Misconceptions you might have with estate planning

I have heard all of these misconceptions mentioned, including just today.

  1.  The attorney who prepared my will must handle my probate.  No.  Many estate planning attorneys prepare wills with an eye toward being called upon to handle a probate if the client dies, but there is absolutely no requirement that the drafting attorney who prepared your will must handle your probate.  This includes if the attorney who prepared your will holds your original will for safekeeping.
  2. My will dispenses with all of my property. Some documents override a will.  If you have a will, and you leave all real (house, land) and personal property to John, yet you have a deed that is held somehow with Jane, Jane will get the house because she is on the deed, not John, even though your will gives it to John.  Generally, titled and deeded assets go to the person listed on the title, or beneficiary designation, or deed.  “I leave everything I own to Bob.”  At my death, I have a life insurance policy that lists Joanne on the beneficiary designation.  Who gets my life insurance?  Joanne.
  3. I had a trust prepared so I don’t have to worry about probate.  It is so frustrating to see clients come to me with trusts they had prepared (and paid a lot to have prepared), only to learn that the trusts are unfunded.  What the client has, then, is a stack of papers that likely will not do what was intended.  Funding your trust involves titling or deeding assets to your trust.  You can accomplish this by naming your trust on beneficiary designations so that asset goes into your trust at your death, or having a “transfer on death affidavit” prepared that puts your home into your trust at your death.  For example, you would have a deed prepared granting your home from Jenny Jones to “The Jenny Jones Revocable Living Trust.”   However you accomplish it, a discussion of “funding your trust” should be a critical part of planning from your attorney.  If you have a trust prepared and then never prepare a new deed putting your home into your trust, and you die, your home will likely require a probate to be opened, defeating one of the important reasons for having a trust prepared (avoiding probate, privacy).
  4. A will (last will and testament) is different than a “living will.”  A last will and testament is what we think of as a “will”–we state who is to inherit what, we name a guardian for our kids if they’re young, we name an executor.  On the other very different hand, a “living will” is a healthcare document stating whether we want artificial life support if (1) we are terminally ill and death is imminent, or (2) if we are in a permanently unconscious state (i.e., brain dead).  This is popularly known as “pulling the plug.”

Contact me at julie@juliemillslaw.com to discuss estate planning.

Barebones planning for life without you.

Some people plan for their death and the fate of loved ones, whether it’s by a will, trust, re-titling and re-deeding assets, or other ways.  These are my clients.  Other people do not do this planning, and the reasons are typically because 1) they don’t want to think about it, 2) they don’t have the time or money for it, 3) they think others will take care of everything if they die.  These are many of my family members and friends.

Frankly, people die, their loved ones do take care of everything, and life goes on.  But, if you practice probate and estate administration as I do, you see so many situations where loved ones are left trying to “take care of everything” in impossible or contentious situations, where families fight and relationships become extremely strained, or irreparably damaged.

What if you do not want to engage in any estate planning–for any number of reasons, you don’t want to have a will or a trust prepared.  At least not yet.  However, you do see the need to provide some guidance to loved ones should you die.  There are very basic steps you can take to provide this guidance.  It goes without saying that I always recommend a will or trust, but something–barebones planning–is better than nothing.  I guarantee you it would be appreciated.

The following is a list you can do, on your own, to make the lives of your loved ones easier if you die.  Some steps are specific to Ohio, where I’m licensed to practice.  Tailor to your own situation:

1.  Children: if you have children under 18 years old, write down 3 people in order of priority who you would choose to raise your children (guardian).  Sign it in front of two unrelated witnesses.

2.  Funeral: disagreements over your final disposition are common.  Write down whether you want buried or cremated.  If buried, name a cemetery.  If cremated, what happens to your ashes?  List two people in order of priority who will be in charge of decision-making and with making sure your wishes are followed.  Sign it in front of two unrelated witnesses, or have it notarized.

3.  Medical decision-making:  name a person and 2 successors to be in charge of decisions about your medical care if you cannot make them.  Explain your wishes about artificial life support–do you want kept alive by artificial means?  Sign it in front of two unrelated witnesses.

4.  Pets: please provide for their fate if you die.  Many family members take pets to shelters after their owner dies.  Who do you want to care for your pet?  List two successors after this person.  Will you leave them money to help with the care?  How much?  Sign it in front of two unrelated witnesses.

5.  Specific bequests:  do you have possessions that you want to go to specific people?  List the items, and to whom they go.  Sign it in front of two unrelated witnesses.

This list is not exhaustive, but it covers the areas where I see fighting among relatives.  Having guidance during a time of grief is a gift.

If you have any questions about this post, or about estate planning, contact me at julie@juliemillslaw.com.

 

A *Must* for Kids Going to College

Your child has selected a college.  In no time, your child will be starting classes.  Because he or she will technically be living at home (home over holidays and summers), perhaps still on your insurance, and possibly still driving one of your cars, it doesn’t really feel as if they’re off to adulthood, does it?

