Updated: Sep 27, 2021
Dear Mr. Premack: My brother has unexpectedly died of Covid. He was just 61 years old and refused the vaccine. He never married or had children. He worked with lots of people, and that is where we think he got exposed. He was hospitalized for nearly three weeks. His broker called me after he found out about the death to say our mother was listed as beneficiary of a rather large brokerage account. But she died nearly five years ago, so the broker said the account would be paid to my brother’s estate. I know he never made a Will so what or who is the estate? How do I proceed from here? – T.F.
I am sorry to hear your brother died, especially since death by Covid has largely become a choice now that vaccines exist. Remember the saying that someone’s right to swing their arm stops where someone else’s nose begins? Your brother may have been exposed at work, as you suspect. His choice to avoid immunization and his subsequent contagion could have further exposed his coworkers, nurses, doctors, and family. His weeks in the hospital may have denied an ICU bed to someone else. The financial cost of his care will be borne in part by the taxpayers, in part by everyone on his health insurance plan, and in part by his estate.
Civil society is, by definition, a cooperative venture. Laws regulate our choices, and within that structure reside our freedoms. In the US, our freedom to choose is broad and is cherished, but is limited. Back in 1943 many Americans who traveled to Hawaii did not choose to go; they were in the military under the wartime draft. Their free choice was limited. Today, if someone wants to scuba dive in the Maldives but chooses to skip the Yellow Fever vaccine, they will be denied entry. If someone wants to fly to Vegas but chooses to skip the security line they will be arrested. If someone wants to function in our society but chooses to skip the Covid vaccine, they may die and/or may spread Covid to others.
Society’s laws and rules impact how we work, earn, spend, and benefit others with the accumulation of our wealth. If you choose to open a bank account (in the years after 9/11) you must give specific personal information to the bank. If you choose not to provide that personal information, they won’t open the account. All state governments have laws regulating how we pass our wealth, be it with a Will, a Trust, or by agreement with the custodian of funds like your brother’s brokerage. If someone chooses to ignore or misunderstands those laws, there are consequences.
Your brother, for instance, had a contract with the brokerage. The contract stated in part that if he died, they would pay his account to your mother as beneficiary. Another part stated that if his beneficiary was not alive, they would distribute the funds to his estate. If the brokerage makes any other choice, they are violating their agreement. They are not free to give his account to just anyone. If they do, they will be liable for the consequences. They do not want liability, and thus rely on the laws and rules of our society for their protection.
What, then, is your brother’s estate? Since he died without a Will or other voluntary estate plan, which was his free choice, his heirs must face the consequences. In this case, state law says that your brother’s estate is an administrative entity that must be created by a Judge at the request of an interested party. If you want to be that interested party, your next step is to hire and pay an experienced probate attorney to get you into the court system. Once there, the Judge will need to follow restrictive procedures to protect unknown heirs, determine the actual heirs, and appoint an administrator to manage the estate under bond designed to protect the heirs’ financial interests. The administration will also expose those assets to your brother’s creditors, who also have a financial interest to protect.
Your brother’s choice not to make a Will or Trust or other estate plan - or at least to update his beneficiary designation when your mother died – had consequences. He was probably not actively seeking those consequences but may have (a) avoided thinking about his mortality, (b) wanted to avoid lawyers, or (c) just misunderstood the system in which we all exist. He may have thought “no Will” meant “no probate” but that is not how the system works. He may have thought lawyers make things more complicated and expensive when in truth the right lawyer would have saved everyone time and money. He chose to avoid legal counsel and consequently you need legal counsel. Choices, even misunderstood choices, have consequences.
Column published on August 31, 2021.
Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.