Who Needs A Will? You Do!

Many people do not think that they need a will. They are all almost always wrong. Everyone with any property at all needs a will.

Some of the common perceptions about estate planning are just plain wrong.

In fact, many people do not think they need a will. Why? Because wills are something only rich people get.

They think that if they only have only a little bit of money or property, then everything they have will simply pass wherever their family decides.

However, that is not what happens.

For example, if a person has a car when he or she passes away, then someone has to decide who gets that car. A related person cannot just show up at the appropriate government office and have the title changed into his or her name.

It does not work that way.

A court must decide who will get that car.

For that reason, everyone who has any property at all needs a will, as CNBC explains in “Think you’re not rich enough to need a will? Think Again.”

In the absence of a will, a deceased person’s property will be distributed according to the state’s laws of intestate succession. Those laws determine which relations have priority to receive the estate and the court distributes everything accordingly.

Bottom line: the deceased has absolutely no say in who gets his or her property.

Instead of relying on a court to divide your property, get a will.

It does not have to be complicated.

An estate planning attorney can create a simple will for you, even if you do not have many assets.

Reference: CNBC (Oct. 24, 2017) “Think you’re not rich enough to need a will? Think Again.”

After-Born Children

When a person has children after creating a will, the status of that will varies from state to state.

Estate planning attorneys always remind clients that if there are significant changes in their lives they need to revisit their estate plans and make any necessary changes.

Having more children definitely counts as a significant change in a person’s life. Despite the advice of the attorneys, many people do not change their wills after they have more children.

That means courts have to decide what to do about the children and the will.

In Georgia the will gets revoked, as the Wills, Trusts & Estates Prof Blog discusses in “State Law on After-born Children Leads to Revocation of a Will.”

In a recent court case, a Georgia man created a will in 1989. He later had three children out-of-wedlock, but he never updated his will to include the children.

The Georgia court decided that the will was, therefore, invalid and revoked it.

The man’s estate would thus be distributed according to the state’s laws of intestacy, as if the will never existed at all.

Every state treats these after-born children (who are not mentioned in wills) differently.

Talk to an estate planning attorney about the laws in your state.

Better yet, ask the estate planning attorney to help you, if you have had more children since you created your will.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 17, 2017) “State Law on After-born Children Leads to Revocation of a Will.”

How the Elderly Can Prepare for Tax Reform

While it is not yet certain what might be contained in the anticipated federal tax reform legislation or even if anything at all will pass, there are a few things that retirees can do to prepare for changes.

Whenever Congress is talking about reforming taxes, the best advice is usually one word long: wait.

Tax reform is promised so often without anything of much importance passing, that it is usually not a good idea to make big estate planning changes until legislation actually passes.

Now, however, with Republicans controlling both chambers of Congress and the White House, many people are eager to prepare for the promised tax reforms currently being discussed.

For people in retirement, there are some things that could be done to prepare as USA Today reports in “Retirees: 4 ways you can start planning for possible tax law changes now.”

These things include:

• One of the changes being talked about is eliminating the deduction for state and local taxes. Therefore, people who live in high tax states, might want to start considering moving to a more tax-friendly state.

• Congress has discussed increasing the standard deduction. That might make it a good time to create a donor-advised fund to take advantage of current tax law and then donate to the fund later, as necessary.

• While there is talk of eliminating the estate and gift taxes, do not plan for it. Even if they are eliminated, they can always come back later.

Reference: USA Today (Oct. 13, 2017) “Retirees: 4 ways you can start planning for possible tax law changes now.”

DIY Will Goes Bad

The case of a religious woman in Australia illustrates the dangers of do-it-yourself wills.

Australian woman Sandra Marie Hatton was a very religious woman. She wanted to give most of her assets to charities that carry on religious work.

Perhaps to save some money so that there would be more to go to charity, Hatton did not see an estate planning attorney to help draft her will.

Instead, she used a do-it-yourself will form.

Hatton filled it out and then proceeded to make many handwritten changes to it, as she changed her mind about which charities to benefit.

That could end up costing her estate a lot of money, as News.com.au reports in “Unholy row as court decides on religious woman’s will.”

The will itself has been accepted into probate as valid.

