(858) 432-3923 tara@cheeverlaw.com
Estate Planning: 3 Reasons We Run the Other Way

Estate Planning: 3 Reasons We Run the Other Way

I completely understand that it feels hard to get around to completing your estate planning; it sounds about as fun as getting a root canal. With that said, I also understand that most people want to make sure that their loved ones are protected and will receive their hard-earned assets – regardless of whether they have $50,000 or several million.

Don’t let these common roadblocks stop you from protecting yourself and your family:

  1. Who Wants to Talk About Death? Discussions of death, dying, and illness – money and family – wills and trusts – make many folks uncomfortable. Of course, that’s normal, but don’t let a few minutes of feeling uncomfortable stop you from taking care of yourself and your loved ones.
  2. This Isn’t a Good Time. Everyone is busy. I understand that you may not have a lot of downtime, but there’s never going to be a better time. It does not take too much time to complete your planning. Call my office, get on the calendar, and get it done.
  3. It’s confusing. Estate planning is documented in legal documents, your finances are discussed, and the law is analyzed. It’s very common feel uncomfortable since this is new to you. If that’s what you are thinking, you are not I will translate complex legal concepts into everyday layman’s terms for you so you will not be confused or overwhelmed.

The truth is that estate planning isn’t really that bad. With my assistance, your estate planning will be completed smoothly. I will chat with you about your goals and concerns, analyze your family and financial situation, and work with you to come up with a solid plan. You provide the information, which I always keep confidential, and I’ll take care of everything else – taking the burden off of you. Email me at Tara@Cheeverlaw.com or call me at (858) 432-3923. I look forward to serving you!

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How to Build Freedom From Court Interference Into Your Life Planning

How to Build Freedom From Court Interference Into Your Life Planning

By deciding not to complete any planning for your life and eventual death, it might be because you are too busy, do not understand the importance of such planning or think that you can do it later. You may think that it is not a big deal to have the court involved in all of your personal affairs. Perhaps you don’t know the disadvantages of court interference or have first-hand experience of what can happen in the event of incapacity or death of a family member without a properly drafted and comprehensive legal life planning “aka estate planning.”

However, if you feel that the matters of your affairs should be kept private, prefer that someone you designated make decisions in the event of your inability without court interference, and that your assets should be distributed according to your wishes privately without court fees, you are in luck. Fortunately, all it takes is a proactive approach and a small investment. By acting now, you will save an enormous amount of stress and money and give you the peace of mind to live the life you desire knowing you have security for the future.

With that said, let’s dive in to the basics of Government Interference in the event of incapacity and at death. The two of the most common situations in which the court becomes involved in your estate are conservatorship/guardianship and probate:

Guardianship and Conservatorship

A person is declared incapacitated if they are unable to effectively handle their property or financial affairs documents. In their estate plan they can direct a trusted person to carry out their wishes during such time of incapacity.   So what happens if no such documents have been drafted? Then their business becomes the government’s business, too. A court proceeding called guardianship or conservatorship (also known as “living probate”) will be held to appoint guardians and conservators to manage the affairs of the incapacitated person. Then, the guardian/conservator may need to post a bond and then comply with all of the demanding court requirements. Most importantly, the decisions of the guardian/conservator may be contrary to what you had ultimately wanted for yourself and your finances.


When an estate goes through probate, the court oversees the gathering of the probate assets, payment of any outstanding debts, determining whether a will is valid, and who the deceased’s heirs are. The proceedings ultimately determine who should receive the assets that are left after payment of debts, taxes, and costs. While this may sound straight-forward, it generally is not – to the contrary, it is often time-consuming and expensive. Also, the process of probate of public record and done for the benefit of creditors by ensuring the estate has paid its debts prior to any distributions to beneficiaries, should there be any money left after creditors are paid. If someone had a will, the Executor named may need to post Bond, which requires good credit. If that person does not have a good credit history, the Judge may not allow that person to serve and will appoint a Personal Representative, who could be a stranger to the decedent and could make decisions that are contrary to your wishes.

