Losing a loved one is never an easy experience, but it is important to move forward with their last wishes as a way to honor their memory and wonderful life. This can be a confusing time, especially if the person’s death was sudden.
So how exactly do you go about honoring their last wishes? Where can you find them? Who has the final say on things like burial or cremation procedures, and the distribution of their estate?
Where Can You Find Last Wishes. Hopefully, your loved one drew up a will before he or she passed away. Wills often contain the decedent’s last wishes and instructions for how his or her funeral, burial, or cremation should be carried out. As we’ve mentioned in previous posts, wills are important because they allow you to document your final wishes – trusts can only transfer specified assets to loved ones.
When death is sudden, however, families are often left without a completed will or without any will at all. Maybe the will does not mention the deceased’s last wishes. This is when things get complicated for your family and friends.
What to Do If Your Loved One’s Last Wishes Aren’t Documented. As the family or friends close to the deceased, you can all discuss any prior conversations you had with the deceased about death and his or her last wishes, and hopefully you can all come up with the funeral and burial or cremation that the deceased wanted.
It is the duty of the personal representative to carry out the deceased’s final wishes and then begin to divide the deceased’s estate and pay off any debts that were owed.
Typically, this individual is named in the will. If, however, no one is named to carry out the will, or that person is unable or unwilling to do so, then the court will name someone to be the personal representative. Usually this is a blood relative or spouse.
What to Do If You Believe Your Loved One’s Last Wishes to Be False. There are many reasons why someone may believe that a will does not accurately depict the true intentions of their loved one.
Perhaps the person spoke to them about doing specific things that are not mentioned in the will. This is not uncommon if a person drafted a will years ago and never changed it. Other reasons a will might not be accurate include making changes to their will during illness or mental incapacity, the possibility that they were unduly influenced by someone, and straight up fraud and tampering – i.e. someone altering the will.
If you do not think that your loved one’s will is accurate, you can contest it.
How to Remove a Personal Representative. Maybe your loved one’s last wishes are not being carried out because the named personal representative is not doing his or her job.
Personal representatives are required to take on their specific duties while keeping the best interests of the deceased person in mind – not their own best interests. However, personal representatives can often become too overwhelmed to complete their duties, or simply neglect the duties they have to complete.
When this happens, beneficiaries (parties who plan on receiving assets or property from the deceased person) can petition to have the personal representative removed. Once this petition is filed, you and the personal representative will have to attend a hearing in court, in which the personal representative may be removed. A restraining order may also be issued, if the personal representative needs to be stopped from committing certain acts or contacting certain people involved in the last will and testament.
If the personal representative breached his or her fiduciary duties, there may also be legal and/or financial consequences given to the personal representative. It is advised that you speak to a probate lawyer before you begin to petition for the removal of a personal representative.
How to Prevent This from Happening to You
If you have not yet communicated your last wishes to your loved ones, or have not written a will, you should begin this process as soon as possible. Even if you are in perfectly good health, a sudden death will be even more traumatic for your friends and family while they are left with confusing probate litigation and no documents to carry out your last wishes.
This conversation is not easy to have, but is necessary to help your loved ones deal with your death and honor your memory. Talk to your loved ones about your final wishes, who you want to represent you after you death, and anyone else you’ve spoken to about these issues (advisers, attorneys, other family members, and so on). Open, honest, consistent communication is the best way to help your loved ones transition after your death.
About the Author:
Christopher Q. Wintter is the President of Wintter & Associates, P.A. , a four-lawyer trust and estate firm. Mr. Wintter is a Florida Bar Board-Certified Expert in Trust and Estate Law. With more than 28 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers Magazine for 2011, 2012, and 2014-2016 in Estate and Trust Litigation, and was selected for inclusion to the Best Lawyers in America in 2016 in the area of Estate and Trust Litigation.