Now, the court also has to decide which of the handwritten changes to accept as valid.

The charities who could benefit from the decisions are all eager to stake their claim and lawyers will have to be hired by Hatton’s estate to help in the case.

Do-it-yourself wills, whether purchased in a kit or online, offer people a way to save some money by cutting out estate planning attorneys.

Unfortunately, as is the case with Hatton’s will, things often go wrong with these DIY wills because the people who create them do not know what they are doing.

In the end, that DIY approach costs the estate a lot more money in the long run.

Reference: News.com.au (Oct. 15, 2017) “Unholy row as court decides on religious woman’s will.”

The Stored Communications Act

One of the more difficult things for families to do after someone passes away is to gain access to the deceased’s digital accounts. A federal law is part of the reason for that.

When someone passes away, one of the many things families often want to do is gain access to the digital accounts the deceased had. These include emails, financial accounts and social media accounts.

Sometimes access is wanted so important financial and business transactions can be completed, if necessary. Other times the families would just like to have access for their own information and to close the accounts.

The terms of services of most digital providers make it difficult to gain access.

A federal law, the Stored Communications Act, also makes it difficult as the Wills, Trusts & Estates Prof Blog discusses in “Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act.”

The Stored Communications Act is essentially a privacy law.

It prevents providers from giving access to some user personal data without the consent of the user.

In a recent Massachusetts court case, Yahoo cited the act as the reason it could not give access to emails sought by the personal representative of a deceased account holder’s estate.

The court declared that, under the act, the personal representative could give the necessary consent to gain access to the data. However, the court did not make this mandatory. The court instead decided that it was still up to the company whether to comply with the request.

Many states are attempting to make it easier to access digital information after someone passes away.

Nevertheless, it appears the law still has a long way to go.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 20, 2017) “Court Holds Personal Representative May Provide Lawful Consent Under Stored Communications Act.”

The Dangers of Guardianships

If courts are not adequate watchdogs of the guardians of the elderly, it can result in the elderly losing everything with little legal remedy.

Rudy and Rennie North were a normal Nevada couple in their 50s. Rennie needed some assistance with day to day living, which she was able to get from a nurse at home.

Then, a woman named April Parks came into their lives.

Parks owned a business and was considered a professional guardian. Without consulting the Norths or anyone in their family, Parks was able to get a letter from a physician’s assistant declaring that the Norths needed a guardian.

Parks took this letter to court and was appointed their guardian.

The Norths again were never consulted.

No tests were conducted on them, to see if they were lacking in cognitive functioning and unable to care for themselves.

Eventually their life savings were used up and they now live in a converted office with their daughter.

The New Yorker reported this story in “How the Elderly Lose Their Rights.”

Although things like this should never happen, they occur all too frequently.

If the legal system is not diligent in protecting the elderly from so-called guardians who just want to take what the elderly have, there is little the elderly can do about it. In this case, the court system was complicit in Parks’ scam.

If you suspect that someone has used the guardianship system to take advantage of you or someone you love, it is vital that you speak to an elder law attorney immediately.

The attorney can help you to stop the guardian before it is too late.

Reference: The New Yorker (Oct. 9, 2017) “How the Elderly Lose Their Rights.”

A New Sign of Possible Dementia

Researchers have discovered that a poor sense of smell might be a sign of upcoming dementia.

The earlier dementia is diagnosed in a person, the better.

Early diagnosis allows professionals to develop treatment plans that will slow dementia’s progress. It also lets people who have the disease to make end of life plans, such as advanced medical directives and estate plans, before they become unable to do so.

However, diagnosing dementia at the early stages is not always easy. This is because many of the signs of dementia are common in everyone as they get old. For example, people often start forgetting things as they age, but that does not necessarily mean they will all get dementia.

Researchers have now discovered a new sign of possible upcoming dementia, as The New York Times reports in “Poor Sense of Smell May Signal Dementia.”

In a study of women, subjects were asked to identify five distinct smells, including leather, fish and roses. How they performed at identifying the smells was found to correlate with whether they later got dementia.

That does not mean that everyone with a poor sense of smell will get dementia.

What it means is that smell is a cognitive function. Therefore, when a person begins to lose their sense of smell, it indicates declining cognitive functions and the possibility of very early dementia.

