After the Loss of a Loved One:

A Guide to Legal and Emotional Concerns

Introduction


In the last 15 years, the Legal Hotline for Michigan Seniors has counseled thousands of older people about the decisions following the death of a close friend or family member. We recognized that written information exploring the connection between grief and the legal decisions that follow the death of loved ones would be helpful because the time immediately following the loss of an important person in your life (like a parent, spouse, or sibling) can leave you vulnerable to stress, misguided advice, or high pressure sales tactics that may lead to rushed decisions. Hasty choices may place you in financial or legal jeopardy and potentially limit future choices. Informed, considered choices are generally the best ones.

This guide is a quick reference to help you and your family cope with the loss of a loved one. Protect yourself, your rights, and the memory of the one who has passed by getting help from trusted spiritual, legal, and financial advisors before you act.

The Legal Hotline for Michigan Seniors is always available to help people age 60 and older with their legal questions at 1-800-347-5297 or through their website.

This page has been produced for the purpose of providing general legal information. It is not intended to take the place of the advice from a licensed attorney. For more information on how to receive further legal advice, scroll to the end of this article.

HELP WITH THE HEALING PROCESS

Be willing to accept help from others, but be wary of “new friends”


As human beings we are social creatures. The loss of a loved one is a critical time to accept and seek out help from trusted family, friends, spiritual leaders and professionals. We all need assistance in order to heal and move through difficult times.

While there will surely be warm-hearted individuals who will be willing to help you for your sake, others recognize vulnerability in persons who have just lost a loved one and will try to use this situation to gain something themselves. Being emotionally vulnerable is okay, so long as you are cautious. You should be wary of "new friends" who show up after the loss of a loved one.

Be particularly careful and cautious in your financial matters following the loss of a loved one. "New friends" you should be wary of are those that offer to take care of your financial matters, those who encourage the purchase of a costly item or service, or seem overly interested in your inheritance. Be especially skeptical of any businesses that contact you. Put your trust in family members or close friends who have not let you down in the past.

Communicating effectively


After the loss of a loved one, you will surely have plenty of needs which family and friends will be willing to help you with. In order to receive this help, you need to be aware of how you are communicating. Take some time to reflect on your demeanor as you go through this emotional time.

People will be more willing to give support if you are seem more warm towards them. This can include being open to hugs, handshakes and conversation and not folded arms, lack of eye contact and hostile language. When someone asks if there is something they can do for you, they truly do want to help, and you should be specific in communicating the tasks that you need. Don't feel ashamed to ask for help either.

Remember, you would gladly do it for someone else and most people feel the exact same way. Your friends just want to help.

Choosing the memorial that is right for you

Making arrangements for a remembrance or mourning ritual or ceremony may be important for you and your family. Here are some tips for effectively and smoothly honoring your loved one that will help avoid some financial or legal problems.
  • If advance plans were made, ask for help in implementing them. The time you spend with family and friends in planning or implementing the event can be as meaningful as the memorial.
  • Use a reputable funeral home. The price of funeral services varies substantially. Many people use a funeral home that family members have used in the past. It is advisable to get estimates before buying or agreeing to services.

  • Funeral providers are required by law to give you accurate, up-to-date pricing information. They are also required to provide you with a free copy of price lists when you visit the funeral home. Funeral homes, but not cemeteries, are required to give you prices over the phone.

  • Don’t be pressured into buying items or services you don’t want or need if it is uncomfortable or unaffordable. Take a friend with you to say “no thanks,” if you are unable to do it yourself.

  • Cost is an important factor in making a decision. It is not undignified to look at a variety of services and funeral homes. Price shopping or getting estimates and information is a great way for friends and family to help. Ask friends and neighbors which funeral home they have used and roughly how much it cost. You don’t want the passing of a loved one to be marred by feeling that you paid too much.

  • The staff at funeral homes or clergy are excellent resources to assist in planning an event to mark the passing of a loved one. If it would be meaningful to you, involve religious or spiritual advisers in your plans.

