The Classics: Fab Four of Estate Planning Mistakes

  1. “I’m not wealthy so I don’t have an estate: Everyone has an estate.  Estate planning is about what you own, not just what everything is worth.  If you have a car, a house, a bank account, or anything, you have an estate.  Estate planning encompasses how you plan for the distribution of your assets.  Estate planning can be a simple will, or it can be complicated trusts.
  2. Pets. Legally, pets are your personal property.  As with all property, you should plan for what will happen to them if you die.  Obviously this takes on critical importance with pets, since so many pets end up in cages in shelters when their owners become incapacitated or when they die.  Include instructions for the care of your pet in your will, or set up a pet trust.
  3. Designation of agents, naming of executors and trustees. Most clients do not want to “play favorites” with naming their children as agents to powers of attorney, executors in a will, trustees to a trust, so they want to name all three (or however many) children as “co-“ agents.  Under some states’ laws, co-agents can act independently of each other without requiring signatures on everything of, say, all three children.  This can still be a nightmare.  Financial institutions prefer one person for their own liability reasons.  Unless there’s an odd number to break a tie, disagreements can hamper efforts to care for an incapacitated parent or deal with estate matters.  If all three signatures are required, this can be burdensome if all three children live in separate states.  Choose one child—typically the closest geographically and most responsible financially—then list other children as successors.  (Choosing a guardian for your children is crucial also.  See this important post.)
  4. Buried or cremated? Where? Besides arguments over the distribution of belongings, the other main creator of arguments is decisions surrounding burial, cremation, and cemetery location.  Be absolutely clear in your estate plan about what you want.  Do you want buried?  If yes, in what cemetery?  Do you want cremated instead?  If yes, do you want your ashes scattered (and where), or stored in an urn (and with whom)?  Fights occur because of cemetery location first, since extended family want you in your hometown even if you’ve lived away for decades.  Disposition of your body is the second cause of fights, in my experience.  Some people are abhorrent to thinking of a loved one decomposing in a grave, or being reduced to ashes in an oven.  Finally, if you choose cremation and want your ashes scattered, be sure your wishes are legal.  The wish to “throw my ashes up in the air as you’re going down Space Mountain at Disney World” is not legal.

Contact me at julie@juliemillslaw.com to discuss your will or trust, or planning for your pet.

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Students with Disabilities: Sect. 504 Plans Can Be Critical

A student who has an Individualized Education Plan (IEP) is a student who has a disability that is impeding the student’s ability to learn.  Not every disability impedes the ability to learn, however.  Examples might include having diabetes, cancer, epilepsy, using a wheelchair or crutches.  If your child has a disability that does not impede her ability to learn (meaning no IEP), what law protects her if she needs an accommodation?  Section 504 of the Rehabilitation Act of 1973.  It is more relevant than ever.

I’ve heard Sect. 504 plans called IDEA-lite (IDEA is federal law controlling IEPs) because it gave “something” to students with disabilities who don’t qualify for IEPs.  A student with a disability, but where his or her ability to learn was not affected, would often get a health or nursing plan.  For example, a child with diabetes would receive shots at certain times.  These plans, unlike IEPs, lacked enforceability.  Parents had to rely on the good will of the school to see that accommodations or services were provided in such a health or nursing plan.

That changed with new ADA regulations (affecting Section 504) and clarification from Congress that students with disabilities are entitled to evaluation to determine if a Sect. 504 plan is necessary.  In fact, the Office for Civil Rights held that a school placing a child on a “health plan” violated the law by not evaluating for a Sect. 504 plan, in violation of the district’s child-find mandate.

Why does it matter that the school must evaluate for a Sect. 504 plan, even if it puts the child on the country’s best individualized health plan?  Accountability.  Procedure.  Remedies.  The best individualized health plan is only beneficial if it is fulfilled, if procedures are adhered to.  If this very-best-health-plan isn’t followed, then there is no enforcement mechanism.  There is no federal (or possibly state) law to turn to for holding the school accountable.  To the contrary, if a Sect. 504 plan is not followed, the school can be held accountable under federal law, and remedies can be sought under federal law.  We want to believe that our child’s school will do what it agrees to do, but we also want a law to invoke if the school doesn’t.

Contact me at julie@juliemillslaw.com with any Sect. 504 or special education questions.

