Last Will & Testament

Huguette Clark passed away in 2011 at the age of 104, leaving in her will $300 million of her estate to charities, her nurse, her hospital, attorney and accountant. The last known picture of her was from 1930, and she lived a reclusive life as an heir to a family fortune.

Now, Ms. Clark's estate is embroiled in litigation with no end in sight. She had no close family members, only distant relatives. She wrote two wills, only a couple of months apart. The first one left part of her estate to the distant relatives, and the second will cut out the relatives.

Although Ms. Clark left a large estate of $300 million, we can all learn from the mistakes she made. For more information about the estate planning mistakes she made, check out this New York Times article here.

Are you concerned that your Last Will & Testament will possibly be challenged or contested by members of your family after you pass? If so, you're not alone. There are many people with conflicts in their family that may bubble up after you pass, resulting in estate litigation.

While we cannot prevent a will from being challenged, we can minimize the risks and discourage such behavior. Here are a few tips:

1. Get all of the family issues out in the open while you’re alive and try to resolve them. This may be easier said than done, but it's important to at least consider the idea. If you don't resolve the problems now, it doesn't mean they go away after you pass on. If you are concerned about your family, you should think about how to find a solution now.
    
2. Communicate what’s in your will and inform loved ones who you chose as beneficiaries of your estate.  Unpleasant surprises always breed resentment and conflict, especially in a sensitive time of one's passing.
    
3. Make sure your will is created professionally by a lawyer, executed properly and stored properly. "Self-help" and online wills may look tempting, but "you don't know what you don't know." Be careful, and have a professional work with you to ensure you're covered.
    
4. Limit giving copies of your will to people. In fact, don’t give copies to anyone at all. Just let the Executor know where to find the will when the time comes.
    
5. Review your will regularly and update it with an attorney when necessary. Make sure there is a "no-contest" clause in your will. 
    
6. Consider how your estate is set up.  Use more payable-on-death accounts, annuities, life insurance, trusts, etc. to facilitate the direct passage of that asset to a beneficiary (a will does NOT affect those assets that transfer directly to individuals through beneficiary forms).

Estate planning is about as exciting as going to the dentist. But just like the upkeep of your teeth to prevent cavities, root canals, etc., keeping up your estate plan can help avoid bigger problems and conflicts later down the road.

Everyone should have a plan, no matter how much or little wealth you have. Furthermore, your life and circumstances will continue to change, and so should your plan. Get a check-up at least every few years!

Here are the five things you can do NOW to enhance your current plan:

1. Organize - Your plan won't be helpful to you or your family if no one can find it. Make sure you keep the originals in a fire-proof safe at home, and leave instructions for your Executor and Agent to be Power of Attorney.

2. Communicate - Surprises when a plan is needed is never fun. Talk to your Executor and Power of Attorney in advance
 

3. Supplement - Funeral instructions, last wishes, health care concerns - these are all things with which you can supplement your plan.
 

4. Consider an irrevocable burial reserve and make all of your last arrangements now - it will be one less step for your family
 

5. Electronic data - make a plan for your electronic data. Think of all of the "stuff" we have on our computer today. Photos, sensitive financial information, etc. What's your plan to ensure that your electronic data is handled the way you want it to be handled?

Looking for a great resource on estate and retirement planning? Jeremy Wechsler, your Estate & Elder Law Attorney, recently co-authored a new book with Peter R. Wechsler, his father and Your Retirement Quarterback. The book is an easy read but full of valuable information on estate and retirement planning.

Learn more about the book here: https://solvingtheretirementpuzzle.com

Tempted to write your estate plan on your own? Before you do, check out this recent article about doing-it-yourself. Writing your Last Will & Testament or Power of Attorney on your own may seem like the easiest thing to do, but could cost you and your family later on. 

Make sure you protect your estate, your affairs, yourself and your family by giving our firm a call to schedule your complementary estate planning consultation.

Article Link: https://bwlaw.blogs.com/estate_planning_bits/2012/05/the-recent-sophistication-of-software-has-contributed-to-an-increase-in-homegrown-estate-planning-these-mass-marketers-of-le.html

Everyone must plan their estate. Otherwise, you run the risk of your affairs being a mess at your death and things not happening the way you intended. Make sure you speak with a qualified estate planning attorney to build your customized estate plan. Just like every person and family is unique, so is your estate plan. 

