Articles Posted in Wills

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nostalgia-499988_640Estate planning is often motivated by the big things. I’m not getting philosophical here. Forget about life and death. On a practical level, what brings families into my office are often the big financial assets–the house, the brokerage accounts, the retirement assets, and a concern that these assets be shared equitably by loved ones. And I, like most estate planners, do my best to write trusts and Wills that do just that.

But, often, it is the little things that can become contentious after a parent dies. From Dad’s stamp collection, to (I kid you not) a parent’s lawnmower, I’ve seen families fight over things that weren’t even on their loved one’s radar when the estate plan was written. Somehow these physical object (in legalese this stuff is known as ‘tangible personal property’) can become the locus of much hurt feeling and much passion, seemingly to become imbued with a deceased person’s essence, or to evoke their memories in a way that money cannot.

Often, fights over tangible personal items becomes especially fraught when there are multiple marriages, with a surviving spouse and children of prior marriages sparring over a loved one’s personal items. I’ve been thinking of this a lot lately because of Robin Williams.  Less than six months after his death, his third wife and his children from his first and second marriages are involved in litigation over alleged ambiguities in what seems, from a distance, to be a well-drafted and thoughtful estate plan. As reported in the New York Times, here’s some of what they are fighting about:

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shutterstock_156185702Who knew?! I honestly had no idea that there was such a thing as National Estate Planning Awareness Week, but, in fact there is, and it’s the third week in October, established by House Resolution 1499 in 2008.

When I worked in the US Senate, I was particularly thrilled by National Ice Cream Day (the third Sunday in July) and when I worked in the California State Legislature there was one day when bikers from all over California rode around the capital to protest helmet laws (I’m not sure if that was an official day or not). But this, while not nearly as thrilling as either of those days, is still a good excuse to remind folks about the importance of having a plan in place and keeping it current.

The American Bar Association cites statistics that estimate 55% of Americans don’t have an estate plan. I’ve seen other estimates that over 120 million Americans don’t have an estate plan in place. Either way, that’s a lot of people.

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shutterstock_128072579The New York Times published an interesting story this weekend on the expectations that parents and children have with respect to inheritances. The article summarized a study published in The Gerontologist last year, in which older adults and their children were polled on whether or not they expected to leave or inherit an inheritance.

It turns out that 86.2% of the parents expected to leave their children something, but only 44.6% of the kids were expecting to receive anything.  Interestingly, the adult children who were getting money from their parents during life had a higher expectation about getting more after their parents died than did children who were not receiving such support. Even more interesting, adult children who were providing support for their elderly parents were less likely to expect an inheritance, even though their parents were more likely to leave one. (The article doesn’t say what ‘support’ means here and whether it was financial or more in the realm of help with daily living.)

Psychologists opine that older adults feel morally obligated to provide for their adult children, partly out of concern for their children’s ability to maintain a similar standard of living, given the decline in earning power, and partly out of a sense that family matters most.

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plane-50893_150Inevitably, in the summer months, I get phone calls from people who are about to take a trip somewhere, often within just a few days. Sometimes they have a Will or a trust that’s out of date; sometimes they have no estate planning documents at all; sometimes they have just finished getting divorced and are in a panic because they haven’t gotten around to updating their Will or trust.

Much as I try to help everyone who calls, sometimes (often) there’s just not enough time to update their documents before that plane takes off or the road trip starts. What to do?

Although none of the documents I’m about to suggest take the place of a well-drafted Will or trust, they can serve to get something in place before a trip, quickly and with minimal or no expense. Upon your return, you can come in and get the job done right — but at least you can take to the skies with some peace of mind.

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russian soldiers.jpgI can’t help myself, I see estate planning angles everywhere. Welcome to a new, recurrent, feature of this blog: Lessons from Literature. Whenever I read a good book with an estate planning angle, I’ll share it with you here.

Recently, as I listened to Tolstoy’s masterpiece, War and Peace, on the way to work, I was struck by the story of the dying Count Bezukhov. As the Count lingers, seriously ill from a series of strokes, in his palace, the family intrique starts. The Count’s illegitmate son, Pierre, comes to visit the dying man, at the urging of another noblewoman, Princess Drubetskyaya, (who is scheming on behalf of her own son, Boris). It turns out that the Count has made a new Will, leaving his entire fortune to Pierre, and has left a letter requesting that PIerre be made legitimate by the Czar. This Will and the letter is in a box underneath the dying man’s pillow.

The Counts’ daughters, however, believe that the fortune will go to them because Pierre is illegitimate, regardless of the Count’s new Will. Evil Prince Kuragin, however, informs them that the Count has written a letter to legitimize Pierre. He urges them to destroy this Will and this letter to secure their own fortunes (and his). The daughters decide to steal the new Will, rip up the letter that will make Pierre legitimate, and inherit the estate themselves.

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859052_43065526.jpgSo many parents know they need to do an estate plan, but just avoid doing it. Often, what keeps them stuck is figuring out who to name as a guardian. But, here’s the thing, if you don’t name one, and a minor child is left without living parents, a judge is going to appoint someone to serve as that child’s legal guardian. And, sadly, that judge isn’t going to know you, your family, or your brother’s obnoxious wife. All that judge is going to know is who in your family steps forward and asks to be named as a child’s guardian. The judge’s job is to make an appointment that will be in the best interest of that child–and although the court will do its best to make that determination, who on earth is better equipped to make that choice than that child’s parents? Like many hard, grown-up choices we have to make, procrastination and denial just don’t help get us where we need to go.

Parents can nominate a guardian in a signed writing, but most use a Will to both nominate a guardian and plan for a child’s financial inheritance, putting something in place to manage that money for a child until a child’s old enough to manage it themselves.

If you can’t decide who to name as a guardian, here are a few suggestions for getting through that logjam: