Legal ways to cope with death

By Steven Strain

 

I think I had an average progression when it comes to experiencing death.  First there were the family pets: a goldfish, a hamster, the family dog. Then came the elderly family member, my grandfather, to be exact. I was 3 or 4, and it didn’t really “click.”  I was told that he was gone and that I wouldn’t be able to see him again.  Just like how the dog was gone, and I couldn’t see her anymore either. I cried, but it was all very abstract and distant.

But I remember when my grandmother died like it was yesterday. It was my junior year of high school.  I was in the midst of my most teenage of angst, and her death happened to interrupt that phase severely.  My mother got the phone call and promptly collapsed into my father’s arms.  It wasn’t the first time I had experienced death, but this time around I was old enough for it to be “real,” rather than something my parents had to use analogies to explain to me.  Still, there were things that happened behind the scenes that I wasn’t able to appreciate at the time.

For the record, my grandmother was a wonderful person. She had four children, eight grandchildren, and a great-grandson when she passed away. She was also a Type A personality who would have risen from the dead if a single one of her possessions weren’t distributed to exactly the person she wanted to have it. Every belonging was accounted for, every heir was gifted something sentimental, and every penny to her name had a designated beneficiary. Of course, all of this was accomplished through a process I was simply not privy to. The adults were dealing with it, and I realize now how lucky I was to have those adults handle the heavy-lifting.

These days, I’m an attorney. A significant part of my practice involves dealing with the very process that, as a kid, I was unable to see firsthand. This is a part of what is known as probate law. When people pass away, a probate court governs the transfer of their possessions to their next of kin.  As with any legal proceeding, it’s better to go into it with legal counsel than without.  Some attorneys do not deal with the probate process.  Some practice it almost exclusively.  While you don’t necessarily need a specialist, you should try to look for someone who is familiar with the process.

Next, you need to determine if there is a will.  If there is, then a lot of what happens next will have already been decided.  Probate courts strive to honor the last wishes of the deceased.  So, if there is a will, then it will provide most of the directions for everyone to follow.  Wills can be as general or as specific as a person wants to make them.  My grandmother’s will must have been the size of a small novel.  If there isn’t a will, the law will dictate how a person’s estate is distributed.  Again, an attorney familiar with probate law will be able to help you figure out who is supposed to get what.

While the probate process is perhaps best known for distributing a person’s assets, it also deals with the debts.  Oftentimes, the next of kin will find past due bills and debts that their loved one incurred before they passed away.  While it’s a noble sentiment to try to pay those bills, it is not something you should do until the estate has been probated.  Just as all the heirs have to wait to claim assets left to them, creditors of the deceased have to wait, as well

The probate process can be taxing.  The legal process aside, sorting through a loved one’s possessions is usually an emotional experience.  If there is a disagreement over who will inherit certain items, it can add tension to an already difficult process.  This is why talking to your loved ones about both your and their final wishes is so important. It may not be a comfortable conversation to have, but it can provide certainty and reassurance for those who have the responsibility of carrying out those wishes.

Having a talk about what you would want to happen when you are gone, or what a loved wants for themselves when that time comes, is only the first step.  My grandma certainly made her wishes known.  I still remember when she had me look through her china cabinet.  She had several small items that she intended to give to her grandchildren, and she wanted me to decide which one I would like to have when she passed away.  She didn’t stop there, though.  She made sure that her will was drafted and every detail accounted for.

When she passed and everyone was grieving, we didn’t have to worry about who would get what.  There was no bickering or tension.  Being able to mourn her and to celebrate her life was made possible because she had accounted for every last detail while she was alive.  As an adult, looking back on how my grandmother handled her own death, I’m able to appreciate that it was her last gift to all of us.

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Steven Strain is the managing attorney at Laton & Strain, LLC, a law firm based in Kettering, Ohio. Reach him at StevenStrain@DaytonCityPaper.com.

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