When should I check my estate planning documents?

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Estate planning documents, such as Wills, trusts, powers of attorney and Health Care Directives are dynamic documents that need to be changed when the circumstances of your life change. There is a great temptation to feel that you can put the documents into a file or safety deposit box and say: “Thank goodness I won’t have to think about those documents again.” But in fact, as changes in circumstance occur, estate planning documents need to be reviewed to be certain that they are still appropriate for the new circumstances.

Here are several changes that ought to trigger a review of existing estate planning documents:

1. The birth of children. In almost every case, it is most appropriate to create a support trust to provide for the care of any minor children, and to provide for the investment of assets that are to be held until the children attain a suitable age. Such a trust also can provide for the education of the children.

2. Changes in marital status or other personal circumstances. It should be obvious that a change in marital status would be a good reason to review existing estate planning documents. Provision in a Will or trust for a new or a former spouse will likely need to be changed. In most cases, it will be inappropriate to continue to name the former spouse as the agent under a power of attorney to make financial or health care decisions.

3. The value of assets may increase or decrease. The decision to create existing estate planning documents was probably based upon certain assumptions about the value of the assets in the estate, and whether it was likely that the assets would increase or decrease in value over time. Significant changes in the value of assets may cause estate planning documents to be too complex, or perhaps, too simple to continue to meet the objectives originally identified.

4. The law regarding estate taxation may change. The law regarding state and federal estate taxation has changed numerous times and in many different ways over the past several years. Other changes are likely to occur in future years. All of these changes may have a significant impact on the propriety of existing estate planning arrangements. This factor alone is a very substantial reason why existing estate planning documents should be reviewed periodically.

5. Changes in health status. As the condition of health changes, there should be a corresponding evaluation of existing estate planning documents to be certain that the changes in the needs of the individual will be met by the estate planning documents.

For example, if a person is diagnosed with a form of dementia, existing powers of attorney should be reviewed to be certain that they will be sufficient to meet the likely increased need for the agent to undertake the management of financial decisions.

Similarly, if a diagnosis of a terminal condition has been made, all estate planning documents should be reviewed with an estate planning attorney to be certain that the documents are still appropriate in view of this change of circumstance.

All of these events are reason to double check to be certain that existing estate planning documents will be sufficient to fulfill the objectives to provide for loved ones, and to protect assets from unnecessary taxation and dissipation.

Daniel Orville Kellogg

Three Documents You Shouldn’t Do Without

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Nobody plans to get crippled by an accident or immobilized by a terrible illness, but these sudden life-changing events do happen. In estate planning there are three particular documents individuals need to ensure they have a say in who manages their finances and health care should they become incapacitated. Failure to secure these documents could significantly reduce the amount that eventually goes to your loved ones or even break a family apart. Here we outline some problems that result from poor estate planning and demonstrate the importance of 1) a durable power of attorney, 2) medical power of attorney and 3) a living will.

The Hardships of Negligence 

Here's an example of how inadequate estate planning can put loved ones in a painful position.

After her husband died, eighty-nine year-old Thelma did not think it was necessary to meet with an attorney to review her estate plan. Thelma had always managed her own finances and never told her four children how much she was worth and where it was invested. Her plan was simply to have the children split the estate equally as specified in her twenty-year-old will.

One month before her birthday, Thelma had a severe stroke and ended up in a nursing home. One of her daughters, Sally, was a stay-at-home mom and lived close by, so she took on the job of managing her mother's finances. After five months, Thelma's mental capacity was less than 40%, with no improvement expected.

At $170 per day, the nursing home expenses were mounting up, and Sally was under pressure to pay them. Plus she had to worry about ongoing bills to maintain her mother's house. However, Sally could not access her mother's accounts. Desperate, she went to court seeking legal guardianship over her mother. But her siblings protested. They claimed that Sally was out to gain control of the money for her own use. Disgusted, Sally dropped the petition. The court declared Thelma incompetent and assigned a guardian to handle her affairs.

