Estate Planning 101: Putting your affairs in order – what documents to collect to save your family

Generally, we think of “putting our affairs in order” as something we do after we get the terminal illness diagnosis from the doctor.  There are many reasons not to wait for that time to get your affairs situated, but I’ll leave that for another time.  Today I want to talk about what it actually means to get your affairs in order. First, though, let’s see why it’s important:

Have you ever been the one “in charge” after someone has died?  No?  Imagine this: your nearest and dearest loved one has passed away.  You’ve talked to the hospital and picked a mortuary, so that’s a process that’s been started.  It’s really hard to talk about your loved ones “body” or “remains” while you’re still trying to process the loss in the first few minutes or hours.  But then you feel like you have to DO something, so you head to the house to see if you can find the “important papers.”  Two things can happen at this point:

Scenario one is that you arrive, and already know where the estate plan is, and head right for it.  With it are all of the life insurance policies, retirement and bank accounts, instructions, pre-need funeral planning receipts and contact information, and smaller things like an address book to get in touch with all his/her friends, a locked box (which you have the key) with all of the computer passwords, safe combinations and the like.  There seems to be a lot to do, so you contact the estate planning attorney, who, after asking you a couple questions, says, “there’s nothing to worry about and nothing to do.  Take care of you, your family, and the final arrangements.  Then call me back in a couple weeks if you have questions, but the instructions should all be there…just don’t worry about it now.”  So this is what you do, as you start calling friends and family members and bracing for the days ahead.

Scenario two is that you arrive, and don’t know where anything is.  Does s/he even have life insurance?  Where are the bank accounts?  Was there a will?  Where is it?  You start tearing apart the desk, closets, cupboards,…and find nothing.  Now you’re grieving, in shock, have a million things to do, and now you can’t find anything.  This adds to your stress, so you call in other family members, who are now tearing apart the boxes in the garage.  Everything is chaos, and still no information.  It’s overwhelming to the family.

Which would you prefer your loved ones experience?

The former?  GREAT choice.  Now, here’s what to put in the file:

1. Your estate plan, with trust and will.
2. Your powers of attorney.
3. Your life/long-term care insurance information.
4. Your retirement information.
5. Bank account information.
6. Pre-need funeral planning documents.
7. Investment account documents.
8. Deeds of property, such as homes, vehicles and boats.
9. Health, disability, auto and property insurance documents.
10. Income source documents (social security, employment, investments, child/spousal support).
11. Credit card statements and evidence of other debt.
12. Important papers, such as marriage/birth/death certificates, passports, tax returns, military or genealogical records.
13. Names/contact information of trusted professionals, such as accountants, lawyers, financial advisors, gardeners, house cleaners or caregivers, home repair professionals (electrician, plumber, roofer, chimney sweep, etc.).

And one final thought: make sure you have at least one trusted friend or family member who knows where it is and what’s in it.

Need more information? Contact us today to schedule your free estate planning consultation.

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What happens if you can’t take care of your children: important estate planning for parents

Say you’ve gone out to dinner with your friends or your spouse or your new beau. The kids are at home with the babysitter, someone you trust but who’s just a teenager. On your way home, you take your eyes off the road for a split second and you get into a car accident. When you’re taken to the hospital, unconscious, the police are going to go to your house to check on your children. When there’s nothing in writing saying who should take your children in the event you are incapacitated (I recommend posting this on the refrigerator), then the police can take your children – because you can be assured that they will not leave your children with a young babysitter. The Nomination of Guardian can prevent this.

Your Nomination of Guardian states who you want to care for your children if you are not able to. It can be temporary, such as after an accident, or permanent, such as if you pass away. It is critical to have so that you do not have a gap of time in which your children are taken to the police station and sent out to foster homes until the situation resolves itself.

