National Estate Planning Awareness Week: October 17–23

The National Association of Estate Planners & Council is the association of choice for estate planning professionals with nearly 260 affiliated local estate planning councils, and their estimated 29,000 members with ongoing education and a forum for networking within the estate planning community.  Through The NAEPC Education Foundation, NAEPC is helping our councils become the centralized resource for the public for informative information about estate planning, the need to work with a qualified team of individuals, and how to find that team.

Estate planning is an often overlooked element of financial wellness, it is estimated that over half of Americans – 56% – do not have an up-to-date estate plan!

National Estate Planning Awareness Week was adopted in 2008 to help the public understand what estate planning is and why it is such a vital component of financial wellness.  Assisted by Rep. Mike Thompson (D-CA) and 49 additional members of the House of Representatives, H. Res. 1499 named National Estate Planning Awareness Week on September 27, 2008.  A full copy of the resolution text can be found at http://www.naepc.org/about/education-foundation/documents.

NAEPC’s goal is to work with affiliated local councils to reach every American annually with a reminder about the need for estate planning.  Remember:

YOU need estate planning TOO!

 

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Are Your Minor Children and Adult Children Protected?

children-at-funeralI know you’ve heard this from me before, but at this time of year, it is especially important to check some of your important documents to be sure your children are protected.

First, your minor children.  You should have legal documents designating who you want to care for your children should you and your spouse both die.  Many people include this in their will or living trust.  But it is always a good idea to double check who you appointed to make sure they are still the people you want to designate.  If not, you should have a codicil to your will or an amendment to your living trust prepared.

But what happens if both of you are not killed in an accident, but are incapacitated for a lengthy time?  Who will serve as guardian then?  Your will does not come into play until you die.  So it is prudent to sign another document designating guardians for your children should this situation arise.

Next, is your adult children.  Once your child is over eighteen, they are considered an adult.  Even if they are attending college or living at home, they are considered an adult.  You might think that since you are paying all of your adult child’s bills, the doctors and hospitals will provide you all the medical information about your son or daughter.   Well, most likely they will be happy to accept your money, but they still won’t tell you anything that violates privacy laws.  And banks are unlikely to discuss your adult child’s accounts and investments with you either.

Well, surely there are exceptions for emergencies, right? There may be, but even in an emergency you are not guaranteed access to doctors or schools, and you will not have access to bank accounts.  Frankly, it is more likely your child will need assistance in a non-emergency situation.

No matter how dependent your son or daughter remains financially and emotionally for the next few years, the law regards him or her as having complete autonomy.  Your child is now an adult and needs the same protective documents that you do.  We all need people we trust to speak or act on our behalf if ever we cannot.  At a minimum, you and your adult children should have a Durable Power of Attorney, a Medical Power of Attorney and a HIPAA Release

If you or your child need to update or create any of these documents or if you just wish to meet to discuss what you need now, contact an experienced estate planning attorney.  I’m always glad to help if you contact my office.

Don’t delay.  Explain to your child why a Medical Power of Attorney, HIPAA Release,  and Durable Power of Attorney are vital legal documents that will ensure that someone they love and trust will be allowed to step in to manage their affairs and to be the voice advocating for them when he/she needs it most

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Avoiding A Contest

court-determinationOftentimes when I meet with clients desiring to do estate planning, little thought is given by the client to how smoothly the processing of their estate will go after they are gone.  So here are a few things to keep in mind as you begin the estate planning process.

 

First, you’ll need to take some common sense measures.

Confirming Your State of Mind.  The most common argument a family member will make when disputing a will or trust is that the writer, or testator, was not of sound mind. Based upon your age or medical condition, consider having your doctor and a psychologist evaluate your physical and mental health just before finalizing your will, so that you can avoid this allegation.

Separate Legal Counsel.  If your family has business affairs or complex legal arrangements, seek your own legal counsel, separate from other family members to protect your interests and the interests of those you wish to give gifts to.

Corporate Fiduciary.  Consider hiring a corporate entity to serve as executor or trustee instead of family members. Corporate executors or trustees are less likely to be seen as abusing their fiduciary powers; whereas a stepparent or favored child may unwittingly cause suspicion or jealousy among your other heirs.  Corporate fiduciaries typically charge a fee, but this can be a small price to pay to avoid disharmony and potential litigation.

Distribution.  Try not to play favorites. The general rule here is to ensure that all of your children and/or your spouse are treated equally. There’s not much room for argument when three children each get 1/3 of the house, business, or other property. If you distribute some of your property while you are still living, have legal documentation reflecting what you gave or sold to your heirs and make it clear whether those are to be offset against any bequests in your will or trust.

Disinheritance.  Make your intentions clear by defining which people will not inherit property, or which will get smaller shares of your estate. Avoid the whys and wherefores – these only encourage bad feelings and potential contests.  I have found that it also helps if you communicate your intentions to those who appear to be receiving less than others while you are living.  Communicating this in a family meeting and on several occasions is ideal, as long as it does not seem to be “rubbing it in.”

Business & Property Contracts.   If you have a business, particularly one that is doing well, you should have a buy-sell agreement prepared that provides for how ownership and management will occur when you die.  This is a critical document that many businesses fail to prepare and often causes the collapse of the business when one of the owners dies.  These documents can also provide how withdrawal of one or more owners will be handled even if death is not involved.

No Contest Clauses.  These clauses provide that beneficiaries or heirs who challenge a will forfeit their inheritance.  Such clauses have been the subject of legal challenges in many jurisdictions and may have limited or no effect in particular states and situations.  However, they may still provide enough question that a beneficiary or heir will think twice before filing a legal challenge to your will or trust.

I hope these thoughts will give you some ideas to think about as you begin your estate planning or think about updating your plans.  If you have questions, contact your estate planning attorney.

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Preparing for College in the Fall

college-move-in-dayWith a new school year about to start, I am reprinting an article I posted several years ago for parents with children going off to college or just moving out of the house.  If you decide you might need to help your children with some planning, please call my office for an appointment.

Are you still the parents of your “adult” children?

In a recent article in the Dallas Bar Association’s “Headnotes” newsletter, Lori Ashmore and Gary Ashmore of The Ashmore Law Firm, PC remind us that while we are biologically still the parents of our adult children, we may not be allowed to act that way.  For example, if your college student is admitted to a hospital, the doctors there may not provide you any information about your child’s condition or injuries.  You may not be able to move your child to a hospital nearer home and your student’s landlord may not allow you to act for your child regarding his or her lease.

Why?  Because in Texas, a person becomes an adult at age 18.  Just as you need estate planning documents to allow others to act for you in certain circumstances, so does your adult child.  “Absent proper estate planning, there is no legal right for parents to make decisions for their children after they attain the legal age of majority.”

So when your child turns 18 and before they move into their own apartment or travel off to college, you should encourage your child to sit down with your estate planning attorney to discuss how to address these concerns.  Documents that should be considered include a Statutory Durable Power of Attorney, a Medical Power of Attorney, a HIPAA Release, and a Directive to Physicians and Family (Living Will).

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