Litigation in the Cemetery

by Gary E. Doane

Sooner or later we will all pass on, hopefully to a better life. When that occurs we should have thoughts of final rest, and we should be comfortable with what we have done and what we have left. We will have family and friends to wind up our affairs and to tend to our endeavors where we left off, in whatever shape they might be.

What should be a solemn event, with reverence for the decedent as well as the survivors who must go on, is increasingly turning into litigation among family members and those close to the decedent. Sometimes the dispute is purely over money or property. Other times not. In preparing this article I realized that my theme was being upstaged by the survivors of Anna Nicole Smith.

We can witness, played out in the media, bizarre events that are becoming common place and the subject for litigation. Whether it is a legal tussle over the body of the decedent, or whether a brain, or a body will be frozen until science can bring it back to life, as the heirs of Ted Williams sought to do, or the custody of a child, there are certain desires imposed by survivors in a court of law.

THE WILL? Whether a Will exists or not, the very nature of the absence of the decedent creates great potential for abuse. Though the desires of the decedent should be treated with reverence, devious individuals will be dishonest. Often we see Wills being secured for an elderly person who does not have the mental capacity to understand its contents. Wills, and even deeds for real estate belonging to elderly people, are forged. There have been bank accounts emptied long before the elderly person passed away, and cases that consisted of a duel between a number of forged deeds and forged Wills.

Intentions to distribute property, protect a legacy, maintain some tranquility and minimize the need for attorneys are often facilitated with a Will. Anyone who would attempt to exercise control over these matters after death should have a Will. “Attempt” is the proper word, as the ability of the decedent to control events after passing is limited. A Will might also attempt to exercise control over events other than the distribution of assets.

Some events, for instance, who will be the guardian of an orphaned child, or what a survivor spouse might be entitled to, are not necessarily subject to the terms of a Will. Without a Will, Florida Statutes generally control the distribution of assets. There is, however, the potential of much being left unsaid.

SELECT A KNOWLEDGEABLE PERSONAL REPRESENTATIVE WHO HAS INTEGRITY

The key person, whether there is a Will or not, is the personal representative of the estate of the decedent. The Will can name a person to serve as such. To that extent, a simple Will that names a personal representative and makes basic bequests is better than no Will at all. The personal representative has much power and authority, and much responsibility, so that it is not a position to be accepted lightly. It is the personal representative that is responsible for the handling of the estate. Some might think that the probate lawyer handles everything, and is responsible for getting the estate smoothly through probate.

Though the attorney does have responsibility to the personal representative, it is the personal representative that is responsible for the handling of the estate. It is the personal representative that is responsible for garnering the assets of the decedent and for paying the decedent’s just debts. The personal representative is responsible for complying with the terms of the Will and of Florida law. If the estate must bring a suit, or must defend a suit, the personal representative is responsible for the conduct of the litigation.

If the death of the decedent gives rise to a claim under the Wrongful Death Act, it is the personal representative of the estate that is responsible for bringing that action. The personal representative must bring that suit for all of the decedent’s family who have a claim for the loss of the decedent. No individual lawsuits may be filed by an heir for the death of the decedent. The distribution of the recovery of the law suit, as well as the distribution of the other assets of the decedent, is the responsibility of the personal representative.

A BOND

Money and property often disappear. Misconduct, especially by a personal representative, can have devastating effects on the heirs of the decedent, for which no remedy at law is sufficient. The opportunity for abuse is so readily at hand that only a person of the highest integrity should be considered for appointment as personal representative. Even then a bond should be required. Many drafters of wills insert a provision that waives the requirement of a bond. Though there is some expense in securing a bond, a bond is added assurance that the assets of the decedent will not be misappropriated and, if they are, the bond will provide some compensation. In conclusion, it is best to obtain a Will. It is best to have the Will drafted by a professional long before the immediate need for it arises. The Will should appoint a personal representative who is a knowledgeable and trustworthy person. A bond should be required. These suggestions are not a cure-all for dishonest conduct. Although they can provide some assurance that good intentions are carried out, litigation will remain as an option too often necessary.