Klitzman Law Group, PLLC

What Is Needed for End-of-Life Planning?

Becoming incapacitated or dying without planning isn’t uncommon. Nevertheless, it is harmful to loved ones who are left to address the legal and financial aspects at the same time they are experiencing the grief of loss. What needs to happen is addressed in an article from Twin Cities Pioneer Press, “Your Money: A balanced approach to end-of-life planning.”

End-of-life care is expensive. Costs rise as the person moves through the different stages of illness or age. Medicare doesn’t cover long-term nursing care in a facility or at home, so resources without planned protection will rapidly be exhausted. An estate planning attorney can help the family prepare for these costs, but only when planning takes place in advance.

Once incapacitated, people cannot legally sign and execute legal documents. If the family hasn’t arranged for a Power of Attorney or Medical Proxy to be created while the person is still legally able, the family may be faced with the additional expense of going to court to petition for guardianship and/or conservatorship.

There are five basic estate planning documents to be prepared. While every adult should have these documents, they become more critical when someone is closer to passing.

Last will and testament. A will directs how you want your assets to be distributed upon your passing. It may include personal property, real estate, jewelry, family heirlooms and any other material goods. Note the will becomes a public document when the estate goes through probate, so don’t include any account numbers or information you don’t want to read by others.

Healthcare directives. Privacy laws are strict, and healthcare providers are limited in what they can discuss with spouses and children if the right documents are not in place. A Medical Power of Attorney or Healthcare Proxy is needed for family members to be involved in medical decisions. A HIPAA Release Form should be created to access health care and health insurance records.

Many accounts, including bank and investment accounts, IRAs, SEPs and life insurance policies, have beneficiary designations, where a person or persons are named to receive the asset upon the original owner's death. Make sure these are up to date to reflect the owner’s wishes.

Trusts take assets out of an estate for tax and wealth transfer purposes. The person creating the trust dictates how and when the beneficiaries should receive assets. Distributions can occur over an extended period or when certain conditions are met.

Meet with an experienced estate planning attorney if you or a loved one is ill and may be approaching the end of life. Putting an estate plan in place ensures that wishes are fulfilled and spares the family from having to guess what a loved one would have wanted in their final days.

Reference: Twin Cities Pioneer Press (Oct. 12, 2024) “Your Money: A balanced approach to end-of-life planning”

How to Create an Estate Plan with a Blended Family?

Blended families are not as unusual as they used to be. However, the financial and legal challenges of combining two families haven’t changed. If your future includes a combined family with stepchildren and stepparenting, the recent article from Kiplinger, “How to Navigate Finances as a Blended Family,” has useful information to consider.

Prenuptial Agreement. A prenup is used to clarify expectations regarding assets and debts. How assets are to be divided between children from past marriages or any future grandchildren can be addressed in a prenup and your will. If you come to the marriage already owning a home or a business, a prenup should be used to clarify your future spouse’s ownership interest. If your spouse-to-be has debts, a prenup covers how premarital debt will be handled.

Shared Expenses. Hoping financial matters will work out themselves is not a plan for a blended family. Will you set up joint checking accounts? Who will be responsible for biological or adopted children’s expenses from prior marriages? What expenses will be split? Single parents of college-age children need to know that if they marry, both spouses' incomes are used on applications for financial aid.

Estate Planning Updates. Everything related to estate planning, from your will, trusts, insurance policies and health care directives, must be updated when you marry again.

Your will must be updated to reflect your wishes for assets to go to children from a prior marriage and your spouse. It’s easy for children to be disinherited in a blended family, requiring special attention. If there is no will, the state’s laws will be applied. This may not be what you wanted.

Beneficiary designations need to be updated. The person named as a beneficiary on accounts like IRAs, SEPs, pensions and life insurance policies receives assets directly, regardless of what the will may state.

You may want to establish a Revocable Trust to take assets from your “probate estate” and provide for children. Your new spouse may be the trustee, or you may choose an adult sibling to administer the trust. You may want to update the trustee or beneficiaries if you have trusts.