At age 18, under the law, they are adults.  (For children with disabilities, the age of majority might differ.)  They are legally no longer under your dominion.  They might even balk at that, since they are driving your car, to your house, covered by your insurance.  Regardless, they are legal adults.  And, as young adults heading off to college, they should have three critical documents: a HIPAA release, a healthcare power of attorney, and a financial power of attorney.  (In Ohio, some of these documents overlap.)

Many parents are genuinely shocked to learn that, when they call the hospital where they learn their daughter has been taken after being hurt, the hospital won’t release much information to the parents.  She might still seem like your young child, but she’s an adult now and the hospital needs a HIPAA release in order to provide you with information.  Or, the bank won’t permit you to access your son’s accounts to break a lease, sign for loan or scholarship documents, etc.  When I state “child” below, I am referring to an 18 year-old.

The Documents:

  1. HIPAA Authorization: most of us have heard of HIPAA.  The Health Insurance Portability and Accountability Act is a federal law that, among other things, protects the medical privacy of patients. If you are 18 or older, medical providers, hospitals, etc. will not provide your private medical information to a third party without a release from you.

Your child would list people he or she wants to be granted access to his or her health information, and your child would sign it.

  1. Healthcare Power of Attorney: a healthcare power of attorney grants the agent your child lists in the document with the power to make healthcare decisions for your child if he or she is unable to make them for yourself.  If your son is in a car accident and the hospital can pursue different courses of treatment, it is the healthcare power of attorney who will make the decision on what to do.  If there is no living will and end-of-life decisions must be made, it is the healthcare power of attorney who will make them.  Additionally, if your child is receiving care you believe to be substandard, or you prefer treatment at a hospital you believe is better equipped to provide, you can choose to change hospitals (or doctors) if you are the agent in charge of your child’s healthcare.

Your child lists one agent and two successors, then signs the document in front of two witnesses or a notary (Ohio requirements).

Note: in Ohio, a HIPAA release is included in the most recent version of Ohio’s Healthcare Power of Attorney.

  1. General Durable Power of Attorney (Finances): a financial power of attorney permits the person the child names as agent to make financial decisions on the child’s behalf.  If your child becomes incapacitated, whether it requires a lengthy hospital stay, or leg casts making it impossible to leave a house, a financial power of attorney permits the agent—likely you, the parent—to pay your child’s bills, enter or break a lease, manage bank accounts, pay taxes.  Likewise, it permits the parents to discuss other housing issues, educational and financial institution matters.

Your child lists an agent and two successors, and signs the document in front of two witnesses and a notary (Ohio requirements).

I recommend these documents for kids going off to college so that a parent can step in when needed.  Most attorneys offer these documents separately; and some attorneys offer them together as “New Adult” packages as I do.

Please contact me at julie@juliemillslaw.com if you want to arrange for these documents before your child goes off to college.

7 reasons to review your estate plan now

  1. You have no estate plan!  I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney).  If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones.  This could cause unnecessary and unexpected costs, delays, and loss of privacy.
  2. If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan.  Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
  3. Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive?  Are they still capable of serving?  Do you still want them to serve?
  4. Review your beneficiaries. Review who you listed to inherit from you.  Are they still alive?  Do you still want to bequeath to them, or add additional beneficiaries?  You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
  5. Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.”  What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts?  What happens to money in your etsy or ebay store’s PayPal account?  Do you want your spouse to have access to your Facebook account at your death?  Or your emails?  These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
  6. Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless.  You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust.  You can fund while living, or set it up so that this funding occurs at your death.
  7. Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney.  Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.

If you would like to discuss your estate plan, contact me at julie@juliemillslaw.com.

Terminal condition. Permanently unconscious state.

No one wants to think about being gravely injured in an accident, or having a terminal illness.  If you have definitive thoughts about being kept alive–or not–on artificial life support, then you should plan for what you want done or not done should you become in a “terminal condition” or “permanently unconscious state” using a living will and a healthcare power of attorney.

Karen Ann Quinlan and Terri Schiavo were both women who fell into comas after differing medical events.  Both were put on artificial life support and received nutrition (feeding tube) and hydration.  Despite efforts from family members to remove artificial life support, both women lived for 10 years in a persistent vegetative state.  As with many people, neither woman put any end-of-life wishes in writing.

The stories of Quinlan and Schiavo scare people who fear living for years in a coma, kept alive by machines.  To make it known that you would not want to be kept alive artificially, you need to prepare a living will, which memorializes your end-of-life decisions in writing.  A healthcare power of attorney accompanies a living will, and provides for you to name an agent for making healthcare decisions for you.  This “agent” can make medical decisions if you are unable to make them yourself, but cannot override your end-of-life wishes in your living will.

A living will document makes your end-of-life healthcare wishes known.  A healthcare power of attorney names an agent (you choose) to enforce your living will and make healthcare decisions for you if you are unable to do so.  These documents should be a part of your estate plan, and should be freely to distributed to the people you name, doctors, and hospitals.