A great IEP article applicable to life

I like this article by Lisa Lightner titled “6 ways to get your IEP school year off to a great start!” because it can translate to other life situations, including legal matters.  Replace “IEP” (Individualized Education Program, a document developed for a school child needing special education) with dispute with a neighbor, or complaint with a company over a product or service to see that it has applications to many situations.  It focuses on mindset, boundaries, rational approach, documentation, and outcome.  Have a positive mindset–give people a reason to want to help you, not do everything they can to avoid you; know your boundaries in the matter and where you draw the line–some things are non-negotiable, so decide what they are and stick to them; act in a rational manner and leave emotions and pettiness at the door; keep thorough written records and documentation–negotiating from evidence in front of you is far more compelling; and keep your focus on the outcome, not the behavior of the people, so if you want a replacement product then focus on that, not how customer service did this or a manager said that.  Here is the article from the special education blog “A Day in Our Shoes” :

  1. Use this as a chance for a fresh start. Regardless of what has happened in the past, resolve to let everyone start with a clean slate. I’m not saying forgive and forget, if you or your child has been horribly wronged, but give them a chance to do the right thing. Chances are that many of your IEP team members are new this year, so be positive. Give everyone the benefit of the doubt, once. Remember, previous team members may have told your new team negative things as well, so dispel it! Be polite, courteous, and make them wonder why anyone would ever say that you are difficult to work with.
  2. Don’t be a drama mama. Not every situation requires that we amp up to 10 right away. Take a deep breath. Evaluate the situation. Is it a non-negotiable or significant safety issue? Stay level headed. I see a lot of words get tossed around in the Facebook group like “That’s a violation!” or “That’s illegal!” Ok, it may be, but there’s no need to be so dramatic all the time. Drama mamas yell “That’s an IEP violation!” while it may be more productive to say to yourself, “Ok, they are not following the IEP, and my child is not receiving XYZ. What can I do to help fix this?” If someone tries to engage you in petty behavior, don’t.
  3. Keep good records. Document, but only for yourself in the beginning. New school years can be hectic. Therapy sessions may be missed. Scheduling snafus will happen. Like I said above, give everyone the benefit of the doubt, once. Keep good records so that if things do not get on track within the first two weeks or so, you have the data.
  4. Review the IEP. Re-familiarize yourself with it, particularly if you haven’t looked at it in a while. What are your non-negotiables? Certain things like life threatening food allergies, insulin, elopers….some things cannot be skipped even one time.  Make notes of what you want to keep a high priority and what needs to be changed.
  5. Be solution oriented. Don’t just approach your team with problems. Have a few solutions ready for them to implement.
  6. Use the IEP process. There are 5 portions of the IEP process that are particularly conducive to parent participation. Use them. Be fully engaged in the entire IEP process, and stay away from doing things that are not helpful or part of the process. Examples would be cc’ing people on emails who really do not need to be involved, ignoring chains of command and stuff like that.
  7. Stay child focused. When evaluating situations, stay away from what staff members did or didn’t do. Stay focused on what your child did or did not receive, that they need, per their IEP.

The IEP process certainly has its flaws, but it is the system that we’ve been given to use. Use it. You can use it to your advantage. Know your rights, read your procedural safeguards. Regardless of the history between you and your team, you can change it around. Focus on what you can control, and what is going to help your child.

Contact me at julie@juliemillslaw.com with any IEP or special education questions.

The Service Dog at Outback Steakhouse

I see more confusion with laws covering service animals than almost anything else.  Most surprising is when attorneys are dispensing incorrect information (this article is replete with incorrect information).  Business owners who conduct their own research (even on reputable sites) or consult with their attorney still get conflicting advice.  So, what is the law on service animals for businesses?

First, businesses contemplating their rights and responsibilities regarding service animals are under the coverage of the Americans with Disabilities Act (ADA).  Businesses are “places of public accommodation” under the ADA and include restaurants, hotels, stores, medical offices, theaters, schools, recreation facilities…  If you are thinking about your friend with an emotional support rabbit in her apartment, or the woman who took her emotional support pig on the airplane with her (true story.  Pig defecated in the aisle and caused passengers to get sick), then this post does not apply to you.  The rabbit in the apartment and the pig on the plane are both under coverage of different federal laws.

Second, the only species that businesses are required by the ADA to accommodate are dogs and miniature horses.  Yes, miniature horses are about the size of large dogs, easily trained, and typically have more than double the working life (24 years) than a dog (10 years).

