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Law Offices of Ronald W. Rutz
Senior Voice Archives

July 9, 2002: Legally Preparing for a Loved One's Death

Q: Last month you wrote about what to do after losing a loved one. But what should be done if it is known that someone is dying?

A: I would first suggest that you talk with an attorney so that the specific questions that you have can be addressed and the attorney has the opportunity to share thoughts about legal matters.

Next, make sure that all the basic legal documents are in place or have been considered - a Will, Durable Powers of Attorney, and a living will. A living trust requires much more scrutiny - are the documents current, have the trustees been reviewed and found still acceptable (especially if the trust is to last beyond the life of the deceased), are all the assets TITLED in the name of the trust, and is there a Will in place, even if it is a pour-over Will?

Make sure that the person's wishes are known, such as for burial, that all the important papers have been located, and that an asset list is found or constructed.

Anticipate that the Durable Powers of Attorney end at death. So if need be, add a name to the checking account (especially the one where automatic deposits and withdrawals are done), thereby insuring continuing authority over personal business matters whether a court proceeding is started or not.

It probably is not a good idea to get all of the assets out of the person's name or try to set up everything in joint tenancy or payable on death, especially if the major goal is to avoid probate. However, keep in mind that first probates are not that expensive when compared to the cost of setting up and then dismantling a living trust. Some attorneys in the area charge less than $1000, although the average cost seems to be about $2500. Also remember that in Colorado probates are "private" since no inventory is required when using unsupervised administration.

By taking appreciated property out of the person's name, the family loses the advantage of the stepped-up basis, thus creating income tax liability. Plus, except for transfers between spouses, there may be gift tax liability involved.

Also, if more than one beneficiary is involved but not all of them are put on title, those excluded beneficiaries may never inherit if the named recipients refuse to share. Or the recipients may have gift tax problems of their own when they in turn try to include the others by putting the additional names on title.

There is also "Murphy's Law" to consider. It almost always is certain that something gets overlooked and probate is needed anyway.

Without proper planning, think of the time, effort, and energy expended at a time when these resources might be better spent devoted to the person, not his or her assets.

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