A Good Estate Plan Equals Peace of Mind and Peace in the Family

The problems aren’t always evident when the first parent passes. Often, it’s when the second parent becomes gravely ill that lapses in estate planning become evident. For one family, everyone thought estate plans were all in place after their father died. When their mother suffered a stroke, the adult children learned that they had no access to her financial accounts or her health care directives. No one had thought to update the estate plan.

However, when one parent passes the family needs to take action. That’s the lesson from the article “Avoid heartache and anxiety with estate planning” from Post Independent. In this case, the family never thought to modify or add anyone’s name to the financial accounts, power of attorney documents, Health Care Proxy documents, or HIPAA consent forms. What often happens in these cases is that family members start bickering about who was supposed to do what.

For those who have not taken the time to learn about estate planning, planning for end-of-life legal, financial and medical matters, the quarrels may be inevitable.

Estate planning is not just for wealthy families. If your aging loved one own property, stocks, bonds or any other assets, they need to have a will, advance directives, powers of attorney and possibly some trusts. Take the time to understand these documents now before an urgent crisis occurs.

There are few formal courses that teach people about these matters, unless they go to law school. Nearly half of Americans age 55 and over don’t have a will, according to an article appearing in Forbes. Fewer than 20% of these people have health care directives and the proper types of powers of attorney in place.

When it comes to preparing for these matters, the laws are very specific about who can participate in health care and financial conversations and decisions.

Here are some of the documents needed for an estate plan:

  • Last Will and Testament
  • Durable Power of Attorney
  • Health Care Proxy
  • Living Will
  • HIPAA Consent Form

Pre-planning will greatly assist family members and loved ones, so they know what medical and financial efforts you or your parents would want. Having the documents in order will also provide the family with the legal means of carrying out these wishes.

The legal documents won’t solve all problems. Your brother-in-law will still be a pain in the neck and your oldest sister may still make unrealistic demands. However, having these documents in place will make the best of a bad situation.

Speak with an experienced estate planning attorney to ensure that your estate plan or your parent’s estate plan is properly prepared. If someone has moved to another state, their estate plan needs to be updated to align with their new state’s laws.

Reference: Post Independent (November 3, 2019) “Avoid heartache and anxiety with estate planning”

 

Will the Power of Attorney You Sign Today Work for Your Executor?

These are all good questions, as Powers of Attorney (POA) are some of the most commonly used estate planning documents and they are also some of the most misunderstood estate planning documents, says nwi.com in a recent article “Estate Planning: Do Powers of Attorney lapse?”

A POA (Power of Attorney) is a document that authorizes another person to act on behalf of the person making or signing the document. The person named in a POA is also referred to as the Attorney-in-Fact. Some POAs grant a wide range of authority while others are limited to a specific action. An estate planning attorney can create a POA that suits a person’s particular needs which is far better than a generic document that may not be accepted because it is too broad.

Durable Powers of Attorney don’t usually exist for a set period of time. There are also limited or special POAs that have a date or a time frame and at the end of that time frame or upon that date they terminate. It’s important to note that all POAs terminate upon the death of the maker or principal. The only power that can survive after the death of the maker is the authority to dispose of the maker’s remains, and that varies by state.

A POA can also be terminated at any time by the principal. This termination should be in writing and it can be terminated by revoking the POA within the terms of a new POA or by execution of a revocation. Either way, the person should notify the AIF  that they no longer have the authority to act under the revoked POA, and any entity who may have a copy of the revoked POA should be notified that it is no longer valid.  A qualified estate planning attorney in your state will know what rules apply in your area.

The AIF serves because the principal has chosen them, and if that changes, they are removed from their responsibilities as long as the principal is competent.

Estate planning attorneys are concerned less with the date of the POA as they are with the simple fact that banks and other financial institutions are reluctant to accept POAs that were created many years ago. In that case, usually an affidavit affirming that the document is still valid and the AIF has the authority to act under it is enough.

However, it is recommended that when you have your estate plan reviewed every three or four years, you also have your estate planning attorney update the Power of Attorney. This way there is less of a chance that a bank or other institution will balk at the document. The same goes for your health care proxy, also known as a Health Care Power of Attorney.

Reference: nwi.com (November 3, 2019) “Estate Planning: Do Powers of Attorney lapse?”

