It may come with a call in the middle of the night or in a whispered conversation in a hospital hall or any of a thousand other ways, but it is a message that comes to nearly all of us sooner or later: A loved one has died.
But whether the call spells tragedy, relief or something in between, it also means that an estate has to be settled. Someone in the family is about to be plunged into a labyrinth of paperwork, taxes and deadlines that may leave survivors feeling overwhelmed.
The issues that go with closing out the affairs of a dead person are difficult. That's mainly because they are mysterious. Most of us deal with them only once or twice in a lifetime, so each step is fraught with uncertainty and the worry that a mistake will result in some tax penalty or other disaster.
"I get calls from a lot of people who think there's some deadline that has to be met, so shouldn't they get working on it," said Rhonda J. Macdonald, a Fairfax lawyer who specializes in estates and estate planning. She assures them that they do have time. "I tell them [to] go ahead and make the funeral arrangements and then . . . come and see me any time after the death."
"The only important deadline is the estate tax return for anyone with assets over $650,000. That's due on the nine-month anniversary of the death," she pointed out. All the other important deadlines "to do with an estate--probate, for example--do not begin with the date of death. They begin when the court appoints an executor."
The executor is usually named in the will to carry out its terms and to make sure the wishes of the deceased are implemented. The executor is typically a family member, but it can also be a friend or professional or an institution such as a bank.
What really determines how tough things will be for survivors is how considerate and prepared the dead person was in life. Those who plan carefully, take their survivors into their confidence and leave clear records and instructions make the closing of their estates dramatically simpler for their heirs. Those who are unwilling or unable to explain their affairs to their family, who can't face the reality that they will in fact die, or who can't be bothered to write down key information about their property and debt--such people condemn their survivors to much unnecessary work and worry.
Lawyers, financial planners and other estate advisers typically help their clients compile a central file of key documents and information. It need be nothing fancier than a large loose-leaf notebook, but it will include things survivors need to know. Usually it will have funeral directions, a copy of the will and an explanation of where the original is kept, copies of any trust that the person has established, and names and addresses of any professionals with knowledge of the person's affairs, such as his or her attorney, accountant, insurance agent and financial planner.
The truly considerate will include a list of major assets, including insurance policies, bank accounts, securities and brokerage accounts, real estate and retirement accounts. The list will also include important debts. Unfortunately, many people are not that organized, and survivors are left to collect this information for themselves.
The first step, of course, is the funeral. If you don't know this already, look through the person's papers and try to determine if he or she has bought a burial plot and/or made any funeral arrangements. Some people buy burial insurance--check for any record of it. If the person was a military veteran, ask the Department of Veterans Affairs if he or she is eligible for any benefits.
In the worst case, where you have no information at all, start with the dead person's checkbook and look back through the stubs for any indication of payments to cemeteries, funeral homes or the like. This is a useful exercise in any event, because you or somebody will need to comb these ledgers to track down assets and liabilities for probate.
If nothing turns up, you will have to arrange the funeral yourself. Friends, relatives or professionals you know can help choose a funeral home. A professional funeral director can be surprisingly helpful with a number of mundane but necessary tasks such as getting copies of the death certificate. Life insurers and others will want copies before paying death benefits or releasing other assets.
Once the funeral is over, you can begin to sort out the rest of the person's affairs.
The important thing, experts say, is to take your time.
"While you're certainly going to have to focus on getting the information together, don't feel you have to do anything right away. You've lost a loved one, and that can be overwhelming," said Elissa Buie of the Financial Planning Group Inc. in Falls Church.
Once you're ready to begin, step one is to locate the will. That document typically names an executor and controls who inherits some, perhaps all, of the property. Hollywood-style readings of the will in the lawyer's office are rare in real life, but that doesn't mean there won't be some surprises. Just as in the movies, expectant heirs are sometimes disappointed, children disinherited, charities rewarded. However, such drama is the exception rather than the rule.
If there is no will, inheritance is determined by state law. Lawyers joke that if you don't make a will, the state will make one for you, and there's more than a grain of truth in that. In most states, absent a will, everything goes to the spouse; if there's no spouse, the children get it; if no children, then the parents, and so on through more distant family members.
Likewise, state law specifies an order of priority as to who the executor is to be.
