such assets was less than $100,000. There will be a delay of at least 40 days from the date of death, and a small estate affidavit must be done and notarized. An estate planning attorney can help with this.

Vehicles titled in both spouses’ names with “or” between the names only require one signature in order to transfer title on the vehicle, so nothing needs to be done at the death of one spouse. If the vehicle is in both names with “and” between the names, or if the vehicle was in the decedent’s name only, it will be necessary to re-title the vehicle through the Department of Motor Vehicles. So long as nothing else has to go through probate, the vehicles can be transferred or re-titled using the DMV “non-probate transfer” procedure. If you happen to be a member of AAA, this paperwork can be done through them and you can avoid the long lines at the DMV.

Paying for Everything

If someone had joint signing authority on one or more of the decedent’s bank accounts, those funds can still be accessed to pay for the funeral and other expenses. If a certificate of deposit was held as a joint account, it may be possible to access those funds prior to maturity without an early withdrawal penalty if a death certificate is presented. If no one else was a signer on the account and the account was not held in a living trust, the account will not be accessible for some time. [Note: if someone had access to the decedent’s account(s) as their agent under a durable power of attorney, that authority terminates at the death of the principal. You cannot use a DPA to handle a deceased person’s finances.]

If the deceased’s estate passes primarily by will, it usually will be necessary for the Executor to probate the will and obtain “Letters Testamentary” from the court before access to the deceased’s accounts will be granted. This can take 4 weeks or longer.

It may be that life insurance proceeds are intended to be used for final expenses, in which case the beneficiary of the policy must be the one to file the claim for benefits and use the funds accordingly.

If no one has access to the decedent’s funds, it may be necessary for someone to put some expenses on their credit card and seek reimbursement from the estate later on.

Medical Bills: If the deceased was covered by Medicare and/or other health insurance, any incoming medical bills should not be paid for a while. Let Medicare and/or the other insurance carrier first determine how much they will pay, then pay only the amount not covered by insurance.

Mortgage payments: If there is a mortgage on the decedent’s home, someone needs to make sure these payments continue until such time as the house is sold, to avoid possible foreclosure.

Auto insurance: Once title has been transferred on any vehicles, remember to cancel the auto insurance. If a surviving spouse will continue to use the vehicle, keep the insurance in place, but ask the insurance company to drop the decedent as an insured driver under the policy.

Probating the will

If you were named the executor of your loved one's will and there is no living trust, you may have a lot more work to do if there is more than $100,000 in assets that do not pass by joint tenancy title, beneficiary designation, or some other means.

First, you'll need to file a probate petition with the court. Although an attorney isn't required in most states, you'll probably want to hire one who is experienced in probate. You may choose to hire the lawyer who prepared the will, but that isn't mandatory.

Probate can be complicated and lengthy, even if the estate is relatively simple. As executor, you'll be responsible for carrying out the deceased’s wishes according to the will, making sure all the assets are accounted for and valued or appraised, paying the deceased’s creditors, paying taxes, and ultimately distributing the estate. There's no standard amount of time that a probate lasts, but in California, a simple probate for a non-taxable estate typically takes 9 to 12 months. Probates for taxable estates often take 18 to 24 months.

Successor Trustee(s)

If the deceased had a living trust, the designated successor trustee will be responsible for administering the trust and doing many of the same things that an executor would normally handle, except that no probate will be required. It is wise for the successor trustee to meet with an attorney and an accountant to get some guidance with regard to the tasks that must be completed. This is true even when the trustee is a surviving spouse and the trust is a joint trust that continues to be revocable by the surviving spouse. Date-of-death values for all assets should be obtained.

If the surviving spouse is the trustee, it usually is necessary to change the title on trust assets so that they are in the name of the surviving spouse as trustee and are reported under the surviving spouse’s Social Security number. Title on real property must be changed to the surviving spouse/trustee by filing an “Affidavit of Death of Trustee” along with the other county forms mentioned above.

Real Estate Transfers to Children -- Very Important Detail!

In the event that the decedent’s California real property passes to the decedent’s child or children, whether by will, trust, intestate succession, joint tenancy title, or some other way, it is important to file with the county a “Claim for Reassessment Exclusion for Transfer Between Parent and Child.” This allows the child to take over the property without an increase in property tax.

The surviving spouse should meet with the attorney and accountant for more guidance. Even if probate has been avoided, there still will be some paperwork to deal with, and if the estate is large, an estate tax return may be required.

If the deceased had neither a will nor a trust

If someone dies without a will (dying “intestate”), the court will appoint someone to serve as the “administrator” of the estate. If you are appointed as the administrator, your responsibilities will be the same as those of an executor.

