All I want is a simple will.

Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many.  In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required.  Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.

“All we want are simple wills.”  This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids.  That does sound simple:  Mike and Carol Brady’s will would leave everything to each other then to their kids.  What could go wrong?

A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will.  First, name your executor.  Second, name “guardians for young children.”  Third, describe how assets will be divided and distributed.  Fourth, sign in front of two witnesses, then have them sign.  This is great too—again, what could go wrong?  This does sound easy.  Who needs an attorney!

Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally).  The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted.  In most states, stepchildren do not inherit (unless specifically named).  Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.”  Mike dies, and all of his assets go to Carol.  Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.”  At Carol’s death, she had inherited all of Mike’s assets from when he died.  Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy.  Those are her children.  Greg, Peter and Bobby are her stepchildren.  What do the boys get?  Nothing under this standard, simple will!

Now let’s examine the do-it-yourself article.  Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that.  However, “Name guardians for young children.”  I name my brother John Doe and his wife Jane as guardians because they know and love my kids.  What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians.  What if my brother John is killed in a car accident—does my sister-in-law keep my kids?  She would if both are named.  Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?

The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.”  That appears easy to do—divided evenly among my 3 kids.  I see that phrase often in wills, “to my children equally.”  Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate.  But what if Kid 3 died before Dad?  An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).

Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”).  Simple wills are not that simple in many instances.

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Choosing a guardian for your children: the Value Majority Test

Who finds it pleasant to think about their children being raised by someone else?  No one.  However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you.  Would your child prefer to have a stranger make that decision?  No.  This choice is yours to make.  Get paper, a pen, and try this approach.

  1. List everyone who is a possibility as guardian, even a remote possibility. This might include friends.  Single people.  People with no kids.  People with grown kids.  People who live far away.
  2. Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you.  This is my partial values list as an example to get you started:  parenting style;  attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.

 Now you should have a list of people who rank as good candidates.  You should choose at least three.  What if you have several people who meet the test and make good candidates, but you wish to shorten your list?  Here are some of my observations.  First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe.  Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples.  Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle.  If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian.  Fourth, choose candidates who are likely to keep your children in touch with your family.

Trying this approach should result in at least a few guardian possibilities.  This issue is difficult to think about, but thinking about it is exactly what needs done.

Contact me at julie@juliemillslaw.com if you want to get started on a will to name your guardians.

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.

Happy National “Everything You Think Is Wrong” Day!

March 15th is National #EverythingYouThinkIsWrongDay.  Let’s celebrate by reading some things that many people believe, but are wrong:

  1. “Living together for 6 years means we are married.” No, at least not in Ohio.  Common law marriages in Ohio are recognized only if they occurred prior to October of 1991.
  2. “Contracts must be in writing.” Oral contracts are enforceable in many situations.  Exceptions exist, including most contracts for real property.
  3. “The United States Supreme Court has the final say of all laws in the U.S.” The U.S. Supreme Court is the final decider of federal laws and controversies involving federal law.  State supreme courts have the final say over state law.
  4. “I can’t be arrested for public intoxication if I’m on private property.” You can be standing on your front porch, beer in hand, and if you are creating a disturbance you can be arrested for public intoxication.
  5. “I don’t have a will.” You might not have prepared a will, but every state has a plan for your asses should you die without having prepared your own will.
  6. “I don’t need a will because my spouse will get everything anyway.” Not likely true if you had a child together, or you have children from a previous relationship.
  7. “My donations to a nonprofit are tax deductible.” In order for donations made to a nonprofit to be tax deductible to you, the nonprofit must have tax exempt status from the IRS.  Most commonly this is 501(c)(3) status.
  8. “If I’m arrested I’m entitled to one phone call.” This is partly true.  You have a right to one call to an attorney.  Generally the police allow an arrestee to call family or a friend but it is not a right.
  9. “The First Amendment protects your free speech from everyone.” This is a very common myth.  The First Amendment only protects your right free speech against the government, and even that protection has limitations.  People getting fired from a private employer for what they (employees) say is permissible, despite a hundred Facebook commenters lamenting that this person’s right to free speech has been violated.
  10. “If the house is in just my name, my spouse can’t get it if we divorce.”  Not true, typically.  Things acquired during the marriage are subject to equitable division and distribution.  And, equitable doesn’t mean equal, it means fair according to the judge.