Staying out of Court

Probate avoidance – In order to avoid guardianship, conservatorship, and probate, you can work with me to keep your affairs out of court entirely.

  1. Powers of attorney

Agents or attorneys-in-fact are the individuals or entities you appoint to make decisions for you if you are unable due to incapacity. You designate agents or attorneys-in-fact in a document known as a Power of Attorney. A Durable Power of Attorney is a document that continues in validity after the incapacity of the maker of the document (i.e. “durable” against incapacity). Since a Durable Power of Attorney continues in validity, a Durable Power of Attorney can help bypass the need for court-appointed guardianship or conservatorship because the Agent has been nominated to make decisions, eliminating the need for a Judge.

  1. Trusts

Trusts are agreements that hold some or all of your assets. An individual or a corporate entity that you designate as your Successor Trustee will manage the assets inside of your Trust if and when you become incapacitated. Unlike wills, Trusts do not go through probate at your death because the agreement has spelled out exactly what will happen upon your death, bypassing the need for a Probate proceeding. There are several ways to structure a Living Trust and I can help you decide exactly how your Trust will be structured and how your estate will be planned.

By setting up and completely funding a Revocable Living Trust, you can accomplish two important things. First, you can rest assured that your assets will be distributed to your chosen beneficiaries and won’t go through probate upon your death. Second, you also retain the ability to change or cancel the arrangement during your lifetime enabling you to adjust your plan as your financial or family circumstances change.

Make sure your estate plan is solid and complete

Deciding on appropriate powers of attorney and drafting a Revocable Living Trust are just two of the many steps we can take together to keep your affairs free from court interference at incapacity and at death. With a solid estate plan put into place with my help, you can take comfort knowing that everything you’ve worked so hard to build and maintain will be passed along to only the people who matter most. Give me a call today to learn more about keeping your estate plan private and out of the Court’s hands.

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“I Love You” Wills don’t really say “I Love You”

“I Love You” Wills don’t really say “I Love You”

Here, I’m going to discuss the drawbacks of “I love you” wills and introduce you to the estate planning move that’s actually going to ensure you do well by your loved ones: a lifetime beneficiary trust.

Rise above the misconceptions

No aspect of estate planning brings out as much emotional decision-making as the division of assets. Many people think, “I love you,” so I’ll leave you everything. In order to understand why “I love you” wills are, contrary to their name, not the most caring of estate planning gestures, it’s important to understand the risks of “I love you” wills.

Simply, an “I love you” will is a common name for a will in which the Grantor leaves all of his or her assets outright to his or her surviving spouse.  Many people consider or even use this approach because they think that leaving assets in trust shows they don’t trust their spouse. They may also think that a lack of federal estate taxes protects their assets from getting into the wrong hands. Sadly, many people also think that a will can be used to avoid probate. Unfortunately, none of these things are true.

Understand why “I love you” wills aren’t effective 

Let’s assume for a moment that you want to ensure your spouse gets access to your wealth upon your death.  If all you have completed is a simple “I Love You” will, your spouse (or whomever you designated as your Personal Representative) will have to open a court proceeding, called, Probate, in order to validate your will and transfer your assets.  Depending on how your will was written, your Personal Representative may have to post bond.  Obtaining a Bond requires credit worthiness so if your Personal Representative has a credit problem, the Court may not allow that person to act and will appoint a Professional Fiduciary to act as your Personal Representative if a successor was not named.  In such case, that Personal Representative may not act according to what you had ultimately wanted if it wasn’t spelled out.