 

Have an Estate Plan, for Your Heir’s Sake

Few people want to leave their heirs with a paperwork disaster but that’s what happens when there’s no estate plan. According to the article “The importance of creating an estate road map for your heirs” from Grand Rapids Business Journal, an estate plan usually involves a will, a durable power of attorney for financial decisions, a health care power of attorney (sometimes known as a health care proxy) for medical decisions, and often, a trust.

An estate plan also involves making sure assets are titled correctly and beneficiary designations for assets are coordinated with these documents so assets pass to the people of your choosing in an efficient manner.  It’s always better if this information is gathered together and put in a location that is known to trusted family members.

Another step to consider is leaving a personalized letter of instructions to your spouse or other family members. The letter can be used to explain why you distributed your assets the way you did or guide them on what you’d like them to do with your estate regarding the assets. This is not a legally enforceable document but it may provide your family members with a level of understanding not otherwise explained in your will.

For most people, retirement accounts, real estate, bank and investment accounts, cars and maybe pensions are the total sum of their estate. If your estate is larger or more complex, i.e., you own a business or a large real estate portfolio, your estate plan may be more complex.

Step-by-step instructions regarding each asset may be helpful for your heirs, including contact information for each asset. They will also find it helpful to have a list of your professional team: your estate planning attorney, financial advisor and accountant.

For certain accounts, instructions may need to be very specific. For a retirement plan, if your spouse survives you, they’ll need to know about rolling the funds into an inherited spousal IRA and naming beneficiaries. Your estate planning attorney can help your surviving spouse avoid any expensive mistakes.

If you own a business, there will be need for more guidance. A succession plan should be set up long in advance of your retirement so that family members who are active in the business will be able to see it continue, if that is your goal. If the family does not want to run the business, they’ll need to know who to contact to ensure that it maintains its value after your passing, so it can be sold for a healthy profit.

Attorneys and accountants will definitely be able to help your family after your passing but if you own a business, you know it better than anyone else. Just as you have a business plan for various contingencies, you need to have a plan in the event of your untimely passing. This is lacking for many family-owned businesses, and it often does not end well for the family or the business.

The more detailed the directions you can leave for your family, the better off everyone will be. Having a good estate plan is an act of great kindness to those you love.

Reference: Grand Rapids Business Journal (October 31, 2019) “The importance of creating an estate road map for your heirs”

 

Blended Families Need More Thoughtful Estate Plans

Estate planning for blended families is like playing chess in three dimensions: even those who are very good at chess can struggle with so many moving parts in so many dimensions. Preparing an estate plan requires careful consideration of family dynamics, and those are multiplied in blended families. This is another reason why estate plans need to be tailored for each family’s circumstances, as described in the article “Blended families have unique considerations in estate planning” from The News Enterprise.

The last will and testament is often considered the key document in an estate plan. But while the will is very important, it has certain limitations and a few commonly used estate planning strategies can result in unpleasant endings, if this is the only document used.

Spouses often leave everything to each other as the primary beneficiary on death with all of their children as contingent beneficiaries. This is based on the assumption that the second spouse will remain in the family home, then will distribute any proceeds equally between the children, if and when they move or die. However, the will can be changed at any time before death as long as the person making the will has mental capacity. If when the first spouse dies, the relationship with the surviving children is not strong it is possible that the surviving spouse may have their will changed.

If stepchildren don’t have a strong connection with the surviving spouse, which occurs frequently when the second marriage occurs after the children are adults things can go wrong. Their mutual grief at the passing of the first spouse does not always draw stepchildren and stepparents together. Often, it divides them.

The couple may also select different successor beneficiaries. The husband may name his wife first, then only his children in his will, while the wife may name her husband and then her children in her will. This creates a “survival race.” The surviving spouse receives the property and the children of the spouse who passed won’t know when or if they will receive any assets.

Some couples plan on using trusts for property distribution upon death. This can be more successful, if planned properly. It can also be just as bad as a will.

Trust provisions can be categorized according to the level of control the surviving spouse has after the death of the first spouse. A trust can be structured to lock down half of the trust assets on the death of the first spouse. The surviving spouse remains as a beneficiary but does not have the ability to change the ultimate distribution of the decedent’s portion. This allows the survivor the financial support they need, giving flexibility for the survivor to change their beneficiaries for their remaining share.

