Does Your Will Need To Be Updated?

will-oldI will occasionally have clients who wish to probate the will of a deceased parent or spouse, only to find that the will is very old; I think about fifty years old is the oldest I’ve had. This frequently causes difficulty in probate since many of the assumptions used in making the will are no longer valid, property addressed in specific bequests has become difficult to identify, and persons designated to serve as executor and trustee or to receive bequests may no longer be alive. Additionally, many times these wills were made under laws that have been drastically changed over the years or were made under a different state’s laws.

For example, just twenty years ago the large majority of estates were likely to be subject to estate taxes.  But the current estate tax exemption amount is over $11 million per person.  So all of the estate tax avoidance provisions in old wills is no longer necessary and can cause serious issues with distributing an estate.

So how old is your will? Does it need to be updated or at least reviewed by an attorney to ensure it will be as effective as you wish it to be?

This topic came to the forefront of my thought when I received an email from another attorney asking if I’d ever had a will older than the ones he found (some over 3000 years old).  While not as old as the ones he found, this article may tickle your funny bone with strange bequests.

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Dealing With an Elderly Driver

This subject isn’t exactly estate planning, but it is something an increasing number of clients face.  I saw this article on the topic of dealing with parents or other loved ones who are losing their ability to drive safely and how you convince them it might be time to stop driving.  First and foremost, prepare before bringing up a very sensitive subject.

elderly-driver(ARA) – When families are gathered together this holiday season, you may start to notice changes in an older relative’s driving behaviors and begin to have some concerns. You are not alone.

With the number of drivers 70 and older increasing – and one in five Americans caring for an older loved one – the number of adults dealing with concerns about their older relative’s driving abilities is on the rise and many are unsure on how to address their concerns.

Resist the temptation to bring up this sensitive topic: Do your homework first

“Taking time to prepare can alleviate concerns and help you start out on the right foot with a thoughtful, positive conversation,” says Jodi Olshevski, an expert on aging for The Hartford, an insurance company. “Once you get the facts and educate yourself about the resources available, you will be in a better position to help.”

Just because your loved one is older, it doesn’t automatically mean you should be concerned about their ability to drive. Plenty of people over the age of 70 get around just as easily as their more youthful counterparts.

If you’re worried, you should find out if your concerns are valid. Learn the warning signs, get in the car and observe the older driver. “Choose the right messenger – the person who has the best rapport with the driver, and choose the right time – which is most likely not during family gatherings,” says Julie Lee, vice president of the AARP Driver Safety Program.

Warning signs

If you’re concerned about your loved one’s ability to drive, the first thing you should do is get in the car to observe them firsthand. A comprehensive list of warning signs for older drivers and other resources for older drivers can be found at www.safedrivingforalifetime.com. Here are some examples of the types of things you may want to look for:

Fairly minor warning signs: Vehicle dents and scrapes that weren’t there before, single mistakes that appear to be more of a fluke than a pattern.

More serious warning signs: Trouble making left-hand turns, driving in the wrong lane of traffic, stopping in traffic for no reason, consistent and frequent mistakes.

“Making a single, minor driving mistake doesn’t mean that a person needs to stop driving,” says Olshevski. “Families need to look for patterns of warning signs and an increase in frequency and severity of the warning signs.”

Initiating the conversation

Ideally, families should initiate the first conversation about safety long before driving becomes a problem, advises Lee. Car accidents, near misses, self-regulation of driving and health changes all provide opportunities to talk about driving skills.

There’s nothing that can make this conversation an easy one, but there are ways you can promote productive dialogue. If you determine that there’s reason for concern about your loved one’s ability to drive, approaching the situation in a thoughtful and nonthreatening way is important.

“Comments about how much more congested traffic has become recently or about an accident in the news can be a good way to start a conversation about driving safety,” says Lee.  In addition to offering safety courses for older drivers at www.aarp.org/drive, AARP also offers an online seminar for those who may need to approach the topic of driving with older family members at www.aarp.org/weneedtotalk.

Starting the conversation is often the most difficult part and your approach can set the tone for how it proceeds. Here are a few suggestions for starting the conversation in a nonthreatening way that will make the older driver more comfortable expressing his or her feelings.

* “Did you hear about the car accident in the news today?”
* “Have you asked your doctor about the effects of your new medication on your driving?”
* “That was a close call yesterday. I worry about your safety on the road.”
* “I’m worried about you getting in a car accident with all the ice and snow on the road.”
* “I’m glad that you’ve cut down on night driving. I would never want you to drive when you’re not comfortable or feel that it’s too risky.”

