Many of our clients come to us with questions when a friend or family member passes away. In order to address some of these issues, we will be publishing a series of articles pertaining to a fictitious family which will illustrate some of these issues and concerns.
Our fictitious family, William and Jillian Ashby, were married in 1942 and had three children: Benjamin (age 63), Abigail (age 61) and Hannah (age 57). William and Jillian lived in Bergen County, NJ their entire lives. On June 30, 2007, at age 85, William passed away. Although we all know that death is inevitable, it is always a shock. Families are at their most vulnerable when mourning the loss of a loved one and it is often difficult for them to focus on the issues that need to be addressed.
An experienced trust and estate practitioner can be an invaluable resource to a family during this difficult time. While a family, like the Ashbys, is mourning, their attorney can advise them about a variety of legal and non-legal issues.
First, the family should take care of the funeral arrangements. A question that often arises is: “How do we pay for the funeral?” Because we don’t want Jillian to lose the benefit of any potential post mortem planning, it would be wise for her to pay the funeral expenses out of assets that are in her individual name. If this is not an option, a family member should pay for the funeral. In many instances, a funeral director may permit the delay of the payment of the funeral until the will has been probated. However, this will depend on the funeral director. It is important to keep in mind that whomever pays this expense will be reimbursed from the estate.
When Jillian receives the first certified copies of William’s death certificate (usually from the funeral director), it is extremely important for Jillian to review this document thoroughly. Often mistakes are made on death certificates that can unduly delay the administration of the estate. Jillian should be sure to review her husband’s Social Security Number, domicile, date of death and cause of death. If a mistake is made on the death certificate, it is easier to have it corrected early as opposed to finding the mistake later. In New Jersey, correcting a death certificate can take upwards of six months. It is important to determine that all of the information on the death certificate is correct. For instance, if the decedent’s cause of death is incorrect, this can impact the payment of certain benefits.
William’s domicile should also be reviewed carefully. Why does this matter? Determining domicile will designate the law that will govern the administration of the estate and invoke jurisdiction of the court. Many of our clients have multiple residences, so it is extremely important for the correct domicile to be listed on the death certificate. The Ashbys maintained residences in both Florida and New Jersey. William passed away while vacationing at his Florida property. It is quite possible for the death certificate to list his Florida address as his domicile. This seemingly harmless mistake on the death certificate can greatly impact the estate. The estate tax consequences can vary greatly depending upon what state you are domiciled in at your death.
Once William’s domicile has been determined, the Ashbys can then determine the appropriate surrogate’s court to either present the will for probate or have an administrator appointed if William had died intestate (without a will). Mr. and Mrs. Ashby executed wills in 2002 naming each other as executor. The first step for Jillian is to present the will for probate to the Bergen County Surrogate’s Court. When presenting a will for probate, it is always wise to make sure that the document is self-proving (witnessed by two individuals and notarized). If William’s will is not self-proving, Jillian would have to go through the time, expense and hassle of trying to track down one of the witnesses so that they can appear at the court and sign a Witness Proof. Locating a witness can sometimes take weeks or months. This is another avoidable pitfall which could potentially delay the administration of the estate. It is important to have your estate planning documents reviewed every few years to make sure they comply with the current tax laws, still evidence the testator’s intent and take into consideration any changes in family circumstances.
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