A comprehensive estate plan includes a lot of documents and many trusted helpers so it’s important for both you and your helpers to understand who’s in charge, when.

Here’s a brief outline, but if you have questions or concerns about your individual estate plan, be sure to consult with a qualified estate planning attorney.

Guardians

Guardians for minor children are appointed in a stand-by guardian designation and in your will.

The stand-by guardian designation is effective if you are alive, but unable to care for your children due to some form of disability; the will is only effective if you’re dead.

Contingent Trusted Helpers

It’s imperative that you name back-up trusted helpers in the event that your primary trusted helpers are unable or unwilling to serve when the time comes.

Communication

Be sure to communicate with your trusted helpers and loved ones so everyone understands who’s in charge when. Show them where you keep your estate plan documents and provide the contact information for a qualified estate planning attorney who can provide additional guidance.

Where to Get More Information

If you missed it, please continue reading part 1 of this article: Your Estate Plan: Who’s in Charge, When, and consult with a qualified estate planning attorney. An attorney can help you to explain duties and timing to your loved ones and trusted helpers.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Most estate plans don’t work; it’s absolutely true (and shocking.) Most estate plans don’t work for two reasons. First, assets aren’t owned properly and second, estate plans aren’t updated.

Proper Asset Ownership

Assets must be aligned with your estate plan.

For example, if you want your trust to control assets, avoid probate, provide asset protection, and outline instructions for when you are disabled or die, the trust must own the assets. Otherwise, the trust has no control over your assets and your estate plan will fail.

A second example would be using your will to dispose of assets at your death. If you want your will to control assets and get them to certain people, you must own your assets in your individual name.

Assets in the name of your trust, owned jointly (with survivorship), or which have a beneficiary designation (i.e. life insurance and retirement accounts) are NOT controlled by your will.

This means that if you include provisions in your will to give $50,000 to each child, but own everything jointly with your spouse, your children will get nothing and your estate plan fails.

Updating Your Estate Plan

Estate plans need to be updated every three to five years….even sooner, if you experience a significant life change such as a new child or spouse.

All estate plans experience three types of changes:

• Changes in the law
• Changes in your personal situation (finances, goals, family, and situation)
• Changes in your estate planning attorney’s planning methods

If you have a qualified estate planning attorney, he or she will be constantly striving to implement new techniques to make your estate plan more effective.

If you want your estate plan to work, make sure you own all of your assets properly and update your estate plan.  Otherwise, your plan will, likely, fail.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

A comprehensive estate plan includes a lot of documents and many trusted helpers; so, it’s important for both you and your helpers to understand who’s in charge, when.

Here’s a brief outline, but if you have questions or concerns about your individual estate plan, be sure to consult with a qualified estate planning attorney.

Power of Attorney Agent

Your power of attorney agent is in charge when the authorizing document (i.e. the power of attorney) indicates he or she is in charge.

For example, health care power of attorney agents are only authorized to make health care decisions on your behalf if you cannot provide informed medical consent because you are too ill.

A financial power of attorney likely grants authority to act immediately, but the document may be drafted to only grant authority upon disability or some other event.  This is called a “springing” power of attorney.

All authority under any power of attorney ends at your death.  Your agents must STOP using the power of attorney as soon as you die.

Executor

An executor is appointed in your will and has authority to act after your death when sanctioned by the court. Executor authority ends when the estate is closed.

Trustee

A trustee may act when authorized by the trust document. Some trusted helpers have authority immediately (but this is unusual, except for the elderly or disabled); other trustees don’t have authority until you are disabled or have died.

Please continue reading at part 2 of this article:  Your Estate Plan, Who’s in Charge When.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

In most situations, joint ownership is just not a good idea and we’ll discuss that below. But, first, we want to emphasize that joint ownership doesn’t really avoid probate.

Joint Ownership May Delay Probate, but it Doesn’t Avoid It

Joint ownership may delay probate, but it won’t avoid it.  Here’s an example:

Meghan and John put their assets in joint names to avoid probate.  John died and the assets to Meghan without probate.

