Klitzman Law Group, PLLC

Do Not Put Your Will in the Bank

It is important to keep your will and other estate planning documents in a safe, secure location where they can be easily found, when needed. A safety deposit box in a bank is not one of those places.

A will is only effective if it can be used after you pass away to administer your estate. If no one knows where your will is or if it has been destroyed, then it cannot be used by the courts.

You could have the most detailed will that has ever been created, but it is worth nothing if it cannot be found.

For this reason, it is important to make sure your will can be found and accessed quickly by those who need it after you pass away. Many people believe that a good storage place is somewhere safe and secure.

That is true.

Many people also believe that the safe and secure place is at a bank in a safety deposit box.

That is not true, as Noozhawk recently explained in "12 Things to Keep in a Safe at a Home, Not at a Bank."

The biggest drawback to safety deposit boxes is that they are secure because access to them is extremely restricted. The bank is not going to let someone show up and access your box, even if that person has your key and your death certificate.

Access normally requires a court order, which can be time-consuming to get. Courts are often reluctant to give them to anyone other than the executor of the estate. However, without seeing the will, it would not be known who the executor of your estate is supposed to be.

The better option is to keep your original will on file with the estate planning attorney who drafted it for you. Take a copy home and put it in a secure place, such as a safe.

Reference: Noozhawk (April 23, 2017) "12 Things to Keep in a Safe at a Home, Not at a Bank."

Suggested Key Words: Wills, Estate Planning

Social Security Myths

A recent survey found that most Americans think they know how the Social Security program works. The same survey found that most actually have some important misunderstandings about the program.

The Social Security program seems simple enough. When you reach retirement age, you can stop working and the government will send you a check, the amount of which is based upon your income during your working years.

People understand that much which leads them to believe that they know all they need to about the program.

However, a recent survey found that most people between the ages of 55-61 believe some myths that need to be corrected, as CNBC reported in "The three biggest myths about how Social Security works." The myths include:

• Many people think that when they become eligible for Social Security, the government will know and automatically start sending them a monthly check. That is not true. You need to apply for Social Security and you need to do so, three months before you plan to receive it.
• Another common misconception is the retirement age to receive full benefits. It depends on when you were born.
• People also believe that if an ex-spouse claims Social Security benefits under their work history that it will decrease the amount of their benefits. This is also a myth. An ex-spouse's claim will result in no changes to any benefits that you will receive.

Reference: CNBC (April 25, 2017) "The three biggest myths about how Social Security works."

Suggested Key Words: Elder Law, Social Security

Making Sure Your Family Has the Cash They Need

Even a great estate plan cannot help your family, if they do not have the cash they need to meet expenses before the estate plan can be executed.

People often go to great lengths to get an estate plan carefully crafted that covers every possible need their family could have. That is a good thing, but it might not be enough.

If you are your family's sole breadwinner and most everything is in your name, then you also need to think about how your family is going to make ends meet while your estate is being administered. Bank accounts in your name are supposed to be closed as soon as you pass away, so your family cannot legally access them.

Unfortunately, that is not going to stop any bill collectors from making calls, and grocery stores are not going to sell their food on credit to your family.

As a result, you also need to plan for your family to have access to cash.

Some advice on how to do that comes from South Africa by way of Personal Finance in "Will your family avoid a cash-flow crisis on your death?" The advice is also applicable to the U.S.

Getting an estate through probate can take a lot of time, depending on the size of the estate and the probate laws in the state.

Your family will not receive the cash from your will for a while, in most circumstances.

If you do anticipate that your family will need cash after you pass away, the most effective way to provide it is normally to take out a life insurance policy. These policies pay out almost immediately upon learning of death.

Another idea is to open a joint bank account with a trusted family member and to put some money in the account that will only be used in the event of your passing.

Reference: Personal Finance (April 22, 2017) "Will your family avoid a cash-flow crisis on your death?"

Suggested Key Words: Estate Planning, Probate, Wills, Life Insurance

The Danger of Wills

It is easier to get wills today than it ever has been, since forms can be downloaded and filled out on your own. However, that ease has led to many people not understanding the potential dangers of wills.

That everyone should have an estate plan is a principle which most people understand when the reasons are explained to them. Estate plans, even as simple as a will, at the very least can help prevent families from fighting over estates.

Since you do not know when you will pass away, you should go ahead and get an estate plan.