Medical directives must be updated so your new spouse can be involved in your healthcare. Privacy laws are strict, and a new spouse might be shut out from making healthcare decisions without new documents. These include a Health Care Proxy, also known as a Medical Power of Attorney, HIPAA Release Forms and Living Will. Your estate planning attorney will know what documents are used in your state.

Estate planning is not as romantic as planning a wedding. It is still a sure signal to your intended and your family to prepare for a future based on responsibility and caring.

Reference: Kiplinger (Oct. 18, 2024) “How to Navigate Finances as a Blended Family”

Can an Invalid Will Be Challenged?

If you are looking for a reason to get your estate plan in order, the experience of a daughter faced with a long and expensive legal battle when an invalid will was filed should motivate you to contact an estate planning attorney today. This unsettling story, reported by KATU2, “Woman says invalid will drained her mom’s estate and exposed holes in OR probate process,” shows why wills need to be updated and shared with family members.

 

A woman’s mother died suddenly in her daughter’s apartment. A few months later, a will was filed and accepted by the probate court but not by the daughter. It took nearly five months for a judge to throw out the invalid will after it went into effect.

The will expressly disinherited the daughter, who was very close with her mother and knew her mother would never have disinherited her. Her attorney filed to contest the will in June 2023.

The witness and the notary on the will were identified and interviewed. Both said they never signed the documents. The witness and notary filed their statements with the court in July. A handwriting expert who testified that the two signatures had been forged was brought in.

The handwriting expert also determined the mother’s signature on the will was forged, finding it had been taken from a legitimate will created in 2018. Kristy was left a quarter of her mother’s estate in this will.

The judge set a court date for September. In the interim, thousands of dollars were charged fraudulently on the mother’s credit cards. Someone advertised and held an estate sale in August when generations of heirlooms were sold at a garage sale.

The court froze the entire estate in late August. The 2022 will was found invalid in early September, and the executor was removed. By this time, however, a lot of irreparable damage had been done.

The court validates a will during probate. However, something went wrong in this case. Having a will prepared with an estate planning attorney and discussing the process with the appropriate family members should take place. However, not every family takes these steps.

The court is not responsible for contacting the beneficiaries to ensure that they receive their inheritance, unless they file a will contest with the court. It is then up to the heirs to prove a will’s validity.

In this case, both the beneficiary of the invalid will and the attorney representing the executor of the invalid will have refused to speak with a KATU2 reporter. So far, no charges have been filed. The only sure thing is that the case is under investigation by the county sheriff.

Keeping a will current and maintaining open lines of communication between the family, the executor and the estate planning attorney helps to avoid this kind of situation.

Reference: KATU2 (Oct. 14, 2024) “Woman says invalid will drained her mom’s estate and exposed holes in OR probate process”

Estate Planning Lessons from Mickey Mouse and Cinderella

At the center of every fairy tale is a human story centered around basic life experiences, as any English major will tell you. Therefore, it’s no surprise that the stories and characters from Disney hold life lessons for estate planning, as described in a recent article, “9 Estate Planning Lessons From Disney Movies,” from Forbes.

For a blended family story, look no further than Cinderella. When her father died and left his estate to an evil stepmother with two equally wicked daughters, he may not have thought of the impact it would have on poor Cinderella. By structuring the estate plan to provide for his daughter from the first marriage, he could have prevented Cinderella from being economically dependent on her stepmother. Leaving a portion to Cinderella and the remainder to the stepmother could have ended the story long before the prince entered the picture. Putting assets into a trust for Cinderella and naming a neutral party as trustee is another option her father could have explored.

Snow White’s seven dwarfs is a tale of planning for dependents. Each dwarf has their own behavior traits and needs, just as children do. For minors or children with special needs, unique circumstances need to be addressed by estate planning. Parents need to put a clear guardianship plan in place to protect dependents and be sure they are cared for by people who understand their needs. Without a plan, which includes a will naming guardians and a Special Needs Trust if appropriate, the court may appoint a guardian who might not be a good fit for the child. Establishing trusts can ensure that funds are available for education and living expenses, adding another person looking out for the child.