A few years later, Meghan died.  Because the assets formerly owned jointly were now in Meghan’s individual name, probate was guaranteed.

If you think, “Well, that’s okay.  When one of us dies, the other can do good estate planning then and avoid probate” consider this example:

Ruth and Kirk put their assets in joint names to avoid probate. 

They were both killed in a car crash and all assets went through probate.            

Joint ownership only avoids probate if there is a surviving joint owner.  And, as we illustrate in the Meghan and John example, joint ownership only really delays probate.  There is no probate avoidance.

How to Avoid Probate

For many people, the best way to avoid probate is with a fully funded revocable living trust. The trust offers benefits and minimal real pitfalls; it does avoid probate for all assets that the trust owns. This is key. Your assets must be in the name of the trust to avoid probate.

If you own assets jointly, consult with a qualified estate planning attorney to determine the best way to completely avoid probate. Owning assets jointly won’t only often does not work.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Estate Planning can be a complicated matter.  Depending on your financial and familial circumstances, there are certain factors you should be aware of, such as the Family Allowance. When a person dies, some of his or her property automatically transfers to his spouse or dependent family members. This is known as a family allowance or family exemption. Family exemption laws differ between states, so it’s important to talk to your estate planning attorney for detailed information about the rules in your area.

Creditors: Let’s say your husband dies leaving behind both assets and debts. This property is referred to as an estate. You husband’s creditors—those people or organizations to whom he owed a debt—have a right to be repaid by filing a claim and taking property from the estate to satisfy the debt. This happens once your husband’s estate goes before a probate court and the creditors then file claims asking the estate administrator to pay them back.

Family Exemption: So what happens if your husband left behind property that was equal to the debts he owed? Does that mean you will receive nothing? No. In states with a family exemption a specific amount of property is exempt from probate creditors. This exemption exists to allow a decedent’s dependent family to have at least some money to meet living expenses instead of allowing creditors to take everything. So, let’s say that your husband had an equal amount of debts and property, and further that your state has a $50,000 family exemption. In this situation, you keep the $50,000 and the creditors who want to be repaid will be out of luck because the exemption precludes them from taking that amount regardless of how much they are owed.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

The more you can do to get a comprehensive estate plan in place, get organized, and communicate your wishes, the greater the burden you remove from your loved ones’ shoulders.  All tasks are easier, if you’re alive and well, providing guidance.

Remove a Burden by Communicating with Loved Ones

Communication with loved ones often provides a challenge, but will definitely have benefits, including removing a burden and best ensuring that your wishes are carried out.

Let your loved ones know:

• If you will be naming them in a role of trusted helper (i.e. executor, trustee, power of attorney agent, or guardian.)  In other words, ask first.
• Where you keep your estate planning documents and other important papers.
• If you’ve included anything unexpected in your estate plan.
• Your wishes for burial/cremation and final arrangements.
• Whether you wish to be an organ donor.
• If you have a living will and want to avoid medical heroics, intubation, and life support machines if you are in an end-stage medical condition.
• That you love and appreciate them.

Remove a Burden with Up-to-Date Estate Planning Documents

Estate planning documents are a set of instructions for your loved ones to follow should you become incapacitated and when you die.  Having your wishes in writing saves your loved ones money, time, and hassle.  It also better ensures that your wishes will actually be carried out.

If your estate plan is more than three to five years old or if your life has significantly changed since you updated, consult with a qualified estate planning attorney for good legal advice as well as practical advice on how to remove a burden from loved ones’ shoulders.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

The more you can do to get a comprehensive estate plan in place, get organized, and communicate your wishes, the greater the burden you remove from your loved ones’ shoulders.  All tasks are easier, if you’re alive and well, providing guidance.

Remove a Burden by Providing an Updated List of Contacts

Keep a file with contact information for your estate planning attorney, financial advisors, insurance professional, clergy person, and friends/family to be contacted if you’re ill or have died.

Also include contact information for people who have worked on your house or provided other services such as lawn care, cleaning, handyman, plumber, electrician, realtor, mechanic, and the like.