  • If you were involved with a hospice program, the hospice chaplain or bereavement coordinator might be able to assist you to make arrangements for such rituals. For more information on the hospice program, scroll to the bottom of the page.

  • There’s a growing interest in a return to the historic practice of family-directed funerals that do not involve using a funeral home. Some families find this participation to be very meaningful, and the practice can also be much less expensive. Preplanning is essential if you make this choice. You may call the nonprofit Funeral Consumers Alliance for more information at 1 (800) 765-0107, or visit their web site.

Taking advantage of military honors


If your loved one served in the military and you choose to highlight the veteran’s service to our country, making final arrangements can be different from civilian funerals. As long as the veteran separated from active duty service in good standing, he or she is entitled to the following military ceremony, honors, or benefits:

  • Playing of music by bugler

  • Folding and presentation of the American Flag

  • An honor guard and 21-gun salute

  • Burial in national cemetery

  • Burial at sea

  • Grave Marker

  • Presidential memorial certificate

  • Burial and funeral-expense allowance

Contact the Department of Veterans Affairs at (800) 827-1000 for information regarding the veterans’ office in your area. You can also find out more information at their website. If you are receiving services from a funeral home, the staff at the funeral home may be able to make these arrangements.

HANDLING THE ESTATE


After you have completed the funeral arrangements for your loved one, you will eventually have to address the financial matters associated with their estate: all of the deceased individuals assets (real and personal property) and liabilities (money the deceased individual is obliged to pay). Finalizing the affairs of your loved one may leave you feeling ambivalent and uncertain as to how to proceed. For instance, you might feel anxiety, frustration, guilt and fear about taking the next step. On the other hand, you might be hopeful that you can bring closure so that you will be able to move forward. Having positive or negative feelings regarding this process is common.

Take your time and consider all your options. Eventually you will begin to feel more at ease and better prepared to face the resulting legal issues. Many questions may arise such as:

  • Who is entitled to pension and social security benefits?

  • Am I entitled to the belongings and financial resources of the deceased?

  • How does the pension, life insurance and social security work?

  • Will I be responsible for the debts incurred by my loved one?

Gathering the necessary documents


For some people this can be a helpful step. This task offers structure during a time when you may feel very disconnected or disoriented. It can give you insight about your financial and legal situation and help plan for the future.

Here is a list of documents to gather:

  • Insurance policies;

  • Death certificate;

  • Anatomical gifts or organ donor papers;

  • Marriage certificate;

  • Divorce decrees from previous marriages, if any;

  • Will;

  • Trust;

  • Military discharge papers (if applicable);

  • List of assets (e.g. personal property);

  • Bank account numbers;

  • Social Security numbers for you and the deceased; and

  • Previous year’s tax return.

Remember to keep all of this information secure at all times to prevent identity theft.

If you believe that the will is located in a safety deposit box that was only in your loved one’s name, you will have to get permission from the probate court to enter the box. In Michigan, you will have to file Form PC 551. However, this only allows you to look for a will or burial plot deed; no other documents can be removed without going through the probate process.

You will need the death certificate in order to handle several of the legal matters such as opening the estate, collecting death benefits, etc. You will usually receive several copies from your funeral director. If you don’t receive them, or if you need additional certified copies, you can obtain them from the county clerk’s office in the county where the death occurred. You can also obtain a copy from the State of Michigan Vital Records Office or order it online from the Michigan state website.

After locating the documents, it is helpful to obtain the telephone numbers and the contact person for each resource for future reference. Taking the time to gather contact information and writing it down in a known location can reduce frustration and save time. It can also reduce the time and cost if you use attorneys or accountants to help you. This is also another activity that trusted friends, family members or professionals can assist with to ease things for you.

Once you have collected these documents, organize them and store them together. Putting them together in an envelope, or better yet, using a 3-ring binder will prove useful and help you in the future if any questions come up. It will also make it easier for your family members, when the time comes, to handle your affairs.

