Part two: So, imagine you’re going to die tonight. What would happen?

Here is part two of the depressing series about what happens when you die.  I read this fantastic article, What Would Happen if you Died Tonight, and thought I would put my own spin on it, though it does a great job of laying out the issues.

We all know that we need to do some kind of estate planning, but many of us don’t know what, or how, or even how to find help.  We also know that we don’t really want to think about it, so all of these obstacles can add up to just not doing anything.  Are you one of those who has no plan in place?  Well, then this is the article for you.

What would happen if you died tonight?  What would happen to your children?  Who would care for them?  Would you have several family members fighting for that right and responsibility?  Does your estate have enough money in it to care for your children’s financial upbringing, or will your children be a financial burden on their new caregivers, too?

How about your assets?  Would they be tied up in probate for years because you did not create an estate plan?  Would you put your loved ones through that time, money, hassle and stress because you couldn’t find time to put a trust into place?  Who would get your stuff?  Is there an heirloom ring that your children will fight over because they don’t know who should have it?  Will your family be torn apart by the stress and grief of your passing, and all of the responsibilities and burdens you left for them?

These may seem like drastic and overly-dramatic questions, but if you have ever experienced the death of a loved one, or known someone who has, you know that these are very real considerations.  What would it really be like if you died tonight?  Would you have put your affairs in order to protect your loved ones?  Or will you make them figure it out on their own?

Dispelling the fairy tale: How kids benefit from parents who don’t “stay together for the kids”

This morning I posted an article from the Huffington Post about celebrities that made the decision to divorce when they knew they were pregnant.  I am of the opinion that children can sense and feel tension and hostility in the family, even if it’s a cool hostility.  And I am not alone: at the family law update classes I attend, research backs me up.  Children from intact happy households fare the best, but those in intact unhappy households fare worse than those in homes with divorced parents.  But I still often hear from clients and friends that they want to stay together until the children are in college, or at least until they are “old enough to handle it.”

But what is this teaching out children?  We are teaching them to put others before our own happiness, and indeed, that our own happiness does not matter.  In addition, we are over-emphasizing the importance of marriage and the “fairy tale” of a lasting relationship.  As was so eloquently put by another author on the Huffington Post, we teach our children, by staying together past our relationship’s due date, that being married and unhappy is more valuable than being alone and happy.

Is that really the message we want to send?

So, your spouse has hired a lawyer in your California divorce. What do you do? How to negotiate with OPC (opposing counsel)

One of the most terrifying things you can experience in a divorce is coming into court, expecting the hearing to be between you and your spouse, and finding out that your spouse has hired an attorney.  It can be scary.  Lawyers vary, too, in how they deal with unrepresented litigants.  I am always polite but firm.  I know one attorney who is outright nasty, from calling the other party names to threatening them to yelling at them.  You can’t always expect that an attorney is going to be civil…or even professional, unfortunately.

So, what do you do?  First, if you find yourself in the situation, and you want to or think you can hire an attorney, ask the judge at your hearing to continue (postpone) the hearing so you don’ t have to go forward and get steamrolled by the attorney.  Then get thee some legal advice and/or a lawyer, ASAP!  Generally judges will allow unrepresented parties a break if blindsided by an attorney at a hearing.

Second, if you get an attorney or other help or not, make sure you learn as much as you can about your case and the law.  The more you know, the better decisions you’ll make and quite possibly, the less you’ll pay for your attorney.  Nolo Press has some great books.   Third, remember that the attorney is getting paid to do a job, and is also a person as well as an attorney.  If the attorney is rude or says things you don’t like, it’s not because they have it out for you.  They’re doing their job.  They also may be a fantastic attorney, or they may not be so knowledgeable or experienced.  They may be having a bad day.  They may hate their client.  You just don’t know what’s going on in their head, but if you treat them like you would treat your ex (react emotionally, take offense to everything, or reject everything they say simply because they’re saying it), it’s not going to be productive.

