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Welcome to “Trust Us: Estate Planning Wisdom,” the podcast where we unravel the complexities of estates and trusts to empower you with the knowledge needed for effective legacy planning. This podcast is your guide through the intricate landscapes of wills, trusts, and probate. Thank you for joining us — we hope you find the discussions informative, but remember, when it comes to legal matters, always consult with a qualified attorney regarding your specific case.
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Welcome to "Trust Us: Estate Planning Wisdom," it's important to note that the content presented in this podcast is for general understanding and informational purposes only and is not intended to provide legal advice nor should itnot be construed as legal advice.
The information provided in this podcast is based on general legal principles and may not reflect the current state of the law or specific details of your case. Laws vary by jurisdiction, and legal outcomes can be highly dependent on the specific facts and circumstances involved.
Listening to this podcast does not create an attorney-client relationship between the hosts, guests, or participants and any listener. If you require legal advice or representation, it is essential to consult with a qualified attorney who can assess your individual situation and provide guidance tailored to your needs.
While we strive to ensure the accuracy and timeliness of the information presented, legal topics are complex and subject to change. Therefore, we make no warranties or representations regarding the completeness, accuracy, reliability, or suitability of the information discussed in this podcast.
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Danielle Friedman: Welcome to Trust Us:
Estate Planning Wisdom, the podcast where
we unravel the complexities of estates and
trusts to empower you with the knowledge
needed for effective estate planning.
Max McCauley: This podcast is
hosted by seasoned estates and trust
attorneys Danielle Friedman, Herb
Fineburg, and Charles Max McCauley.
Herbert R. Fineburg:
This podcast is your guide through the
intricate landscapes of estate planning,
including wills, trusts, and probate.
Danielle Friedman: Thank you
for joining us, and we hope you
find the discussion informative.
But remember, when it comes to legal
matters, always consult with a qualified
attorney regarding your specific case.
Herbert R. Fineburg:
Hello, Max and Danielle.
We're here with another
question to answer for a client.
In this situation, we're gonna address
what happens when your spouse has died
and you don't know where the money
is or what bills need to be paid.
In addition, there's a whole lot
of other issues that need to come
up, that need to be addressed by
the surviving spouse, and maybe the
surviving spouse and an attorney.
What would be the first thing that
you would do, Danielle, after your
spouse dies, besides the funeral?
Of course, and, the first
thing I would say is there's
nothing that is an emergency.
Take the time to grieve.
Take the time to be with family.
Of course, the death of a spouse
is a terrible loss, and if it takes
you a month, two months to kind of
get the wherewithal to start dealing
with all the stuff, then that's okay.
Don't let the stress of, financial
decisions and estate administration
and things like that stress you
out in an otherwise, already
difficult time that you're having.
But if we're gonna start talking
about, housekeeping, starting with
the funeral and then taking a break is
a good kind of way to get into this.
Because with a funeral, what you
wanna make sure is that there is no
prepaid funeral, or maybe there is
a prepaid funeral, and just making
sure that you're taking advantage
of any funeral planning that was
done during your spouse's lifetime.
Most likely, you probably also
have a similar type of arrangement,
so you'll know whether there's a
prepaid funeral arrangement or not.
But I would say handle that, handle
the funeral, and then when you are
ready to start dealing with more,
financial matters I think the first
phone call you should make is to
competent estate counsel who can handle
and help you walk through the estate
administration, trust administration
process and the second phone call you
should make would be to the accountant.
The accountant has a really good
background of what the assets might be,
what tax obligations there might be.
And let's assume you are a spouse
who is completely in the dark
about what your spouse owned.
. These are the first two
people I would call.
So the Form 1040 might
have some information.
Max, what do you think you
would discover on a Form 1040 if
you called up your accountant?
Max McCauley: Sure.
If you had or your spouse had investments
of brokerage accounts and the like
that either issued K-1s or 1099s, those
are most likely going to be found on
your return, or the 1099s would be
saved with them, but your accountant
would have a copy of them because he
used them to prepare your returns.
So it's a good insight
on where your assets are.
Likewise, review your mail for a year.
You might find assets that you
didn't know existed that weren't
on the tax return for some reason.