Understanding the basics of “probate”


The word “probate” is commonly used to refer to the administration of a deceased person’s estate. If a person dies testate (with a valid will), then the estate is distributed in accordance with the provisions in the will. If a person dies intestate (without a valid will), then the estate is distributed in accordance with the provisions of the state’s law, called intestate succession. The term heirs refer to those persons entitled to the property of the deceased under the intestate succession law. In most cases, the spouse is entitled to the majority of the property.

The term “estate” comes up frequently. An estate includes all of the assets of the deceased such as real estate AND personal property (i.e. car, furniture, stocks, bank accounts, etc.)

Probate is required to change the name of titled assets (like cars, houses, bonds, etc.) that do not automatically change at the time of death. Probate is also necessary to release the property from any future creditor claims. Once the estate is probated and closed, no creditor can make a claim against any of the property.

Many people don’t understand the probate process, are fearful about it, and look for ways to “avoid probate.” Probate can be fairly simple. There are some situations where things get complicated. A trusted, knowledgeable attorney is your best defense against overpaying for probate. We provide some sources for free legal aid at the end of this page.

In Michigan, probate administration is under the jurisdiction of the probate court, which is generally organized along county lines. A petition to admit a will to probate, or a petition for the administration of the estate of a person who died intestate, should be filed in the probate court in the county in which the person resided at the time of his or her death.

The administration of a decedent’s estate is the task of the Personal Representative. In most instances, the personal representative hires an attorney, and perhaps other professionals (e.g. accountant, realtor) to perform services related to the administration of the estate. Many of the services provided are to satisfy the requirements of the probate court. Most of the cost of probate is the fees for attorney or other services. Because these professionals typically bill by the hour, the more time spent in complying with probate requirements, ironing out problems, or gathering documents, the greater the fees incurred.

It is strongly suggested that if, after reading the remainder of this information, you decide you need to probate the estate, you should contact an attorney in your area. If you don’t know who to call, ask several friends and relatives if they can recommend an attorney.

If you are unable to locate an attorney that will handle probate of the estate, call the Legal Hotline and ask for a referral. More information is provided at the end of this page.

Another concern is how long will it take to probate the estate. While it varies depending on the county that you live in and how many assets are in the estate, probate can be completed in approximately 6 months. Four of those months are required to give any creditors time to get paid with the assets in the estate. Remember, after probate is done, those creditors no longer have a claim.

Probate administration may not be necessary upon the death on an individual. If the person owned no property titled in his or her name alone, then there is no property to transfer and no need for probate. Some individual situations are examined below.

The House

Assets titled in the name of husband and wife pass automatically to the surviving spouse. This is usually the case with a house that was purchased during the marriage. Probate is not required; however, the records at the Register of Deeds Office will need to reflect the death of an owner, especially if the real estate will be sold. This can be done at any time by filing a certified copy of the death certificate with the Register of Deeds in the county where the property is located. There is no time limit for this, but it will need to be done before the property can be sold.

Personal items and cash

Funds of $500 or less or clothing left in a hospital or nursing home can be delivered to the deceased’s surviving spouse, child or parent if no probate proceeding is pending.

If your loved one lived alone in an apartment, it may not be as easy to get his or her belongings. Most apartment complexes will require that you have court authority to enter the premises. The best way to do this is by following the procedures to handle a small estate, discussed next.

If the total assets of the deceased are less than $18,000 (in 2005), a simple procedure called a small estate proceeding is available at the probate court. This is something that a non-attorney can usually handle on their own. Court Form PC 556 is used to transfer the assets to the individual who paid funeral expenses, then to the surviving spouse or heirs. You can call the Legal Hotline for help with this process. The money limit for this simple procedure changes each year.

If there is a dispute over who should get certain items, it may be necessary to probate the estate so that the court can help settle the matter. This may be a very hard matter to deal with because relatives and friends may want personal items as a way of remembering the deceased.

If you were the deceased person’s power of attorney or guardian, your authority to act on that person’s behalf ends with death. You will not be able to use these documents to handle the estate.

Vehicles

If no other assets need to be probated, the Secretary of State’s office can transfer title to the deceased person’s motor vehicles. The total value of the vehicles must be $60,000 or less. Title is transferred to the surviving spouse, or if none, to an heir. You must provide a death certificate, the vehicle titles, and fill out a special form. (You can download this form from the Michigan Department of State website.)

