Showing posts with label Intestacy. Show all posts

Tuesday, July 16, 2019

Avoid mistakes leading to estate planning failures

by Tom Alberts Jan 29, 2019

Summary: Estate planning failures are mostly preventable. If you have a plan, you’ve avoided one big problem, but other pitfalls lurk. Problems often arise when people fail to update their plans and inadequately address issues involving incapacity, minor and special-needs children, beneficiary designations, end-of-life care and other matters.

There are many reasons why estate plans fail, but they tend to have one factor in common – the failures are avoidable.

When creating a comprehensive estate plan, you’ll find there’s a lot to learn about how various legal documents operate separately and work together – wills, trusts, powers of attorney, advance health care directives and so on.

If you’re like most Americans, you’ve wisely relied on your attorney or consultant to explain in detail how the sea of paperwork protects your interests and provides for your beneficiaries. But in too many cases, those planning documents gather dust on a shelf or hide in a drawer. In the meantime, those documents – if they exist to begin with – can become outdated, ineffective and lead to outcomes you no longer intend or never intended.

Planning mistakes lead to unpleasant surprises in the future – disinherited loved ones, rewarded ex-spouses, disqualification for entitlements or lawsuits among warring family members – and they don’t have to happen. Your estate plan, like most things in life, requires some adjusting, maintenance and even professional help from time to time to remain viable and succeed.

Here’s a look at seven preventable failures that can make your life, and death, more difficult and give your loved ones more grief than necessary:

How do estate plans fail?

Failure to create an estate plan
There perhaps is no planning blunder greater than having no plan at all. The estates of those who lack at least a valid will are subject to the delays, expense and lack of privacy of probate and state laws of intestacy that have rigid rules on how assets are distributed. Family members may find themselves fighting among each other – and in court – over your assets. Without a will, parents can’t name a guardian to care for their minor children. If you ever become incapacitated and lack powers of attorney for health care and finances, an advance health care directive or a revocable living trust with explicit instructions, you could force your family to petition a court to appoint a guardian to make decisions for you. You may relinquish control over health care and financial decisions to a total stranger. A judge, unaware of your preferences, could appoint an ill-motivated professional guardian. Without a plan, you also lose control of the distribution of your assets when you pass away. Without a comprehensive plan, you’ll burden loved ones with the hassles of probate, be vulnerable to an unwanted guardianship and squander the ability to control your financial legacy.

Failure to plan for incapacity
Your planning documents need to address more than how your property is distributed when you die. One recent study found that those who reach the age of 65 have a 50 percent chance of becoming incapacitated in their lifetime. But incapacity can happen to anyone, young or old, at any time due to an accident, disease or disability, so there’s no excuse to delay being prepared. With powers of attorney for health care and finances, you can be proactive and create a plan that names trusted people of your choosing to act on your behalf. Otherwise, your loved ones may be subject to costly court proceedings to be allowed to care for you or challenge an unwanted guardianship. Another way to plan for incapacity is to create a revocable living trust in your lifetime that can enable your successor trustee to protect and manage your assets, on your terms, upon your incapacity. Remember, a will only takes effect upon your death, and the personal representative you name in your will cannot manage your affairs while you are alive.

Failure to review your plan
Peace of mind is a good thing. Out of sight and out of mind isn’t. A failure to update your plan is an oversight that can lead to its downfall in many ways. As time passes and family dynamics change, your plan must be amended to include or exclude people and provisions depending on life events and your current priorities. If you get married, divorced, remarried, have children or suffer a death in the family, it’s time to review and amend existing documents. Otherwise, you risk passing assets to an ex-spouse or leaving behind a new family member. Beneficiary designations (and alternate designations when allowed) for annuities, insurance policies, retirement accounts and bank and brokerage accounts must be up-to-date. They must be coordinated with the beneficiaries named in your will and trust for your plan to succeed. When the “wrong” beneficiaries receive assets, lawsuits from disgruntled family members challenging the estate are to be expected. Beneficiary designations supersede the provisions of a will or trust, and conflicting documents can lead to legal challenges. Regular reviews (after major life events or every few years) are required.

