Delayed certificates: Ask not for whom the bell tolls
September 1, 2021 | View PDF
A few months back, the State of Alaska got hacked pretty badly. Some evildoers broke into their system, and the State had to shut down all their systems for a while, and then bring them back up slowly. Among the systems which were shut down for quite a long time were those of Vital Statistics.
If you are not familiar with Vital Statistics (nowadays officially called the Health Analytics and Vital Records Section, but that’s too long) it does a number of things which impact the public directly. If you want to get married, for instance, you deal with them. I frequently deal with them regarding death certificates, which are issued by Vital Statistics.
And with the recent hack, and the resulting shutdown of computer systems, Vital Statistics developed a backlog. It used to take a week or two, after someone died, to get the death certificate. Lately it is more like two months.
Not being able to get these kinds of certificates promptly is a major issue for a lot of people in a lot of circumstances. I used to handle adoption cases, and I shudder to think what the consequences of these delays may be. In an ordinary adoption case, the delay in getting the birth certificate would just delay the final adoption, but a lot of things could be taken care of ahead of time. But in adoptions of Native children, there is a federal law which gives the birth mother the right to change her mind, right up until the final adoption decree. If you now add two months to the time before you can even start the process, and then at least another month to get through it, you are significantly increasing the risk that she will change her mind, and with that risk you increase the stress on the people involved. Imagine raising a newborn as your own for three months, only to have her taken away from you.
In terms of death certificates, the consequences are usually not as extreme, but they can be when people rely on another person’s assets or income. Imagine, for instance, that I am a disabled person who is unable to work, but I don’t get public benefits because my parent has a lot of money. Now that parent unexpectedly dies in an accident, and for the next few months I cannot get access to the money I need to support myself. How will I eat?
It may even be my spouse who has died, and the needed assets or income are in her accounts.
The reality is when someone dies you need a death certificate for almost anything. If you are the designated pay-on-death beneficiary on an account, they won’t give you that money without a death certificate. You can’t open a probate case without being able to show a death certificate. Typically, you cannot take over as the substitute trustee on a living trust, as a practical matter, without being able to show a death certificate.
There is one exception: If you have a joint account, and the other owner dies, you don’t need to show the certificate. You can simply access the account and take out whatever you need. Is that a suitable alternative?
Perhaps. However, there are downsides to joint accounts.
Let’s say that I set up a joint account between myself and my daughter, putting my money into it, so that she can access the money quickly when I’m gone. If she gets into financial trouble, her creditors may tap into that account. She could also take the money out just because she wants to (although hopefully she was raised better than that). And if she has a sudden medical crisis and needs long-term care, Medicaid will treat that money as hers; but if I am the one who needs long-term care, they will still treat the money as mine.
Anything I put into that account is at risk. If it is a modest amount designed to take care of final expenses and provide dependents with a little breathing room, that might be a reasonable way to accomplish that. But not if it is a substantial part of my estate.
Joint accounts might be an alternative we will have to consider in the future. In the meantime, let’s hope Vital Statistics is able to catch up their backlog soon. And ask not for whom the bell tolls, since you won’t be able to document it anyway.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account.