Some other tips for a productive conversation include:
* Prepare for the conversation and do your homework.
* Choose the right messenger and the right time.
* Be supportive, positive, factual and nonthreatening.
* Have transportation alternatives ready.
* Note that it might take more than one conversation to address the issue. Let the person know you’re there whenever he or she is interested in chatting about the subject.

Remember, there is no one-size-fits-all solution when addressing problems your older driver may be having behind the wheel. Some issues can be remedied with improvements in physical fitness, increased attention and driving safety classes. Other situations may call for more immediate action.

To learn more about initiating a productive conversation about driving with your loved one, visit The Hartford’s website and download a free guidebook titled “We Need to Talk: Family Conversations with Older Drivers.”

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What is a Durable Power of Attorney?

power-of-attorneyA power of attorney is a document that allows you to appoint a person to handle your affairs when you’re unable to do so. The person you appoint is referred to as an “Attorney-in-Fact” or “Agent.”

A general Power of Attorney authorizes your Agent to act on your behalf in a variety of different situations.  Those typically include situations where there is a need for handling banking transactions, writing checks, buying and selling securities, buying, selling and managing property (including real property if properly described), and preparing and filing tax returns.  Additionally, certain other powers can be added, such as dealing with trusts, making gifts, changing beneficiary designations, changing survivorship provisions, and delegating authority under the power of attorney.

A general Power of Attorney loses its effect when the grantor of the powers becomes incapacitated.  In order to allow a general Power of Attorney to remain in effect when the grantor becomes mentally incapacitated, certain wording must be added to the Power of Attorney.  When that wording is added, the Power of Attorney is said to be “Durable.”  Attorneys often include a Durable Power of Attorney when preparing a client’s estate plan in order to cover the possibility that the client might need someone to handle his financial affairs if he becomes mentally incapacitated.

It is important to remember that when you make the power of attorney document you must be mentally competent to do so.  This means you must understand what you are doing in appointing an agent.

What qualifications or characteristics should the agent have?  The biggest issue for you is appointing someone you trust.  This person most likely will have extremely broad access to your assets to do anything you can do.  So you need to feel confident that the person(s) you appoint will always have your best interests at heart.

You should also speak with persons you are considering designating as an agent to ensure that they understand what you are asking of them, and that they are willing to perform those duties.

Finally, it is wise to designate at least one back-up agent so if the primary designee is unable to perform at the time they are called upon, your family will not have to go to court to have someone appointed to act for you.

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August is Make-A-Will Month

make-a-willFor many people making a will isn’t the most pleasant of tasks, and consequently, too few people do it. According to many surveys most people don’t have a will.  The biggest reason cited by many: They just never got around to it. Some said they didn’t want to think about death.

As I’ve written before, many people think wills are only needed by the wealthy.  But almost everyone can benefit from having a will.  Do your children have a guardian designated to care for and raise them if you and your spouse pass away while your children are minors?  Some people think their property will go to their family and that is who they want to receive it, so why should they have a will?  First, state laws about where your property will go may not pass it to the person you think will receive it.  Second, even if it does eventually get to those people, probate of your estate is most likely going to be more expensive and time-consuming if you don’t have a will.

So what does it take to make a will?  Think of who you want to handle paying your bills when you pass away and to distribute your estate.  Think of who you want to be the beneficiaries of your estate.  And if those beneficiaries don’t survive you, who should get it next?  If you have children, who do you want their guardian to be when you and your spouse pass away?  Once you have those questions answered, you are ready to begin.  Call a good estate planning attorney and talk over what the process is.  It isn’t hard and pretty soon you will have your will prepared and feel much more confident that your estate will be handled as you wish when you pass away.

If you are in Dallas, Denton or Collin Counties, give our office a call for an appointment to discuss your objectives.  We will be happy to help you this month or any other month of the year.

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Do You Really Need A Will?

old willI sometimes hear single or divorced clients say they don’t think they need a will.  A recent case demonstrates why that conclusion is likely erroneous.  Decedent’s siblings claimed that they should have inherited his estate.  And they likely might have had a valid claim, but in this case decedent had prepared a will leaving his entire estate to his lifetime companion with whom he lived for decades.  The court affirmed the validity of the will.

If you are single or divorced, you at least should discuss with an estate planning attorney to whom you wish your estate to go upon your death.  You may assume it will go to certain people, but the laws of Texas may direct it otherwise.  A will is a way of assuring yourself that your estate will go to those you wish it to upon your death.

Estate of Grogan, 595 S.W.3d 807 (Tex. App.—Texarkana 2020, no pet. h.).

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