What happens legally when someone dies?

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What happens legally when someone dies?

By Sarah Delano Pavlik

The good news is that most of us don’t have to deal with the death of a loved one very often. However, that means that most people don’t understand the process involved which can cause confusion and anxiety.

The first step after someone dies is generally to contact a funeral home to make arrangements.  Who is authorized to make the arrangements? Disagreements over disposition of a body (such as whether or not to cremate) can arise, particularly when family members are estranged.  For example, Ted Williams’ children engaged in an extensive legal battle over whether or not their father’s body should be frozen, and James Brown’s body was kept in his house (in a coffin) for weeks while his family fought about his burial and his money.

Once it has been determined who can make the funeral arrangements, the issue of payment arises. According to the National Funeral Directors Association, the average cost of a funeral in 2009, including the burial value, was $7,755.  Cemetery costs are in addition to this amount.

Many people buy life insurance to pay for a funeral, but life insurance proceeds aren’t available immediately upon death.  Therefore, funeral homes will accept an assignment of a life insurance policy. When the insurance company pays the proceeds of the policy, it pays the funeral home directly for its services, and it pays the rest of the proceeds to the named beneficiary.

Once the funeral arrangements have been made, the funeral home will notify social security of the person’s death and order the death certificates.  If there is not an inquest or other complications, the death certificates will usually be available within a week.

After the funeral, the family or other beneficiaries of the deceased need to claim his assets. How this is done will depend on the type and amount of the assets.

Some assets can be claimed with just a death certificate and a claim form.  For example, if the deceased named a beneficiary of his retirement accounts or life insurance, then the beneficiary need only file a claim form with a death certificate to obtain the proceeds. Likewise, if the deceased designated his bank or brokerage accounts “pay on death,” the beneficiary need only present a death certificate to the bank. For joint accounts, such as a bank account in the names of husband and wife, no paperwork is required to access the funds, however, the survivor should contact the bank to remove the deceased’s name from the account. Generally this will require the creation of a new account solely in the name of the survivor, rather than simply removing the deceased person’s name.

Illinois law provides for the following order:

  • a person designated in a written instrument such as an “Appointment of Agent to Control Disposition of Remains,” a will or a prepaid funeral or burial contract;
  • the executor or legal representative of your estate;
  • your surviving spouse;
  • your adult child, or a majority of your children if you have more than one;
  • your parents;
  • your next of kin;
  • a designated public official (if you die indigent);
  • if you donate your body to science, the institution that receives your body; or
  • any person willing to take on legal/financial responsibility.

What about assets that do not have a named beneficiary? If there is a will, the assets pass in accordance with the will. However, the will must be submitted to the court for probate. It is a common misunderstanding that a will is effective on its own. It is not. In order for a will to have any effect and in order for a person to serve as executor, the will must be presented to the court. The court will then “admit the will to probate” and appoint the executor.  The executor does not have the power to control estate assets until he is appointed by the court.

Although any person in possession of an original will is required to deliver it to the Circuit Clerk’s office within thirty days of a person’s death, there is no requirement at all that the will be probated. No one is obligated to probate a will, however, any interested party may choose to do so.  For example, if a husband dies and he and his wife owned everything as joint tenants with rights of survivorship, there is no reason for the wife to probate his will, as all of the assets pass to her automatically. Or, if mom dies and her debts exceed her assets, her children may choose to do nothing.  In that case, a creditor can open an estate in order to file its claim and obtain estate assets.

A will may also not need to be probated if probate assets are worth less than $100,000, there is no real property (land) in the estate, and there are no debts other than funeral expenses.  For example, if dad dies and his only asset is a bank account worth $50,000 and he has no debts, his beneficiaries (either under his will, or if he has no will, his heirs) can claim the $50,000 from the bank using a small estate affidavit.  Using this document is much cheaper and faster than the probate process.  If dad also had a home, the home could not be transferred with a small estate affidavit, although it may still be possible to sell the home without going through probate.  Depending on the circumstances, a title company may issue a title policy on property that belonged to a decedent even though there has not been a probate, allowing the property to be sold.

The death of a family member is an emotional and confusing event.  Heirs and beneficiaries should take their time locating and obtaining the decedent’s assets in the most efficient way that they can.

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Sarah Delano Pavlik is an attorney from Springfield.

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