Remove a Burden by Providing an Updated List of Usernames and Passwords

Your loved ones will need to deal with your accounts and online assets such as investment accounts, bank accounts, eBay, Shutterfly, emails, LinkedIn, Facebook, Twitter, PayPal, etc.  It’s imperative that they have access to your accounts so they can find your assets, respond to emails, have access to family photos, and take down social media accounts, if that’s what you prefer.

For More Information

For more information on removing a burden from your loved ones’ shoulders, please kindly read part three of this article, Planning with an Estate Plan (and More) Removes a Great Burden (Part 3 of 3).  We’ll discuss providing up-to-date estate planning  documents and wishes.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

The more you can do to get a comprehensive estate planning in place, get organized, and communicate your wishes, the greater the burden you remove from your loved ones’ shoulders.  All tasks are easier, if you’re alive and well, providing guidance.

Remove a Burden by Organizing Your Stuff

If you’re a pack rat, go through your things on a regular basis and purge.  If an item is in good shape, but you’re not going to use it, hold a yard sale or give it to charity.

Many charities will pick up furniture, household goods, tools, toys, books, and clothes at your home.  Donations are tax deductible.

Remove a Burden by Organizing Your Paper Work

If you’re like many folks, you don’t know what papers to keep and what to shred or recycle.

Keep most recent financial statements, important certificates (death, marriage, divorce, and adoption), military and immigration papers, current estate planning documents, titles, deeds, and original insurance policies and contracts.  If you can get the information online or you have more recent information, you, likely, don’t need to keep redundant papers.

Shred any papers that have a current account number or social security number.  Recycle everything else.

For More Information

For more information on removing a burden from your loved ones’ shoulders, please kindly read part two of this article, Planning with an Estate Plan (and More) Removes a Great Burden (Part 2 of 3).  We’ll discuss providing a list of contacts and usernames.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Most states allow you to own some kinds of property in joint tenancy, a legal form of ownership that allows more than one person to own the property at the same time. People who own property in joint tenancy may also have a right of survivorship, meaning that when one co-owner dies, the surviving co-owner inherits that person’s ownership interest. There are different kinds of property that can be owned as a joint tenancy, though you should talk to your attorney for state-specific information. 

Bank Accounts. Married couples often own a bank account as a joint tenancy. With bank accounts, each account holder has the right to use the account as he or she chooses, meaning both owners can deposit or withdraw money as they choose.

Real Estate. Many people, usually married couples, own their homes as joint tenants. In some states, however, married couples can only own real estate as tenants by the entirety, a form of ownership very similar to joint tenancy but with asset protection qualities.

Safe Deposit Boxes. Like bank accounts, you can own a safe deposit box as a joint tenancy. Like a bank account, both joint tenants have an equal right to use the safe deposit box. However, the property placed within that box is not necessarily held in joint tenancy, meaning that, for example, a spouse cannot use the individually owned property in the box that the other spouse—the owner—placed within it.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Will you have a living will when medical crisis strikes?  It seems as though life just plods along and nothing changes; but then, everything changes in a moment.

We’ve had clients who are seemingly healthy and all of a sudden are injured or seriously ill.  If you are so ill that you cannot give informed consent, you can’t sign a living will.  Like all estate planning documents, you need to have them in place before you actually need to use them.

Let us tell you about a woman named, Grace.  Grace and her husband had moved to a retirement community and they updated their estate planning documents after the move.  (Any time you move to a new state, it’s wise to have your documents professionally reviewed for updates.)

Grace included a living will in her estate plan.  She didn’t want to be kept alive with medical heroics (including life support machines) if she was in an irreversible coma or persistent vegetative state.

She was diagnosed with cancer shortly after her move and gradually went down hill.  One day, she fell, calling out her husband’s name.  Grace never regained consciousness.

The doctors examined her and determined that she was brain dead; they asked if she had a living will.  She did.  Her husband brought it to the hospital.  He and their children visited and then life support was removed.

Grace died peacefully just 15 minutes later.  While her family was sad to lose her, they felt at peace with the execution of the living will.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.