Posts Tagged ‘death’

Things to Consider When You’re Named as Successor Trustee

NOVEMBER 2, 2015 VOLUME 22 NUMBER 40

When a family member dies, you will need to address a number of items. One that might come up: handling the revocable living trust they created.

If you are named as successor trustee you will have a number of obligations you need to discharge. You might need help from a lawyer and/or an accountant; you should not hesitate to consult one or both to figure out how much help you do need. Many of the successor trustees who consult us can do just fine without continuing legal help, but the process is not always easy or obvious.

We can provide you with an introduction to the considerations involved in handling a trust after the death of the trust’s settlor. Before we start, though, these caveats/warnings are appropriate: we’re only writing about Arizona law, and your situation might be very different than the other facts we assume here. Any questions in your mind about what needs to be done? Ask a lawyer.

With that in mind, here are some of the issues to consider shortly after the death of someone who named you as successor trustee:

What law applies? It’s not always obvious. If your mother signed her trust in Arizona and lived and died in Arizona, and you live in Arizona as well, her trust will almost certainly be governed by Arizona law. But what if she lived in another state and you live in Arizona? Or if the reverse is true? Or the trust says that another state’s law will apply?

The general rule: the law of the state where the trustee lives usually applies. That’s you, not your now-deceased mother. If you are the trustee, start by talking with a lawyer in your own community, and ask her whether she is the right person to advise you (of, if not, if she can refer you to someone in the right state).

Notice to beneficiaries. The law of many states — including Arizona — requires specific written notice to the beneficiaries of a trust after you take over as trustee of an irrevocable trust. Did you manage the trust for a time before your father’s death? Ask your lawyer about the applicable state law. This is an area where state laws differ.

Arizona says that notice is due within sixty days of a trust becoming irrevocable (as, for instance, upon the death of the settlor):

Within sixty days after the date the trustee acquires knowledge of the creation of an irrevocable trust or the date the trustee acquires knowledge that a formerly revocable trust has become irrevocable, whether by the death of the settlor or otherwise, shall notify the qualified beneficiaries of the trust’s existence, of the identity of the settlor or settlors, of the trustee’s name, address and telephone number, of the right to request a copy of the relevant portions of the trust instrument and of the right to a trustee’s report as provided in subsection C.

That’s Arizona Revised Statutes section 14-10813(B)(3). Note that it refers to a list of items the notice must include. You can read that description at the same link, but it basically requires information about the settlor, the trustee, the trust and its assets.

Identifying the beneficiaries. Who is a “beneficiary.” Suppose your father’s trust says that if you, all your children, and all your cousins die in a common accident, everything goes to a charitable organization. Does that mean that all notices have to be sent to that charity, too? Not necessarily.

Arizona defines people and organizations who need notice (they are called “qualified beneficiaries”) to include everyone who is entitled to (or even can receive) income or principal right now, plus anyone who could receive trust money if one thing happened (like the death of a beneficiary). That’s a bit of a simplification, but it should help figure out who is entitled to notice. The details are in Arizona Revised Statutes section 14-10103(14). It’s a little hard to read and interpret — talk to your lawyer about it if you have any difficulty figuring out who is a “qualified beneficiary.”

Review the trust. Not just the parts identifying the beneficiaries, or the list of successor trustees. Read the entire trust. It might tell you to do more than the law requires. In some cases, it might tell you that you can do less than the minimum spelled out in the law — though sometimes those provisions are ineffective. Talk to your lawyer if you have any questions about minimum or maximum requirements.

Certificate of trust. When your mother signed her trust, she probably created a short (two- or three-page) document that listed the trust’s name, her status as trustee and the name of her successor trustee (among other things). You will probably want to prepare a similar document as successor trustee, and it might need to be filed with the County Recorder’s office in any county where the trust owns real estate. Arizona Revised Statutes section 14-11013 tells you what you might include in that certification, but it doesn’t provide a form. Having a hard time finding a good form? That’s because every case is so different — depending on how many and who the beneficiaries are, what kinds of assets the trust holds, the relationship of the successor trustee, and other things. Ask your lawyer for help.

Taxes. You knew that taxes would be an issue, right? Someone (and it’s probably you) will need to sign and file a final federal income tax return for the part-year they lived. The trust will be a separate taxpaying entity, and will need to secure a taxpayer ID number (an EIN) and file at least one federal income tax return. There will need to be state income tax returns for the state where your family member lived, and for the trust in one or more states. This is a good item to discuss with your accountant.

There’s more. This list is far from complete. It’s an attempt to give you some idea of what you’re facing, and to help you figure out whether you need to consult a lawyer. Not sure? That’s the best evidence that you need to get good legal counsel.

Here’s a Project For You: Write Your Own Obituary

APRIL 14, 2014 VOLUME 21 NUMBER 14

I have a new aspiration. I want my obituary to appear (at the appropriate time, of course — not before) in someone’s blog, newsletter, book or other publication as “one of the best obituaries ever” — maybe even to “go viral.” I’m just not sure I can count on my family to understand the importance of this goal. Maybe I need to write my own obituary now.

Turns out that idea is not novel. The recent death of Walter George Bruhl, Jr., in Florida highlighted the trend. Read Mr. Bruhl’s obituary, and the story about its preparation, and you will have to acknowledge that you wish you’d met him.

Of course excellent obituaries can be written by family members. Consider the moving and excellent obituary of Harry Weathersby Stamps, who died in March, 2013, in Mississippi. And note that it appears online on a site called “ObitOfTheDay.com” — the internet is truly a wonderful invention (one wonders whether Al Gore might be working on his own obituary). But back to Mr. Stamps: his wonderful obituary was written by his daughter, Amanda Lewis, a Texas attorney with a wonderful sense of humor and fond recollections about her father’s strengths and eccentricities. There are definitely benefits for family members who write memorable obituaries, but still there is something to be said for preparing your own.

So how to get started with writing one’s own obituary? It turns out that there are plenty of prompts, suggestions and ideas available. One online resource for the self-written obituary project suggests the question: “what do I want people to remember about me?” as a straightforward prompt. The result need not be humorous or whimsical — it might be heartfelt and moving (like actor James Rebhorn’s self-written obituary). It might be wry and revealing (like engineer Val Patterson’s contribution to the genre). Maybe you prefer mostly factual, with the occasional sly aside (like former Marine and ad man John E. Holden — whose short obituary generated enough interest to occasion a longer, much more detailed reminiscence from his local newspaper).

Something similar happened with Jane Catherine Lotter’s self-written obituary. After her death in Seattle in 2013, her obituary “went viral” and resulted in a New York Times article about her life, her death and her writing.

Here’s an interesting idea: try starting with a very simple statement, limited to just six words. That’s the premise behind “Not Quite What I Was Planning,” a 2008 collection of “six-word memoirs” from various contributors. There are even follow-ups: “It All Changed in an Instant” and other volumes in the series.

Most people, though, will want to write a longer version. Advice from one source: just get started. According to Obituary Guide (a resource for writing your own or a loved one’s obituary), getting your own on paper can be a help for family members and a chance to say what you want said about yourself. It also can be part of your end-of-life planning, including your living will, health care power of attorney, durable financial power of attorney, will and other documents.

It turns out that the self-written obituary is a trend. You can even order a book to help you get started (called, cleverly, ObitKit) and join “the hottest thing in dying.” Happy writing.

Upon Death of a Loved One, Some Things to Address

APRIL 8, 2013 VOLUME 20 NUMBER 14
More than three years ago we wrote about what you need to do when a family member dies. Our focus was on the immediate things that need to be dealt with: securing the house, taking care of pets, forwarding the mail. We thought we would get back to things that needed to be dealt with in the week or two after death, but we never managed to get back to the topic. Let’s look at some of the follow-up items now.

To make it a little easier for you, we have prepared a checklist. It is not intended to be exhaustive (though we think it is pretty thorough), and not every item will be applicable in every case. Sometimes you may need to make adjustments — such as when your family member had a living trust, and no probate proceeding will be necessary, or if you have been responsible for managing their bill-paying for several years before the death. Still, we think it will help you organize the papers, questions and information you need to properly take care of the legal and financial issues that will arise.

A couple more caveats:

  • Please remember that we live and practice in Arizona. This checklist may not be accurate, or as useful, if you live somewhere else, or your family member died somewhere else.
  • Several items on our checklist encourage you to collect information of various kinds. In most cases, that’s so that your visit to our offices will be more productive. Sometimes it is to help you answer questions from heirs, creditors or others as you get more deeply into administering your loved one’s estate. If you do collect forms, mailings, etc., keep them in a central place for several years after you have concluded the estate administration.
  • Where we indicate that you should keep track of your time and expenditures, we really mean that you should — and from the very beginning of your work. Even if you have no intention of charging a fee, we strongly recommend that you keep track.
  • If you are not the person who will be in charge of the decedent’s estate, that does not prevent you from printing out the checklist, monitoring progress by the person who is in charge, and figuring out how you can be helpful.

How quickly do you need to get to the lawyer’s office to review what needs to be done? Usually it is not the most pressing issue, but you should expect to make an appointment within about two to four weeks. If you are the surviving spouse, it probably can wait longer. If you are in town for a short time you might well want to meet right away, at least briefly. But here’s another reality: when you call, you may be looking at a two-week wait before an appointment. That gives us time to schedule you, and to get a questionnaire out to you to help with the collection of information. Usually nothing can be done for a week or two anyway. So don’t wait two weeks to call for an appointment, and then expect it to be immediate.

