Your Funeral: Who Gets to Direct the Details

Last week I shared the story of an old client, Smokey Susan.  Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.

Susan really had no claim to any right to bury Joe:  they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive.  If no one else had claimed the right to direct disposition, Susan would have been okay.  The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.

How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains.  In this document, you can name an agent as well as a successor agent.  You can also be as detailed or as nonspecific as you choose.

For example, I have clients who have very specific wishes with respect to burial versus cremation.  Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.

You can also outline the type of service, if any, you want held in addition to other details.  As examples, I will share excerpts out of two of my favorite "directives":

I.     "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."

II.    "I do not want any type of service at the funeral home, or viewing.  Please bury me next to my wife, and have the preacher give a graveside service for family only.  On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."

Both of these people are gone now, and their agents did as instructed.

I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue.  Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home.  I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried.  The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!

Another way to avoid this situation is to purchase a prepaid funeral plan.  This allows you to decide many of the details in advance, and pay for it.

Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true;  however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes.  Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page.  If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

If I Have a Will, Do I Avoid Probate (and Other Frequently Asked Questions)

1.         What is a will, and why do I need one?  

A Will is nothing more than a letter to the probate Judge, telling the court who you want to be in control of your estate (your Personal Representative) and how you want your estate to be distributed.  A person is intestate when they have no Will.  The intestate statute may call for distribution of your estate which is in contradiction to your wishes. 

2.         Does a will avoid probate?

No.  A Will requires probate because a Will is like a letter to the probate Judge.  If you write a Will there is a good chance that your estate will have to be probated. 

3.         Why do I want to avoid probate?

Probate prices in Florida are considered high.  Average shrinkage of an estate in Florida caused by probate expense is between 3%-10% of the value of all the assets going through probate.  Florida statutes provide that the attorney may be paid 3%of the first million dollars of assets in the probate estate.  Thereafter, there is a decreasing percentage payment.  This percentage fee is in addition to an hourly rate for any “extraordinary” expenses such as assisting the Personal Representative in a real estate closing.  The Personal Representative is also entitled to a fee which is usually equal to the attorney’s percentage fee under the statute.  For this reason, as well as the time involved in the average estate, most people wish to avoid probate, or at least minimize their exposure to the probate process.       

4.         What is probate?

Probate is the process of changing title of your assets after your death from your ownership to your beneficiaries or heirs. During this process, all of the assets that you owned during your lifetime in your individual name and outside of any trust or beneficiary designated asset will be retitled and distributed to your beneficiaries or heirs, after payment of your creditors. 

5.         What is a living trust, and why do I need one?

A living trust is a document which creates an entity that will survive your death.  The primary purpose of a living trust is to avoid probate.  A secondary purpose and the driving force behind the desire to have a living trust is the avoidance of estate tax.  A third purpose in creating a living trust is to consolidate your assets and prepare for administration of your assets during your lifetime but in a time where you are not able to care for yourself.  A living trust can avoid probate after your death and in many cases guardianship during your lifetime.  The decision of whether or not to declare a living trust should be made with the advice of an attorney.   

6.         Does a trust avoid probate?

In most cases, yes;  however, even though many people establish a living trust, some do not follow through with funding the living trust.  For this reason, beneficiaries of a  living trust end up having to probate assets which were never transferred to the decedent’s trust.  In addition, most people choose not transfer their homestead into their living trust and after their death the homestead must also be transferred through a probate. 

7.         What is a Durable Power of Attorney, and why do I need one?

A Durable Power of Attorney is a document in which you give someone else the right to be you.  This person, depending upon the scope of powers you confer upon them, may do any number of things as if they were you including closing bank accounts, taking out loans, selling real estate and the like.  A Durable Power of Attorney can be invaluable in protecting your assets and maintaining your lifestyle in a time of incapacity not only in your old age but at any time during your life.   

8.         What is a Designation of Healthcare Surrogate, and why do I need one?

A Designation of Healthcare Surrogate is a document created by Florida statute.  In this document you name a surrogate to act for you in your health care decisions when you are unable to do so for yourself.  To be clear, no one needs a Designation of Healthcare Surrogate unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

9.         What is a Living Will, and why do I need one?

A Living Will is a document in which you state your desires for life support and other treatments such as the withholding of food and water.  I recommend that my clients execute a Living Will in addition to a Designation of Healthcare Surrogate so that if the Designation of Healthcare Surrogate is ever deemed an invalid document in a court of law or though a statutory repeal, your desires for your healthcare will be known.  To be clear, no one needs a Living Will unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

10.       What other documents are there that I might need to complete my estate plan?

There are several other documents which could make up your complete estate plan in addition to a Will or Trust, Durable Power of Attorney and Designation of Healthcare Surrogate.  Many times my clients wish to execute a Designation of Preneed Guardian.  This document is like a letter to the probate Judge stating who you wish to act as your guardian in your incapacity.  You can designate separate persons to act as guardian of your person (the person in charge of making decisions for you such as where you would live and who your doctor will be) and your property (the person in charge of your assets).  Another document which my clients find useful is an Appointment of Agent to Dispose of Bodily Remains.  Basically this document allows you to name someone to be in charge of your funeral and disposition of your remains.  Both of these documents are used most often in second marriages or in family situations where there is strife between the parents and children or among the children. 

For more information, visit my website.

Julie

Copyright All Rights Reserved Julie Ann Sombathy 2012