Who better represents incapacity than Sleeping Beauty? Facing a health crisis in which people can’t make their own decisions requires planning. A financial power of attorney and healthcare proxy ensure that someone you know and trust will be able to act on your behalf if you should eat a poisoned apple and fall into a deep sleep. By planning for incapacity, you can prevent court intervention and ensure that your healthcare choices are followed.

The Princess and the Frog exemplifies the need for good business succession planning to ensure that the business has a future. Does a business owner want to pass the business on to the next generation or sell it? This requires planning for taxes and estate planning. How should assets be gifted to minimize tax liabilities?

Failing to have an estate plan often leads to a sad ending for family members. Without it, there’s no guarantee of a kind-hearted prince or magical enchantress stepping in to make things right. Consult with an experienced estate planning attorney to protect your children and yourself from the twists and turns of life.

Reference: Forbes (Sept. 27, 2024) “9 Estate Planning Lessons From Disney Movies”

Can I Make My Dog My Beneficiary?

Wanting to care for your pet after your passing is business as usual today. Twenty-nine states have pet trust laws, and every state has some guidelines, reports a recent article, “Can you leave your estate to your pet?” from CNN. Pet lovers can leave assets to a pet in several ways.  How you do it depends on your state.

 

The success of your plan may also hinge on whether your family might challenge your decision. Pet inheritances have been challenged in court, and sometimes, the pets lose.

Animal companions are considered property, so you can’t leave them money directly. Here are some questions to consider while creating a plan.

Do you want your pet to live in your home? Your pet can’t inherit the house. However, their named guardian could, along with funds in a special trust to support the home’s maintenance as well as the care of the pet. The catch: the guardian is not bound by law to follow your requests.

Does your family support your wishes? Estate planning attorneys warn people who want to protect their pets and don’t want to leave anything to their children or grandchildren to anticipate challenges. You’ll need to make this wish and the reasons for it extremely clear. Document specific reasons and even incidents occurring to increase your chances of success after you’ve died.

For most people, a pet trust is a reasonable option. The trustee creates a legally binding obligation to use the funds only for the pet’s benefit. The actress and widow of Star Trek creator Gene Roddenberry, Majel Barrett-Roddenberry, created a $4 million trust for her dogs and left $1 million for an employee to care for them before she died in 2009.

Can you be sure that your plan will work the way you want it? Estate planning attorneys tell people who want to protect their pets to name one person as the trustee for the financial assets and a second person as the caretaker. It’s more likely that your wishes will be followed if two people balance responsibilities. If a caretaker has a financial emergency, for instance, they might be tempted to use funds for their own needs. Put money for the pet into a trust with a trustee who is a fiduciary legally obligated to put the needs of the beneficiary of the trust over their own.

There is another alternative to consider. Some animal protection groups run no-kill shelters with programs specifically designed to take over the lifetime care of animal companions after their owners have died. The programs usually require a financial donation for the pet's future care. The shelter does its best to find a forever home for the pets, so they don’t spend their lives in the shelter.

To ensure that your wishes for your beloved animal companions are followed, seek the advice of an experienced estate planning attorney who will know the best way to create a plan to protect your pets.

Reference: CNN (Sept. 14, 2024) “Can you leave your estate to your pet?”

Why Does Young Family Need an Estate Plan?

If you thought estate planning was just for grandparents, think again. Families with young children should have an estate plan. In fact, they should start working on their estate plan as soon as they know they’ll be welcoming a new member into the family. A recent article from Chronogram, “Why Estate Planning Is Important for Young Families,” explains why this is critical to protecting children.