But you'll be notified in the course of
a, a year from the date of death of what
kinds of annual mailings might come in,
such as premium notices for life insurance
that you might not have known existed.
Danielle Friedman: And I think that,
with talking to the accountant,
the 1040 is gonna list anything
that generates reportable income.
So if an asset generates income,
it's gonna be on the 1040.
Maybe real estate, like residential real
estate might not be on there if it's
not, generating income and you're not
depreciating it or something like that.
But generally speaking, it's
a really good place to start.
I would look at the last three years of
income tax returns that were filed, and
your accountant can walk you through it.
The other thing about hiring competent
counsel is that they're gonna be able to
tell you what questions to ask, right?
You don't know what you don't know.
And so by hiring a competent estate
planning attorney, you're gonna be
working with the attorney, often
with a paralegal who specializes in
administering estates and trusts, and
they're gonna know what questions to ask
because they've seen so many different
types of estates, different, levels of
assets, different categories of assets,
where to look for this type of stuff.
So there are experts in this.
This doesn't have to be all on
the surviving spouse's shoulders.
Herbert R. Fineburg:
So you go to the funeral home.
What's the most important thing
that the funeral director gives you?
Danielle Friedman: The death certificate.
And I can't tell you the number of
times that the death certificate
that we get has errors in it.
So make sure that the death
certificate has accurate information.
Specifically, you might not know that, one
state has an inheritance tax and another
state doesn't have an inheritance tax.
But if you and your spouse split your
time between Pennsylvania and Florida,
but your spouse was a Florida resident but
died in Pennsylvania or any other state,
make sure that the death certificate has
the right state of residence on there.
But that's the biggest error that we see,
because that's gonna determine Whether
taxes are due at death Pennsylvania has
an inheritance tax, Florida doesn't.
So if your spouse was a resident of
Florida but died in Pennsylvania, make
sure that the funeral director doesn't
put Pennsylvania on the death certificate.
Herbert R. Fineburg:
What happens if they do put the
wrong address, 'cause you're
under stress, and your spouse is a
Florida resident, and they put down
your apartment in Philadelphia?
What do you do?
Danielle Friedman: So you can ask the
funeral director to make a correction.
One, that may take a lot of time.
Two, they may need, more
than just your word.
They may say, "No, we need a court order.
We need X, Y, Z."
So it really depends on sort of the
relationship with the funeral director.
They obviously can't commit fraud.
You wanna give them accurate
information, from the outset, but you
can get a corrected death certificate.
Again, it just prolongs
the process a little bit.
Sometimes it takes time.
They have to get approval maybe from the
Department of Health or another regulatory
agency to correct the death certificate.
So getting that accurate information
the first time is important, but
certainly mistakes happen when
we're under a lot of stress.
Max McCauley: And they'll get 10
copies of the death certificate.
Danielle Friedman: Yes.
Get 10 copies because your
bank is gonna need one.
If you have to go through probate,
the court is gonna need one.
If there's life insurance, the life
insurance company is gonna need one.
So start with 10.
You can always order more, but
start with 10 because you're gonna
need original death certificates.
Herbert R. Fineburg:
Just as a side note, I found that in
a situation where the resident, the
decedent was a Florida resident, if
you're able to give the funeral director
a current driver's license, they'll
accept that as the evidence of residency
and submit that to the state, which is
a nice way to handle proof of residency.
Danielle Friedman: Absolutely.
Herbert R. Fineburg:
Social Security.
Who gets checks?
When do the checks stop?
Can you get anything additional
from Social Security?
Max McCauley: I can give you some
thoughts, including when you're
dealing with the funeral home.
A lot of times the funeral
director will report the death
to Social Security for you.
But if they have not, then you'll
wanna make sure that you do that,
and you cannot inform Social Security
of the death online or by email.
You either have to call or visit your
local Social Security office in person.
As for the month of benefits that
your spouse died in, so if your spouse
died in March- the payment received
in April, which pays for March, would
have to be returned to Social Security.
If it was direct deposited, notify your
bank so your bank can return the funds.
Don't spend the funds.
You're not entitled to them
after your spouse dies.
On the other hand, if you're also
collecting Social Security, do not
cancel your own Social Security benefits.
If your spouse's , Social Security
benefit was higher than yours, you may
be eligible for your spouse's benefits.