If you are the executor under the will--or first in line if there is no will--it's a good idea to talk to a lawyer. Virginia, Maryland and the District of Columbia have all simplified the probate process in recent years and it is now possible to settle many estates with a minimum of professional help. However, there are pitfalls, especially involving taxes and larger estates. There are also circumstances in which you may want to decline--and this is well accepted in settling an estate. Wills often name a backup to serve as executor.
Even without good planning it may be possible to minimize or even eliminate probate, and there are also post-mortem steps that can sometimes be taken to reduce taxes, said Frederick J. Tansill, a lawyer with offices in McLean.
In the District, for example, probate is essentially unsupervised as long as no family member insists that the estate be run through the court system, Tansill said, and in Virginia it is often possible for adult children to act as co-executors of a parent's estate and avoid all but very limited reporting requirements.
"Make sure you don't pay more taxes than you have to and you don't do more work than you have to," Tansill said.
Also, special circumstances may make being executor undesirable.
For example, if there are lawsuits pending, you could end up having to hire attorneys and defend the estate. Or conversely, if the dead person had a legal claim against somebody--perhaps the decedent was killed by a negligent driver--the executor would be expected to pursue the claim. An executor who failed to do that could be criticized or even sued by the heirs, Tansill noted.
Plus, it's a lot of work. In addition to the estate itself, you have to file the current year's income tax returns and maybe the previous year's, and if there are back income tax liabilities, you have to file those returns, too.
Before agreeing to take on the executor's duties, it's a good idea to do at least a general inventory of the estate's assets and liabilities. Executors are entitled to compensation, but it may be that most or all of the dead person's assets--such as life insurance payments--will pass automatically to named beneficiaries and the estate will have little or nothing left to pay the executor. Or the estate may be insolvent, and you end up doing nothing but wrestling with creditors.
"You don't want to take on an estate that's nothing but a bag of bills," Macdonald said, though she noted that "family members are almost always willing to settle an estate, whether it's messy or clean."
In sizing up an estate, Buie suggested, think of it "in two broad categories: what is there, and who is there."
The "who" category is primarily professionals--lawyer, accountant, insurance agent, broker or financial adviser--and they are a good place to start because they will have at least some knowledge of the dead person's affairs and also will have good records.
The "what" should include all assets and liabilities. On the asset side, include everything from personal property to real estate to stocks and bonds to retirement accounts to life insurance. Include the location of the assets--If it's real estate, for example, where is it? If it's stocks, who's got it?--and how it is titled. Jointly held assets, retirement accounts and life insurance, for example, pass to survivors or beneficiaries outside the will and without going through probate.
Assets held in trust, an increasingly common occurrence as revocable trusts grow in popularity, also pass to beneficiaries as specified by the trust documents.
List all liabilities, and note when payments are due. "You've got a short fuse on some of those," Buie said. "Just because a person dies doesn't mean the mortgage doesn't have to be paid."
But you should let creditors know that the person has died, "especially if there isn't money to pay the debts," Buie added. "Let them know that once we have settled the estate and sold the assets you'll get paid off."
If the gross value of the assets totals at least $650,000, an estate tax return must be filed. This doesn't mean that tax will be due--the tax is computed on the net value of the estate after subtracting debts--but a return is nonetheless required.
With luck and good planning, you may find that probate requirements are very minimal or that you do not have to probate the estate at all. But if you have to go through the full process, you have four months from the date of your appointment as executor to file an inventory of the estate, essentially a list of assets and their value.
Then a year later, you must file an accounting, which is a down-to-the-penny listing of the estate's assets, income and payments. The accounting is a major headache of traditional probate, and it must be repeated every 12 months until the estate is closed, at which point you file a final accounting, which should show a balance of zero.
All experts caution against distributing assets too soon, since if claims arise later, such as additional taxes or lawsuits, you could be personally liable at least to the extent of the assets you have distributed. There may be state procedures for immunizing yourself from claims, but you don't want to get in the position of asking heirs to return the inheritance they just received.
WHEN IT COMES TO DISPUTES, DEATH IS NOT THE END
A great many families, perhaps a majority, manage to pass assets from one generation to the next with only modest levels of aggravation and inconvenience. But others, through distrust, neglect or outright hostility, inflict headaches, paperwork and sometimes taxes on themselves--problems that trust, disclosure and planning would have largely avoided.