Failure to plan for children as beneficiaries
Part your plan is to make sure the kids have a financial safety net. But naming a minor as a direct beneficiary can backfire. When beneficiaries automatically receive an inheritance at a young age, long-term financial planning usually falls by the wayside. One nightmare is not being around for your children. Another is imagining them squandering their inheritance in short order. A better option is to ensure your will or trust specifies that minor children receive their inheritance once they reach a certain age, and that your representative or trustee will be responsible for managing their assets and providing support. If the child – not your trust – is the beneficiary of your life insurance policy, the child stands to receive a lump sum at age 18 or 21. Proper trust planning is required if you intend assets to be paid out over time or when a child reaches certain milestones. Another potential mistake is adding adult children to the deed on your home as co-owners with rights of survivorship. With this arrangement, they could expose the value of the home to their liabilities (divorce settlements and debt claims come to mind) and possibly create a tax burden by receiving the home as a gift.

Failure to plan for special-needs beneficiaries
Leaving assets directly to a beneficiary who has special needs and receives government assistance can be disastrous. In many cases, those with special needs rely on Social Security and Medicaid benefits to provide support over a lifetime. A windfall of income, however, could disqualify a special-needs individual from receiving government entitlements. Most of the inheritance would have to be spent down to enable the individual to once again qualify for assistance – a contradiction of your objectives. A better solution is to create a special-needs trust within your will or living trust that can be rigorously controlled by a qualified third-party successor trustee and maintain eligibility for assistance. But even a professionally designed special-needs trust is fraught with challenges because of strict rules in the administration of trust assets. Its trustee faces complex duties that require a high degree of formality, and it’s not a job easily assumed by a family member. In many cases, a professional trustee is necessary to prevent administrative failure.

Failure to plan if you outlive a beneficiary
Beneficiary designations are praised for their ability to distribute assets quickly to your loved ones after your passing. They help achieve the important goal of bypassing probate. Unfortunately, our presumptions about the order of death of our beneficiaries are sometimes wrong. You need to update your beneficiary designations as circumstances in life change, otherwise assets can wind up in your probate estate or in the hands of an unintended recipient. If a beneficiary dies before you do, your plan can fail, and most banks don’t allow alternate beneficiaries for payment-on-death accounts. Proceeds from life insurance policies, retirement funds and other assets also are at stake, and alternate beneficiaries should be named, whether you’re leaving behind a checking account or a Chevrolet. Meanwhile, other problems arise when former spouses or departed family members were named as beneficiaries long ago when accounts were initially created. Your paperwork is only as good as the last time it was updated.

Failure to plan for end-of-life issues
Many people avoid planning for the possibility of a terminal illness or a tragic accident. After all, it’s an unsavory subject. But if misfortune strikes, there’s no good reason to lack control of your fate or force your family or loved ones to make difficult treatment decisions on your behalf. Many people fear being placed on artificial life support or having to endure a long, slow death. A living will, also known as an advance health care directive, enables you to express your end-of-life treatment preferences. It’s important, while you can still communicate, to decide the extent of life-sustaining treatment you want – or don’t want. Otherwise, you leave treatment decisions at the sole discretion of medical professionals, who may not share your preferences or those of your family.

How can I create an estate plan?

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life’s contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.

This article written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
#legacyassuranceplan
@assuranceplan

Monday, October 15, 2018

What started as a dog walk ended with a lesson in life planning – and four stitches

What started as a dog walk ended with a lesson in life planning – and four stitches

by Tom Alberts Oct 15, 2018

Summary: There’s nothing like a real-life crisis to open one’s eyes to the need for proper planning. It’s difficult to predict what fate awaits us, so there’s no better time than now or the near future to get the proper paperwork in order. In the author’s case, it was a close call from a dog attack that provided instant motivation to utilize legal documents to protect his interests and ensure plans are in place for major life events. Among those documents are a last will and testament, a revocable living trust, powers of attorney, an advance health care directive, a HIPAA release and beneficiary designations.