 

Without a will, the court will make all kinds of decisions about the children’s lives, from who will raise them to how their living expenses will be paid. The decisions may not be what the parents would have wanted. Family members will still need to undertake expensive and stressful litigation if they want to go against the court’s recommendations.

The Last Will and Testament is used to distribute assets after the owner dies, including the primary residence, bank and investment accounts and personal property. Without a will, the state law determines what happens to the property. Let’s say someone dies with a spouse and young children. In some states, the spouse automatically receives the first $50,000 in value. The rest is divided equally between the surviving spouse and all children.

What happens if the children aren’t old enough to inherit property? Minors are not legally permitted to receive property, including ownership interest in real estate. If there is no will, the court appoints a guardian for the child. This can lead to unnecessary costs and delays in managing the ownership of the home. Having a will where each spouse leaves their property to the surviving spouse prevents this situation.

Wills are also used to appoint guardians to take care of children in the event both parents pass away. Guardianship refers to the person who will raise the children, which is different than managing the financial assets for the children’s living expenses. Parents are often advised to name a person other than the guardian to handle support for the children. Proceeds from life insurance policies, investment accounts, etc., may be better managed by a second person. A trust may need to be created and funded for these assets.

The role of the executor is especially important where minor children are involved. An executor overseeing the management of an estate when small children are involved needs a different mindset than someone distributing assets after the death of elderly parents. Another reason parents of young children must have a will and name a responsible executor is to protect the children’s futures by making sure that resources needed for the children’s support aren’t squandered because of family fights over the estate.

An experienced estate planning attorney can craft an estate plan to fit the family’s needs and protect the surviving spouse and children. There’s no need to leave the decisions up to a court when having a will and related estate planning documents can be prepared to protect the family.

Reference: Chronogram (Sep. 10, 2024) “Why Estate Planning Is Important for Young Families”

How Does Estate Planning Protect Couples with Big Age Gaps?

A decade-sized age gap doesn’t seem like much when you are 38 and he’s 57. However, as you get older, the age difference can lead to challenges, including those concerning estate planning and long-term care. There needs to be enough resources for the surviving spouse if the older spouse passes first, which isn’t always the case. According to a recent article, “Estate Planning for May—December Couples,” from Next Avenue, finances, wills and estate plans must consider the age difference.

The U.S. Census Bureau reports the average age gap in traditional marriages as 3.69 years. However, in some Western countries, about 8% of all traditional couples have an age gap of 10 years or more.

One couple had a nearly 20-year age gap when they sat down with an advisor. The husband had three grown children from a prior marriage and didn’t want to put his second wife’s financial security in jeopardy if he should die first. His will needed to be drafted so she would inherit the home outright, while also providing his three children with an equal share of remaining assets after a certain period.

Naming someone who is not also a beneficiary to be the executor of your estate may be especially helpful here. Someone who isn’t going to benefit from an inheritance may be more objective about how assets are distributed. During their years of practice with families of all types, experienced estate planning attorneys see all kinds of family situations, including couples in subsequent marriages with large age gaps. They can help navigate the best way for wealth to be distributed to protect both the younger spouse and any children from prior marriages.

A few essential tasks:

Review and update beneficiary designations on accounts like life insurance, retirement accounts and other assets.

Be clear in conversations about your intentions for personal property and document your wishes in your will. Family disputes over heirlooms, regardless of their value, can happen if you haven’t put those wishes in writing.

If the older spouse dies and the young one remarries, it’s possible the new spouse could inherit the older spouse’s assets unless good estate planning is done. The older spouse may consider leaving assets in a marital trust designed to benefit the surviving spouse. This way, the surviving spouse has access to funds as needed. However, upon the surviving spouse’s death, the assets go to the older spouse’s other beneficiaries.

Couples should always have a Power of Attorney, Health Care Power of Attorney and Living Wills created when working with an estate planning attorney. The medical power of attorney allows another person to make medical decisions in case of incapacity. A Living Will outlines what treatments you do or don’t want if you are terminally ill or injured. These documents vary by state and, just like your will, should be personalized to reflect your wishes.

