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Who has control when someone dies?

When someone dies, there are important decisions that need to be made regarding that person’s remains, possessions, and unfinished affairs. Determining who has the legal right and responsibility to handle these matters depends on whether the deceased person left behind instructions in the form of advance directives or a last will and testament.

What happens to the body after someone dies?

After someone dies, the first decision that must be made is what to do with the remains of the deceased. There are several options for final arrangements:

  • Burial – The body can be interred in a cemetery plot, either in a coffin or casket or simply shrouded. Some people opt for natural or green burials, without embalming chemicals.
  • Cremation – The deceased can be cremated, with the ashes saved in an urn, scattered, or buried.
  • Donation – Some choose to donate their bodies to medical science or for anatomical study.
  • Other options – Less common options include mummification, cryogenic preservation, or placing the body on a mountaintop to decompose naturally.

The person who has the legal right to decide what happens to the body is determined by state law, which varies across the U.S. Generally, the order is:

  1. A person designated in a legal document such as a health care power of attorney or living will
  2. The deceased person’s spouse
  3. Adult children
  4. Parents
  5. Adult siblings
  6. Another family member, like an aunt, uncle, or grandparent
  7. A close friend
  8. Public administrator or coroner

So if the deceased left written instructions regarding burial or cremation, the designated person in that document has authority. If not, it goes to the spouse first. If the person was single without children, control would go to their parents if living, and so on down the line.

How can someone legally plan for their remains in advance?

To make sure your own wishes are followed, you can legally plan for your remains and your funeral or memorial service by:

  • Completing a health care power of attorney – This names someone to make medical decisions if you’re incapacitated, including after death.
  • Writing a living will – This outlines your wishes about end-of-life medical care, including organ donation and autopsy.
  • Prepaying for funeral arrangements – You can prepay some or all funeral expenses, specifying your plans.
  • Filing a declaration of disposition of remains – Available in some states, this legally conveys your plans.

Certain legal documents can be used to appoint someone to carry out your plans, such as:

  • Naming an agent under a durable power of attorney for health care.
  • Naming an executor in your will (see below).
  • Naming a designated agent in a declaration of disposition of remains form.

These documents empower someone you trust to ensure your final wishes are honored.

What happens to a deceased person’s belongings?

After someone dies, their belongings need to be dealt with responsibly. This includes impactful decisions like what to do with a home, vehicles, or pets. Their possessions need to be protected and distributed properly. State probate laws determine who has the right to access, manage, distribute and inherit property. Generally, authority is granted in this order:

  1. Executor named in a will – This court-appointed role gives them legal oversight of belongings.
  2. Administrator named by a court – If there is no will naming an executor, the court picks someone to administer estate.
  3. Joint owner – If accounts or property were jointly held, the other owner typically gains control.
  4. Next of kin – If there is no will or joint ownership, control goes to closest qualifying relative.

Often, the deceased’s spouse or children have priority next of kin rights. The executor or administrator inventories assets, pays debts, files tax returns, and distributes property as required by state probate law.

Steps in probate administration

  1. Petition court – Formally request appointment as estate representative.
  2. Notify heirs – Heirs must be notified of probate proceedings.
  3. Inventory assets – List all estate property and debts to determine value.
  4. Pay claims – Settle valid creditor claims made against the estate.
  5. File taxes – File any final income and estate tax returns.
  6. Distribute property – Remaining assets are dispersed to heirs according to will or state law.

This ensures the deceased person’s wishes are carried out and heirs receive proper inheritance.

How are unfinished obligations or open accounts handled?

In addition to physical property, the deceased person may have had unfinished business, financial obligations or open accounts that need to be addressed. These typically fall into three main categories:

Debts or payments owed by the deceased Money or payments owed to the deceased Joint or pending matters
  • Credit card balances
  • Medical bills
  • Loans
  • Taxes
  • Income
  • Insurance claims
  • Inheritances
  • Investments
  • Pending lawsuits
  • Business ownership
  • Real estate transactions

Authority to handle these matters is usually granted in the following order:

  1. Executor named in will or administrator of estate – Has oversight of most obligations.
  2. Joint account holder – Can manage joint accounts and obligations.
  3. Power of attorney – Still active until court revokes authority.
  4. Spouse – May have authority for some matters if no estate oversight.

Expenses that must be settled include:

  • Funeral costs
  • Medical bills from last illness
  • Taxes
  • Debt payments

Income sources that should be collected include:

  • Salary
  • Rent
  • Investment earnings
  • Insurance benefits
  • Royalties

Joint matters like pending lawsuits or business interests will pass to the surviving co-owner or partner. The estate may need to resolve matters like real estate transactions that were in process.

What legal rights does a surviving spouse have?

A surviving spouse has certain legal rights and responsibilities that grant them some degree of control, though a will or executor often take precedence. These may include:

  • Claims on the estate – In some states, a spouse can choose a statutory share of the estate instead of whatever they were left in the will.
  • Inheriting jointly owned property – Joint bank accounts, real estate, etc. pass directly to the spouse.
  • Inheriting select personal items – A spouse may be able to claim certain personal effects like furniture.
  • Temporary oversight – May be able to administer estate for a short time before an executor is appointed.