In my new job, I haven’t been practicing what I’m preaching.

I’ve switched gears after spending three decades in newsrooms and now work in the estate planning business, extolling the virtues of preparedness as I write articles warning about the gravity of guardianship, the ills of intestacy and the perils of probate.

My new mission is to help spread the word about the importance of planning for the unexpected events in life and the vital need to create a comprehensive estate plan to protect your loved ones and your legacy.

But like two-thirds of Americans, I’ve put planning for life events and estate matters on the back burner. I haven’t executed a last will and testament, although I’ve spent a lot of time encouraging those of sound mind.

A revocable living trust? Haven’t been there or done that, despite the articles I’ve written imploring you to create and fund one.

I haven’t signed powers of attorney enabling a reliable person to handle my finances and make decisions about my health care if necessary – but I’ve pounded the keyboard to alert others about such oversights.

If I wind up in the hospital and lack my wits, I’ll be lacking a signed Health Insurance Portability and Accountability Act release to keep my loved ones in the loop with my doctors and nurses. I’ve been typing feverishly, nagging about the necessity of HIPAA releases, but I haven’t bothered to sign one.

While I sing the praises of advance health care directives (living wills), you will not find one in my binder of blank pages. Beneficiary designations for bank accounts and such? Don’t bet on it.

So what happened?

My lack of preparedness came to mind in a hurry recently while out for a walk with my dog, Scotty, a sprightly Scottish terrier mix with a penchant for hunting lizards, coaxing belly rubs and chomping on ice cubes. The after-dinner jaunt is part of a routine I’ve enjoyed with my four-legged friend the past decade or so. But this time, unlike thousands before, was different. Little did I know I was about to experience one of those unexpected events in life that could alter the future in a big way.

A few minutes into our stroll, we caught the attention of an aggressive dog being walked by a neighbor. The angry beast flashed its fangs, twisted its head and wriggled out of its collar as its owner screamed at me to “pick him up!” In the blink of an eye, the dog sprinted toward Scotty, clamping its powerful jaws onto my helpless little buddy’s neck. I wailed in horror as I put my hands in the offending dog’s mouth, fruitlessly attempting to loosen its tight-as-a-vice grip.

I instinctively punched the top of the dog’s head with my fist. It’s a miracle he released Scotty and turned his vengeance on me, treating my fingers like they were wayward sausages. A nearby neighbor swooped in and carried Scotty out of harm’s way. I’m blessed Scotty’s injuries were limited to a single bite wound to the neck, and his prognosis is good. Scotty’s collar absorbed the brunt of the bite and acted as a protective shield. I escaped with four stitches in one finger, a nice puncture wound in another and assorted dings and dents.

My experience doesn’t compare to much worse events that make headlines every day. Luck was with us, and the wounds will heal quickly. Scotty and I escaped a more serious fate, but there was no avoiding the wake-up call from our terrifying ordeal.

The day after the trauma and drama subsided, it was time for some serious reflection on following some of the planning suggestions I make my living espousing. I thought about how life is fragile and that in the time it takes a dog to snap its jaws, any number of other calamities could strike.

When do we need a plan?

Few people wake up in the morning and, over their cup of coffee, decide to create a comprehensive estate plan. Eventually, though, for some reason you may decide to prepare for life’s contingencies and endeavor to leave behind a legacy to benefit your loved ones when you’re no longer around. Some unforeseen event may serve as a trigger. It could be your own near miss. The demise of someone else. A medical condition. Or, in my situation, a dog attack.

There’s a natural reluctance to ponder one’s incapacity or death and imagine disasters that inspire you to get legal papers in order. Just ask two-thirds of Americans. A lack of urgency is normal, unless you’ve just received a doomsday diagnosis from your doctor. Maybe there are family dynamics that prevent you from broaching this sensitive subject with loved ones. Perhaps it’s hesitation about anticipated expenses for legal and planning services.

