Two common estate planning failures

(1) Failing to plan for incapacity:

Only 33% of Americans have executed a medical directive (as found by the American Bar Association). AARP (American Association for Retired Persons) reports that 45% of Americans over the age of 50 have a durable power of attorney.

Legal documents to plan for incapacity include a power of attorney, a medical directive and a trust. Even though it is a good first step, a comprehensive estate plan requires these documents and more.

Media mogul Sumner Redstone had an estate estimated to be over $42B, but late in his life a series of conflicts began over his competence and the control of his estate. According to the granddaughter, “the aunt and other family members succeeded in reversing decades of my grandfather’s careful estate planning and poised themselves to seize control of Viacom and CBS.”

Naturally, we all have some expectation of what our life’s work will amount to. The legal system has documents that can be used to support our wishes if we are unable to make decisions, but who decides when we are not able to make them? As difficult and challenging as it is, we might want to consider what indicators we wish to use to trigger assistance. Otherwise, you could find yourself making a good many mistakes before anyone deploys these legal estate documents.

In one case, the California Court of Appeals ruled: “Appellant produced evidence of forgetfulness, erratic, unstable and emotional behavior, and of suspicion, probably delusional at times, on the part of the testatrix. This is of no avail unless it were shown, as it was not, that it had direct influence on the testamentary act.” In essence, the court is saying that the individual displaying these disturbing signs is still capable of making their own financial decisions. After all, we are all entitled to make poor decisions.

In a perfect world we would never have to deal with diminishing faculties or the thought that, at some point, someone else will have to make decisions for us. The truth is, most of us struggle with the timing and triggers that have to do with relinquishing our ability to self-direct or make our own decisions.

Estate planning begins with the basic documents, but effectively planning for incapacity entails much more.

(2) Dying without a will:

Dying without a will doesn’t impact the deceased, but signing a will does make it easier on those left behind. And yet, people who ought to know a whole lot better continue to die intestate (without a will). Famous examples include Abraham Lincoln. Lincoln was a successful and skilled attorney and yet he left an estate of $110,297 without a will. In more recent times, the entertainer, Prince, died without a will, leaving an estate of $300M. Though Prince’s sister and five half-siblings appear now to be the instate heirs, this would have turned out differently if not for DNA testing. Carlin Q claimed to be the “love child” of Prince and would have inherited the entire estate (!) had DNA testing not proven that he was not a biological offspring of Prince.

It is shocking that over 64% of Americans do not have a will. Yet a will is simple to create. Dying without a will means the estate will be handled by attorneys in front of a probate court. Dying intestate results in delays, higher fees and possible litigation. It surprises many that intestacy can create other messy dispositions based upon the order of death or age of those inheriting assets.

In many states, each child and the surviving spouse will inherit an equal percentage. If a trust is not established, a minor child may be entitled to receive inherited assets by age 18. Ex-spouses may have control of the inheritance until the child reaches adulthood.
In some states, if a married couple with no descendants (children) and no wills are injured in the same accident and one spouse dies prior to the other even by a few minutes the outcome will be that only one spouse’s descendants will inherit the couple’s joint estate and the other spouse’s family will receive no assets. In California, Alaska, Kentucky, Texas, and Wisconsin the state requires that the spouse must outlive the other by more than 120 hours, not just a few minutes, for the assets to pass to the ‘surviving spouse’ and skip the first-to-die family.

Some famous examples include musician, songwriter and poet,  Kurt Cobain, who left a detailed suicide note but didn’t sign a will. As it happened, his wife and daughter were his only heirs and the estate was split in half. Martin Luther King Jr. died without a will leaving his children in a long fight over the estate.

So how does the state decide who manages the assets for under-age children when there is no will? Current state statutes set an order of appointment with the surviving spouse normally being the first person, followed by the closest BLOOD family members. This is determined by relationship, not competence. Think about it. Do you really want anyone to manage the estate for your loved ones just because they are your closest blood relative?

Prince’s estate is an example of how much of his legacy will be wasted as six different heirs without knowledge or competence in the music field are now fighting over how to handle his vast music empire and unreleased songs. Of course, he is gone so at least he doesn’t have to worry about it, BUT his fans will be affected.

Finally, the wishes of the deceased may not be respected without a will. NFL player Steve McNair purchased a million dollar home for his mother to live in, but he retained title to the home. On his death, his wife demanded that the mother pay rent and when she couldn’t, she had to move out! It would have been so simple for McNair to provide a written will stating that his mother could keep the home when he was gone.