Third, a service animal should be almost invisible to patrons, completely attune to its handler.  A dog running around, decked out in overly-obvious service dog vests, running up to others, is likely not a service dog.  The yellow lab I saw at O’Hana at Disney World that was covered in service dog vest and patches, and had his front paws up on the table while looking at its person and begging for food—not a trained service dog.  The large Great Dane sitting in a booth at Outback Steakhouse, eating off a plate?  Service dog or not, the restaurant was not required to permit the dog to eat at the table and off of a plate.  In these instances, businesses can ask the handler to remove the animal.

Myths about service dogs:

  • They must be registered or certified. (No.)
  • They must have “papers.” (No.)
  • They must wear identifying vests, or other garb. (No.)
  • They must be formally trained.  (No.)
  • They can be made to wait outside while their handler eats or shops inside. (No.)
  • They cannot go into hospitals. (They can go to into hospitals, including staying in the hospital room, accompanying to medical testing.  They can be refused into “sterile’ areas such as operating rooms and burn units.)
  • They cannot go into food prep areas. (If the public can go there, a service dog can go there.  The kitchen, where customers can’t go?  Then no.  The kitchen, like at Buca di Beppo that has a table for dining that is situated basically in the kitchen?  Then a service dog can go to that table.)
  • They can’t be pit bulls. (They can be, and they are.)
  • They aren’t permitted somewhere if someone has allergies or fear of dogs.  (Not true.  The Department of Justice specifically states that allergies and fear of dogs are not valid reasons to exclude.)

With very, very few exceptions, a service animal can go wherever its handler or the public goes.  A service animal is not a pet and is, under the law, no different than other medical equipment such as a wheelchair or oxygen tank.  Federal law such as the ADA trumps state law and local codes, including health codes, zoning laws, city codes, breed ban legislation, and other state and local laws.

Contact me with any questions at julie@juliemillslaw.com.

August is #NationalMakeAWillMonth!

August is #NationalMakeAWillMonth.  What are you doing to celebrate—having a will prepared this month?  Instead of discussing what happens with a will, here’s what happens without one.

When you die and you have not prepared a will, you die intestate.  The laws of “descent and distribution” in your state kick in, and the court uses these laws to decide who gets what.  The court appoints a person to administer your estate.  The court decides who will care for your children.

Without a will:

  • You don’t decide who gets what assets you own
  • You don’t dictate who winds up your affairs
  • You don’t choose who will parent your children
  • You don’t decide where your pets will go
  • You don’t decide whether you’ll be buried or cremated, or where you’ll be buried

Celebrate #NationalMakeAWillMonth by having a will prepared this month.  Take control of what happens to your assets at death!

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.

Authorized user on a dead person’s credit card—“but Dad said I could…”

Dad dies.  His adult daughter is an authorized user on his credit card, and Dad gave her permission to use the card for whatever she wanted.  Dad happily paid the monthly bill.  Dad dies and Daughter keeps using the card, thinking that she has always used it and thought she still could.  Or, in many cases, she is the executor of his will and uses it to pay for bills or other expenses related to Dad’s final expenses.  Permissible?  Obviously (at least to me) not, but it happens frequently.

An authorized user’s use of a credit card after the primary account holder dies is illegal.  Under state law, it is considered fraud, and is no different than finding a stranger’s credit card and using it.  The authorized user could face jail and, or fines.

The terms of use for credit cards state, generally, that an authorized user’s privilege to use the card ends automatically upon the death of the primary cardholder.   If an authorized user continues to use the card after this privilege ends (cardholder dies), such use constitutes the authorized user’s agreement to pay the bill which might include the entire balance, not just what the authorized user bought.

For instances where an executor who is an authorized user with good intentions uses the deceased’s credit card to pay bills, the end result—liability on the authorized user—might not change.  Daughter/Executor cannot use Dad’s credit card after his death to pay any of his outstanding medical bills, credit card bills, utility bills, etc.  Executors must pay expenses and other estate bills from assets of the estate.  If there are no assets of the estate, then the estate is considered insolvent.  Racking up the balance on a credit card of a deceased person, whatever the reason, will result in liability for those charges, and perhaps the entire card balance, on the authorized user, including (in this example) the executor.

If you are an authorized user on a credit card, notify the credit card company immediately upon the death of the primary cardholder.  Using the primary cardholder’s credit card after death when you have no right to do so will likely have no good outcome.

Contact me at julie@juliemillslaw.com or message me through http://www.juliemillslaw.com with any questions.