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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Estate Planning for Blended families: Have step-children or a step-parent? Are you one? How to avoid (unintentionally) disinheriting your family

Estate planning presents unique issues for blended families.  Blended families are families in which one or both parents have children from a previous relationship.  The problem comes when one spouse dies without an estate plan, or an old or outdated one.  Generally, when spouses hold property in California (or anywhere in the US), they hold it in joint tenancy.  When one joint tenant dies, the other one gets the entire property.

Can you see where we’re going with this?

When one spouse of a blended family dies, then the other spouse generally gets all the property of the couple, often by default.  When it comes time to distribute the assets at the death of the second spouse, the second spouse can essentially disinherit the first spouse’s children.  The second spouse, with all the property in his/her name, has control over the ultimate disposition of the property.  If there is a family rift between the second spouse and the step-children, if the second spouse is negligent in creating an estate plan providing for the step-children, or in other cases, then the children of the first spouse to die can be left out in the cold.

Don’t leave your children out in the cold by failing to provide for them with an estate plan. Contact us today to schedule your FREE estate planning consultation.

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.

Your pending California divorce case: What to do with your will/trust or estate plan

I have been thinking more about my posting about your will, and I felt it needed more to make it complete. Specifically, IF you have a divorce case currently, what can you do NOW to protect yourself and your children? Divorce cases can last for years. Yes, unfortunately this is true, so we have to hope for the best (a speedy and as-painless-as-possible case) and plan for the worst (an endless case). So if you have a case and the ATROs (automatic restraining orders in California divorce) prevent you from changing your will (or estate plan), here are some things you can do.

First, take advantage of the ability to sever joint tenancy (JT). The ATROs allow you to sever joint tenancy with simply NOTICE to the other party. Sever this JT and should something happen to you, you have the ability to give your half of any real property (a house, for example) to someone other than your estranged spouse.

Second, have a conversation. If you have a lawyer, your lawyer might be telling you never to talk to your estranged spouse. I disagree with this family law case philosophy because (as one of our local judges used to say) YOU are in the best position to come to a resolution of your case. If you stop talking to each other, then hostility can grow and you may be likely to fight more. Now, this approach works well for the lawyer, who gets to funnel ALL of your issues at $450 an hour! It’s better on you, your relationship, your pocketbook, and your case if you’re able to talk to each other. Talk about changing your will so each of you can make an estate plan that provides for your own property to go to the individuals you choose instead of each other.

Third, if you can’t have an informal conversation, bring it up in a formal setting. Whether it’s a meeting with your lawyers, a court conference, or if you add it to the issues to be raised at a hearing, make time to discuss these issues so they’re at least out in the open.

Top five excuses to avoid preparing your estate plan…and how to overcome them

Too often, the task of estate planning gets pushed aside for more pressing matters. But if it’s not taken care of, you can find yourself with big problems that are expensive and time-consuming to fix. Here’s some excuses and why you should overcome them and get your estate planning done:

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 just 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 heir 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? Ultimately, preparing and estate plan saves you thousands – sometimes tens or hundreds of thousands – over not doing it.
4. I don’t have enough money to need an estate plan. Anyone with $150,000 or more in property (regardless of debt and including real property) needs 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?

Where there’s a will, there’s a way…(more on California estate planning in divorce)

Here, I want to ask (and answer!) the question, do you need a will (and when and why). The answer, which might be surprising to you, is absolutely YES! With very few exceptions, everyone needs a will.

In my business and in this blog, I have worked hard to educate others on the importance of an estate plan centered around a living trust. A living trust avoids probate, transfers your property easily upon your death, and allows you to avoid fees and taxes (among many other reasons that you can see in my estate planning blog). But your estate plan has other components, and one of these is your will. In an estate plan, your will is called a “pour-over” will because it’s intended to ‘catch’ any property that you have left outside your estate.

Now, you may be asking, what kind of estate plan is it if you leave something out of it?! Well, sometimes we forget (despite the repeated reminders from our friendly estate planning attorney), and sometimes there’s just not time. If you acquire property and pass away before you are able to complete the transfer to your trust, then you want that will to ensure that your property transfers appropriately to your heirs through the probate process.

But in the context of family law, when and why is a will important? Let’s look at this issue in two contexts because they’re very different. First, let’s look at the time when you are going through your divorce or other family law case (where you are restricted from changing/updating your will) and once the action (case) is completed (where you NEED to update it).

The Automatic Temporary Restraining Orders (ATROs) in the Family Law Summons provide,

“Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.”

What? This basically means that you cannot change your will or living trust during the pendency of your action without written consent of the other party or a court order. Note that this includes severing a joint tenancy on a property (which does not require consent but does require advance written notice). So when you are in the middle of a divorce and you pass away, that house you have in joint tenancy goes automatically to your ex. Ouch. But if you don’t know about these restrictions, then you could get into trouble with the court, which is a bad idea. Also, remember this if you’re thinking of filing for divorce.

Once your case is over, however, you really DO need to update your will. In fact, you most likely need a full estate plan that includes a living trust. Hopefully I have convinced you of that by now. If you don’t, then your out-of-date document WILL control the disposition of your assets. To look at recent examples, Brittany Murphy did not update her will when she got married. Heath Ledger never updated his will after his daughter was born (and that caused all kinds of trouble).

Don’t make their mistakes, and always make sure your estate plan is updated to take into account a marriage, divorce, birth, death, or acquisition of property.

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 ($5.25 million).  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!

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.