Estate planning is a significant part of your overall financial picture. We’ve reserved the month of June to review beneficiaries on your accounts and to encourage you to review your wishes for your estate plan. Our priority in estate planning is to ensure that you are comfortable with the basic estate planning documents (DPOA, will and trust) that will protect you and your family to a very large degree in the event of your incapacity or death.

Edi Alvarez, CFP®
BS, BEd, MS

www.aikapa.com

Weighing in on WHO will make decisions for you: Trustees

Trustees:  Consideration for selecting those who will make decisions for you.

A trust or power of attorneys or will are all documents that at their best do what you would do at a time when you’re not available.  The situations can be death or injury or disease.  We can plan for potential contingencies but what we can do best is to choose the right person for those unexpected, undocumented life events.  The trustee or agent is themselves subject to life so how will your choice make your decisions in the midst of their lives.

  1. The ultimate success of your trust’s mission will depend in large part on how your trustee carries out your intentions, making the selection of a trustee one of the most important elements of trust design.
  2. The ideal trustee should possess or have ready access to legal, tax, investment, and administrative expertise, as well as the wisdom to invoke that expertise when needed. The ideal trustee should also be able to deliver that expertise loyally, decisively, and impartially.
  3. Personal confidants, relatives, lawyers, accountants, and banks are all commonly used as trustees. Family members, friends, and business associates are often the most knowledgeable about your intentions and your beneficiaries’ needs, but may have less than optimal skills or temperament for the job. Professionals may offer a stronger skill set but can lack important personal connections to your family. Professionals may also be held to a higher standard of performance than lay trustees by probate judges and executors.

The considerations are many but zero in on a personal contact or a professional representative.  You can opt for a personal confidant or relative in whom you have strong faith, such as a business associate, sibling, or spouse. You can select a professional practitioner whose skills might be especially useful to your purposes, such as a lawyer, planner, or accountant. Or you can designate a bank or trust company to act as a corporate trustee. Each option presents a unique balance of benefits and concerns.The choices in each group are many and only you can make this final critical decision.  Think through scenarios of how your potential representative will handle decisions.

Ideally they will have a well-established relationship with your intended beneficiaries and a detailed knowledge of the unique circumstances in your bequest or life principles. That familiarity can provide the context needed to interpret your wishes in your absence most effectively. It can also lay the groundwork for a strong long-term relationship between the trustee and the beneficiaries. However, someone chosen solely on the strength of personal relationships and intimate knowledge may lack the training or skills needed to act impartially in the face of duress or emotional entanglement. What’s more, a friend or relative acting as a trustee might have a conflict of interest or be unable to devote sufficient time to the duties of trusteeship, and these potential deficiencies may not become readily apparent for some time.  The biggest obstacles is lack of organization and ability to delegate to a professional when needed.

A professional practitioner who has had significant involvement in your family’s affairs may offer many of the same advantages as a personal associate, such as personal relationships with beneficiaries and historical knowledge of unusual situations and special needs. They may also have the professional distance needed to remain dispassionate under difficult circumstances. However, like a lay trustee, an individual professional’s tenure may be subject to their own life and may ultimately be unavailable at some critical future juncture.

 

 

 

Durable Power of Attorney (DPOA)

Durable Power of Attorney (DPOA)
(source: The State Bar of California information)

DPOA documents are meant to provide a trusted person to act in your stead.  There are two types of DPOAs that you need to include to care of your needs when you are unable or unwilling to do so.

The Health Care Directive should include the name of an agent or attorney-in-fact who you know will advocate for your health care needs.  This individual needs to be an advocate to ensure that your wishes (not theirs) will be respected and followed.

The DPOA for property (or finances) will handle day-to-day financial transactions that you normally handle; such as, paying bills or signing your taxes if you’re not able.  In addition, if you have a Revocable Trust it is the attorney-in-fact that will transfer non-trust assets to your trust if appropriate.

Know that your DPOAs are only valid while you’re alive.

If you don’t have a DPOA and you are unable to make decisions a court will appoint a professional conservator for you and pay them from your estate.  The court does supervise your conservator but it is often more expensive and cumbersome if your conservator does not know or follow your wishes.

Act now, you never know when you might need assistance to direct your financial or your health decisions.  You can get templates from the State of California or contact an Estate attorney or call us for an internal referral.

*** This blog is provided as information to encourage individuals to make available documents that are legally important in their lives ***