Life Insurance Policy

If there was a life insurance policy, you should contact the insurance company and provide them with a copy of the death certificate. The insurance company can then pay the proceeds from the policy to the named beneficiary. This is the person that the deceased chose to receive the money. This process does not require probate unless all of the named beneficiaries has already died.

Bank Accounts

If the deceased had money in a bank account, it may automatically transfer to someone else at the time of death. This occurs when there was another name on the account and the account was a joint account with rights of survivorship, which is the case at most banks. This does not include persons that had a power of attorney.

Another way that someone else may have an immediate right to any money in the bank account is if it was set up to be a “payable on death” or “transfer on death” account. This type of account authorizes the bank to immediately transfer the funds to the named beneficiary.

If the deceased had a bank account with none of these instructions or provisions and only the deceased’s name was on the account, you should notify the bank of the death and have the account frozen until the estate can be probated.

If any of the money in the account comes from a government benefit, be sure to read the information later in this page on Social Security and Veterans benefits. You may have to return some or all of the money to the government later.

You can have your deceased loved one’s name removed from marketing mailing lists. Visit the Direct Marketing Association’s website and click on the link “how to remove deceased individuals from marketing lists.” There is a $1.00 fee, payable by credit card, so that the DMA knows that it is a legitimate request.

Checking with employers


Unpaid Wages or Benefits

When there is no probate estate and an employer owes wages, commissions or benefits, Michigan law provides for payment as designated by the deceased in writing. If there is no written designation, then payment is to be made to surviving relatives in this priority: spouse, children, parents, siblings.

Company Death Benefit

It is not uncommon for an employer to offer a death benefit to the spouse or family of its current or former employee. This is separate from any other benefit or pension. You should contact the human resource person at the employer to inquire about this. You may have to provide a copy of the death certificate.

Pension Benefits

If the deceased was receiving a private pension at the time of death, the surviving spouse may be eligible for a benefit. Many pensions must now pay a survivor benefit unless it was waived in writing by both spouses. Before 1985, there was no requirement for a survivor benefit, so if the deceased retired before 1985 with a life option/annuity, a surviving spouse benefit is most likely not available.

The rights to a pension benefit of a divorced spouse depend on the language of the judgment of divorce. If you have difficulties resolving a pension benefit, the Legal Hotline’s Pension Rights Project can help with pension related issues for any person of any age. Call 1-800-347-5297 and indicate you need help with a pension problem for free assistance.

Making sure you understand Social Security and Veterans benefits

Social Security Death Benefit

A Social Security death benefit of $255 is payable to the surviving spouse, or if none, to children receiving benefits from the deceased’s account. In order for the death benefit to be payable, the deceased person must have been receiving Social Security benefits or have been eligible to receive them.

In most cases, the surviving spouse does not have to apply for this benefit; it will be sent within a few months. However, children of the deceased will have to apply for this benefit within two years. You should call the Social Security Administration at 1-800-722-1213 to find out if you need to apply and how to do so.

The Deceased’s Social Security Benefits

Social Security benefits for a month are paid at the beginning of the next month. No benefit is payable for the month of death. A recipient must live through an entire month to be eligible for the benefit.

For example: if a person dies in July, the amount of the check received in August (which is payment for July) must be re-paid.

Social Security must be notified about the death of your loved one. You should call them at 1-800-722-1213. Do not be surprised if the hospital or nursing home notifies them.

If the benefit was direct deposited into a bank account, you can expect that either the bank will freeze the amount of the benefit or that

The government will remove it from the account, even without notifying anyone. Be sure to plan accordingly so that you do not overdraw the account.

Changes to the Spouse’s Social Security Benefit

A surviving spouse or divorced spouse (who was married to the deceased for 10 or more years) can contact Social Security to see if his or her check will increase due to eligibility for a widow/widower benefit. This can be helpful for budgeting for the future. The widow/widower benefit might change to a higher amount if the person with the highest amount of Social Security dies first.