Reference: Next Avenue (Sep. 5, 2024) “Estate Planning for May—December Couples”

Estate Planning Success Supported by Speaking with Heirs

Because we are reluctant to discuss wills, many families only learn what their loved ones want to happen with their property after funeral services, and grief has made everyone fragile. A recent article from Success, “Will Power: Why Transparency in Estate Planning Matters,” explains how family members can share their wishes with loved ones during difficult times.

People not used to dealing with large sums of money may not have plans for tax-efficient wealth transfer. This includes parents who have devoted their lives to saving for retirement and need a plan both to use their accumulated wealth and pass it on to the next generation. Without an estate plan, inheritances could be diminished or lost entirely to taxes.

For beneficiaries, knowing they may be receiving an inheritance should lead to advance planning. Inherited IRAs, for instance, need to be inherited and retitled correctly, or the entire amount could be subject to taxes. Anyone expecting to inherit assets should speak with an estate planning attorney to learn what steps they need to take beforehand.

Discussions about inheritances and last wishes are opportunities for families to connect on a deeper level than planning a Thanksgiving menu. Providing ample time to have these discussions can also allow families to work through any issues before it’s too late.

These are not easy conversations. They may not be possible for every family. Another option is to create a personal message via video or write a letter explaining your intentions. Whichever way you decide to communicate your wishes, it doesn’t need to be an overly long message. A simple explanation of what you’ve decided and why may be enough.

When you create an estate plan, start by inventorying all your assets, checking how they are titled and finding out which assets have beneficiary designations. Assets like life insurance policies, investment accounts and some bank accounts with beneficiary designations pass directly to beneficiaries and are not included in your probate estate. Check on beneficiary designations to make sure you’re not leaving a surprise present to a college pal you haven’t spoken to in three decades—unless you want them to receive a surprise.

Be especially careful if you decide not to give your heirs equal distributions. This can often lead to litigation against the estate, assets lost to legal fees and damaged family relationships. Your estate planning attorney will have strategies for how you might distribute your assets to be fair to all of your loved ones.

Surprises are good for birthday parties but bad for estate planning. Revealing a hidden secret in a will after you have passed will shadow your legacy.

If you haven’t updated your will in more than three or four years, now is a good time to tackle this task. Include your new, up to date will in a folder with other documents, including Power of Attorney, Living Will, Healthcare Proxy and other estate planning documents. Ensure that your executor knows where the folder is, so it can be accessed in case you become incapacitated or pass.

Having an estate plan created by an experienced estate planning attorney, who will be able to guide you through the process, is a gift to the family. You’ll enjoy the peace of mind of knowing you did the right thing.

Reference: Success (Sep. 12, 2024) “Will Power: Why Transparency in Estate Planning Matters”

How Divorce, Death and Timing Impacted the Results of Shannen Doherty’s Estate Plan

While there are some things we cannot control, having an estate plan in place and getting divorce documents finalized are two things we should do our level best to manage. The aptly titled article, “Shannen Doherty’s Estate: When Timing is Everything” from Wealth Management, explains how preparation matters.

Known for her roles in Beverly Hills 90210 and Charmed, Shannen Doherty passed away after battling breast cancer. She filed for an uncontested divorce from her husband, Kurt Iswarienko, one day before she died. He signed the agreement the very next day, making the divorce final.

The timing meant that Doherty’s assets were distributed according to the terms of the divorce settlement and her last will and testament. A finalized divorce meant Doherty regained control over assets, so they could be passed to beneficiaries according to the directions of her estate plan.

If her now ex-husband hadn’t signed the divorce papers, the outcome could have been very different.

When someone dies during an active divorce proceeding, the process of the divorce either stops or is changed. If the divorcing couple didn’t have an estate plan, the decedent’s estate would be treated as if there was no will, known as being “intestate.” In a community property state, the surviving spouse would have a claim on the estate.