How this research can be applied in the field is not certain.

It is another useful piece of data for scientists, as they attempt to better understand dementia and how to detect it early.

Reference: New York Times (Oct. 3, 2017) “Poor Sense of Smell May Signal Dementia.”

Section 2704 Rules to Be Withdrawn

The Treasury Department has decided that the much dreaded Section 2704 estate tax rules are unworkable.

When the Obama administration announced changes to the valuation discounts for family businesses for estate tax purposes, known as the Section 2704 rules, there was a lot of consternation.

Many estate and legacy plans would have to be completely reworked in order to comply with the complicated new rules. It was not absolutely clear how all of those plans could be reworked and how the rules would actually be enforced. This created headaches for many people.

The Trump administration has decided to change course, as Forbes reports in “Treasury To Withdraw Hated Estate Tax Valuation Rules.”

The Treasury Department announced that it will soon publish an official withdrawal of the rules, since they have decided the rules are unworkable. That means planners can continue to rely on previous valuation methods, which brings a lot more certainty about how to make legacy plans for now.

This does not mean the estate tax itself has been repealed. President Trump has indicated he wants to do so, but, in the meantime, it should help those people who are affected by the estate tax.

Of course, even without the Section 2704 rules, it is still a good idea to review any previously made plans to make sure they will still be effective as intended.

Reference: Forbes (Oct. 4, 2017) “Treasury To Withdraw Hated Estate Tax Valuation Rules.”

Jerry Garcia’s Estate Difficulties

It is not always the best idea to name a close family member to be the executor of your estate. It can cause problems, as was the case for Jerry Garcia’s estate.

It probably never should have been assumed that Jerry Garcia’s estate administration would go smoothly, after he passed away in 1995. At first, it did seem that maybe there would not be any major problems.

However, Garcia passed away after being married three times, having four children and having one stepchild.

Even after his third wife threw the first two wives out of his funeral, it did not necessarily mean the estate administration itself would go wrong. No one challenged his will, for example.

The big mistake came when the third wife, Debra Koons, was chosen to administer the estate, as the Wills, Trusts & Estates Prof Blog discussed in “The Wrong Executor Can Make Family Drama Worse, As Jerry Garcia’s Heirs Discovered.”

The problem for Garcia’s estate is that his other heirs objected to many of the decisions that Koons made. They felt she was acting in her own interests and not in the best interests of everyone.

This led to constant family squabbles and made the estate administration more costly and time-consuming than it needed to be.

The problems should have been anticipated.

It would have been wiser to have an independent professional hired to handle the administration of the estate. That might not have been a solution to all of the problems, but it would have taken much of the family drama out of the situation.

Reference: Wills, Trusts & Estates Prof Blog (Oct. 12, 2017) “The Wrong Executor Can Make Family Drama Worse, As Jerry Garcia’s Heirs Discovered.”

Prove You are Alive

People have been known to be declared deceased prematurely because of clerical errors made by government employees. For one Spanish woman, that has caused a nightmare.

There is a master government list that has your name and other identifying information on it. When you pass away, that will be recorded and your death will be noted on another master list.

These lists are maintained so the government and private businesses can know when you are eligible for services and when your eligibility ends. For example, the government uses the lists to know when you can receive Social Security and when to stop sending benefits to you.

Human error sometimes causes problems with the list.

People who are still alive are accidentally put on the master list of the deceased.

That can cause some problems, but usually not as bad as what one Spanish woman is going through as Fox News reported in “Spanish woman wants to open up grave to prove she’s alive.”

Juana Escudero has been deceased for seven years. Well, not really, she’s actually still alive.

The Spanish government just thinks she’s dead, because seven years ago someone with her exact same name and place of birth was recorded as deceased.

As a result, Escudero has not been eligible to receive government services, including going to a doctor, for the last seven years. Her efforts to convince the government that she is alive, have so far been fruitless.

She’s asking the government to open the grave of the person they declared dead, so she can prove it is not her.

In the U.S., it is easier to fix these clerical errors, but it still is not always easy.

If it happens to you, then it is a good idea to get an attorney to help you.

Reference: Fox News (Sep. 27, 2017) “Spanish woman wants to open up grave to prove she’s alive.”