While most Americans still do not have a will, a greater percentage of Americans have them than ever before. It is easy and cheap to get wills today, since you can purchase downloadable forms from several different services.

However, there are some hidden dangers in doing that, as The New York Times explained in "Wills Can Avert Family Warfare, but Have Their Own Hidden Traps."

The biggest issue is that the probate process is different in every state.

Submitting a will to probate for administration, in some states, is very expensive and can take a long time. That suggests that probate avoidance strategies should be used, which could lead some people to utilize a trust instead of a will as their primary estate planning vehicle.

Trusts, however, are more expensive to get than wills and in some states probate is relatively quick and inexpensive. Consequently, trusts may only be needed for people with larger estates.

There are other probate avoidance strategies that can be used, but they also have their drawbacks. For example, retitling an asset as joint property with a child, which is a common tactic, can make the asset vulnerable to the child's creditors.

The best thing to do is to hire an experienced estate planning attorney in your state, so that attorney can help you with the best estate planning strategy for your state and your estate.

Reference: New York Times (April 21, 2017) "Wills Can Avert Family Warfare, but Have Their Own Hidden Traps."

Suggested Key Words: Will, Trust, Probate, Estate Plan

Slayer Statute Limitations

Slayer statutes are designed to prevent people from inheriting the assets of people they have killed, but they have their limitations.

You have probably heard this plotline before. It is a common one that goes something like this: a younger relative of a wealthy person in need of money or just plain greedy, murders the elderly relative to inherit his or her estate or cash out a life insurance policy.

This is more than just a Hollywood fantasy. It happens in real life.

There are even famous examples from history, such as the Roman Emperor Tiberius who was killed by his heir Caligula or so the writer Suetonius alleged.

We actually do have laws that are designed to prevent this from occurring known as "Slayer Statutes."

They generally state that people cannot inherit from those they are responsible for killing.

However, they can have their limitations, one of which the Wills, Trusts & Estates Prof Blog discussed in "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."

In the case discussed, it was not clear what led to the death of the holder of a life insurance policy. The sole beneficiary of the policy was involved in the death and had given conflicting statements.

The beneficiary was not convicted of murder and claimed self-defense.

The deceased's sister sued to claim the policy, but the court decided that since there was some merit to the self-defense claim, the slayer statute did not apply.

Needless to say, it is good that slayer statutes exist to guard against profiting by killing, even if the statutes do have some limitations.

Reference: Wills, Trusts & Estates Prof Blog (April 11, 2017) "Court Determines that Slayer Statute is Not Applicable in Self-Defense Case."

Suggested Key Words: Estate Law

Sued for Saving Patients

The first instinct for doctors and other health care workers, is to do everything possible to save the lives of their patients. That can be in conflict with the wishes of those patients, which is leading to lawsuits.

Millions of Americans have completed advanced medical directives such as health care powers of attorney and living wills. More and more people are taking advantage of their legal options to give directives to health care professionals about what treatments they wish to receive and what should be done to preserve their lives.

While this has empowered millions to take charge of their own end of life care, it has not been without conflict as The New York Times reports in "The Patients Were Saved, That's Why the Families Are Suing."

The problems start when the patients' advanced directives are not followed.

Health care workers, who are either unaware of the directives or uncertain about them, have been known to resuscitate patients who do not wish to be, for example. This had led some families to sue for saving the lives of their sick relatives, which is a new position for doctors to be in.  Most suits normally come when they fail to save patients.

It leaves many doctors bewildered, since the Hippocratic Oath does not suggest that saving a patient's life is ever inappropriate.

Americans deserve to have their advanced medical directives respected and followed. Much thought and consideration goes into the decisions people make about their end of life care.

This is an issue that requires further education and making sure that health care workers are made aware of their patients' advanced directives, so they can be sure to follow those directives.

Reference: New York Times (April 10, 2017) "The Patients Were Saved, That's Why the Families Are Suing."

Suggested Key Words: Advanced Medical Directive, Living Will, Health Care Power of Attorney

 

The Elderly Do Have Sex

Despite what many people want to believe, some elderly people are sexually active. That reality needs to be confronted, so that sexually active elderly people are properly protected.

Absolutely no one wants to think about the possibility of their grandparents having sex. That is somewhat understandable. However, you do not have to think of the act itself, to think about the reality that elderly people do continue to be sexually active.

It is actually very important that we do think about that reality, because it is true.

The unwillingness of people to confront that reality causes problems for the elderly, as USA Today explains in "Yes, your grandmother is having sex."