All those roadblocks are understandable, but they put you on a detour from a path of certainty. I’m 53, and I know plenty of people my age who are among the ranks of the ill-prepared for those golden years, and grizzly bears, around the corner.

I like the idea of having someone I personally choose to act as my power of attorney to manage my medical treatment and finances if I can’t. I’ll take comfort knowing that a will and trust are structured to minimize the exposure of my assets to probate administration – and there’s a provision for Scotty’s care if I’m not around. I need to be confident my family members will get details from my doctors with no hassles with a HIPAA release. I want to make my own decisions about end-of-life care with my living will, sparing my family of this potential burden.

It took a dog bit out of the blue for me to get my planning priorities straight. The hours I spent at the vet and in the emergency room recounting a near tragedy helped me realize that now is the best time to act. What if the dog spared my fingers and nailed me in the neck instead? I simply would not have been prepared.

Some time and effort are required to create the right planning documents, and there’s an expense involved. But it’s a prudent investment to maintain control of your future affairs during life and beyond.

Have you considered Legacy Assurance Plan?

Tom Alberts is staff journalist for Legacy Assurance Plan. A graduate of Indiana University with a double major in journalism and English, he previously was a reporter and editor for newspapers in Indiana, Missouri, Texas, Pennsylvania and Florida. Alberts resides in Bradenton, Florida, with his dog, Scotty. You can contact him at talberts@ufresources.com and follow him on Twitter at @alberts_tom.

Monday, July 2, 2018

Intestacy is not an ailment, but it can be painful to loved ones

Intestacy is not an ailment,
but it can be painful to loved ones

by Tom Alberts July 2, 2018

Summary: When someone dies without a valid last will and testament, a probate judge will follow state intestacy laws to determine how their estate is distributed. The laws don’t take into consideration the specific wishes of the deceased.

Intestacy is not a disease, but it should give you heartburn thinking about it. It’s described as the condition of an estate of a person who dies without having executed a valid last will and testament. In other words, if you don’t have valid will when you die, you’ll lose direct control of your financial legacy.

Intestacy laws, which vary from state to state, determine who is entitled to inherit property when no guidance from a will is given and no estate plan is in place.

Imagine someone pondering a will that proclaims: “I hereby leave to the state and a probate judge all the necessary authority to decide in a public forum who receives my property and how much they shall receive, regardless of my actual wishes. If necessary, the court can appoint anybody it sees fit, without my input, to serve as guardian of my minor children. In addition, please charge my estate 3 to 8 percent of its value for the services of the probate process.”

It’s hard to fathom someone of sound mind contemplating such a declaration. But that’s essentially what happens when an estate lacks a properly executed will.

In intestacy, there’s no effort to investigate what the dearly departed’s wishes truly were. An inquiry into proper and well-thought intentions? No way. Judicial interrogations to determine the undisputed and desired outcome? That’s not likely, either.

Generally, intestacy statutes distribute estates to the surviving spouse and children and their descendants and climb up and down branches of the family tree as necessary to determine other beneficiaries. State laws on the method of property distribution vary but generally provide that recipients are the closest surviving relatives.

The order of inheritance in most states is the surviving spouse, children, parents, siblings, nieces and nephews and next of kin. If you lack survivors, the state treasury will gladly consume the fruits of your life’s labor – not your favorite charity, beloved friend or treasured pet.

When a person dies without a will, he is described to have died "intestate."

There are a plenty of examples to illustrate the ills of intestacy, but consider just one mess caused in Texas when a woman’s husband died without a will.

The husband was survived by two children from prior relationships. The woman had lived with her husband in a home he bought before they were married.

The lack of a will suddenly put the home in play. Would the children seek the sale of the home in order to collect their share of dad’s assets? That’s because in Texas, the surviving spouse is entitled to half of the couple’s community property but only one-third of the deceased spouse’s personal property, and the children would get dad’s two-thirds in equal shares. Since dad owned the house before marrying his surviving spouse, she’s only entitled to one-third of the dwelling’s value.