Sometimes the Social Security
Administration knows this and will
automatically switch you, but don't
assume that's going to happen.
If your spouse's benefits are
higher than yours, you can apply
for your spouse's benefits.
Also, there's a one-time $255 death
benefit paid by Social Security.
That's if you were living with
your spouse at the time of death
or you're already eligible for your
spouse's benefits on their record.
But it's not automatic.
You must claim it.
So what do you need if you're
gonna call Social Security?
You need your spouse's name, full
legal name, Social Security number,
date of birth, date of death, and your
information as the surviving spouse.
Herbert R. Fineburg:
So if your spouse dies and he or she
is working is there anything that
you would call that employer about?
Danielle Friedman: Yeah.
So I would call the employer and
see if there's any death benefit
associated with the employment.
A lot of employers have,
automatic, life insurance
policies on the employers' lives.
Certainly, any, qualified retirement
accounts, 401K, deferred compensation
with non-qualified accounts any pension or
death benefit associated with a pension.
Also if your spouse is a veteran,
I would call the VA and see
if there's any benefits there.
Sometimes they offer funeral assistance
or some form of death benefit.
Call your employer, call Social
Security, call the VA and then
again, if you hire competent counsel,
they can help you with this, too.
Part of, what my paralegal does is
help clients marshal the assets of
the decedent and sort of inventory
everything, collect everything.
And yes, you're paying a fee, but it
can save you a lot of time and grief.
It can be difficult to call these places
and constantly have to revisit, your
spouse's date of death and all these
other facts that, a third party can handle
for you, can call, can claim benefits
for you, can at least get the forms
that are needed to be completed so that
you don't have to do this on your own.
I think that's the biggest takeaway
is that you don't have to do this
alone, if you, get competent help.
Herbert R. Fineburg:
So, there's group life insurance,
what you just suggested.
You call the employer, find out
what group coverage they had
and who the beneficiaries are.
If there's private life insurance, that
would typically be evidenced by a, policy.
How do you find out about that?
Danielle Friedman: I think you
could maybe see, where, if you
look back at the bank statements,
where premiums are being paid from.
If there's a financial advisor, certainly
they may know if there's life insurance.
Talk to the attorneys because there
might be a life insurance trust,
or the attorneys just might be
aware of a life insurance policy.
Who knows?
Maybe it expired, but at least you
can call the insurance company and
confirm as to whether the policy
existed and claim the death benefit.
They're gonna need a death certificate.
You're also gonna wanna ask for a
Form 712, which is a tax form that the
insurance company gives that most likely
your attorney is gonna need when, they
file any sort of death tax returns.
Herbert R. Fineburg:
So Danielle suggested that we
look at the bank statements or
the bank register, your checkbook.
Sometimes, it's online.
But what else would the past checks
that are written tell you that
may not be revealed in looking
at the income tax returns, Max?
Max McCauley: Well, before we
jump to that, let's stick with
the employer for a second.
If you were covered by your spouse's
health insurance and/or your children
or dependents were as well, then you'd
be eligible for continuing medical
coverage at your cost under COBRA
for up to three years, 36 months.
Herbert R. Fineburg:
Excellent point.
That's very important.
Max McCauley: And it's not automatic.
If you don't pay for the premiums,
you won't have insurance coverage,
so you'll wanna contact your
employer let them know of the death.
They should automatically send you a COBRA
notice in a week or two, and then you'll
have to follow that with, either on your
own or with assistance of counsel, to
claim the coverage and make the payments.
So that's something that's more
urgent than most other things.
Mortgage payments might be urgent, but
COBRA, when you get a notice, gives you
30 days to elect to keep COBRA coverage.
And with that, you're required to file
the election with the employer and pay
the premium, typically a premium plus
5% to the employer, and you'll get that
continued COBRA coverage, and you have
to pay the full premium even though
before your spouse passed away, the
employer might have been paying part
of the premium for health insurance.
Back to your question, what
else might the tax return show?
Herbert R. Fineburg:
The tax checkbook.
Max McCauley: I would
say look at the deposits.
If you were receiving...
and again, your tax returns might be
helpful for this, but there might be
regular deposits, either annually or
monthly, that are sources of revenue,
that may or may not be on the tax return.