In the case of a divorce or other child custody case, it takes on a new significance because now there are two households involved. BOTH parents should have a custody and visitation agreement readily accessible to them and their child caregivers, and the agreement should be as specific as possible – even if the couple is agreeing and cooperating with each other – to break the “tie” in the event of a dispute. If the agreement/order says, “visitation as the parents agree,” then the police will not enforce that vague order. With a nomination of guardian, if the couple has already chosen one, both parties have to (1) understand that the other parent will be the guardian if something happens to them (unless there are issues of substance abuse, domestic violence, or some other issue that limits custody/parenting time for one parent), and (2) that the person the couple picked when they were a couple might not continue to be appropriate. Because the couple is now separated, there is a significantly lesser chance that they will die together, but that doesn’t mean a nomination of guardian is less important. Each parent needs to decide who THEY think will be the most appropriate person, and create a document memorializing that.

Don’t wait.

Estate planning 101: Why creating your living trust isn’t enough

The centerpiece of any good estate plan is your living trust.  This is the document that allows your estate to pass without going through probate, paying 8-10% of your gross estate in fees and expenses, and forcing your family through 2-3 (or 5-6) years of court appearances, lawyers and judges making decisions about your property.  Proper estate planning can also help you to minimize or eliminate estate tax.  Having no estate plan or having just a will won’t do this.

But proper estate planning includes other consideration and critical documents as well, and should not be overlooked in your planning.

1. FUNDING your trust. All of your assets – yes, all of them – should be titled in the name of your trust. Hopefully, your estate planning attorney transferred your real property (house) into the trust, but generally, you are responsible for transferring the rest of your assets, such as bank accounts, stocks, and life insurance. At our firm, we even help you with this because it’s so important.
2. Pour-Over will.  You still need a will, even if you have a living trust, because anything that is not in your trust will need to go into probate.  There are a couple important things to know about your pour-over will.  First, it includes your nomination of guardian, so this in itself is a reason why it’s so important.  Second, while you will be funding your trust with all of your property (and thus will not likely need a will), things can happen where you are not able to put your property in your trust, such as when you are the subject of a wrongful death suit or if you don’t have possession yet of the property before you pass away.  Third and finally, the will is called a “pour-over” because pours over anything probated into your living trust.
3. Powers of attorney.  You need powers of attorney, one for your property/assets and one for health care. Powers of attorney go into effect when you are still alive but you are incapacitated due to illness or accident.  These determine who will be making medical and care decisions on your behalf (and paying your bills) when you are unable.  These are key because, if you wait until you are already incapacitated to get one, then your family must go through the court process of getting a conservatorship, which is lengthy and expensive.
4. Assignment/Distribution of Personal Property.  These documents first put all of your personal property (your furniture, cars, pets and other personal belongings) into your trust, and then list how they will be distributed upon your death.  These are important because often the biggest arguments after you are gone are about the smallest things, like the jewelry and china.  Don’t leave your family fighting because you didn’t leave instruction.
5. Certificate of Trust.  This is the four-page summary of your trust that you will use to transfer your property into your trust.  Instead of having to take the whole binder, or even the whole 30-page trust document into the bank – and share the detail of the contents – you use the four-page summary that maintains your privacy and makes it much easier to copy and share with your account holders.

In addition to these documents, I consider it part of my job to help you ensure that ALL of your affairs are in order.  This includes your pre-need funeral arrangements, ensuring you have enough life insurance, that you have long-term care insurance, and are doing what you need to do now to have the retirement that you want.  These additional services are not provided by me and I don’t get anything for referring someone to you.  But I have spent lots of time getting to know the best professionals in each of their respective businesses, because I want to refer you to only the best to be able to take care of all of your needs.

If your estate planning professional is not providing all of these services – and more (follow up, ongoing communications, updates on law, etc.) – then perhaps you should reconsider who you are talking to, or at least ask some questions.  Your family is worth it.

The intersection of estate planning and divorce: a checklist to avoid disaster

Often, after the time, expense, and emotional upheaval of California divorce (as well as moving, adjusting to life as a single person/parent, dealing with tightening finances…etc. etc.), the last thing on anyone’s mind is estate planning.  Yes, it’s one of the things on the list of things to do…later, when you have time.  When you’re emotionally ready to think about it.  Right?  Well, the reality is that just post-divorce IS the best time to do estate planning.  Why?