Grandparent Visitation Rights in Ohio

Grandparents have rights to visitation with their grandchildren under certain circumstances. If a child’s parents are unmarried; if the child’s parents start divorce, dissolution, or legal separation proceedings; or if one of the parents has died, a grandparent can ask the court for companionship or visitation rights if the grandparent can show he or she has an interest in the welfare of the child. The child’s parents can object, but ultimately the court will decide on grandparent visitation based on what is in the best interests of the child.
 
Sometimes a grandparent with visitation rights believes these rights are permanent. Grandparents can have their rights terminated if a parent can show a change in circumstances that makes visitation something that is not in the child’s best interest. One example of a grandparent having visitation rights taken away is when their son- or daughter-in-law (parent of the child) remarries and the child’s new stepmother or stepfather adopts the child (stepparent adoption). Under Ohio law, the grandparent becomes a “stranger,” legally, to the child. The grandparent would have no rights to visitation, or anything, with the grandchild. Perhaps he or she could still visit with the grandchild, but this would be at the discretion of the parents.
 
Grandparents’ rights to visitation with their grandchildren in Ohio are not as strong as in other states. There are states that permit visitation for grandparents with a grandchild who has been adopted, but Ohio is not one of them. If you have questions, don’t hesitate to reach out to see if I can help at julie@juliemillslaw.com.

Collaborative Divorce: Best for All

Divorce is one of the most recognized life stressors.  According to the “Holmes and Rahe Stress Scale,” it ranks second only after death of a spouse, and is more stressful than imprisonment or death of a close family member.  These are stressors that can cause illness.

As much as many like to market divorce as “a new beginning,” I think most divorcing couples view it as an end, or at least a very impactful restructuring.  The divorce process does not help ameliorate the fight-centered, winner-and-loser view of divorce.  There is a better method to ending a marriage that is not adversarial: “collaborative divorce.”

With collaborative divorce, both parties sign a collaborative divorce agreement detailing what can be done and how it will be done.  If one party breaches the contract, then the party’s attorneys are prohibited from representing them in court.  There are other incentives to follow the agreed-upon rules.  The goal is *negotiating,* where both parties get their needs met and both parties compromise.

Divorce is a major life stressor for the children involved–watching their parents negotiate and restructure the family without acrimony should be the main motivation to seek a collaborative divorce.

For more information, read https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-282.aspx, or email me at julie@juliemillslaw.com.

Divorce well…for the kid’s sake

Divorce brings to mind acrimony, fighting, negativity.  When children are involved emotions can be heightened, and fighting for custody can result in putting children in the middle of a battle they cannot stop or control.  For attorneys, the most amicable path for their clients who are ending a marriage is often “collaborative divorce.”  With collaborative divorce, you and your spouse work with professionals outside of court to negotiate an agreement acceptable to both of you.  If you are in Ohio and would like a referral for an attorney who practices collaborative divorce, contact me.

If you are considering or already in the process of divorce and children are involved, please take a moment to read the following article by Lesley Cross, a licensed professional counselor who runs a private practice, Bridges Counseling of Worthington.  For more information on Lesley or her practice, visit her website or Facebook page:

Don’t stay married for the kids…but at least divorce well for their sake

By Lesley Cross, MA, LPC

I’m not the therapist that thinks parents should stay married “for the sake of the children.” But I definitely AM the one who strongly believes parents who divorce owe it to their children to divorce well.

Divorce is messy. It impacts everyone. The goal is to make life happier post divorce for all involved, but often, the newly created COD [Children of Divorce] have lifelong challenges as a result of the divorce. Unless parents handle their divorce well with respect, co-parenting, thought for the children and continued support of the other parent, the children will suffer long after the legal paperwork is filed.