Once your spouse receives the assets, which could take years in the Probate Court, the assets are distributed outright.  An outright distribution of assets has many disadvantages, which are listed below.  With your spouse holding all of the assets outright, his/her estate plan will eventually control the distribution of whatever assets are left at her death – assuming proper estate planning was done, otherwise, an additional probate would be opened at his/her death.  If estate planning was completed, s/he has the right to alter his/her plan at any time and any verbal agreements that you two may have had are not enforceable and your wealth may end up in the hands of someone else, rather than your children or other beneficiaries.

Disadvantages of outright distributions include:

  • You could inadvertently disinherit your children. If you use an “I love you” will, your assets are now in your spouse’s hands for him/her to leave however s/he wants. For example, your spouse could leave the assets to his/her own kids, a charity, a lover, or a new spouse.  Likewise, assets left outright to children could be lost in a divorce.
  • Basic planning with outright inheritance sets your heirs up for asset protection issues. Once your assets are owned outright by your beneficiaries through a direct inheritance, those assets can be seized by creditors, divorcing spouses, or lost in bankruptcy. Even if your estate is below the exemption for the death tax, predatory creditors and lawsuits could still spell trouble.
  • These wills still have to go through probate. Surviving spouses do not receive an exemption from probate. Even a simple will still has to go through the process, which you may not be anticipating — especially if you had hoped to keep the details of the will private. If you end up in Probate, the matter becomes public record.  Trusts, however, don’t need to go through probate and all of your assets will pass according to the Trust as long as those assets are titled to your Trust.
  • An “I love you” will does not protect against guardianship or conservatorship court involvement for you or for your beneficiaries. For example, if you leave all of your assets to your spouse and s/he develops dementia, the entire estate (existing assets plus the inheritance s/he received from you) could be under the control of a guardianship or conservatorship court.
  • Basic plans pile more assets into survivors’ estates. Although portability between spouses can help, it still doesn’t prove useful with the generation-skipping transfer tax (GSTT). Portability isn’t available for non-spouse beneficiaries. While at this point in time, having a taxable estate affect a very narrow group of people with very high net worth; however, we don’t know yet what will happen with tax policy under the new Trump presidency. In a changing tax policy landscape, keeping yourself as informed as possible is an important tactic for ongoing success.

Explore lifetime beneficiary directed trusts

Comprehensive, trust-based estate planning with lifetime beneficiary trusts is a better option than outright inheritance for surviving spouses, children, grandchildren, or other beneficiaries. If you leave your assets in lifetime beneficiary trusts, you retain control over where assets end up in the long run. Plus, your beneficiaries obtain robust asset protection features that can keep wealth safe from courts, creditors, and divorcing spouses. Your family’s private information can stay out of public record. You can also take advantage of more sophisticated tax planning than you can with a basic will or trust with outright distributions.

With proper planning now, you can focus on enjoying your life without worry about what could happen in the future.  Now that’s something to love and truly expresses “I love you” to your beneficiaries.  Feel free to contact me and I can share some stories about people who neglected to plan and you can let me know if that is something that you want your family to experience.  I look forward to working for your best interests now as well as down the road.


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Not Just Death and Taxes: 4 Essential Legal Documents You Need for Incapacity Planning

Not Just Death and Taxes: 4 Essential Legal Documents You Need for Incapacity Planning

Comprehensive estate planning is more than your legacy after death, avoiding probate, and saving on taxes, it must contain incapacity planning.  A proper estate plan includes a plan in place to manage your affairs if you become incapacitated during your life and can no longer make decisions for yourself.

What happens without an incapacity plan?

Without comprehensive incapacity planning in place, your family will have to go to court to get a judge to appoint a guardian or conservator to take control of your assets and health care decisions. This guardian or conservator will make all personal and medical decisions on your behalf as part of a court-supervised guardianship or conservatorship. Until you regain capacity or die, you and your loved ones will be faced with an expensive and time-consuming guardianship or conservatorship proceeding. There are two dimensions to decision making that need to be considered: financial decisions and healthcare decisions.

  • Finances during incapacity

If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself. Of course, bills still need to be paid, tax returns still need to be filed, and investments still need to be managed.

