Death is a natural process of the body, and many believe a supernatural one as well. Until we start actually receiving postcards from the edge, we will never know exactly how death affects the deceased. We do know for certain that its effect on the living is profound. It brings memories of life gone by, and it re-opens wounds. It may involve travel, finance, a sense of duty. It will involve Family—both when we need it most, and when we want it least. The process that the living must go through is Grief.
The organic and emotional processes of humanity function on a different level of sleep-deprivation, a more drastic emotional arc, and a deeper sense of urgency than the official record keeping mechanisms developed over the last 400 years by our courts, banks, and legislatures to account for a decedent’s assets.
People do not die on schedule, for the most part. And the living do not grieve on schedule. While the fact of Death is addressed in legal and financial forms, the process of Grief is not. It is governed by tradition, ability, personality, and psychology.
Probate and Estate Administration, however, is a process that can be set according to a statutory watch. There are deadlines, and occasional extensions. There are priorities that are based on legal and financial requirements. There is a confusing interface between discussions of tax, rights, intention, and law.
Trust administration will be ultimately governed by the terms of a Trust Agreement, but many deadlines and reporting processes are similar—just outside of a courthouse. For the rest of this essay, let’s speak of Trust Administration, Probate, and Estate Administration as the same thing. For while there are subtle legal nuances that will require the advice of counsel, the experience of the Client will largely be the same.
Powers of Attorney end on death. This is not always remembered by those who are POA, and clients seeking probate advice have asked me whether the POA should be in charge of everything. During the first month or so after a person dies, there is a period for funeral arrangements and what was traditionally a search for the Will.
This is the “marshalling of assets” period. The Executor or Trustee should make sure that final arrangements are made for the family’s grief and the disposition of remains. As much information on the estate, its assets, its liabilities, and its beneficiaries should be gathered as possible and given to attorneys or financial advisors. Attorneys and advisors spend this period determining what was owned, and what was owed. If you are a fan of the phrase “hurry up and wait,” you will find yourself using it frequently during this period. Nevertheless, the Executor, Trustee, and the next of kin can take this period to pull things together, often without the lawyers involved.
The “reading of the Will” is a myth created by oil painters and Hollywood. I have seen it done once, at the client’s request—it was a cruel farce concocted by the decedent to let his hangers-on know that everything was going to charity and the family was disinherited. I doubt they will read my estate plan aloud, in a crowded room, with swooning figures in chiaroscuro. But the lack of this Dickensian scene bothers some people. We have ideas about what death means—but when it happens we aren’t sure when exactly to call the lawyer. Feel free to call anytime, but don’t feel like you need a Probate appointment scheduled tomorrow. Family and friends come together, and life goes on. Keep your receipts, and settle up money matters later.
Not all personality types react to the marshalling period in the same way. For some heirs, the common gripe during this period is: “No Body Has Told Me Anything.” Let us imagine a man named Bill and his father, who we’ll call Dad. Bill and his family are completely fictional, but their issues are common.) Dad has recently passed. Bill and his siblings have some tension or rivalries, but in general they are a happy family—everyone was basically aware of Dad’s wishes. Bill’s older brother Eric was the POA and all of the children know that Eric will be the Executor and Trustee. Suddenly there are calls and emails from everywhere. Bill is flooded with information and Grief…but after three months no one has discussed the legal or financial part of the Estate Administration with him. It may not be time for Bill to “lawyer up” and sue Eric for “not disclosing anything” or “not doing his job.” Even if Bill and Eric had a strained relationship previously, an email or letter written in an unemotional, professional tone requesting a copy of the Will and any inventory is appropriate. If you want communication, reach out to the Executor, and keep it polite. It may turn out that Eric doesn’t initially know as much as Bill imagines. A Will and the start of an inventory may be all that Eric has.
Some people experience a form of grief where they want to “Take Care of It All Right Away.” Let’s imagine Eric, our fictitious Executor and Trustee, from the above example. Eric has a successful job on the opposite coastline of the U.S. from the rest of his extended family. He had a good relationship with Dad, and Dad trusted him with legal and financial matters. Eric is a driven person with a full calendar. He may take one week off, fly across the country, and figure to be home by next Monday. Bill might see this as cold, but it is actually a form of Eric’s grieving—by taking it all on at once, Eric is trying to process the death of his father.
Bill and Eric both need to realize that the average Estate Administration lasts two and a half years. This is at odds with the normal psychological process of grieving, which usually lasts 6 months to a year. Some simple estates can be wound up in a manner of six months—but don’t ever count on it. Estates can easily turn out to be more complex than beneficiaries or advisors initially thought. Just when you thought you’d written the last check to your family, you might get an overdue notice for a safe-deposit box no one knew existed. You could suddenly get a notice that the Estate is the recipient of a modest, but generous specific bequest from another decedent who was friends with Dad in high school.
The best way to help yourself after a loved one dies is to realize that all of the other beneficiaries, family members, and friends are grieving too. Expect people to act differently. Talk to people! Explain what you are doing, and why. Gather information gradually and give it to advisors and attorneys.
Your choice of estate administration professional is as important, if not more important, than who was chosen to write the Will or Trust. I’m here to help.