Post‑Mortem Planning Considerations
Immediately after an individual's death, the surviving spouse's mental and physical well being should be the first priority. Once this has been assured, the personal arrangements and administrative requirements must be completed. In addition, the surviving spouse should be wary of any contacts implying that the descendent had ordered merchandise, owed a debt or otherwise contracted for services unless separate evidence has been found supporting such claims.
A surviving spouse who has been named executor of the descendent's estate should be aware of the responsibilities of the executor, which have been previously summarized. Typically, it will be imperative for the surviving spouse who is the executor to retain an attorney, and other professionals as needed, to actually perform the executor's duties.
The surviving spouse should become familiar with the terms of the Will and Trust as they relate to powers of appointment; that is, rights given to the surviving spouse to direct the distribution of certain assets. Some powers of appointment are exercisable at any time during the surviving spouse's lifetime and may be exercisable at death, as well, while some are exercisable only at the surviving spouse's death. Those exercisable during the surviving spouse's lifetime may offer the opportunity for estate planning and income tax planning for the surviving spouse. For example, distributing assets from the Marital Trust to the surviving spouse's children removes the assets from the surviving spouse's estate and reduces the income tax liability to the surviving spouse, although gift taxation must be taken into consideration. Distributing assets out of a Credit Shelter Trust can serve to accelerate an inheritance at a time when it is needed and might also reduce the income tax liability to the surviving spouse, but it offers no estate planning advantage for the surviving spouse, since assets in the credit shelter trust will not be included in the surviving spouse's eventual estate.If a power of appointment is exercisable at death, the surviving spouse's estate documents should specifically reflect the intention to exercise the power of appointment and should include the details of the exercise (what power of appointment is being exercised and in favor of whom). The estate documents should also specify which powers of appointment are not to be exercised. Therefore, after the surviving spouse fully understands the powers of appointment and their ramifications, the surviving spouse's own estate documents should be reviewed and fully understood in order to determine the advisability of amending those documents to reflect the intentions with respect to powers of appointment.