About the Author: Attorney Douglas G. Chalgian is both certified in elder law by the National Elder Law Foundation and a Fellow with the American College of Trust and Estate Counsel. He is also the only attorney in Michigan who has served as Chair of both the Probate and Estate Planning and Elder Law and Disability Rights Sections of the State Bar.
Funerals & Family Fights
It’s a cliché among estate attorneys: the biggest legal battles often begin with disputes about the smallest items: “who gets the mantle clock?” … for example.
While factually accurate, this perception misses the truth. The reality of course is that the conflict between the family members goes much deeper than their desire to own a particular clock, often relating back to slights and perceived injustices from years and decades ago. The clock, and more importantly, the loss of the clock’s original owner, now provides the opportunity for those dynamics to play themselves out in the context of estate settlement. Just as funeral directors work to resolve complex issues of grief and loss, good estate attorneys try to help families separate their personal animosities from the legal process of estate settlement. But these efforts are not always successful, and unfortunately, the trend toward so-called “probate litigation” is unmistakably on the rise.
Funeral directors undoubtedly come into contact with these disputes and are presented with many of the same questions. Accordingly, the remainder of this article will be designed to provide general answers to common questions that arise in some cases, recognizing that if these types of questions are being asked, problems may be right around the corner. While the answers given would apply regardless of the gender or martial status of the decedent, for the sake of brevity, I will answer the questions in the context of a deceased man, leaving children but no surviving spouse – and will refer to him as “Dad.” 1
1These observations do not apply to disputes related to the body of the decedent. Those rules are speciﬁcally provided for in Michigan law and have been addressed in prior articles in this publication.
1. Who’s in Control of Dad’s Stuff?
The property Dad owned during his life became property of his probate estate at his death, and control of that property will be the responsibility of the personal representative2 of that estate when s/he is appointed . . . unless . . .
Unless the property at issue was jointly owned with someone else, and the nature of the joint ownership provided for that property to pass at his death to that joint owner; or
Unless the property is subject to a beneficiary designation of some sort (such as a life insurance policy, retirement account, life estate, or payable on death account), in which case the property passed at Dad’s death to that/those designated beneficiary(ies); or
Unless, at the time of death the property was held in trust, in which case the Trustee of the Trust is in control of the property.
While the personal representative will not have legal authority over the property until his/her appointment, Michigan law does provide a person who later becomes personal representative with some authority to act prior to appointment.
Which leads to the question of: who will be the personal representative? The answer in most cases is the person nominated to be personal representative in Dad’s will. If Dad had no will, Michigan law provides for a priority for appointment: surviving spouse, adult children, etc…
Clearly, someone who had “power of attorney” over Dad while he was alive can no longer rely on that document for authority to take any action with respect to Dad’s property after Dad is deceased.
2The term “personal representative” is what Michigan law uses to identify the person who administers a probate estate. People often use the terms “executor” or “administrator” to mean the same thing.
2. Should I Meet with the Lawyer Before the Funeral?
In most cases, such meetings are not necessary.
I frequently advise clients to take care of the funeral and then, when they “are ready,” to come see me. Of course, if the writing is on the wall that this case will involve conflict, an early meeting with an attorney may be appropriate.
3. Can We Divide the Personal Items Now, While Everyone is Together?
As with most good legal questions, the answer to this question is “it depends.”
In many cases (probably the majority of cases) the surviving children can simply meet at the home and agree to a division that they all are comfortable with3. But in those cases where disputes are likely, this traditional meeting may be the beginning of the end. Because so many legal battles have their genesis in the all important division of the personal items, depending on the situation, the right advice may be that nothing should leave the home until everything is inventoried and, if necessary, appraised.
3This assumes the estate plan provides for equal division of these assets among the children. In some estate plans, division is not equal; and in many cases the decedent will have left a list of specific gifts of tangible personal items that will need to be consulted and honored.
4. Can I Change the Locks?
Again, the answer is: it depends.
If the home is held in trust and the person asking the question is the Trustee, the answer would be “yes.”
If the home is an asset of the probate estate, and the person is nominated to serve as personal representative in the will, the answer is “maybe.” If the question arises, suggesting there is reason to be concerned about someone removing assets from the property before a proper inventory can be prepared, the right step may be to get to court on an expedited basis and obtain clear court authority, through the formal appointment process.
5. Is There Going to be a Reading of the Will?
Old school lawyers probably still provide this service as a matter of course, but most attorneys now no longer assume that the family will gather at their office when a death occurs, to learn the contents of the estate plan.
In some cases, even if the meeting is not promoted as a “reading of the will,” a family meeting with the attorney may be appropriate, and may provide a benefit, as a way of allowing family members to understand the process and their rights.
The rise in litigation in these types of cases can be attributed to many factors: more second families, children living farther away, more people living longer and therefore more dementia and other aging issues. And so it is probably safe to conclude that the trend will not abate any time soon.
For funeral directors who run into cases where these types of questions arise, hopefully this article will provide some help in answering basic questions. Depending on the circumstances, the best advice may be: “get thee to a qualified attorney.” If the person asking the question doesn’t have an attorney, or doesn’t have an attorney who practices in the areas of estates and elder law, hopefully most funeral directors are familiar with the attorneys in their communities who are qualified to handle these types of matters.