However, a spouse has very limited authority if excluded from the will and an executor is named. Typically, rights are only what is conveyed under state inheritance laws.

What authority does the will of the deceased grant?

The degree of control granted in a last will and testament depends on who is named as executor and heir. Typical authority includes:

  • Executor – Has legal responsibility to settle debts, file taxes, and distribute property.
  • Heirs – Receive distribution of assets according to terms of the will.
  • Guardian of minor children – Assumed care and financial support for any minor kids.
  • Trustees – Manage assets like property or money placed in trust.

The nominated executor has the most authority to handle obligations, access accounts, pay bills, and distribute property. Heirs receive inheritance according to the will’s directions. Trustees oversee ongoing trusts.

Can a will be overridden?

A deceased person’s will can be challenged in certain cases, including:

  • The person lacked mental competency when writing the will.
  • Signature pages were altered or forged.
  • Terms violate state inheritance laws.
  • An heir was improperly excluded.
  • Will was made under duress or undue influence.

If a court successfully overturns a will’s validity, the estate will pass according to state inheritance law. A spouse or next of kin would typically gain control rather than the nominated executor or heirs.

When does an estate go through probate?

Probate is the legal process of administering a deceased person’s estate by resolving obligations and distributing property according to the will or state law. Requirements for probate vary by state. Probate is typically required if:

  • The deceased owned significant individually-owned assets.
  • Beneficiaries weren’t properly named on accounts.
  • Minors or incompetent adults are beneficiaries.
  • There are debts that need to be paid.
  • There is disagreement among beneficiaries.

Reasons probate may not be necessary include:

  • Jointly owned property passes directly to the joint owner.
  • Assets like IRAs, life insurance, or payable-on-death accounts pass directly to beneficiaries.
  • Assets placed in trusts bypass probate.
  • State law grants a surviving spouse or next of kin authority.
  • The estate has few assets.

The size threshold to require probate varies by state, like $50,000 in California or $15,000 in Texas. If the estate is small, the deceased’s heirs may choose to avoid probate.

Can conflicts arise over an estate?

Settling an estate can certainly involve disagreements between heirs, beneficiaries, creditors or others with financial claims against the deceased. Common disputes include:

  • Validity of a will – Heirs may claim the will had flaws, was forged, or should be overturned.
  • Conflict over who administers estate – Arguments over the appointed executor or administrator.
  • Appraisal and distribution of assets – Heirs contest assigned values or argue over distributions.
  • Creditor claims – Estate may lack funds to pay all creditor claims.
  • Interpreting instructions – Confusion over directions in the will.

To resolve conflicts, parties can pursue mediation, arbitration, or filing lawsuits in probate court for a judge to decide issues. If administration of the estate is complex due to litigation or heir conflicts, the court may appoint an administrator rather than use the will’s executor.

What taxes need to be filed after someone dies?

After someone passes away, certain taxes need to be completed by the executor, administrator, or surviving spouse. Typical post-death taxes include:

  • Final individual tax return – For income earned in the year of death.
  • Estate tax return – For larger estates, taxes on assets transferred.
  • State estate tax – Some states levy estate taxes; others don’t.
  • State inheritance tax – Paid by heirs on assets received in certain states.

Federal estate taxes apply only to large estates exceeding $12 million in assets for deaths in 2022. Fewer than 2% of estates owe federal estate taxes. But state estate taxes often kick in at $1 million or less in assets.

The executor files a final 1040 individual tax return for the deceased based on all income up to the date of death. Any taxes owed must be paid from the estate. The due date is typically April 15 of the following year.

For larger estates, federal and state estate tax returns may need to be filed within 9 months of death. Estate taxes can substantially reduce inheritances, so planning to minimize them is important.

How can people prepare for handling their own estate?

To make the settlement of your estate after your passing easier on your loved ones, it’s wise to get your legal affairs in order with measures like:

  • Writing a will – Outline your wishes for distributions, executors, guardians, etc.
  • Setting up trusts – Funds can transfer directly to beneficiaries, avoiding probate.
  • Recording advance directives – Document your wishes about medical treatments when unable to decide.
  • Giving power of attorney – Name someone to act on your behalf if you’re incapacitated.
  • Reviewing beneficiaries – Update any policies, retirement accounts, bank accounts, etc. to current choices.
  • Prepaying for funeral – Take financial burden off family and outline funeral plans.
  • Organizing records – Have property, investment, tax, and insurance records available for ease of settling.
  • Communicating plans – Discuss your intentions with loved ones.

Estate planning can greatly reduce confusion or disagreements about your wishes. It also allows you to choose trusted individuals to carry out your plans.


Determining who controls decisions and property after someone dies depends greatly on whether the person left legal instructions like a will or power of attorney. If so, an executor, trustee or other designee will carry out plans according to the deceased’s written directions. If no instructions exist, state intestacy laws provide a hierarchy starting with the spouse and closest family members. Settling affairs, paying taxes and debts, and distributing property can be complex. But good planning and communication from the deceased can ease the burden substantially.