Not all blended families actually “blend,” but for those who do, a candid discussion with all, possibly in the office of the estate planning attorney, to plan for the future, is one way to ensure that the family remains a family, when both parents are gone.

Reference: The News Enterprise (November 4, 2019) “Blended families have unique considerations in estate planning”

 

Not Having a Will Should Scare You and Your Family

For families of people who don’t have a will dealing with their estate is an expensive, stressful and time-consuming experience. A will isn’t anything to be afraid of says the Herald Journal in the article “It’s Halloween, do you have a will?” Here’s a list of things not to do that should be useful for anyone who doesn’t have a will yet.

Don’t procrastinate. You can keep on waiting until there’s a better time but life has a way of happening while we’re waiting. Now is the time to do your will. For your sake and your family’s sake don’t put it off any longer.

This is not a do-it-yourself project. No matter how simple you think your estate is it isn’t. A form that you download from a website may not be legal in your state. Nothing can replace the sense of security that sitting down with an experienced estate planning attorney can give to you and your family. You’ll know that your will is legally valid in your state if you follow all the right steps and it was created for your unique situation by an estate planning attorney.

An estate plan requires more than a will. There are many other documents and strategies to consider. Chances are that you already have more than a few other accounts to consider, like an insurance policy, investment accounts and jointly owned accounts. For an estate plan to protect you and your family, you’ll need a power of attorney, health care power of attorney, a living will and possibly a trust. A qualified estate planning attorney will help you coordinate all of your assets and make sure everything is properly prepared.

Don’t set it and forget it. Your life changes and so should your estate plan. There have been some large changes to the tax law in recent years, and a number of bills are now pending in Congress that may bring even bigger changes in 2020. Your family may have celebrated a marriage, welcomed a new child or experienced a loss. All of these issues require updates to your estate plan.

Don’t hide your will and estate planning documents. Having all of these documents prepared properly is step one. The next step is to make sure that your family members know where the documents have been stored and how to access them. They should not be in a safe deposit box, as those are usually sealed upon the death of the owner. If you don’t own a waterproof, fireproof safe consider purchasing one. Then tell a trusted family member where it is.

If charitable giving is part of your life, make it part of your legacy. Making a charitable gift as part of your estate plan can be helpful in reducing your estate taxes. It also sends a positive message about philanthropy to your family.

Make an appointment with an estate planning attorney to create your will, establish protection for yourself and your spouse in case of incapacity and create a legacy.

Reference: Herald Journal (October 26, 2019) “It’s Halloween, do you have a will?”

 

What’s Better, A Living Trust or a Will?

Everyone knows what a Last Will and Testament is however, a Will is not always the best way to distribute your assets, explains the Times Herald-Record in the article “Living trusts are better choice than wills.” Most people think that by having a will alone, they will make it clear who they want to receive their assets when they die. However, wills are used by the court in a proceeding called “probate” if the only estate plan you have is a will. The court proceeding is to establish that the will is valid. Depending upon where you live, probate can take a year before assets are distributed to beneficiaries.

Certain family members must receive notifications when a will is submitted to probate. Some people will receive notices even if they are not mentioned in the will. This can lead to all kinds of awkward situations especially from estranged or unknown relatives. The person who is the Executor of the will is required to locate these relatives and until they are found and notified, the probate process comes to a standstill.

There are instances where a judge will allow a legal notice to be published in a local newspaper after valid attempts to find relatives aren’t successful. If there is a disabled beneficiary, a minor beneficiary, a relative or beneficiary who can’t be located or a relative who has been incarcerated, the judge often appoints lawyers to represent these parties’ interests and the estate pays for the attorney’s fees.

Depending on the situation, the Executor may be required to furnish a family tree, or a friend of the decedent must sign an affidavit attesting that the person never had any children.

Thinking of disinheriting a child? Anyone who is disinherited in a will, receives a notice about that and is legally permitted to contest the will. That can lead to years of expensive litigation, including discovery demands, depositions, motions and possibly a trial. Like most litigation, will contests usually end in a settlement. The disinherited relative often gets a share of the inheritance even when the decedent didn’t want them to get anything.