Here are five ideas for your plan: 

1. Testamentary Trusts Consider adding testamentary trusts to your will, either for your kids or grandkids. A customized testamentary trust has several benefits, including ensuring asset preservation, protection for minors, and more. A well-written testamentary trust is economical and can provide you peace of mind.
    
2. The Year of the Gift: Consider a sophisticated gift strategy. 2012 might be considered the "Year of the Gift" because of the large exemption amount of $5 Million that may disappear at the end of the year. Smart gifting can provide many benefits to you and your heirs, but you must ensure gifting is done properly and in a way that makes sense for you. Be careful about doing-it-yourself.
    
3. Write an ethical will: Most times, a Will or a Trust cannot capture the values, ideals, morals, judgments that you wish to pass on to the next generation. An ethical will can put those thoughts into words for you. Although it's not a legal document, an ethical will can be a great addition to any estate plan. 
    
4. Trust Strategy: Consider the use of trusts for certain needs. For beneficiaries on public benefits, a special needs trust should be established. If you wish to preserve assets against Medicaid spend down, a nursing home protection trust should be used. There are other trusts and strategies as well, and depending on your situation, they may make sense for your estate plan.
    
5. Communicate: Talk to your family! Communication is key for any estate plan to work. You don't need to tell your kids how much you have in your estate, but you should communicate your general intentions as to who the Executor will be, whether there are even or uneven distributions and why, etc. Surprises are never good and unpleasant or unexpected surprises can lead to lasting conflict. 

Please continue to update your plan regularly, and if you don't already have an estate plan, now is the time to put one into place!

Who gets access to your online accounts after you die?

You may have a plan for what to do with your physical belongings after you die, but what about your online accounts? In today's social media-dominated world, a person's digital presence lives on online even after he or she is gone. But who has the right to access those accounts? States have begun addressing this issue with new digital access laws.

Under current Facebook policy, if an account member dies, Facebook will remove the account at the request of family or put it into "memorial status," but it is very difficult for family members to get access to the account itself.  Family members may want access to a deceased loved one's account to read messages left by friends or to have the ability to contact the deceased's friends. 

Under Facebook's policy, the estate can have access to a download of account data as long as it has prior consent from the deceased or if it is mandated by law.

Such mandates are beginning to appear.  In 2010, Oklahoma became the first state to pass a law giving estate executors the power to access, administer, or terminate the online social media accounts of the deceased. Two other states -- Nebraska and Oregon -- are now considering similar laws. Under Oklahoma's law, the executor automatically has the power to act on behalf of a deceased individual and access a Facebook, Twitter, or e-mail account. The executor does not have to go to court to get access to such accounts.

While states grapple with this issue, it may be a good idea to provide some instruction in your will on how to deal with your online accounts once you die. Contact your attorney to determine if this is something you should add to your will. In addition, online services have also popped up that help people pass on the digital keys to their online lives.

A case of estate planning for pets is decided in a Chicago court.

A Chicago judge has reversed a death sentence that has been hanging over Boots the cat for months.  The feline's owner, Georgia Lee Dvorak, died last Christmas Eve at age 76.  Dvorak left no survivors, and her will, written in 1988, included a provision directing that any cat or cats she owned at the time of her death be euthanized "in a painless, peaceful manner." 

But trust officers at Fifth Third Bank, which was appointed to manage Dvorak's $1.4 million estate, were reluctant to follow through on the will's terms when it came to Boots, age 11. 

The bank asked a Cook County (Chicago) probate court to set aside that provision of Dvorak's will.  In its arguments to the judge, the bank noted that Dvorak had left the the bulk of her estate to twelve animal-related charitable organizations.  They also cited legal precedents in which courts had spared other animals in similar legal predicaments, including two Irish setters in Pennsylvania who had been ordered destroyed in their owner's will, and horses in Vermont and Canada that had been similarly condemned.

