My father died Wednesday night. The last two years my dad had lived near me and even stayed with my husband and I for long stretches. More recently he had lived in assisted living.
I had talked with him about his funeral and specifically asked where he wanted to be buried. My mother died two years ago but they had a terrible marriage. I asked him if he wanted to be buried with her back East. He said no. What about with his parents in the Midwest? He said no. I asked if he would be ok to bury him where he was living now and he said he would be fine with that.
We have both been estranged from my brother for the last year. Mainly because he has filed numerous lawsuits trying to nullify dad’s POA that has me as his POA. He’s made it clear he is after my dad’s money, even trying to blackmail him. My brother only saw my father once in the past two years. Unfortunately my dad didn’t change his will regarding personal representative and we are co-representatives. My brother is now trying to take over and ship my dad’s body out.
My question is if there is a dispute about where to bury my father, who decides? I want to honor my dad’s wishes. My brother has always disregarded what my dad wanted. He feels he is entitled.
Is there anything I can do legally to make sure my dad’s wishes are honored?
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I did want to share something I did not know in case it helps someone else. My dad died from complications due to Covid. The mortuary informed me that FEMA provided financial assistance to families for funeral expenses for people who died from Covid. It’s a small silver lining during a very sad time.
It has also made me clear that I need to clarify my own wishes in my estate plans because it makes it much easier on those we leave behind.
Very hefty payments going out!
1. Naming co-executors, co-trustees, etc., is usually not a very good idea. Circumstances may exist when naming more than one person makes sense but, in general, it just invites conflict even among people who have always appeared to get along. Always remember that state laws may vary.
Usually, co-executors need to work together to probate the estate and should not act without the knowledge or approval of the other. If an executor wishes to act alone, they must get the the other co-executors' consent. If co-executors cannot agree, they may have to go to court so that the judge makes the decision. Mediation is also a very good idea. It's also good to look at the will or trust to see if they contain any information on how co-executors should resolve disputes.
2. Do not include your funeral and burial instructions in your will. Write up a separate document and store it alongside your estate documents (which should all be together and where the executor and/or trustee knows where to find them). Also, if you must store your estate documents in a safe deposit box, make sure you provide your executor/trustee with access. Otherwise, the executor can't gain access to the will because the will that names them executor, which will give them access, is in the safety deposit box. The same is somewhat true for a home safe.
You can offer the "Cautionary Tale."
Then don't even bother with this. Your father didn't care enough to leave written instructions, so don't you fight the battle for him - wishes he didn't make plain don't need honouring. It is a massive hiding to nothing.
Time is of the essence due to the condition of the body.
Dad may have assigned executor's but that person has no authority until Probate oks it and you have a short certificate giving you the ability to handle the estate. I just found this:
"The probate court has the final decision as to who will serve as the estate's administrator or personal representative, even including a person who is named as executor in a will or is entitled to be chosen as a valid executor."
You can't probate the Will until 9 or 10 days after death. I would contact Probate ASAP and tell the Probate clerk that you will not be able to work with your brother. Tell the clerk about the lawsuits and that you were POA until Dads death. You may luck out and they assign you and not ur brother.
I may tell your brother if he insists shipping Dad out, the cost comes out of his part of the inheritance because you are not agreeing to it. I may do it by text or email so you have a record of it.
I would say you may need a lawyer to protect your part of the inheritance and that things are done legally. I did the initial work myself but got a lawyer for the sale of Moms house and he took it from there to finish Probate for me. I had to show Mom had no debts. An accting has to be done and signed by all beneficiaries. This is the time any contesting is done. Once everyone signs the accting, the inheritance is split and checks written by the lawyer.
Executors must abide by the Will and can be sued if they don't.
I watched my DH and his 2 sibs agonize over how to lay their dad to rest. They ended up spending a small fortune, and the headstone they chose--it screams "We feel SO GUILTY". It's enormous and out of sync with the headstones in this small town cemetery. The whole funeral, etc cost nearly $40K and while I am in in law and not involved in any of this--I felt it was not something dad would have chosen at all! He would have wanted all that money to go to the grandkids to help with college before he would have wanted a casket of solid mahogany.
I personally am grateful that mother has pre-chosen and pre-paid for everything. We won't have to go through this when she dies. My MIL? A whole different story, but again, I'm an in law and my opinions have no merit.
POA ends with death. The POA is done.
Are you saying that the will makes your brother and you CO EXECUTORS? Because if so that will be a nightmare if your father's wishes re disposal of his body is not mentioned.
I myself would refuse to act with this brother as co-executor. I would allow him to execute the estate by himself and would legally resign but if the state is of any size I would have my own attorney to watch how it is done since you already know him to be nefarious. He can tie this estate up literally forever with bickers with you that will make you wish you were alive.
OR I would hire a attorney, Trust and Estate, to administer the estate.
It sounds as though on some level your brother cares, as he cares where Dad is buried. DAD doesn't care. As undertaker, author and Poet Thomas Lynch says, after someone is dead there is nothing you can do FOR them, TO the, WITH them, or ABOUT them. So why not let your brother have his way? Tell him that your father expressed to you he really didn't care, then said it was fine to bury him right there but if it means something to bro to have him buried somewhere else that is fine.
My condolences on your father's death. If you can't get along with brother you should not serve as co executor with him, but you should protect your own interests. See a Trust and Estate attorney ASAP. Dad's estate pays for that. Ask Brother if he would like to go with, or go alone. You may require mediation.
And if this isn't a large estate my advice is walk away.
Again, I am sorry for your loss.
Once my father made me his POA, my brother sued us several times because he felt entitled. This includes filing a frivolous lawsuit where he attached a lien to the title of my dad’s house to stop him from selling it. We have let him “win” on this and other issues thinking this would put a stop to things. But instead it emboldens him leading him to think he can get away with anything and he files more lawsuits.
It has been a nightmare.
When my father has put things in writing, my brother says he’s incompetent (which he wasn’t) and files a lawsuit. Then he used the lawsuit as a method to blackmail my father and/or me as his POA to get what he wants.
At this point, it’s best to go through the courts because I can’t trust anything he says.
While you were touched by his decision making, he is now beyond any negative thoughts or actions caused by your (lame brained) brother.
Your father loved you, and would want no undo worry to cloud your memories of his peaceful passing.
Let crown brother do as he pleases, and have no regrets.
Sibling certainly wishes to cause you distress. Don’t give him that satisfaction.
PEACE AND BLESSINGS TO YOU.
My OB died and his ashes were given to so many people. But, it was cheap (he was indigent) and this seemed to satisfy all involved. Mother kept a cigar box with his ashes in it for years. Didn't do anything with them, not even an urn of the cheapest kind. She wanted him buried next to her in a family plot, but she would have had to pay for everything and his kids stepped in and chose cremation.
My MIL had a plot in the family cemetery in a beautiful mountain town near us. When she divorced FIL, one of the first things she did was to buy a burial plot near her home. Made a big deal out of not wanting to be ANYWHERE NEAR FIL'S family (which will include DH, his OB, his sister and her family.)
Emotions run high when making these kind of decisions. I wish you the best as you navigate these waters.
I hesitate to raise this, but you might have to hire an attorney to intervene and file for a TRO (restraining order) preventing your brother from meddling and fighting. HIs legal challenges would bear support to the fact that he's uncooperative, belligerent and aggressive. This might also bring a court into involvement with the estate, but perhaps it would be better than your brother's fighting for what HE wants.
Who has access to your father's finances?