Estate Planning FAQ – Imminent Death

What Should You Do When Death is Imminent?

When a family member or loved one’s health is failing, it is difficult to think about any steps that should be taken, other than those related to his or her care and comfort.  But putting affairs in order may actually ease that person’s mental state and offer peace. Prior to death, the family should consider the following:

  • What property does the person own? Try to put together a list of the property, including amounts owed to the person, along with the names and addresses of such debtors (e.g., family members, friends, businesses or business partners, etc.). This list should specify how the person holds the property. For example, property can be held individually in the person’s name alone, in a trust, as a joint owner with another, etc.
  • Try to determine the fair market value of each asset. Probate is required if the total assets value is $100,000.00 or more, or if real estate is held individually. For real property held individually by the person, consider retitling the property into a trust or creating a Transfer on Death Instrument (TODI) prior to death to avoid probate.
  • For personal property held individually by the person, then consider retitling all property into a trust or adding a payable on death (POD) beneficiary designation prior to death to avoid probate. If the total value of all such (non-real estate) property is less than $100,000.00, a Small Estate Affidavit may be used instead of probate.
  • Determine amounts owed by the person, or to his or her creditors, along with their names, addresses, and account numbers. If possible, settle debts.
  • Make a list of the person’s heirs (spouse, children, and grandchildren, or if none, parents, siblings and their children), and legatees (beneficiaries named in the Will), and their birthdates, places of residence, and  telephone numbers, if possible. Also, obtain dates of death and death certificates for any spouses or other close family members of the person who have died.
  • Locate the person’s original Will and any Codicils, as well as any Trusts, and Trust Amendments.
  • Determine if the Trust (if any) allows the person to leave a gift of personal effects by letter or other written document. If so, look for such letters or memoranda. Ask the person if they would like to leave a gift letter, if this is possible, as this is an excellent way to distribute items of sentimental value among family members and avoid conflicts.
  • Speak to an attorney about the information gathered. If a Trust is in place, confirm that assets are properly titled in the Trust, and retitle assets, if this is possible to do, to make sure probate can be avoided.
  • Determine the person’s final wishes related to disposition of his or her person. If possible, have this reflected in person’s Health Care Directives and his Will.
  • Determine the person’s wishes regarding life-sustaining treatment and anatomical gifting. Put those wishes in writing if the person has not already taken these steps. The person should sign a Power of Attorney for Health Care, an Advance Care Directive (Living Will), a HIPAA Authorization, and an anatomical gift directive (if they would like to be organ donors). If organ donor, make sure the person is registered on an organ donor list.

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