The judge allowed the bank to search for a suitable home for Boots to live out the remainder of her life, and one was found.  Cats-are-Purrsons-Too agreed to care for Boots provided it could receive a $2,000 endowment.  On April 3, 2012, the judge ruled that $1,000 of Dvorak's estate could go toward the endowment, and the bank agreed to forego fees of $1,000, according to an article in the Chicago Tribune.   

In its fact sheet "Providing for Your Pet's Future Without You," the Humane Society of the United States warns that when a pet owner puts a request in a will that an animal be put to death, "that provision is often ruled invalid by the legal system when the animal is young or in good health and when other humane alternatives are available."

The Only Good Estate Plan is an Updated Estate Plan.

Lately, many of my newest clients have come to me with very old wills and powers of attorney. The plan is nicely done, folded and tucked in a nice envelope. The older the will, the harder it is for me to unfold. Once I dust it off, the will done on the typewriter is readable. 

In any case, it's a relief to me when these clients visit with me and actually become clients. My thought is, at least I can help this family update their plan, because most of the time, the plan no longer reflects their wishes, values, or the realities of their family situation. 

Many times, the kids were young when you first sat down to make your will. The needs were different. The choice of executor or power of attorney may be a sibling that you no longer feel comfortable with having serve in these roles. The estate size and value have changed, as well as the types of accounts and assets you own. Maybe there has been a second, or third marriage. You get the point! 

That's why the only good estate plan is an updated one. An old estate plan may have provisions in it that go against your current wishes today. 

If you have an old estate plan, I applaud you for doing some planning in the first place. Too many people fail to plan. But now, take the next step and make sure to keep that plan updated. I recommend checking your plan every 3 years, and updating it every 5-10 years. Those are rough guidelines. If there are any major changes in your family or circumstances, update the plan immediately.

Is it a good idea to write your own will? I can’t answer that question without being somewhat biased, because as an attorney, I know that there are complex and unique issues that each family and individual faces. Therefore, it does concern me when I hear of someone writing his or her own will without an attorney’s help.

My mission as an attorney is to build a long-term relationship with each client and provide superior service to him or her. The stack of paper in a binder or folder that I eventually hand to my clients is not what they find valuable. They just find it heavy! So the question is, where is the value in working with an attorney on my estate plan? My clients tell me that they find value knowing that they have a trusted legal advisor that has taken the time to learn about their needs, their goals, and the unique aspects of their lives. Unique lives translate into unique estate plans.

When I hear about do-it-yourself estate planning, I can’t help but get nervous for the folks that use those products. Here’s what concerns me about folks writing their own will:

1. Failure to protect your assets: As an attorney, I always talk to my clients about their kids and grandkids, and I make sure that an asset protection plan is put in place. I want to make sure the client’s kids or grandkids are protected from themselves and others, including their creditors, spouses (or ex-spouses), business partners, legal judgments, etc. I can assure you that you cannot design a one-size fits all form for an asset protection plan, which is more important than ever today.
    
2. Failure to create an asset preservation plan: A will and power of attorney is important but only the start for many estate plans. A major concern for retirees and people close to retiring is making sure an asset preservation plan is crafted, so that if you go into a nursing home, the house will be safe and some assets will also be safe from Medicaid spend down.
    
3. False sense of protection: Doing it yourself and convincing yourself you only need the “simple will” may give you a false sense of protection, when in fact your situation is more complex. By complex, I mean things like second marriages, kids with financial issues, real estate under water, uncertain financial future, family conflicts, etc. I can assure you that these types of issues won’t go away when you pass on—in fact, our experience shows they only magnify if they’re not dealt with while you’re still here.
    
4. Legal issues and problems with the documents: Let’s be honest, you don’t know what you don’t know when it comes to estate planning. Work with a trusted advisor that knows what you need. Would you pull your own tooth? Do surgery on yourself? Estate planning and asset preservation is best done with the help of a professional.

Are you going to spend more money on an estate plan with an attorney? Yes. But do you really want the “cheapest” plan? Worse, are you making matters more complex by doing it yourself and saving a few bucks?

I make my living by being passionate about helping families deal with their estate planning goals, fears and hopes to ensure they leave a legacy they can be proud of, no matter what happens and when it happens. Think about estate planning as saving your family time, money, aggravation, conflict, and from your estate being unnecessarily spent down on long-term care. Then, the real value of working with a professional will be realized.