For many families, a living trust is a better alternative. They also serve as disability planning naming people who will manage the assets of the trust in case of incapacity. They are private documents so their information does not become public knowledge like the details of a will.

A qualified estate planning attorney will help you determine what estate planning tools will work best to achieve your goals while maintaining your privacy and ensuring that assets pass to heirs in a discrete manner.

Reference: Times Herald-Record (Oct. 26, 2019) “Living trusts are better choice than wills”

 

Everyone Should Have a Power of Attorney and Healthcare Power of Attorney

Before snowbirds begin their seasonal journey to warmer climates it’s time to be sure that they have the important legal documents in place, advises LimaOhio.com in a recent article “Different seasons and documents, same peace of mind.” The two documents are a healthcare power of attorney and a financial power of attorney and they should be prepared and be ready to be used at any time.

These documents name another person to make healthcare and financial decisions, in case you are not able to make those decisions for yourself. We never think that anything will really happen to us until it does. Having these documents properly prepared and easily accessible helps our loved ones. They are the ones who will need the powers given by the documents, without them they cannot act in a timely manner.

If traveling between a home state and a winter home, it is wise to have a set of documents that align with the laws of both states. It may be necessary to have a separate set of documents for each state, if the laws differ.

Financial powers of attorney typically need updating more often than healthcare powers of attorney. The law has changed in recent years, and there are a number of specific powers that need to be stated precisely, so that the document can grant those powers. This includes the power to gift assets and make a person eligible for nursing home and other healthcare assistance, like Medicaid.

If these documents are not in place and are needed, the only way that someone else can make decisions for the person, is to become a guardian of that person. That includes spouses. Many people think that the fact that two people are married gives them every right, but that is not the case. Guardianship takes considerably more time and costs more than these two documents. It should be noted that once guardianship is established, the person who is the guardian will need to report to the court on a regular basis.

Another document that needs to be in place is a living will or advance directive. This is a document prepared to instruct others as to your wishes for end-of-life care. The document is created when a person is mentally competent and expresses their wishes for what they want to happen, if they are being kept alive by artificial means. For loved ones, this document is a blessing, as it lets them know very clearly what their family members wishes are.

Peace of mind is a wonderful thing to take with you as you prepare for a warm winter in a different climate. Talk with an estate planning attorney to be sure that your estate planning documents will be acceptable in your winter home.

Reference: LimaOhio.com (Oct. 26, 2019) “Different seasons and documents, same peace of mind”

 

Estate Planning, Simplified

Estate planning attorneys hear it all the time: “My children will have to figure it out,” “Everything will go to my spouse, right?” and “It’s just not a priority right now.” But then we read about famous people who don’t plan, and the family court battles that go on for years. Regular families also have this happen. We just don’t read about it.

A useful article from The Mercury titled “Estate planning basics and an estate attorney meeting preparation” reviews the basics of estate planning and explains how following the advice of an experienced estate planning attorney can protect families from the financial and emotional pain of an estate battle.

Estate planning is not just concerned with passing property and assets along to heirs. Estate planning also concerns itself with planning for incapacity, or the inability to act or speak on one’s own behalf. This is what happens when someone becomes too ill or is injured, although we usually think of incapacity as having to do with Alzheimer’s disease or another form of dementia.

Lacking an estate plan, all the assets you have worked to accumulate are subject to being distributed by a court-ordered executor, who likely doesn’t know you or your family. Having an estate plan in place protects you and your family.

Living Will or Advanced Directive. A living will provides directions from a patient to their doctor, concerning their wishes regarding life support. This alleviates the family from having to make a painful and permanent decision. They will know what their loved one wanted.

Springing Durable Power of Attorney. This document will allow someone you choose to make financial and legal decisions on your behalf if you are not able to. Some attorneys prefer to use the Durable Power of Attorney, rather than the Springing POA, since the Springing event may need a physician to state that the individual has become incapacitated, and it may require the court becoming involved. Powers of attorney can be drafted to be very limited in nature (i.e., to let one single task be accomplished), or very broad, allowing the POA to handle everything on your behalf.

Durable Power of Attorney for Health Care. This lets a person you name make health care decisions for you, if you are not able to do so. The decision-making power is limited to health care only.