Do you need to see the lawyer who prepared the will or trust? No. It may be more comfortable and efficient, and the lawyer might have even kept the original documents (we do not usually do that at Fleming & Curti, PLC, but many law firms do). But there is no need to return to the decedent’s lawyer. It probably does make sense (in most cases) to meet with a lawyer in the community where your family member lived and died.

How long will the process take, and how much will the lawyer charge? It’s really impossible to generalize in any useful way. You might well be surprised at how little it costs. On the other hand, we regularly see family members who think there will be no need for a probate or any costly legal proceedings, only to find out that something was wrong in the estate setup, or something got changed or overlooked.

What are some of the more important points in our checklist? Here are a few we’d like to highlight:

  • Assembling a list of bank accounts, annuities, stocks, bonds, mutual funds, brokerage accounts and real estate will speed the process up immeasurably. It will likely also make it much easier for the lawyer to realistically estimate the cost and time to get the probate (or trust) administration completed. Same for creditors.
  • The funeral home will help you determine how many death certificates you will need, and how to get them ordered. You might not have visited with us yet, but here’s a practical reality: if you order them through the funeral home, you will get them faster and more cheaply. If we have to get them later it will be time consuming and more expensive. So when you’re figuring out how many you need, estimate high.
  • At some point we’re going to need names and addresses for all the heirs and beneficiaries. For some we will also need dates of birth and even Social Security numbers. You can speed the process up if you start collecting that information.
  • Forwarding the mail is critical. It needs to get done, and it is often the easiest way to get information about assets and bills.

One last point we want to make: if you had a power of attorney for the decedent, it is no longer valid. While a “durable” power of attorney survives even if the signer becomes incapacitated, no power of attorney survives the signer’s death. Do not sign checks, make credit card charges, or do anything else using the power of attorney.

Call us to discuss what needs to be done next. We will be very sorry to hear of your loss. We are here to help.

 

What To Do When a Family Member or Loved One Dies

NOVEMBER 30, 2009  VOLUME 16, NUMBER 63

Obviously, the death of a family member or close friend will be an emotionally charged moment. Most of us only have to endure the process a handful of times in our entire lives. That means we may be ill-prepared for what needs to be addressed, and extremely distracted and even vulnerable at the very time we need to be at our best.

There are a few legal matters that need to be dealt with, and a myriad of practical issues. Family and friends must be notified, an obituary notice prepared, and funeral arrangements made (or simply implemented, if the decedent was organized enough to have made advance arrangements). Here are a few others to be dealt with right away:

  • Pets need to be taken care of. Will someone in the family take responsibility for the cat? She needs to be attended to right away — she should not be left in the house alone, frightened and without adequate food and water.
  • Is security at the decedent’s home a concern? Someone should be detailed to turn lights on and off, pick up (and cancel) newspapers and collect the mail every day. Locks may need to be changed, especially if there have been caretakers, neighbors and repair workers in and out of the home.
  • The refrigerator needs to be cleaned out, dishes done and put away, and the house generally looked after. If those tasks are left for later, all sorts of problems can arise.
  • Mail should be forwarded, but it may not be possible to accomplish that until someone has been formally appointed as Personal Representative of the decedent’s estate. In the meantime, someone can pick up the mail daily while checking on the house.
  • Start a log and/or spreadsheet to show all expenditures and time spent on the decedent’s affairs. Even if you do not intend to seek payment later, it may be important to have this information collected — and it is much harder to recreate it later.
  • Arrange for a visit to the safe deposit box. In Arizona the bank is no longer required to impound the box’s contents, but it may be that no one is a signer on the box — or that the key can not be located. Look for information about the safe deposit box, and the key, among the decedent’s papers and personal possessions.
  • Cut up and return credit cards in the decedent’s name. It is not legal to use them, so there’s no need to keep them around. Do not be tempted to charge funeral expenses or other urgent bills on the credit cards.

What’s missing from this list? Call the lawyer. We don’t want to intimate that we think calling for legal counsel is unimportant (hey, we’re a law office, after all). In most cases, though, it is not among the first things that need to be done. It is probably not necessary to meet with the attorney immediately, but it may well take several days to get an appointment and in the meantime you might be able to get at least some guidance by telephone — so an early call is good, but perhaps not the most important item on your list.

Your circumstances may be different, of course. Perhaps there is a relative who is trying to remove valuable personal property without proper authority. Maybe your loved one lived in a rental unit, and security, cleaning and pets are not a concern. One item, at the head of every list, should be universal: breathe. That is, take a deep breath, ask for assistance from family and friends (most will be happy to pitch in, even if they were not related to, or close to, the decedent), and remember that it is permissible — and even laudable — to grieve as you work through the tasks that must be accomplished.

This is a short list of the most urgent steps to take. In another newsletter we’ll suggest some others, and even provide a checklist.

©2017 Fleming & Curti, PLC