Fourth, remember to keep your eye on the ball (and the bill!).  Don’t spend $1,000 on attorney fees over a $500 stereo.  If the other attorney has a reasonable proposal, don’t refuse to agree to it out of mistrust. I’ve had many clients insist that I draft settlement documents because they didn’t trust the other side.  In certain cases, this is appropriate since the other side might be sneaky. But in many cases, this just isn’t true and by having your own attorney prepare documents, you’re just upping the bill for yourself.

Finally, try to keep it together.  If you tend to be overly emotional, see a therapist.  Lawyers won’t help with this at all.  As soon as you can and as much as you can, try to view the divorce as a business relationship breaking apart.  This is the way the court sees it, so the sooner you get on board, the better.  This may see impossible, but it can and should be done as it will be better for everyone.

Need more help? Schedule an online appointment here or click here for California Divorce Made Easy!

Who needs an estate plan? Top 7 reasons why you need one even if you think you don’t. Part II:

Last time, we talked a little bit about the top reasons why you may need an estate plan, even if you think you don’t.  Here are the last three reasons.

  1. Your children’s guardian.  Have children?  Have you named their guardian?  Is this document posted prominently in your house in case it’s needed?  If you don’t decide on your guardian, the court will.  The court doesn’t know you, your children, your family, or who you think would be most appropriate (or, conversely, who would NOT be appropriate).  You may not have decided on someone, but you’ve probably eliminated some candidates.  When you name no one, no one knows who you have eliminated, as the job is up for grabs to anyone.  Name your preferences or your very last choice could very well raise your children.
  2. Your child’s guardian, part two.  What happens if you’re in an accident and you and your spouse go to the hospital?  Will the police leave your children with the underage babysitter?  No, of course not. If you have not chosen a guardian, and posted that prominently (and told the babysitter), then the police are going to take your children to the police station.  They may very well put your children into foster care while you recover.  While the chance this would happen may be slim, why take the chance?
  3. Other documents necessary.  If you don’t have an estate plan, you’re less likely to have powers of attorney, a living will/advance directive, and other necessary estate planning documents.  These documents generally help you when you become incapacitated and cannot make decisions on your own behalf.  Often a spouse is your first choice, but what happens if your spouse is also incapacitated?  You need to prepare these documents to protect yourself and your wishes from being honored if you can’t speak for yourself.
Convinced?

Talking to your parents about estate planning: how to do it and when to do it

Many of my clients ask me how they can talk to their parents about estate planning. Either they are doing their estate plan and want to make sure their parents are properly protected, or they are learning about the importance of estate planning, and just want to make sure their parents know what they need to do. I’ve talked about this before in a similar article, but I wanted to provide a new perspective to go along with the older article.

First, you are coming from a place of concern rather than a place of greed (“Hey Mom, what am I going to get?!”). You know that they don’t want to put themselves into a situation where they are not taken care of in the way that they want to (for example, if they don’t have proper powers of attorney in place). You know that they want to do all they can to help you and your siblings and/or their grandchildren. You know that they are probably concerned about leaving a legacy to their family and to the world. While we don’t think about this much when we are younger, nearly all older adults worry about leaving a legacy. Part of my estate plans with all of my clients, from San Jose to Novato, includes a place to record not just where the finances go, but how the important personal items are distributed, passing down important genealogical, medical, military and personal histories. You know your parents want to do this, so you want to make sure they know how.

Second, parents will always be parents to their children, so you can bet that they want to continue to take care of you as much as possible, even after they are gone. The probate process, which is what will happen if an estate (in California is worth $100,000 – not taking debt into account) passes without a living trust, is a burden on you and your siblings. It’s time-consuming, expensive, and adds an incredible additional burden to you at their death, which will be hard enough as it is. By encouraging your parents to create an estate plan, you are helping them to continue to take care of you after they are gone, which is what all parents want.

A great time to discuss estate planning is (1) now, since you’ve read this article (send them the link! Isn’t your mom always sending you newspaper clippings? I know mine is…), or (2) when you do your own estate plan. Talking about your experience can be a great conversation starter.

It doesn’t have to be a tough conversation, but it is a necessary one.

Divorce and the sleepover with the new boy-/girlfriend: When is it ok when there are children in the house?