Thelma hung on for two years until she died. By that time, much of her hard-earned dollars had gone to attorneys and her guardian. And Medicaid had to pay her last six months' worth of nursing-home bills. Furthermore, her children were irrevocably divided over the guardianship issue. This is no doubt the opposite of what Thelma wanted for her family.

Avoid Estate Depletion 

Here's what you can do to avoid putting yourself or your loved ones in the same position as Sally. A durable power of attorney lets you arrange for someone you choose, called your "attorney-in-fact", to manage your finances.

A Power of Attorney can be effective immediately or have a springing power, applying only when a certain event takes place, such as incapacitation from an injury or illness. You can specify how the event is defined, for example, by the declaration of a doctor or even two that you are unable to make financial decisions.

With a power of attorney, you can insist on the amount of control your attorney-in-fact will have over your finances. This authority could include:

Making gifts
managing a business
paying household bills
buying and selling assets
handling retirement accounts
collecting government benefits
completing income tax returns

You choose who takes on this job. It could be a family member, close friend or your attorney or accountant. But make sure that it is someone trustworthy and competent with managing their own finances. Be sure also to select an alternate just in case the first person pre-deceases you or is unable to handle the responsibilities.

Avoid Family Breakup 

There are two more documents that can prevent confusion and mistrust between family members.

A medical power of attorney - also called a health-care proxy, medical directive or durable power of attorney for health care - gives whomever you select the legal authority to make medical decisions for you when you can no longer make them yourself.

A living will offers exact instructions for your doctors and family regarding the continuation of your life by artificial means or heroic measures. In cases where there is little certainty of the desires of a person in a vegetative state, a medical power of attorney and living will can help eliminate grief and dispute between family members.

Although living wills are used throughout the country, there are no universal forms spanning all states. And the law on honoring an advance directive between states is unclear. Some states will respect the different laws of the state where the document was drafted. Others might not. In addition, the documents' titles from state to state (or country to country) might differ. Problems with advance directives can pop up when you had your living will drafted in your home state (or country) and the state you are in:

makes you use their statutory forms specifies which types of advance directives they will honor require certain conditions are met before your instructions are followed will not recognize documents that do not include person's signature who is to make the medical decisions for you

If you spend a great deal of time in a state other than your home state, you may wish to consider having your advance directive meet the laws of both states as much as possible.

George D. Lambert

 

If you were gone – what would happen to your kids?

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Who’s the nominated guardian for your kids? How did you decide on that person?

Estate planning (i.e. having a Will, enduring power of attorney, health directive, etc) is a vitally important part of a good financial plan. It determines what happens to your stuff if something happens to you. I’m going to cover wills, life insurance and so forth over the next few blogs and today I thought I’d look at one specific area of estate planning: nominating guardians for your kids. In other words, who would look after your kids if you and your partner passed away?

Well over 60% of parents with children under the age of 18 don’t have a Will. So that means that while you might be comfortable assuming that your parents or sister or best friend will happily take on the responsibility of your kids if you died – things might not necessarily work out that way. And if it hasn’t been pre-planned then the transition is going to be way more chaotic than it needs to be – which is a huge emotional face-slap to be giving your kids at what would be an already devastating time for them.

So – who to nominate as guardian? It’s not a decision to make lightly. Obviously there’s never a perfect solution, but some considerations include:

•Financial. Can your preferred guardian afford to look after your children or would it place them in financial stress? (I’m going to talk about life insurance next week, which is the easiest way to overcome this issue. It’s important, with a recent ING report called “Picking up the Pieces” finding that losing a parent as a child was not only devastating, but caused further detriment psychologically, educationally and socially, if financial stress was added to the equation.

•Age. What is the current age of your preferred guardian? Would they have the maturity to care for your children if something were to happen to you tomorrow and are they at an appropriate life stage to do so? Conversely, are they young enough to cope with the care of your children not just now but over the next 18 years?

•Lifestyle. Will your preferred guardian be willing to instill in your children the values and outlook that are important to you?

•Geography. Obviously this can change suddenly, but at the moment is your preferred guardian likely to live in a location that would enable your children to retain contact with other friends and family members?