Herbert R. Fineburg:
How about expenses on the bank statement?
Because that's how you were...
what you've been...
You have to pay?
Max McCauley: Certainly.
It would give you a hint, especially
if it was on auto-pay or otherwise,
or ACH draws, that utilities that
might be due, premiums say for car
insurance or homeowners insurance that
may be due anything that could be on
a recurring cycle that you might not
get a bill today a lot of times you can
set yourself up for paperless billing.
And so if you do that, you're
either gonna need the passwords,
the online login information.
And if you don't have that, well,
look at the ACH debits that are
coming out of the account and
to determine what they were for.
It might be online bill pay that's
automatic for utilities or, again,
premiums, mortgage payments, car payments.
Herbert R. Fineburg:
Passwords are another important topic.
So that could be for getting into your
spouse's email so you can see what's
going on as far as bank bills because
the bills will come into the email.
As you said, getting into bank
accounts, getting into, any number of
accounts and addressing that spouse's
Facebook account by way of example.
Max McCauley: Exactly.
I've known spouses that, cherish
the photographs that recur, but they
didn't have access to the social media
password for their spouse, and so
that was a long, difficult process.
But I think it's a process that can
help you grieve if you have access to
your spouse's Facebook or Instagram
social media accounts so that you can,
review those posts that come up or even
notify friends and family of the death.
Danielle Friedman: A lot of these
custodians of this information, whether
it's, Google or Facebook , allow you to
set someone else as the recipient of your
passwords and information when you die.
It's in the settings of your
Gmail or your Facebook or your,
Instagram, Apple, whatever it is.
And you can go in there and say,
"Okay, if someone requests access to
my data and I don't deny it within 36
hours or however many hours, here's
the email address for my spouse.
Here's who can have access to it."
So you can do that.
There's also, in your will there
should be something that talks
about access to digital assets.
So, you know, call up Google
and say, "My spouse died.
I need access to their email,"
they're not going to automatically
give you access to their email.
They're gonna wanna see some sort
of proof that you are either the
executor or a trustee or something
else, and so that's often in the will.
You may even need to go through
probate to get access to those assets.
The better alternative, I think, is
preparing some form of digital asset
instruction letter while you're alive,
you and your spouse should have,
somewhere secure to save passwords,
or maybe they use an online password
manager and they give you access to that.
Max McCauley: Or a minimum access to
your spouse's phone because your phone
will have potentially saved passwords.
Danielle Friedman: Exactly.
Something to get access because
so much of our lives is digital.
I think that's very important.
Your spouse may even wanna leave
instructions for, do I want my
Facebook account maintained,
or do I want it deleted?
Do I want my Instagram
account maintained or deleted?
All these types of things.
In their will, they might say, "Yes,
you can access my Gmail, but you don't
get access to the contents of the email.
You can only get access to
a register of the emails."
So there's a lot of room for what kind
of access you can gain to digital assets
and, it can be overwhelming at times.
Again, with the right counsel, I think we
can sort of narrow the priorities of where
you need access to, the bank, probably the
email, social media, if you can get it.
Max McCauley: And I do think counsel
can help you focus on what needs to
be done immediately and what can wait.
Danielle Friedman: We can also do
things, like I have petitioned Apple
before to grant access to a spouse,
that they didn't wanna grant access to.
And, getting orders from judges
to unlock phones and things like
that if you really don't have, your
spouse's password to their phone.
If you're really in the dark, there
are ways to gain access to information.
But hopefully it's something as simple
as, your spouse kept a password manager
and you just have access to that.
Max McCauley: And key will be
to have that death certificate.
Danielle Friedman: Yes.
Death certificate is always needed.
And usually, just to go back to the death
certificates, they're usually issued
within, a few days after the funeral.
I've seen it as long as, two weeks,
sometimes as quick as three days.
But I would say on average it's about
10 days after the funeral is when you're
gonna get your death certificates.
Herbert R. Fineburg:
Going back to this topic of getting
a judge's order one of the biggest
things that people always talk about
when, a spouse dies or a relative
dies is the process of probate.
Which can be very slow very upsetting
to beneficiaries and, relatives
who, can't put up with the pace
at which a court might proceed.
Is there a way to avoid
the whole probate process?