If his dying wish was to risk leaving his wife without a home and cause a major rift among his survivors, intestacy laws are able tohelp make that happen. Intestate also means a lengthy wait – usually several months and sometimes years – for the potentially costly legal process of probate to conclude.

Being intestate has unintended consequences, which is why proper estate planning is always a smart move.

Avoiding probate and ensuring that your wishes are followed begins with a properly executed last will and testament. In the estate planning process, there are other options to consider, such as a creating a living will and establishing trusts. That way, the distribution of your estate is determined by you, not a judge, and uncertainty, stress and the possibility of a legal challenge is minimized.

One option to consider is membership in Legacy Assurance Plan, which educates its members on a variety of estate planning options and provides access to numerous resources to achieve planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

Intestacy is not an ailment, but it can be painful to loved ones

by Tom Alberts July 2, 2018

Intestacy is not a disease, but it should give you heartburn thinking about it. It’s described as the condition of an estate of a person who dies without having executed a valid last will and testament. In other words, if you don’t have a valid will when you die, you’ll lose direct control of your financial legacy.

Intestacy laws, which vary from state to state, determine who is entitled to inherit property when no guidance from a will is given and no estate plan is in place.

One’s heartburn should begin with the realization that once you’re gone, a probate judge, unaware and legally blind of your true intentions, will decide the fate of your estate and divvy up your assets.

Imagine someone pondering a will that proclaims: “I hereby leave to the state and a probate judge all the necessary authority to decide in a public forum who receives my property and how much they shall receive, regardless of my actual wishes. If necessary, the court can appoint anybody it sees fit, without my input, to serve as guardian of my minor children. In addition, please charge my estate 3 to 8 percent of its value for the services of the probate process.”

It’s hard to fathom someone of sound mind contemplating such a declaration. But that’s essentially what happens when an estate lacks a properly executed will.

In intestacy, there’s no effort to investigate what the dearly departed’s wishes truly were. An inquiry into proper and well-thought intentions? No way. Judicial interrogations to determine the undisputed and desired outcome? That’s not likely, either.

Generally, intestacy statutes distribute estates to the surviving spouse and children and their descendants and climb up and down branches of the family tree as necessary to determine other beneficiaries. State laws on the method of property distribution vary but generally provide that recipients are the closest surviving relatives.

The order of inheritance in most states is the surviving spouse, children, parents, siblings, nieces and nephews and next of kin. If you lack survivors, the state treasury will gladly consume the fruits of your life’s labor – not your favorite charity, beloved friend or treasured pet.

When a person dies without a will, he is described to have died "intestate."

There are a plenty of examples to illustrate the ills of intestacy, but consider just one mess caused in Texas when a woman’s husband died without a will.

The husband was survived by two children from prior relationships. The woman had lived with her husband in a home he bought before they were married.

The lack of a will suddenly put the home in play. Would the children seek the sale of the home in order to collect their share of dad’s assets? That’s because, in Texas, the surviving spouse is entitled to half of the couple’s community property but only one-third of the deceased spouse’s personal property and the children would get dad’s two-thirds in equal shares. Since dad owned the house before marrying his surviving spouse, she’s only entitled to one-third of the dwelling’s value.

If his dying wish was to risk leaving his wife without a home and cause a major rift among his survivors, intestacy laws are able to help make that happen. Intestate also means a lengthy wait – usually several months and sometimes years – for the potentially costly legal process of probate to conclude.

Being intestate has unintended consequences, which is why proper estate planning is always a smart move.

Avoiding probate and ensuring that your wishes are followed begins with a properly executed last will and testament. In the estate planning process, there are other options to consider, such as a creating a living will and establishing trusts. That way, the distribution of your estate is determined by you, not a judge, and uncertainty, stress and the possibility of a legal challenge is minimized.

One option to consider is membership in Legacy Assurance Plan, which educates its members on a variety of estate planning options and provides access to numerous resources to achieve planning objectives.