•Family considerations. It is important to consider and acknowledge the competing demands of the guardian’s own children. What if they don’t get along? If it changes the “pecking order” in the house? While many people choose a family member to act as guardian, that doesn’t have to be the case and depending on your family circumstances it may not always be practical. Some people choose a family friend instead on the understanding that their children will maintain constant contact with family members. At the end of the day the choice of guardian may be influenced by what you feel will be best for your child, irrespective of familial ties (which is a nice way of saying that if your nearest relative has a gambling problem, drug problem or you simply don’t get along with them then blood doesn’t necessarily have to be thicker than water), although it is always good if family are aware of your decision and understand the reasons for it.

And don’t forget that you can always change it (and in fact should review it from time to time). The most important thing though is doing it to start with. So – have you nominated guardians for your kids? If so, who did you choose? And why?

 

Document Solutions

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Comprehensive Estate Planning Documents - Revocable Living Trusts - Will Package - Ancillary Documents

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Detailed and comprehensive, these documents have been developed through nearly 30 years of hands-on improvement by hundreds of attorneys throughout the US resulting in thousands of satisfied clients. They are drafted to ensure accuracy with current state and federal laws, and are updated as changes occur.

The Revocable Living Trust contains over 222 carefully worded provisions so that the trust can accommodate a client’s changing circumstances and to cover additional contingent situations without needing to be legally modified.  The trust is also universal; that is applicable in all 50 states, for a client may eventually own property in or even move to another state.

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Here is a list of what our package includes:

  • 1 set of Ancillary Documents per person (DPOA for assets, DPOA for healthcare or Advanced Directive, Living Will, Nomination of Conservator, Appointment of Guardian, and Anatomical Gift)
  • Abstract of Trust
  • Trust Certification
  • Pour-Over Will
  • Assignment of Furnishings and Personal Effects
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  • Funding Manual

We offer a wide variety of estate planning solutions and documents customized at your direction.

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Vital Ancillary Documents

There are a number of other legal documents that are not legally required parts of the Living Trust but which should be included in or with the Trust to provide for future contingencies. Our ancillary documents offer you additional control over your person or assets. These documents are so vital; they are included, at no additional charge as part of your comprehensive document package.

Pour-Over Will
Living Will
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Nomination Of Conservator/Guardian
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Advanced Planning Vehicles

Because many individuals have needs that go beyond basic estate planning, we offer numerous Advanced Estate Planning Solutions that can be incorporated into your overall estate plan. These documents should be considered as a supplement to your Living Trust to shelter your hard-earned estate from unnecessary estate taxes.

■Asset Management Trust (Spendthrift Trust)
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■Insurance Preservation Trust (ILIT)
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“A POORLY WRITTEN TRUST IS WORSE THAN NO TRUST AT ALL.” Henry Abts, III

A poorly drawn trust can become a restrictive nightmare for the surviving spouse or successor trustee and beneficiaries. As long as the clients are living, it does not matter what a Living Trust says, because it can always be revoked. However, upon the death of the client, these poorly written Trusts are going to end up in probate court, with petitions being presented to revise or clarify the Trust wording. (Even though the main advantage of a Living Trust is to avoid probate, a Trust falls under the legal jurisdiction of the probate code; any need for clarification of a Trust therefore must be handled in the probate courts.)

One size does not fit all – no two people or families are alike! Your family’s needs, dynamics, personalities, and values are unique. If you use a form kit, you are asking for problems. Even LegalZoom.com reveals that 80% of people who fill in blank forms to create legal documents do so incorrectly. Plus, if your Will or Living Trust is not executed properly, it becomes invalid. If you overlook the opportunity to write specific instructions about how you want to provide for your spouse and children, your family will receive whatever the “cookie cutter” document provides, and you may not know of other options. The only estate plan you rely on is the one that is custom prepared by a qualified estate planning professional attorney.

A well-written comprehensive trust document comes about only through extensive experience. The Estate Planning Source’s trust documents are the result of more than 28 years of working together with legal counsel to cover every imaginable contingency.

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