In a few cases, like the estate of the late Jack Kent Cooke, the drama is played out in public for all to see. But most of the time, the anguish is private, as heirs struggle to figure out why their loved ones could have behaved this way.
Often it all works out in the end, but sometimes estates are eaten up with taxes or legal fees. Lawyers have many stories to illustrate the point.
For example, twice in the past year, Fairfax attorney Rhonda J. Macdonald said, widows have come to her with fistfuls of credit card bills that their husbands had run up. The accounts were entirely in the husbands' names, and completely unknown to the widows until the bills started coming in and the card issuers began writing letters demanding payment.
Fortunately in each case, Macdonald said, the couple's estate was modest and they had held all their property jointly. Thus at the husband's death the property passed to the widow automatically, leaving the husband's estate with credit card bills and no assets. Macdonald wrote the creditors, informing them that there were no assets in the estate and no executor was going to be appointed. The creditors had no place to sue and gave up.
Occasionally, though, creditors will find it worthwhile to pursue an insolvent estate, especially if they have secured loans, such as a large mortgage on the dead person's property. Attorney Frederick J. Tansill noted that it's possible for a creditor to get itself appointed executor of an estate if no one in the family will do it.
"If there's a large mortgage, the bank will go in and qualify [as executor], sell the house and pay themselves," Tansill said.
Sometimes, if people aren't careful, they may overlook some of the assets and end up defeating their own wishes.
Tansill recalled the case of a woman who had been through a divorce so bitter that she had included in her will instructions to her executors to fight tooth and nail any attempt by her ex-husband to obtain any share of her estate assets. But the woman forgot that she had a large life insurance policy through her employment with the federal government. She had named her then-husband its beneficiary years ago and had not changed that after the divorce. Because insurance benefits go to the named beneficiary regardless of what the will says, the ex was able to walk off with tens of thousands of dollars and there was nothing her executors could do about it.
In other cases, failure to update documents promptly causes problems.
Macdonald told of a well-to-do client with children from a prior marriage. The man remarried but died suddenly three months later. The children's view is that the marriage was so brief that the widow shouldn't have much of a claim on the assets, but in fact under state law she has a firm right to one-third of the estate. While it's generally not possible to disinherit a spouse, an updated will, plus an explanation to the children, could have made the situation a lot less unpleasant.
Macdonald and other attorneys said that once the legal fees start to mount up, parties will usually come to a settlement--but not always. "Sometimes it gets so ugly that they'll intentionally run up legal fees rather than see anything paid to the other side," Macdonald said.
And some estates are just too messy to touch.
Tansill told of an attorney who found himself named as an executor of an estate of a friend who had murdered another man and then killed himself. The attorney's first impulse was to take on the task as a favor to the friend, but then he realized that he might be wading into a bottomless swamp. The family of the slain man could file a wrongful death suit against the estate and other legal actions could arise as well, so the attorney backed out.
It's nice to be trusted by friends and relatives, several lawyers noted, but if you're named executor of an estate, it's wise to look carefully before you leap.
A GIFT TO YOUR HEIRS
Perhaps the greatest favor you can do for your heirs is to leave your affairs in good order and your wishes clearly spelled out. Some basic steps you can take include:
* Make sure you have a will, that it is up-to-date, and that your survivors know where to find it. It's wise to consult an attorney who is familiar with estate planning and with the law of the jurisdiction you live in. This person can help you make sure your will accomplishes what you intend, and can eliminate or minimize probate. If you move to a different state, run your plan by a lawyer there to make sure it satisfies local requirements.
* If you have taken other steps, such as setting up a trust or trusts, make sure your survivors know about and can find the documents. Also let them know about any powers of attorney or medical directives (living wills) you have executed so they can make use of them if you become incapacitated.
* Draw up a list of your assets, where they are and how they are titled or, where appropriate, who the beneficiary is. Update this periodically. Make sure your attorney and at least some of your heirs know where it is.
* Write out any funeral wishes you have, and if you have made arrangements yourself, such as purchasing a burial plot, include information on that.
* Be candid with your heirs. Tell them what you want to do, and why. If your wishes are clear, they are more likely to be fulfilled, and the knowledge that this is what you want can reduce family disagreements.