1. Because it’s on your mind since you’re working to get the rest of your life in order.
2. It’s critical to get your ex-spouse off of your accounts and as your beneficiary.  You really don’t want him/her inheriting from you, do you?
3. It’s really not that hard, and in fact rather than being draining or difficult, can not only be empowering but help you to really feel like your life has restarted.

Here are the key estate planning items you need to take care of post-divorce (and note you probably can’t do these during your divorce due to the ATROs):

1. Create a new (or initial) living trust and will to protect your assets and your beneficiaries.
2. Cancel any old estate plans.
3. Sign a new power of attorney for asset management.
4. Sign a new health care advance directive power of attorney.
5. Designate the guardian for your children should you pass away.
6. Get new life insurance to meet your (and your children’s) needs.
7. Update the beneficiary on your life insurance, retirement accounts (401Ks, IRAs, etc.) and other payable on death (POD) accounts.
8. Make sure your assets are retitled in your name only.
9. Let people know you’re no longer divorced, like banks, health care providers, and other trusted advisors so no one gives out personal or confidential information inadvertently.
10. Talk to your parents about estate planning, the importance, and how it will help everyone if they create an estate plan (it helps them to leave a legacy and saves you the additional intense difficulty of probate).

Doing these simple tasks will help you to feel stronger, in control, and empowered to take on life’s next challenge.  What are you waiting for? Make an online appointment by clicking here.

An attorney versus online estate planning: Legal Zoom can and WILL hurt you

I see Legal Zoom is being sued for not preparing an estate plan that did what it said it would.  Banks and financial institutions would not accept the Legal Zoom documents to fund the individual’s trust.  As I always tell my clients, your estate plan is not worth the paper it’s printed on unless and until you fund your trust.  And the Legal Zoom documents?  Were seen to be unacceptable to the banks and financial institutions.  In addition, the information given by Legal Zoom on estate planning is supposedly designed to give users a “general understanding of the law” but “is not guaranteed to be correct, complete or up to date.“

Really?  Legal Zoom can’t even guarantee that the “general understanding” is correct?  Do you really want to trust everything you’ve worked for – your assets, your estate, and your family, to a company that can’t even get basic law correct?

Further, Legal Zoom tells you, on their website, that 80% of people who fill in blank forms do so incorrectly.  Legal Zoom is, in effect, saying to their users they they are very likely to do the forms wrong, but they should do so anyway.  Why would you do this?  I have seen it time and again, when I send out my intake forms to my estate planning consultations.  Nearly everyone marks something that ultimately is incorrect after we’ve had some time to talk about it.

Finally, a lawyer in Minnesota went through the process of getting a will using Legal Zoom.  You can see his video here.  What is enlightening is that the will was packaged well, and was better than the lawyer expected.  But the reality is that there were MANY provisions, standard, important provisions, that were left out of the will.  A will is a pretty basic document for an attorney to complete, and Legal Zoom couldn’t even get it right.  I won’t go into the detail  of the missing provisions, but suffice to say there were a number of critical paragraphs missing.

Haven’t you worked too hard to leave your estate plan to chance?  Why is it a better option to save $1,500 on an online estate plan, just to cost your family – your closest loved ones – tens if not hundreds of thousands of dollars in untangling your messed up estate plan?!  I know times are tough, and we’re all looking to save dollars where we can.  But this is about your entire life.  Do not work your entire life to screw it up in the end.

We have an automated estate planning process that allows clients to save up to 50% on their estate plans by inputting their information in an online format.  Their answers, and indeed their entire estate plan, is be personally examined, reviewed, and assembled personally by us, but because of the online aspect, it will be at a significantly lower cost.  This option helps to combine the needs of my clients who know they need an estate plan but want a lower cost, but aren’t willing to risk everything just to save a few dollars.

Click here to access our online estate planning portal.

