older couple

Death of a Loved One

The passing of a loved one is a very difficult time for family members. Many things will need to be accomplished in this difficult time of grief. Some things should be accomplished by family members; others may require the assistance of professionals including a CPA and an attorney.

The family should consider the following:

  • Notifying immediate family members and friends
  • Arranging for care for the decedent’s pets.
  • Deciding on funeral arrangements: if the decedent expressed wishes, they should be followed.
  • Determine whether there is a prepaid funeral arrangement.
  • Prepare the decedent’s obituary
  • Evaluate whether there is perishable property
  • Keep a record of all payments for funeral and other expenses
  • Locate original will (and trust, if any)
  • Do not pay the decedent’s debts before obtaining legal counsel
  • Determine whether the decedent had life insurance
  • Determine whether the decedent had a retirement plan death benefit
  • Obtain death certificates. Some death certificates will have the cause of death listed; others will list no cause of death. Life insurance claims require the cause of death to be listed. Death certificates to be filed with court or recorded in the public records should not have the cause of death listed.
  • Cut up credit cards
  • Obtain an appointment with the decedent’s C.P.A. to discuss the decedent’s final 1040 and any other tax filings that will be required.

If the decedent left assets in his or her name alone or if assets are in a trust, the fiduciary named in the document should seek legal counsel. According to Florida law, a decedent’s original will should be filed with the Clerk of Court within 10 days. However, such filing does not mean that a probate administration will be necessary. Probate is necessary only if the decedent owned assets in his or her name alone. If all assets are owned as joint tenants with rights of survivorship or as “Husband and Wife” then no probate will be necessary. An attorney will review and analyze the will and trust (if any). The attorney will need to know how each of the decedent’s assets are held and their values. Even if assets were held jointly or had beneficiary designations, the attorney will need to know about the assets in determining whether the decedent had a taxable estate. Trust administrations are somewhat abbreviated, however, it is critical that the trustee understand the responsibilities of undertaking trust administration to avoid personal liability.

If the decedent owned real property jointly with a spouse, a few documents must be recorded in the public records in order to clear the title. These include an Affidavit of Surviving Spouse, an Affidavit of No Florida Estate Tax Due (if it is not a taxable estate) and the Death Certificate.

The payment of the decedent’s creditors is a process that can be a trap for the unwary. Florida law provides a priority for the payment of creditors. If the decedent’s non-exempt assets are not sufficient to satisfy all creditors, it is critical the creditors be paid in the proper order. The family may not know what may be owed by a decedent in the early stages. If claims are paid out of order then the fiduciary may be personally liable. Therefore legal assistance to determine exempt assets and appropriate claims is critical.

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