Danielle Friedman: Sure.
Especially with spouses, there's three
primary ways, you can avoid probate.
One is through joint ownership.
So spouses frequently will have joint bank
accounts or own real estate jointly, and
if one spouse dies, the surviving spouse
usually inherits that property outright.
That comes with its own estate
planning problems, but if we're
gonna just stick to focusing on
probate, that does avoid probate.
Beneficiary designations, so if you have
assets with beneficiary designations
frequently, IRAs, 401s, life insurance
policies are gonna pass that way.
Anything that has a beneficiary
designation, unless it's designating
the estate, it's gonna avoid probate.
And then last but not least is if
an asset is owned by a revocable
trust or an irrevocable trust,
it's going to avoid probate.
So if an asset is in a trust
at the decedent's death, it's
gonna pass automatically pursuant
to the terms of the trust.
It doesn't have to go through probate.
Probate is the last resort for
everything else that doesn't fall
into the categories I just mentioned.
So you could have an estate
that where some assets go
through probate, some don't.
That's pretty common.
Or you can avoid probate entirely and
save that time, expense, and headache.
But it's important to have, the
planning done ahead of time so
that your trust is funded the right
way, your beneficiary designations
are updated, your joint assets, if
there are any, are properly titled.
So that takes some
planning to avoid probate.
Herbert R. Fineburg:
So if an asset is in the decedent's name
alone, you're gonna be stuck in probate
and the solution that you just mentioned
is you can retitle that asset into the
name of that person's revocable trust.
Danielle Friedman: Yes.
And a lot of times, let's say I
know they're dying, "Shouldn't
my spouse just retitle that asset
into my name while they're alive?"
And my answer for that is no, because
then you lose some significant
income tax advantages if you do that.
There's a lot of other planning at
play, but I don't wanna muddy the waters
too much for today's conversation.
I really wanna focus on, what
the surviving spouse should
do immediately after death.
And yes, eventually figuring out how
assets are titled and determining
whether you have to go through probate
is something, again, that your attorney
can help you with and certainly help
you go through the probate process,
file the paperwork that needs to be
filed, follow all the administrative
requirements that, that must be
filed, notifying beneficiaries,
notifying creditors, and all of that.
And then speaking of creditors, a lot
of spouses start to panic when they
see bills come in, credit card bills,
medical bills, other debts that they
knew or didn't know existed, and, their
instinct is to pay those immediately.
Herbert R. Fineburg:
And they can come in the mail, email.
Which of course you need to get
the password to see the email.
Danielle Friedman: I would say, you don't
have to pay all the bills right away.
Sure, make your mortgage payments,
make your car payments, pay your
insurance costs and premiums.
But, credit card bills and medical bills
and things like that, those can wait
because we wanna make sure that there are
enough assets to cover all those bills.
I mean, hopefully yes but sometimes
you may have an estate where if
everything is joint and automatically
passes to the surviving spouse at
death, but all the debts were just in
the deceased spouse's name, you may
technically have an insolvent estate
where you don't need to pay those debts.
Again, talk to counsel, but there
are certain debts that nothing is
gonna happen to you if you wait 30
days, 60 days to make a payment.
Maybe you'll get a letter from
a collection agency, but the
letter is scarier than it looks.
Herbert R. Fineburg:
Wow, there's a lot to do, a
lot to think about, and I think
we covered almost every topic.
We can separately cover, as you
said, Danielle, issues with federal
state tax or state inheritance
tax in a separate podcast.
But I think Max, you and
Danielle covered every topic.
Did I miss anything?
Danielle Friedman: No.
I mean, there are certain, tax
considerations and elections and
things like that, that you do
have to make in a timely manner.
But I think the focus of today is
really to focus on what are the
immediate top of mind things that,
that most spouses need to deal with.
There's things like disclaimers and
funding trusts and things like that,
that all go with estate administration.
Gifts to beneficiaries and things like
that, that all come a little bit later
and will be covered by competent counsel.
Herbert R. Fineburg:
Great.
Thanks again for all your great advice.
Max, Danielle, and, this is
Herb Fineburg, and we'll look
forward to our next podcast.
Danielle Friedman: Thanks, Herb.
Max McCauley: Thanks, Herb.
Thanks, Danielle.