Decluttering Disorganized Senior Dad’s Legal Paperwork

Published In Blog

August 21st, 2016

Your father is terribly disorganized. In fact, he is a messy slob whose idea of filing means stacks of papers in drawers, shoe boxes and closets. He always has been, but his slip-shod habits have only gotten worse with age. This worries you — and it should — because as his potential heir, you eventually will be stuck with wading through his papers, to separate the important from the trash, purging papers, and decluttering the desk, floors, tables, closets and other hideaways.

So, what can you do to get ahead of the looming disaster without upsetting the father you dearly love (and who may enjoy the clutter)? Even if you are not the sole heir and other family members are involved, the same suggestions apply and you are going to need all the help you can get!

Here are a few things you can do now while your father is alive to carve order out of chaos:

Durable Power of Attorney: Does your father have a valid durable power of attorney so that someone trustworthy is designated to make financial decisions if he is too ill, confused or disabled to communicate his wishes? Without a durable power of attorney, you’d have to go to court to have someone appointed as his Conservator.

While you’re at it, check to see if he has a medical power of attorney so that someone, probably you, has the authority to make decisions involving his medical care. Whoever has this medical power needs to know your father’s preferences, in advance. Does he want heroic, life-saving measures at the expense of quality of life if the prognosis is grim? Or would he want nature to take its course? The last thing you would want is to fight it out with a sibling or hospital whose views may be different from his.

Burial: Does dad have specific wishes about what to do with his body when he dies? Does he want to be buried or cremated? If the latter, does he want his ashes scattered somewhere that was special to him or buried in an urn? Where? Does he have a preference in funeral homes? Is his body a candidate for autopsy or organ donation? If you do not know answers, this needs some attention.

Location of Estate Planning Documents: Know where your father keeps his Will and his financial statements, even if you have to organize these materials after the fact. You might offer to help him organize his papers (or hire a paid personal organizer) while he is still alive and cognizant. If he accepts, that’s a good step forward but if not, at least be sure you know where they are hidden, stacked, or filed.

Find the Will: You will need the original of your father’s Will, any codicils (additions or supplements) to the Will, and any letter of instruction that accompanies the Will. You heard that right, ORIGINAL WILL—not a photocopy, scanned, or PDF copy. If you cannot find the original paperwork in his clutter, check with his bank (perhaps it is tucked away in a safe deposit box?) or with the lawyer who drew up the original Will.

When you find your father’s Will or Living Trust, make sure it is up to date. Does he need to draft a new Will or revise the Trust? His finances, property, and general bequests may have dramatically changed since the Will or Trust was originally written. A Will that is clearly drafted can prevent or diminish bitter and costly family squabbles.

When There Is No Will to Be Found: If you have rifled through his personal clutter, cannot find anything and have tapped all resources, AND your father dies without a Will, it goes without saying that you may have a lot on your plate. From a legal perspective, it means he died intestate, in which case, state law determines what happens to his assets and the state probate court may appoint someone to oversee the final details. (The disposition and process varies by state, but in most states half of the assets go to the spouse and the other half is divided among children and descendants of any pre-deceased children.) Depending on the situation, there may be a charge for overseeing the distribution, which in most states, is based on the estate’s value. Another very good reason to roll up your sleeves and have that talk with Dad.

Fiduciary Responsibility: If you find dad’s Will and find that you are listed as executor, you may not be prepared for that job, which is basically managing and disbursing dad’s assets according to his wishes. You also will need to take on such unexpected tasks as paying off and canceling credit cards, paying utility bills on your father’s house until the estate is settled even though his bank account has been frozen. If carrying out this wide array of responsibilities is not a role you want to undertake, start that conversation with dad and your siblings, when he is competent. You can also hire an attorney and accountant to help you.

Accountant: You may also need an accountant if your father’s finances are a mess. The accountant will need to file your father’s final federal and state tax returns and, if necessary, and, if needed, federal and state estate-tax returns. Better to organize his tax paperwork now, then wait to face Uncle Sam who will seek penalties and interest.

Given your father’s tendency to be disastrously disorganized, this process may not be straight-forward. If you are lucky, he stashed all the papers and information you need in one box — not the safe deposit box, because in most states that will be frozen and you can’t get to it until the estate is settled.

But chances are you would not be reading this article if organization was one of his outstanding virtues. So that means you (or other family member or paid personal organizer) will be sifting through all the drawers, boxes, stacks of papers, files and anywhere else he may have stashed the information you need. Read our companion piece, “The Old Heave-Ho: Helping a Parent Downsize Without Losing Your Mind,” for more ideas on tackling these chores. And don’t forget the digital world on his computer, smartphone, online accounts, and email.

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