Personal Property (furniture, collectibles, art, jewelry, books, tools, etc.)

This can be a delicate issue in some situations. Unfortunately, there too often is some family member who thinks that if they get there first, they can take whatever they want out of the decedent’s home. This is not right, but it is very difficult to get things back after they have been taken. Ideally, a responsible individual should secure the home and if there is any question about the honesty and trustworthiness of any family members, those persons should be denied access until such time as the keys to the house are in the possession of the person who is designated as the executor or successor trustee. This tends to be perhaps the single most common problem area in dealing with a deceased person’s estate. If there is any possibility that someone may be inclined to act improperly with regard to removal of personal property items, it is wise to anticipate this problem and take appropriate measures to prevent any impropriety.

All too often, there is no specific mention in the will or trust regarding who is to get the tangible personal property. This can have the unintended effect of allowing the most aggressive beneficiary to decide what happens with such things, and this may adversely impact the relationships among the family members. It is far better to include a statement in your will or trust specifying who is to get the personal property, and if you intend certain specific items to go to particular individuals, say so in writing and make sure your executor/trustee is aware that you have done this. If there are items that none of your beneficiaries wants, then give the executor/trustee the authority to sell, donate to charity, or otherwise dispose of those unwanted items.

Just in case: you may want to check with the state to determine whether the decedent had any unclaimed property. Check the state web site at http://www.sco.ca.gov/col/ucp.

For more information:

What to Do When Someone Dies, by Milton Berry Scott

How to Settle a Living Trust, by Henry W. Abts III

How to Settle an Estate, by Charles K. Plotnick and Stephen R. Leimberg

The Executor’s Handbook, by Theodore E. Hughes and David Klein

How to Probate an Estate, by Julia Niles – check for latest edition (Nolo Press)

When Death Occurs: A Practical Consumer’s Guide, by John M. Reigle
(Consumer Advocates Press) – deals with funerals, memorials, burial/cremation, body donation.

QUESTIONS YOU SHOULD KNOW THE ANSWERS TO IF YOU ARE NAMED AS SOMEONE’S EXECUTOR OR SUCCESSOR TRUSTEE

It will help you as the Executor/Successor Trustee to know the answers to the following questions ahead of time (as many as are relevant):

  • Where is the will or trust kept?
  • Are there any special directions for the executor/trustee regarding how assets are to be distributed (especially tangible personal property like jewelry, art, books, collectibles, furniture, etc.)?
  • What sort of assets are there? (Real estate, stocks, bonds, mutual funds, life insurance, annuities, U.S. savings bonds, bank accounts, partnerships, a business?)
  • (If you there is a living trust . . . ) Are intended trust assets properly titled in the trust name?
  • Do any beneficiaries owe money to the testator? If so, how should this be handled? Will this be considered a part of that person’s share of the estate, or what?
  • Will there be enough cash available to deal with foreseeable expenses and taxes?
  • If there will be estate taxes due and payable, what assets will be used to pay for this?
  • Is there any life insurance? If so, who is the beneficiary? Where is the policy?
  • Are there other assets that will pay death benefits? If so, what is the claims procedure?
  • Who are the designated beneficiaries on IRAs, annuities, and other such assets?
  • What debts/liabilities (and contingent liabilities) are there and how will these be paid?
  • Will there be any ongoing support obligations for dependents?
  • Where are important papers kept? [deeds, vehicle “pink slips”, savings bonds, stock certificates, investment and bank account statements, insurance policies, pension information, etc.]
  • Is there a safe or safe deposit box? If so, where is it located, and where is the key or combination kept?
  • If there is a business involved, what is the plan for business continuation or transfer upon the owner’s death? Where are the business records kept?
  • What are the names, addresses and phone numbers of all beneficiaries?
  • What are the names, addresses and phone numbers of the testator’s accountant, attorney, investment advisor, and insurance agent?
  • Is there a cemetery plot or prepaid mortuary arrangement?
  • Are there any special circumstances involving the beneficiaries that should be discussed? [problem relationships, troubled marriages, substance abuse problems, physical or mental disability, financial irresponsibility, threatened lawsuits, etc.]
  • If the testator keeps financial records on a computer, get details and password.

60 Garden Court Suite 205
Monterey, CA 93940
ph: 831-622-8808
fax: 831-655-3660
office@trusts-etc.com

Information is copyrighted by Eric N. Holk, 2012.

No information on this website shall be construed as legal counsel.
If you need legal advice, please contact Mr. Holk or another qualified attorney.
See full disclaimer here.