Top five excuses to avoid preparing your estate plan…

1. I don’t want to think about it. No one wants to think about getting older, becoming incapacitated, or leaving this world. We all believe that we’re going to live forever. But we’re not. In fact, we’re all going to go sometime, so denying that it’s happening at all is not going to stop it. Chances are, too, that you DO in fact think about it, and your thoughts take on the quality of worrying (if you’re not thinking about it now, believe me, you will as you get older). Worrying about it is not going to protect you and your family; only doing something – your estate plan – will stop the worry and give you peace of mind. If you’re going to be thinking about it anyway, why not just get your estate plan done?
2. I don’t have time. You might think that preparing your estate plan will take hours and hours, involve multiple meetings, and generally deprive you of family time, work time, and free time. Not so! Most of my estate plans are completed in two one-hour meetings. Yes, there are serious questions that you have to answer, but you’ve certainly already thought about most of them and they’re really not all that hard to answer anyway. All told? Two, maybe three hours total.
3. I don’t have money. If you leave your estate to probate, then your heirs are not going to receive up to 10% of your gross estate, and in fact may be PAYING to transfer your property. You’ll be leaving your family tens if not hundreds of thousands of dollars LESS than if you would have had an estate plan. Why wouldn’t you spend a quarter to save $100?
4. I don’t have enough money to need an estate plan. A estate with just $600,000 (think house, life insurance and some retirement) can save nearly $100,000 by creating an estate plan over going through probate. Could you stand to save $100,000? Is your family worth it?
5. I trust my family to do what’s right. Putting the decisions in the hands of your family is more of a burden than anything else. Once something happens to you, your loved ones will be shocked and grieving (you are still shocked when someone passes, even when you’re expecting it). Allow them to grieve – allow them the time and space. Don’t add to their suffering by also making them guess what you would have wanted.

What are you waiting for? Contact us today to schedule your free estate planning consultation.

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?

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

When I am talking to friends, colleagues and potential clients, they often tell me that they don’t need an estate plan because they don’t have enough money to reach the estate tax exemption ($5.45 million per person in 2016).  What is distressing to me is that individuals with estates worth one million dollars or less (this is the gross estate not taking into account any debt) have so much more to lose when they don’t have an estate plan in place.  Here are some reasons why:

1. Probate fees.  If you have $150,000 in property in California – so anyone from Oakland to Livermore to San Jose to Walnut Creek with a house meets this requirement – will be headed to probate.  Probate fees cost 8-10% of your gross estate.  So if your total estate, not considering debt, comes to about $800,000, your estate could be paying up to $80,000 in probate fees.  Wouldn’t you rather that money go to your family?
2. Probate time.  The probate process in California can take 6 years or more to complete.  During this time, your family has to deal with lawyers, court, judges, appraisers, and other strangers in their lives.  Plus, the property cannot be transferred during this time, so your family waits all these years to get access to the estate you left them.  With an estate plan, there is no delay at all.
3. Ease of transfer.  The probate process is difficult, frustrating, time-consuming and very expensive.  Without an estate plan, you force your family to go through it at a time when they should be taking care of themselves and each other in the wake of the tremendous loss.  Generally we pick our closest family member to administer our estate.  Why wouldn’t we make that administration as easy as possible for them?
4. Emotional difficulty of probate.  In addition to the fees, the time and the difficulty, the length of probate doesn’t allow our family members to move on after a death.  We all have our own processes for dealing with grief and death, and some take longer than others.  But the seemingly-endless probate process means that your family can’t get past the loss until the court says they can.  This allows for more time to get angry, to fight with other family members, and be held back in their own personal growth.  In life we support the growth of our families; why would we want to hold them back in death?

Come back tomorrow for the final three critical reasons you need an estate plan, even if you think you don’t!