If the person with the lowest amount of social security dies first, the benefit may be unchanged. Social Security will only pay the highest benefit you are entitled to, not the combined amount you enjoyed when both of you were alive.

You can contact the Social Security Administration at 1-800-722-1213 or visit their website.

Veteran’s Benefits

Veteran’s benefits are very similar to Social Security benefits. If the deceased was receiving Veteran’s benefits, you should contact the Veteran’s Administration and notify them of the death. You can call their toll-free number at 1-800-827-1000 or visit their website. They will help you determine whether or not any benefit payment must be returned. If you are the surviving spouse and also the military veteran, you will still need to contact the Veteran’s Administration because your benefit may be based upon the fact that you were married. If you are unsure, you should call.

Don’t assume you will have to pay the debts of the deceased


Debts that are solely in the name of the deceased are not the responsibility of the spouse or family
. Aggressive creditors may try to make you believe that you are now obligated to pay them, but never agree to assume that debt without understanding your rights and actual legal obligations. The creditor must make its claim against any assets that are left in the name of the deceased and handled through the probate process. This includes credit cards (if held only by the deceased)
and any auto-drafts on bank accounts that are in the name of the deceased. See the previous discussion on bank accounts for more information on this.

One of the debts that is often misunderstood involves leases, including apartments. There is nothing under Michigan law that relieves a person of a debt just because they die before the end of the term of the agreement. If an estate is probated, the party holding the lease can make a claim against the estate. If there are no assets to be probated, there will be nothing for the party to collect. However, that also means that if you are living in an apartment with only the deceased’s name on the lease, you may have to move or try to have the lease changed into your name.

Under Michigan law, a surviving spouse or child is not personally obligated for the individual debts of the deceased. The relative would only be responsible if he or she signed a contract for that purpose.

Avoiding major decisions


During this time, you might not be thinking as clearly as you will be a few months or a year later. You may be in mourning and this may not be the time to make decisions regarding important financial or legal transactions such as:

    • Transfer of property to others or giving away things like cars, furniture, jewelry, art and other valuables;
    • Make a major purchase, especially an unsolicited one;
    • Sell your home or move; and
    • Add the names of other people on your property and other assets.

Consider delaying all major decisions regarding your assets for at least 60-90 days and consult trusted advisors. It may seem like a good idea to add someone’s name to the deed of the house or to the bank account, but you should be sure to know all of the possible implications. Often people do not understand the effects of hasty decisions which can lead to negative consequences like:

    • Loss of control of property (no longer owned individually);
    • Exposing property to the claims of creditors of all parties listed on the property (divorce, bankruptcy, etc.);
    • Possible tax implications (if property transferred from you to someone else without you retaining an interest in the property);
    • Losing eligibility for government benefits; and
    • Loss of resources needed for other purposes.

Give yourself some time before making any changes and consult your attorney or the Legal Hotline to discuss the pros and cons.

Planning for your own passing

We encourage everyone to prepare for their possible incapacity by selecting a patient advocate through a health care power of attorney and by having a durable power of attorney for finances. We also strongly encourage the creation and regular updating of a will. By taking these steps now, you can help make it easier for your family and friends when the time comes that you are ill or when you die.

Because many costly family disputes are about personal property, you may want to leave a list of personal items and who receives them, along with your will. Michigan law allows you to do this if the list is referenced in your will.

Additional Resources

Grief Resources

www.mihospice.org

www.aarp.org/families/grief_loss/

www.compassionatefriends.org/

www.naus.org/

Certified Public Accountants

www.michcpa.org/ (finding an accountant)

Making Funeral Arrangements

www.mfda.org/ (funeral homes in Michigan)

www.ftc.gov/bcp/conline/pubs/services/funeral.htm (consumer info)

Community Resources

www.miseniors.net/ (find aging resources)

Planning ahead

www.agingwithdignity.org (end of life planning)

www.aarp.org/families/end_life/

To locate your local legal aid or legal services office:

This article appears courtesy of the Legal Hotline for Michigan Seniors.