The divorce process can take years, literally. In addition, in many cases, the relationship is long over by the time the couple pulls the trigger on the divorce paperwork. In the Bay Area – in California – the waiting period is six months, which means that a couple cannot be divorced earlier than six months after the divorce Petition is filed. But some divorce cases – I had one recently out of San Ramon – can be resolved in a matter of weeks, and the paperwork is just a little slower. Other divorces – like one client I have from Oakland – can go on for years and years.

So, with those varying timetables, in many cases it seems inevitable that one or both parties will move on into other relationships. Also inevitable is what the parent is to do when faced with the dilemma of when to allow the significant other to sleepover or, perhaps more difficult, when to allow the ex’s significant other to sleep over. Here are some tips to consider:

1. Just because it’s too soon for you may not mean it’s too soon for your ex or your child(ren).
2. Making it a big deal makes it a big deal.
3. Try to understand your child’s point of view, and then determine how to react. Children can be very adaptable, so the change from dates to overnights may not make much difference to the child.
4. If you can, get to know the significant other. And don’t interrogate your child to do so. Simple, non-threatening questions about whether your child likes the significant other, and why, what they do together, how much time they spend together, and what they talk about will be sufficient. Don’t make it an agenda about your ex! Make sure you’re asking to determine the relationship the significant other has with your child, because this is the important part.
5. Take into consideration the age of the child, as well as the child’s maturity, always bearing in mind that it is likely to be much more traumatic for you than your child.

It’s inevitable that it will happen sometime, so you might as well make it an easy transition now. Plus, the better you react, the more likely your ex will react well when it comes time for you to have a sleepover.

The probate process in California

Many people know that it is wise to create an estate plan that allows your estate to avoid probate when you pass away.  But few know or understand why probate it something to be avoided. One of the ways to understand it is to take you through the process of what happens when someone passes away.

For our purposes here, imagine for a moment that it’s not you that is passing away, but rather your closest family member – except for this discussion let’s choose someone other than our spouse.  Take a quick moment to think of how difficult that would be to lose someone you love so dearly.  And now, imagine all that there is to do when someone passes away:

  1. There’s the funeral, which generally happens pretty quickly and plans are made within hours of the death.  There are decisions to be made about clothing, caskets, scheduling day and time, who will read, what will they read, will there be a gathering afterwards, will there be food, where will it come from, who will be invited…it’s overwhelming.
  2. Then there’s the will – is there one?  The life insurance, the retirement accounts, the bank accounts.  You go to the house: do you know where your loved one keeps the important documents?  Would you be tearing apart the desk, the file cabinet, the drawers?  What would you find?  How would you feel about having to search?

REMEMBER:  This is all in the first few hours and days after the death, at a time when the loss is most shocking, most raw, and most difficult to deal with.

  1. Once you find the documents – did you find them? – you have to figure out how to transfer the property, and generally – without a plan – this means the probate process, which we’ll talk about in a minute.
  2. In come the lawyers, the lawyer’s fees, the appraisers – the strangers, in your home, in your life.
  3. To transfer the property, the pay the debts, to sell the house – or even transfer it – to get access to the bank accounts…all of these things can take weeks, months and years.
  4. The probate process, which is the court procedure for transferring your property when you don’t have an estate plan or have just a will, is a long, arduous process.  It involves:
    1. Multiple court hearings and appearances, lawyers, accountants, appraisers…
    2. A timeline of 2-3-5 years…or more
    3. Cost:  A huge cost.  Probate fees and costs can take up to 8-10% of your gross estate – that’s your assets not including your debt, so if you have a house worth $300,000 and nothing else, probate fees can be up to $30,000
    4. You have – your family has – worked your entire LIFE to create and build your estate.  Why give it to lawyers and courts?

In the probate process, while the cost is a big consideration, the time is also key because you and your family need and want to move on from the death and the grief, and when the probate process continues on for years and years – and you can’t sell the house, and you can’t get access to the accounts, then it drags out the normal emotional process way beyond what is healthy.

Does this sound like something you want to go through?  Something you want to put your family through?

Now, what if I were to tell you that there is a BETTER WAY?  A way to avoid ALL of this trouble?  We’ll go through this again in the next blog post…stay tuned!