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Home > SIL Passed - Legal Connundrum

SIL Passed - Legal Connundrum

July 3rd, 2017 at 02:56 pm

SIL passed this morning around 4:30 a.m.

We had spent most of Sunday at her home ... she was ready to go. Her body was pretty much shutting down when we left.

Today we have been making phone calls and figuring out the next steps.

As we were at her long time partners home discussing the memorial service, we found out that she had never finalized her divorce from her second husband.

This husband is incarcerated in the state pen for murder - for life.

This throws a big monkey wrench into everything and none of us are sure how to proceed. (Definitely not the way one person suggested - just not notifying the incarcerated husband!)

Of course this happens on a holiday weekend so we can't talk to anyone.

She didn't leave a will, so my DH was taking on the executor details himself (with my help) but now that we know she is still legally married. ... We just don't know what to do.

Is her son still legally able to consent to her being cremated? Will the money in her account, plus her delayed disability money from the railroad go automatically to the incarcerated husband? Would we be in trouble if we used some of it to pay for the cremation and memorial expenses?


DH is pretty upset right now. His sister knew the end was coming for at least the past year. She had time to get all of this figured out. To make her wishes known. But instead she hid how serious it was from everyone except her partner.

18 Responses to “SIL Passed - Legal Connundrum”

  1. creditcardfree Says:

    I'm so sorry for your loss. I would think the next available kin should be able to consent to the cremation. It's not like the ex husband is really available to make decisions. Usually when prisoners are incarcerated they need to give power of attorney to someone to deal with matters while they are unable. But of course, I am no expert.

  2. Out of the Dark Says:

    In my line of work, lawyers are the best and the worst allies. I would strongly suggest retaining an estate attorney no matter what the cost. Legal missteps could cost much more than loss of sleep in the future. Inquire about the estate covering any legal fees. And of course, may God bless you and yours at this difficult time.

  3. VS_ozgirl Says:

    I'm so sorry for your loss and the difficulty which now surrounds you and DH. All you can do is the best you can to honour her memory without dwelling on why she didn't organise her affairs correctly. I'm hoping that the money in the account goes first to the funeral expenses and then the remaining amount distributed. Good luck with it all.

  4. Carol Says:

    I am so sorry that you have to deal with this in the middle of your sorrow. My sympathy to you and your husband.

  5. snafu Says:

    Condolences, this is all so upsetting. We are all here offering support in a safe environment.

    Do income tax documents give any clues of status? Would old police records reveal whether there was a Power of Attorney? Was it ever revoked? Can his holding institution offer any help?

  6. Dido Says:

    So sorry for your loss. Agree with the above: executors are PERSONALLY liable, so worth the cost to hire an attorney. In terms of creditors owed, this comes high in the list and if she had any assets, it should be covered. Again, condolences.

  7. Susan Hurd Says:

    I am so sorry to hear that you and your hubby are left trying to sort this out. The following information is based on personal experiences and not to be misconstrued as legal advice as I am not an attorney.

    -Small estate affidavits typically can't be filed ( here in WA it is done at the local courthouse)for 30 days after death and require a certified copy of the death certificate.

    -When it is available, request at least 4 certified copies of the death certificate- every place will need it-some places will just take a copy and hand you back the original but some will retain an original.

    -Her bank accounts- at this point the bank should be notified but they will need the above-mentioned death certificates-typically-also did she have a safe deposit box? Wherever that box is may have different requirements on how to access/close it...Also- at this point NOBODY should be writing /signing checks on her account as it was owned only by her and she is deceased...

    - Her disability benefits- you would need to find/contact the administrator of those and find out what documentation is needed....If these benefits were from a while ago, her husband "might" be entitled to that money-It depends if there is a beneficary...

    -Creditors-need to be notified- it varies as to what documentation they require..

    -Social Security- did she receive this benefit? They need to be notified immediately.

    Please keep in mind that some places you/he contact will be very vague as to what they need or even be able to confirm that she even had/has an account or business with that company-this may be in part due to so many scammers who pretend to be a relative in order to gain access to information and/or funds..

    With regard to her cremation- I don't know if he can give authority but ( although it doesn't seem "fair") the cost of it will probably fall on you two or the partner for now -once the accounts are straightened out you might be able to recoup some of that.

    I agree with the above people that retaining an attorney might be the best idea-

    I am so sorry (again) that you are dealing with this.

  8. rob62521 Says:

    So sorry for your loss. Equally sorry for the mess this has become.

  9. Laura S. Says:

    My condolences. I am sorry this difficult time has been made worse with the legal issues.

  10. My English Castle Says:

    Oh Laura, I'm so sorry. What a big mess to deal with at such an emotionally draining time. Hugs for you and your DH.

  11. scottish girl Says:

    I'm so sorry for your loss.

  12. PatientSaver Says:

    I am so sorry for your loss.

    Legally, you cannot begin or conduct any executor duties if you were not named executor. This will have to be sorted out legally, and I do think you need to retain an attorney. Once an executor is appointed by the court, the executor can certainly use a reasonable amount of money to pay for cremation and burial costs. That is a given.

  13. PatientSaver Says:

    The laws are very strict when it comes to executor function because as you can imagine, many families would take advantage of the situation and help themselves to whatever. I would hire an attorney and go about it the right way, because you could get yourself in trouble down the road if the court learns you've distributed the estate, sold things off or whatever. You may think this is a natural response since you are part of the family, but that's not how the court will treat it, again, mainly because of the potential for abuse.

    I think you could go ahead and arrange the burial/funeral but I would not do much beyond that without an attorney. I learned all this as I probated my mother's estate. Everything has to be done exactly a certain way.

  14. Frugaltexan75 Says:

    PS - so we shouldn't have her cremated tip Anne executor is appointed??

  15. PatientSaver Says:

    FT, I would consult an attorney as the laws vary from one state to the other.

    You might find this article helpful:


  16. FrugalTexan75 Says:

    Thanks everyone for your condolences and ideas.

    I was responding on my phone earlier and didn't realize it was so messed up. I'm glad you could figure out what I was saying PS. Smile
    I called an attorney today connected to my EAP program. I had to leave a voicemail. Hopefully I'll hear back from him tomorrow.

    PS - I'd read that link before. Good info, but I'm still not sure what to do with regards to cremation. The mortician won't keep her for that long would he?

    We already contacted SSI, and will be contacting the railroad (she's supposed to be getting back disability benefits from them sometime.)

  17. PatientSaver Says:

    FT, are you in possession of the death certificate? If not, you couldn't have her cremated anyway. When my mother passed, the director/doctor at the nursing home filled out the death certificate and listed the cause of death.

    I remember the director of the funeral home talking about a box on the death certificate form where the person filling it out would indicate whether or not there was anything suspicious or unclear about the death. They have that box there so that a funeral director would see it and not do a cremation since an autopsy might be required. This is all dictated by the state. I vaguely remember him telling me there is a certain waiting period before he could do anything, and there's a longer wait period before a cremation since once it's done, it's too late if something is amiss.

  18. Banker Gurl Says:

    Sorry for you loss. I have no advise but wish you luck in dealing with a sticky situation at a difficult time!

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