In Doherty’s case, any residuals from her work earned while they were married would be considered community property. Litigation would be likely, as the two were engaged in a battle in the weeks before she died. Doherty was seeking temporary spousal support as the residual income from Charmed (via streaming services) would no longer be available after June 30, 2024, due to it being pulled from streaming. She accused Iswarienko of earning millions and withholding income information.

Had he not signed the divorce papers when he did, he could have had a claim for the estate, which included a $6 million home in Malibu.

In California, if a spouse dies in the middle of divorce proceedings, jurisdiction moves from family court to probate court. People in the process of divorcing should ask their estate planning attorney what their state’s laws are regarding this issue to be sure they protect their estate, regardless of their age and stage of life.

Preparation for the unexpected is another reason people are encouraged to have estate plans in place. Establishing trusts, having a last will and testament, Power of Attorney, Healthcare Proxy, Living Will and other documents are all needed to ensure that your wishes will be followed and your loved ones cared for.

Reference: Wealth Management (Aug. 13, 2024) “Shannen Doherty’s Estate: When Timing is Everything”

Changes to Estate Plans After the Death of a Spouse

The passing of a spouse is one of life’s most stressful events, topping the list of most mental health checklists for anxiety-creating experiences. Preparing for the inevitable passing of both members of a couple can provide some comfort, as it will eliminate some tasks during a difficult time. It’s important to build in answers to “what if’s” into an estate plan, advises a recent article from The Penny Hoarder, “How to Change Your Estate Plan After Your Spouse Dies.”

It’s easy to procrastinate estate planning. However, even if you have a will, as 1.3 million Americans do, you’re not finished. Regular updates of your estate plan to reflect new circumstances are necessary, especially upon the death of a spouse. It’s complicated to do this when grief is fresh. However, it becomes manageable by taking this task one step at a time.

Married couples typically create their estate plans together, with the understanding of one spouse outliving the other. Being realistic about who is likely to die first sounds a bit morbid. However, it should be taken into consideration. Males tend to have shorter lifespans, while people who live with chronic conditions, like diabetes, heart disease, or cancer, should keep the impact of their conditions in mind when making plans for the distant or not-so-distant future.

Powers of Attorney should be updated every few years. This is the person chosen to handle financial and legal affairs in case of incapacity. In most cases, this is assigned to a spouse, so it should be updated soon after the spouse passes. The power of attorney does not have to be an adult child but should be trusted, organized, and financially savvy.

Another document to be updated is the Healthcare Proxy, sometimes called a Medical Power of Attorney. An adult child living nearby, a trusted friend, or another relative needs to be named and the document executed in case you should become incapacitated. This way, someone can act on your behalf without going to court to obtain guardianship.

Wills and trusts need to be updated. With your spouse's passing, your estate may now be vulnerable to estate taxes on the state and federal levels. Who do you want to inherit your property from, and what’s the best way to pass assets on to the next generation? An experienced estate planning attorney will be needed to make this happen most efficiently and expeditiously.

After a spouse passes, you’ll also want to review beneficiaries on life insurance, retirement accounts and any accounts with a named beneficiary. If these documents have contingency beneficiaries who receive the assets, you'll be in good shape if the primary beneficiary has died. However, do you know for sure the accounts are structured this way? Reviewing all these accounts is surely a good idea.

It may be time for the estate to include a trust. The most significant change occurring when a spouse dies is the surviving spouse is now legally considered single. All states have laws about how much assets may be owned to qualify for Medicaid. This number is dramatically lower for a single person than for a married couple. The surviving spouse may need to put their assets into a trust to exempt some assets that would otherwise need to be spent down before qualifying for Medicaid.

This is also the time to review end-of-life documents, including a Living Will and other medical directives.

There’s no way to make the loss of a spouse easy. However, taking these steps to protect the surviving spouse and their heirs will provide some peace of mind.

Reference: The Penny Hoarder (Sep. 5, 2024) “How to Change Your Estate Plan After Your Spouse Dies”