When a Good Estate Plan Goes Bad!

We recently hosted a client seminar to discuss things that can go wrong with even a well drafted estate plan.  Most often things go wrong with an estate plan as a result of lack of communication between the parties (i.e. our clients, their successor trustees, and the beneficiaries).  While documents are drafted to follow the clients’ wishes, many times the clients do not consider the impact the documents may have on their beneficiaries after they have passed away.

Communication about the estate plan can help alleviate some of the difficulties which can occur following a death.  If the family is aware of the parents’ intent regarding the distribution of personal property for instance, the arguments regarding the jewelry, piano or grandfather clock might be eliminated.  If the parents have carefully considered their choice of trustee, the administration of the estate will be smoother and there will be less potential for conflict, even if this means that a non family member should serve as trustee.

A new legal practice method is being utilized to help with some of these areas.  A collaborative practice is designed to involve the whole family in the estate planning process.  The goal is to avoid family conflict following the passing of the parents.  The hope is that if everyone is involved and aware of the provisions in the documents, the conflicts will be minimized after the death of the parents.  While not every family can have meaningful and useful discussions about these areas, for those that can, having a discussion regarding the estate plan can make the administration much easier.  These meetings can be held with the attorney, a mediator or professional facilitator to review and discuss the issues that are presented in the plan.

If you would like to learn more, please click here to view our slide presentation from the program.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

National Health Care Decision Day

Today is National Health Care Decision day. The goal of this nationwide initiative is to ensure that all adults with decision-making capacity in America have both the information and the opportunity to communicate and document their future healthcare decisions.

While making healthcare decisions is often difficult in the best of circumstances, making decisions for others is even more complicated. Each of us has the ability to guide our healthcare providers and our loved ones about what we want. Advance directives give you the ability to document the types of healthcare you do and do not want, and to name an “agent” to speak for you if you cannot speak for yourself. As Terri Schiavo’s situation vividly revealed, having an advance directive can be valuable for all adults, regardless of current age or health status.

With the Patient Self-Determination Act of 1990, Congress affirmed the right of every citizen to set forth his or her future healthcare wishes in writing with an “advance directive.” Yet, various estimates suggest that only about 25% of all Americans have done so.   In recognition of this, National Healthcare Decisions Day strives to provide much-needed information to the public, reduce the number of tragedies that occur when a person’s wishes are unknown, and improve the ability of healthcare facilities and providers to offer informed and thoughtful guidance about advance healthcare planning to their patients.

The National Health Care Decision Day Web site has a variety of free information (including free advance directives forms for every state) and tools to assist with thoughtful reflection on healthcare choices and ideas on how to get involved. Please share this information with your loved ones and colleagues.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.


Digital Assets, Do They Disappear If You Are Not There?

We all know we live in an increasingly digital world, but have you ever given any thought to how your loved ones would access digital assets if you become incapacitated or pass away?

Digital Assets covers a broad range of assets and accounts.  Do you have on line access only to a bank or investment account?  Do you have your photos stored on line?  What about a Paypal account, or a Facebook account or credits on a virtual game?  All of these assets or accounts may be lost if your successors do not know about them.

We have encountered situations where assets are trapped with no access by family due to the inability to login and access them on-line.  Clients may not even be aware that the assets exist, and may not have any mechanism to determine if they have missed anything.  In addition, social media accounts and access to those accounts following incapacity or death is increasingly becoming a problem.

Consider the need to give your successor agents or trustees, or even family members, a list of logins and passwords to all of your accounts.  Security issues are clearly a concern, and one way to still have protection is to give the logins to one child and passwords to another.  Another is perhaps to utilize a password protection system and only leave the main password locked in a safe that a trusted family member can access.  Financial Powers of Attorney should now contain language to authorize access to these accounts, including the power to change login and password information.  We should also consider providing instructions to our agents as to what to do with our social media accounts when we pass away.

It is critical to keep a list of all digital assets, covering everything from investments, to photos to social media,  how they can be accessed and then keeping it up to date.  However, keeping that list solely in the computer may not provide any assistance as the family may be unable to access the computer.  Thus, ensure that a paper copy of the list of all digital assets has been printed and is maintained with your other estate planning documents.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Dividing Up The Stuff

People sometimes ask me: What is the most difficult part of my job when advising clients on post death administration matters?  Surprisingly, that often is the division of tangible personal property, or the “stuff” in the home.

Unlike cash or other financial assets which can typically be easily divided between the children, tangible items are much more difficult to divide.  With only one piano or grandfather clock, who will receive those items when there are four children?  Trustees and estate administrators struggle with how to divide up the items, especially if the decedent left no specific instructions regarding their distribution.  In addition, the trustee is often struggling with their own grief and personal memories which are attached to some of the personal property items, and may find themselves having difficulties achieving an equitable division.

Jennifer Modenessi’s article Dividing Up a Life’s Worth of Memories (11 September 2011, Living Section) in  the San Jose Mercury News    discussed dividing up personal property following a parent’s passing and how difficult that process can be.  I find that in my practice, older estate planning documents tend not to mention the division of the personal property while current estate plans will often contain some sort of direction particularly regarding certain items.  When drafting estate plans, I do encourage clients to consider keeping a list which will indicate to whom certain items should be distributed.

However, for my administration clients, as there is typically little or no direction coming from the documents, I have to advise my clients to find a method which may work for them and their families to equitably divide up the personal items.  There is no one solution that will work for everyone, however it remains in everyone’s best interest to work through the difficult task of dividing up the personal items, as the probate judge would prefer to keep these issues out of the courtroom!

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Special Aspects of Estate Planning for Women

I came across an interesting article in Forbes that I would like to recommend to you with regard to estate planning for women. The article, Nice Girls Talk About Estate Planning, states, “Among Americans 65 and older, 42% of women, but just 14% of men are widowed. Women’s longer life expectancy, combined with their tendency to marry older mates and their lower lifetime earnings means they are far more likely to see their living standards compromised in retirement if proper estate planning isn’t done”.

If you have been considering getting started on your estate planning and have been concerned about how to bring up the subject with family members, this article presents some practical ways to have discussions about estate planning with spouses, partners, adult children, and parents.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

New Information About Retirement Benefit Planning

I was fortunate enough to recently attend a seminar featuring Natalie Choate, one of the foremost nationwide experts on retirement benefits Ataxplan Publications.  Having heard Ms. Choate speak numerous times, I am always amazed how she manages to keep the topic of retirement benefits fresh and timely.

While the seminar confirmed many estate planning and tax strategies which we are utilizing for retirement benefits, a few warnings which were presented might impact our clients in the future. The IRS has now blocked the ability to reform trusts post-death to comply with the trust rules for minimum distribution purposes. The IRS is also apparently going to devote energy to auditing required minimum distributions as a result of non-compliance with people failing to take their annual required distribution.

* The information contained in this Blog is intended for general information and educational purposes only and does not constitute legal advice or an opinion of counsel.

Your Digital Afterlife

Facebook Login ScreenWhat happens to your digital remains after you die? Your Facebook account, pictures uploaded to a photo sharing site, iTunes purchases — the memories we share online and the assets we store on computers don’t disappear after we’re gone, but granting access to them isn’t something most people think about even when they’re working with a qualified estate planner.

The subject of death in the world of social networks is raising new questions. What do you do with a loved one’s digital holdings like posts, blog items and photos? How long should those items, or even memorial pages, remain floating around the Internet? And what legal rights do survivors have in dealing with these affairs?
The questions are so numerous and confusing and painful that a cottage industry has sprung up to help those who must grapple with them.

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