So you have a living trust! Congratulations…now here’s some tips on what to do with it

Where to keep it, when to update it, and what to do with it:

o Keep your estate plan in your house, accessible to your family. If it’s in a safe deposit box when something happens to you, your family may not be able to get to it.
o Tell your family, and particularly your successor trustee, where your estate planning documents are located.
o Keep a copy (it does not have to be executed; I give my clients a blank copy) in a safe place, such as a safe deposit box in case your original is destroyed or lost.
o Review your estate plan each time there is a major life event in your family, such as a birth, death, marriage, or divorce. Also review it if you’ve bought or disposed of real property.
o Barring major life events, review your estate plan every two-to-three years to make sure it still reflects what you want. You can spend 15 minutes skimming through the summary sections to ensure you don’t want to change anything.
o Give your power of attorney for health care decisions and living will to your agent (the one who will be making decisions for you), and if it’s your spouse, also give one to the successor agent.
o Give your power of attorney for health care decisions and living will to your doctor(s) for your file, to the hospital if you have one you would go to in an emergency, and to your pharmacist.
o Give your power of attorney for your property to your agent or successor agent as well as to the institutions they will likely be dealing with, such as your bank, your financial advisor, or other account managers.
o Give your named guardian and conservator the nomination documents and make sure all caregivers know about them and how to find the documents in an emergency.
o TALK to your family about your wishes, your plans, and who you have designated as agent, conservator, and guardian.

Blended family? Children from a prior relationship? How to avoid these critical estate planning mistakes

As is common, I spoke with a potential new client today from San Ramon, and he mentioned that he and his wife had been meaning to do estate planning “for a while” and just now were getting around to it.  I don’t think anyone does it right when they think they should.  I also met with a client in Pleasanton last week, and this couple had a common family set up: one spouse had children from a previous marriage and they were concerned about estate planning.  Here are the reasons why estate planning when you have a blended family (one or both spouses have children from a prior relationship or marriage) is critical – do you really want to take the chance of dis-inheriting your children?

1. Like my clients last weekend, many couples think they have “nothing” and therefore do not need estate planning.  The reality is that if you have $150,000 in gross property (that is, assets – a house, investments, etc. – without regard to any debt, so you can be upside down on your house and still have $150,000 in property for these purposes) in California, then when you pass, your estate will go to probate, which is a lengthy, complex, and expensive court process to resolve your estate. My belief is that anyone with a home in California needs an estate plan – and this is doubly true if you also have children. I do not charge for initial consultations, and one of the many reasons is that I believe that you must make informed decisions about what is best for your family. I don’t want to put any hurdles up in front of you getting the information you need.
2. If you don’t choose a guardian for your children, if you cannot care for them, then the court (and a stranger in a black robe) will decide for you. In a blended family, in most cases, this will mean the other parent will get custody.  In many cases, this is not a problem because custody is shared.  In cases where it isn’t, or perhaps where the other parent lives far away, or there are other circumstances, you may want to designate someone else. For example, say you live in San Ramon and your ex lives in Montana. Your two teenagers have a good relationship with your ex but see him/her for holidays and some time in the summer.  Should something happen to  you, it might make more sense for the teens to stay with your current spouse until they reach 18, and keep some stability in home, school, friends, activities, and time with your ex.  If you don’t have a conversation about this ahead of time, however, it could turn into a mess where your children are not only grieving the loss of a parent, but also are the subject of a custody battle.  If you don’t decide? Someone else will.
3. Do you really want to disinherit your children? Many of us somehow think we know how our lives will play out.  Many couples assume they both will live long, fruitful and healthy lives, and then the man will die first, followed not too long by the woman. In the case of a blended family where the wife is the one with children from a prior relationship, this may work well.  When the husband dies, everything goes to wife and she distributes her estate as she wishes, to her children.  But what if it doesn’t happen that way? What if something happens to wife early in life – say in her 50s – and the husband goes on to live another 30 years, remarries, and has a ‘second’ life with his new wife and family? Without estate planning, everything of the couple’s goes to the husband when the wife dies, and then 30 years later when the husband dies, there may be nothing to go to wife’s children, or husband may be estranged from them of merely closer to his wife and the family he built with his wife over 30 years.  ONLY estate planning with a living trust (i.e. not a simple will) can avoid this very real potential situation.

An estate planning attorney’s job is to make sure that you and your family, and what you want to happen with you, your family, and your estate, are protected regardless of what happens in the future.  We all love our family more than anything, so what are you waiting for to protect yours?