Limbo: The Time Between Your Last Breath And The Court Nominating A Personal Representative

The moment you die, the powers established in your power of attorney die with you. Instantly, with your last breath, they are gone. No authority is re-established until a probate is opened. This means either a will is filed or an intestate probate is open (meaning you died without a will). In either case, the court will issue a letter appointing a personal representative. Best case scenario, this will take 2-3 weeks. What happens in the interim? Usually a funeral or burial. But, the question arises - who is in charge? Of course there are state statutes to turn to, but the moment a person dies, things happen quickly. I write from experience.

My father entered the hospital in mid-August, 2009. By Labor Day weekend the medical team was urging us to transfer him to palliative care; nothing they could do would change the outcome. He was not leaving the hospital. It was a Friday evening when the move was made; we were told to expect him to live another 36-48 hours. My dad had other plans, he held on for 7 days, taking his final breath at 10pm the following Friday night. His last hospital stay lasted a month and felt like a year. But within 1 hour of his death, I was being asked "which funeral home are you using?" The speed surprised me, but then again, this was a bustling hospital, space was needed, it was time to move on.

As an estate planning and probate attorney I had encouraged both of my parents to complete a free form created by the Wisconsin Department of Health Services; Authorization for Final Disposition. It is a simple fill in the blank form, whereby you can appoint a first and second person to handle burial arrangements. There is space for noting cremation or burial, religious or non-religious, location, timing, funding, etc. But, no matter how many letters I had after my last name, my father still hesitated to take my advice. He never completed the form.

My older, half-brother, who had been estranged from the family for 10 years suddenly showed up that last week. The re-connection was nice, but tenuous. All of a sudden dad dies, and here is his "little sister" taking charge, cremating dad. My brother was not aware that in my dad's final 2 years he had decided that cremation and burial in a plot in the town my mother was from was ideal; she would be buried there as well. It was simple, and preserved more funds for my mom. He'd given up on the large Catholic funeral he'd always talked about....but just had not told my brother. Thankfully things smoothed out and all is well now. But having completed that form I could have simply shown my brother our father's wishes, and it would have likely been easier for him to accept.

A glimpse into my how my personal and professional lives merged during my father's last illness; from it goes useful, practical advice, or so I hope. Make your wishes known, take control, fill out the forms.