The following points help parents to divorce well and consider the ways in which they can make the divorce easier for their children.

  • Don’t put the child in the middle.

Sure, Mom and Dad don’t have to see each other every day or communicate on a regular basis anymore. But the kids are now stuck in the middle. “Ask your Mom….” “Be sure to tell your Dad….” They’re stuck and no longer do they have the role of a child with two loving parents but instead are in the middle playing the mediating messenger. This isn’t a role they asked for and one that they find to be very stressful and frustrating. The child finds that they start to pull away from both parents and hide information from both to prevent being stuck in the middle further. Teens may limit face to face communication and prefer to text instead to avoid the emotional connection or blaming that comes from in person discussions. Parents must not expect their children to take sides or choose where they live and for what duration because that is a pressure non-COD can’t begin to understand. Leaving the communication to the adults and removing the child from the middle is critical.

  • Don’t bash the other parent.

Divorcing parents must get along. True, the marriage didn’t end as happily as it started. But the divorce is not permission to continue the fight. The adults got out of the marriage. They’re free. The kids didn’t. They are forever now COD and unless the parents can get along, respect the other parent, encourage a loving and strong bond with the other person and truly invest in the welfare of the children together- the negative impact of divorce is one that will stay with the child forever. This means divorced parents do not have the right to bad mouth the other parent to the child. They cannot yell at the other parent while the child watches and overhears. They don’t get to complain about the other parent publically. Doing so not only creates insecurity, confusion and hate in the child. You don’t have to like your ex- but you must be supportive of your child to have a loving relationship with that parent. Bashing the other parent is in fact publically hating half of who the child is. They know this and find it to be confusing and hurtful. It also is difficult for the COD to succeed with relationships if they feel they are hurting one parent by having a strong relationship with the opposite parent. The COD needs and should be encouraged to have strong bonds with both parents (and step parents if applicable.) When parent alienation goes too far it borders on child abuse, leaving emotional scars far worse than parents may realize.

  • Don’t overshare information with the children.

Divorced parents must not share too much information with the children. Children do not need to know the financial battles of divorce and child support. They do not need to know the other’s opinion on who Mommy or Daddy is now dating or what they’re doing with their personal lives. Comments such as “that’s nice your dad got you new shoes, too bad he can’t pay his child support this month” or “If you mom hadn’t left us for her new boyfriend we wouldn’t be in this situation” not only harm the relationship but expose the children to information inappropriate and harmful for them. This forces them into a role too mature and emotionally confusing for them to navigate.

  • Divorced parents must still parent as a unit.

Communication lines must be open. Secrets can’t be kept about what happens at one household or another. Shared values and parenting steps need to be agreed upon. Plans for major events, celebrations, and holidays need to be handled with respect. Nothing ruins the holiday mood like listening to parents fight over who has the children when – or worse- spending the holidays at 3 locations so everyone “wins” (because no COD feels that was a win for them.)

While ideally both parents still support the child in his/her events (school plays, sporting events, birthday parties, etc.) the child now has the added stress of determining who to see first after the event. If possible, parents should sit together or close to one another at events as the child has a constant loop in their head of self questioning “If I walk to Mom first then Dad is left out. If I go give Dad a hug now Mom will be offended.”   When the child is at one parent’s home they are hesitant to talk about, call or text the other parent out of fear that they will upset the parent they are with. It’s a constant battle of choices that plays in the child’s head trying to not upset or hurt the person they are with; the reality is person hurting the most is the child themselves.

Failure to follow the above 4 steps creates a trauma for children of divorce that is linked to lower self-esteem, academic and social struggles, younger and sometimes risky sexual exploration, self mutilation, self-hate, lack of trust, struggles in their own romantic relationships and substance abuse. Divorce is sometimes the best option for all parties involved, but choosing to divorce comes with great responsibility to divorce well for the sake of the children and their future.