Legacy Assurance Plan is an estate planning services company. Its goal is to educate people on a variety of estate planning issues. It also provides access to a variety of resources to help its members achieve their estate planning objectives. Whether your goal is as simple as protecting your family and loved ones from the costs, delays, and hassles of probate or as complex as providing for a disabled child when you no longer can, Legacy Assurance Plan can help you find the information and resources you need to privatize your estate.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.

This article was written and published by:
Legacy Assurance Plan
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
info@legacyassuranceplan.com (email)
#legacyassuranceplan
@assuranceplan

Monday, April 3, 2017

Guardianship Abuse | How you can Protect Yourself

Summary: Courts, legislatures and attorneys general are continuing to come face-to-face with the ongoing scourge that is the misuse of guardianship legal proceedings in order to abuse seniors. While this abuse can often involve the loss of a senior's personal autonomy, it also often involves financial abuse, as well. There are certain things seniors can do to protect themselves, especially when it comes to estate planning. But taking pro-active steps to to put a complete estate plan into place, you can better protect yourself from the possibility of someone using the legal system against in order to seize control of your wealth.

Another state is taking on the monumental task of trying to reform its system of adult guardianship and conservatorship. In this case, that state, as reported by the Associated Press in October 2016, is Nevada. That pursuit of reform came on the heels of a 15-month study into the system, which revealed far too many stories of "'abuse, fear and distrust' in the program." The state's Attorney General, who also promised to attack the problem, promised to do what his office could to prevent guardians from swindling the people they were supposed to be protecting.

The "flash point" that helped trigger this action was series of newspaper reports in the Las Vegas Review-Journal, which exposed a considerable amount of this abuse that was going on. "Some of the cases were just horrible to read," Barbara Buckley, the executive director of the Legal Aid Center of Southern Nevada, told the newspaper. "Individuals in this situation are being stripped of their civil liberties, the right to run their life as they see fit, without anyone speaking to them or advocating on their behalf."

Other states have discovered similar problems and have sought to put reforms into place to stop this abuse. One of the earliest sources splotlighting this problem of guardianship abuse was a book entitled, "The Retirement Nightmare," by Diane G. Armstrong. Originally published, in 2000, Armstrong's book sounded the alarm regarding how this previously relatively little-known part of the legal system was being abused to strip away seniors' rights and wealth.

In her book, Armstrong outlined several vital, and easy, steps people can take to reduce or eliminate their risk of being the subject of an unwanted and unneeded guardianship proceeding. Although the author published her book 16 years ago, her advice when it comes to estate planning is just as useful today as it was in 2000. First, Armstrong recommends "working with the right attorney." This of course, is key. An attorney experienced in the law of estate planning can give a full picture of the legal options available to you for your estate and make helpful recommendations regarding what estate planning tools will (or won't) help you achieve your planning objectives.

In her second and third points, Armstrong highlights executing the proper legal documents to carry out your planning goals. These documents, which make up a complete estate plan, include a will, a power of attorney for financial decisions, a power of attorney for healthcare decisions, a living will. Depending on your situation, you plan may also include a revocable living trust.

A living trust is often best-known for its potential benefits when it comes to avoiding probate. But a living trust may also offer a degree of protection when it comes to an involuntary guardianship, as well. Sometimes, people go to court asking a judge to declare your mentally incompetent and appoint someone to manage your assets (often known as a conservator or guardian of the estate,) in order to take the control of your assets away from you and put it in their hands. A living trust may help you avoid this potential pitfall. Your properly funded living trust may be able to help even if this were to happen. That's because, in your revocable living trust, you likely named yourself as the initial trustee and named one (or hopefully multiple) successor trustee(s,) whom the trust stated would take over managing the trust if you died or were declared incompetent. Therefore, even if a judge did make such a declaration, all that would happen in your case is that the management of your assets would pass from you to the person you named as your successor trustee when you signed your trust document.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

844.306.5272 (Phone)

info@legacyassuranceplan.com (email)

@assuranceplan

#legacyassuranceplan

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Monday, March 20, 2017

Creating An Estate Plan | Don't Procrastinate Getting an Estate Plan, But if You Have, Don't Give Up!