Should Your Health Care POA and Your Financial/Legal POA be the Same Person? Deciding who to give these powers to can be difficult. Is the person you are considering equally skilled with health care as they are with finances? Someone who is very emotional may not be able to make health care decisions although they may be good with money. Think carefully about your decision. Just remember it’s better that you make this decision rather than leaving it for the court to decide.

Last Will and Testament: This is the document people think of when they think about estate planning. It is a document that allows the person to transfer specific property after they die in the way they want. It also allows the person to name a guardian for any minor children and an executor who will be in charge of administering the estate. It is far better that you name a guardian and an executor than having the court select someone to take on these roles.

The estate planning process will be smoother if you spend some time speaking with your spouse and family members to discuss some of the key decisions discussed above. Talk with your loved ones about your thoughts on death and what you’d like to have happen. Think about what kind of legacy you want to leave and then contact an experienced estate planning attorney to put your plan into action.

Estate battles often leave families estranged during a time when they need each other most. Spend the time and resources creating an estate plan with a qualified estate planning attorney. Leaving your family intact and loving may be the best legacy of all.

Reference: The Mercury (Oct. 27, 2019) “Estate planning basics and an estate attorney meeting preparation”

 

What is a Special Needs Trust?

Supplemental Security Income and Medicaid are critical sources of support for those with disabilities, both in benefits and services.  To be eligible, a disabled person must satisfy restrictive income and resource limitations.  That’s why many families ask elder law and estate planning attorneys about the two types of special needs trusts.

Moberly Monitor’s recent article, “Things to know, things to do when considering a special needs trust,” explains that with planning and opening a special needs trust, family members can hold assets for the benefit of a family member without risking critical benefits and services.  If properly thought out, families can continue to support their loved one with a disability long after they’ve passed away.  After meeting the needs of their disabled family member, the resources are kept for further distribution within the family. Distributions from a special needs trust can be made to help with living and health care needs.

To establish a special needs trust, meet with an attorney with experience in this area of law. They work with clients to set up individualized special needs trusts frequently.

Pooled trust organizations can provide another option, especially in serving lower to more moderate-income families, where assets may be less and yet still affect eligibility for vital governmental benefits and services.

Talk to an elder law attorney to discuss what public benefits are being received, how a special needs trust works and other tax and financial considerations. With your attorney’s counsel, you can make the best decision on whether a special needs trust is needed or if another option is better, based on your family’s circumstances.

Reference: Moberly Monitor (October 27, 2019) “Things to know, things to do when considering a special needs trust”

 

What’s Everything I Need to Know About Wills?

Writing a will is a critical part of estate planning. A will contains your legally binding directions for the distribution of your property and responsibilities, when you pass away.

Like the title says, Money Check’s recent article, “Guide to Writing a Will: Everything You Need to Consider,” sets it all out—from soup to nuts.

Do it myself or hire an experienced estate planning attorney? It’s wiser to hire a qualified estate planning attorney to help you draft your will. There are many heartbreaking stories of people who decided to do it by themselves and missed important steps. If that’s the case, the probate judge will not recognize the will and will take control of the estate. Don’t let this happen to your family. Use a legal professional.

Name Your Heirs. List all of the people you want to include in your will. You can omit or include anyone you want. If you do want to leave out a certain family member, be sure you clearly indicate that in the will. You don’t have to explain why you decided to include or exclude family members from your will.

Name an Executor.  Select your attorney or a close family member as the executor.

Select a Guardian for your Children. Name a responsible and willing guardian for your minor children. You should also be sure to discuss your decision with the potential guardian.

Be Clear on the Assets Beneficiaries are to Receive. Avoid vagueness or questions in your will. Clearly explain who gets what. This will help avoid confusion and disputes among family. A thoroughly crafted will prevents stressful and upsetting situations from happening to your family, after your passing.

Include Your Final Wishes with the Will. You can leave your will and a final letter to your family with your executor. This is also called a letter of last instruction.

Get Your Witnesses. When you’re ready to sign your will, be sure to sign it in the presence of a notary public (your estate planning attorney). get a witness (or two depending on your state’s laws) of legal age, over 18-years old and not a family member or relative, to sign the documents.

Keep Your Will Somewhere Safe and Accessible. Store your will in a safe place, where your family can get to it when you die.

Reference: Money Check (October 23, 2019) “Guide to Writing a Will: Everything You Need to Consider”