One of the biggest problems is that elderly people are getting sexually transmitted diseases at increasingly alarming rates.

One of the reasons appears to be that elderly people are far less likely to use condoms than younger people. Some of that might be the result of nursing home policies that often tend to be completely silent on issues of resident sexual activity and thus do not make protection available.

Many elderly people also think condoms are for preventing pregnancy not for preventing the transmission of diseases.

Elder law advocates need to address this issue and insist that nursing homes write appropriate sexual activity policies.

Families should also make sure that their elderly members are informed and protected.

Reference: USA Today (April 12, 2017) "Yes, your grandmother is having sex."

Suggested Key Words: Elder Law

Farmers Need Continuation Plans

One of the biggest questions for family farmers today is, what will happen to the farm after they pass away, especially if their children are not interested in continuing it.

It is not a particularly easy time to be a family farmer in the U.S. Farmers face competition from agricultural imports from all over the world, which leads to lower prices for their products. That is expected to get worse in the coming years.

Even in the best of times, farming is not an easy occupation. It requires long hours of intense labor, despite the many technological advances of the last 100 years.

Farming is also expensive. Land is expensive. Seed is expensive. Equipment is also expensive.

To top it all off, farmers can be ruined by all kinds of bad weather.

It is no wonder that many children of farmers do not want to go into the industry.

That creates problems for farmers who would like to see their operations continue after they pass away, but would also like to make sure their children receive a just inheritance as Iowa Farmer Today discussed in "Good fences make good neighbors."

Farmers need to decide how they should leave an inheritance for their non-farming children. It is a difficult decision whether to leave children the land and equipment or to sell everything off and leave the children the proceeds.

The key to making the decision might be asking the children what they prefer.

Of course, if everyone is uncertain, the children can always sell things off after they inherit, if that is what they want to do.

One thing is certain about farmers: they need estate plans to make sure they handle things in the best way for their families.

Reference: Iowa Farmer Today (April 14, 2017) "Good fences make good neighbors."

Suggested Key Words: Estate Planning

The Family Vacation Home

Many people have fond memories of their vacation homes and would like to keep them in their families, after they pass away. That requires some considerations.

For many people, the best memories they have of spending time with their families is at a family vacation home when their children were still young. On vacation when people have few worries about work, they have more time to develop strong bonds with their children.

People remember these times fondly.

Many people would like to make sure those vacation homes remain in their families, so future generations can have similar experiences.

The Globe and Mail recently discussed some things to consider about how to do so in "How to keep the cottage in the family."

While the paper is Canadian, the considerations are applicable to the U.S. and include:

• Consider any tax implications for your estate and children. Both federal and state estate taxes might need to be paid, as well as property taxes. It is important to ensure that money is available to pay those taxes.
• You might want to use a trust to pass your vacation home down to your family, especially if you have more than one child. A trust can preserve the property for generations and can also take care of any maintenance and property taxes.
• Make sure that your children want the vacation home. One or more of your children might have good reasons for not wanting it and you may need to equalize your estate to give them something else.

Reference: Globe and Mail (April 11, 2017) "How to keep the cottage in the family."

Suggested Key Words: Estate Planning, Estate Tax, Trust

The Beauty of Wills

Wills might seem like a bunch of dry legal words, but they can be quite beautiful, if done well.

The average layperson reading a legal document is unlikely to find it beautiful. No layperson has ever read, for example, a petition to the court in a personal injury case and been struck by the beauty of the document. Even plaintiff's attorneys are unlikely to find a lot of beauty in even the most well written petitions in personal injury cases.

The fact is that most legal documents are dry, technical and unlikely to ever appear in anyone's list of the most beautiful things they have ever read.

But, wills are different.

Wills can be beautiful, as Nasdaq points out in "A Will Can Be a Beautiful Thing."

The potential beauty of a will is not in the actual words themselves.

That much should be obvious, because most wills are, in fact, dry, technical and boring legal documents to read. They often contain formal required language that does not change very much from will to will.

The true beauty of a will is in what lies behind the words.

A will, at its best, tells how a person wants his or her loved ones to be taken care after the person passes away.

It is an expression of caring and love.

A will shows that we have carefully thought about what will happen to the people we love, after we pass away.

That can be a beautiful thing, even if the language itself is dry and boring.

Reference: Nasdaq (April 10, 2017) "A Will Can Be a Beautiful Thing."

Suggested Key Words: Wills