Summary: When it comes to estate planning, the best time to act is right away. Acting promptly protects you from the many unexpected things that can crop up in life, whether they involve a loss of mental capacity or even sudden death. However, even if you've waited and your mental abilities are not what they used to be, do not simply assume that you are no longer allowed to create or update an estate plan. It is always best to consult experienced professionals who can explain exactly what the rules and what you are (or are not) allowed to do. You may have more options than you would have thought.

Helen Weste was a divorced woman living in New Jersey. When she reached her mid 60s, she executed a will. That will split Weste's assets between her sister, eight nieces and nephews and two charities. By 2001, Helen's health and mental sharpness started to decline. By April 2002, doctors diagnosed Weste with severe dementia. The family decided to move Weste into an assisted living facility. Earlier that year, Weste, who was 74 by this point, visited an attorney about her estate plan. She signed the new document in March 2002. That will left a small portion of her estate to one of the charities and two of the nieces, but gave her home and 90% of her remaining estate to John Brek, a neighbor who had befriended Weste and performed odd jobs around her house. The new will also named Brek as executor.

After Weste died in March 2010, the family admitted the 1994 will to probate. In 2011, Brek sought to probate the 2002 will. One of the nieces, Joanne Halkovich, challenged Brek's request to probate the newer will. She argued that her aunt lacked the mental capacity required to execute a will when she signed the newer will. Both sides had competing expert opinions regarding Weste's mental functioning. The niece had an expert who testified that Weste did not understand either who the recipients of her new will were or the volume of her assets. She also presented records from her aunt's treatment in April 2002, just a month after she signed the newer will. Those doctors rated Weste on a numerical functioning scale where 21-30 was considered "severe problems," and they gave Weste a score of 20.

On the other hand, Brek also had an expert, and this psychologist testified that Weste had testamentary capacity. Weste's attorney also testified, stating that he'd been practicing law for more than three decades and had no doubt that Weste had the required mental capacity. The New Jersey courts ultimately sided with Brek. The requirement for testamentary capacity is a low bar. The trial judge pointed out that Weste was still living alone when she made the newer will, and if she had the functioning ability to live alone and care for herself, she had the capacity to make a will. The appeals court upheld that conclusion

Obviously, the best time to create or update your estate is.... NOW! Chances are very low that your clarity of mind will be higher in the future than it is today, but there is a very real chance that your mental functioning could decline in the future. Furthermore, none of us are promised tomorrow, meaning that you should get your current estate planning goals placed into valid written legal documents right away, so that you are prepared for whatever the future might bring.

However, if you've procrastinated, don't turn that error into a double mistake by thinking that the degree to which you've declined during that time of procrastination means that the door has been totally shut on your creating or updating your plan. Perhaps the biggest lesson to be taken from the case of Weste's will is that, in general, most states have a very low bar on what level of mental functioning you have to have in order to create or alter an estate plan document. Don't assume. Go out and seek definitive answers from experienced estate planning professionals. You'll be glad for the information and you may find out the answers are more favorable than you would have thought.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

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Tuesday, July 16, 2019

Avoid mistakes leading to estate planning failures

How do estate plans fail?

How can I create an estate plan?

Monday, October 15, 2018

What started as a dog walk ended with a lesson in life planning – and four stitches

What started as a dog walk ended with a lesson in life planning – and four stitches

So what happened?

Have you considered Legacy Assurance Plan?

Monday, July 2, 2018

Intestacy is not an ailment, but it can be painful to loved ones

Intestacy is not an ailment,but it can be painful to loved ones

Intestacy is not an ailment, but it can be painful to loved ones

Intestacy is not an ailment, but it can be painful to loved ones

Monday, April 3, 2017

Guardianship Abuse | How you can Protect Yourself

Monday, March 20, 2017

Creating An Estate Plan | Don't Procrastinate Getting an Estate Plan, But if You Have, Don't Give Up!

Intestacy is not an ailment,
but it can be painful to loved ones