  • Healthcare during incapacity

If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself. Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years).

You must have these four essential legal documents in place before becoming incapacitated so that your family is empowered to make decisions for you:

  1. Financial power of attorney: This legal document gives your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document.
    • Financial Powers of Attorney come in two forms: “durable” and “springing.” A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been declared mentally incapacitated. There are advantages and disadvantages to each type, and we can help you decide which is best for your situation.
  1. Revocable living trust: This legal document has three parties to it: the person who creates the trust (you might see this written as “trustor,” “grantor,” or “settlor” — they all mean the same thing); the person who legally owns and manages the assets transferred into the trust (the “trustee”); and the person who benefits from the assets transferred into the trust (the “beneficiary”). In the typical situation, you will be the trustor, the trustee, and the beneficiary of your own revocable living trust.
    • If you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit. Since the trust controls how your property is used, you can specify how your assets are to be used if you become incapacitated (for example, you can authorize the trustee to continue to make gifts or pay tuition for your grandchildren).
  2. Advance Health Care Directive: This legal document, sometimes referred to as a healthcare power of attorney, gives your agent the authority to make healthcare decisions and end of life care if you become incapacitated.
  3. HIPAA authorization: This legal document gives your doctor authority to disclose medical information to an agent selected by you. This is important because health privacy laws may make it very difficult for your agents or family to learn about your condition without this release.

Is your incapacity planning up to date?

Once you get all of these legal documents for your incapacity plan in place, you cannot simply stick them in a drawer and forget about them. Instead, your incapacity plan must be reviewed and updated periodically and when certain life events occur such as moving to a new state or going through a divorce. If you keep your incapacity plan up to date and make the documents available to your loved ones and trusted helpers, it should work the way you expect it to if needed.

Should you have any questions or concerns about your incapacity plan, click here. I look forward to hearing from you!

Estate Planning for Women

Estate Planning for Women

While everyone is in need of estate planning, women especially need to understand estate planning and have their own plan in place. The following describes why having a estate planning portfolio, which includes a Trust, Will, Durable Power of Attorney and healthcare documentation is so important for women:

Incapacity. On average women live longer than men, which means there is an increased need to plan for physical and/or mental incapacity. When long-term care insurance is purchased in advance it can help cover the costs of incapacity and can even help women remain in their homes should that be their wish. Planning ahead prevents the court from taking control of finances and of personal care at incapacity – a court action called a Conservatorship or “Living Probate.” Incapacity planning includes having a properly drafted General Durable Powers of Attorney naming a trustworthy person to act as Agent in the event of incapacity. Additionally, healthcare documents, including an Advance Health Care Directive and HIPAA release are crucial. A properly drafted Revocable Living Trust will provide excellent protection for assets at incapacity and contains dispositive instructions for administering the estate after death.

Children, Grandchildren, Parents and Pets. Regardless of wealth, estate planning is so important because women raising minor children need to name a guardian in their Will. If no guardian is named, a judge may have to decide who will raise them, which may be contrary to your wishes. Provisions need to be included for children, parents or relative with special needs, pets and anyone that is dependent on you for support. If one of the beneficiaries has special needs, additional planning is necessary and the need for a Special Needs Trust can provide the care they need without jeopardizing government benefits they are otherwise entitled to. A gifting program or a trust can provide for grandchildren and future generations.

Charitable Causes. Women who want to leave a legacy by donating to a favorite charitable, religious or educational organization must complete an estate plan. Without a valid Trust and Will in place, assets will be distributed by the California Probate Code. A charity will not be considered because a charity is not an heir. With proper planning in place proceeds from a life insurance policy can be used to fund various types of charitable giving at your death.

Protecting a Business and Other Assets. Professional women in law, real estate and medicine must be concerned about limiting their liability and protecting their assets from lawsuits. Women who are business owners need to plan for what will happen to their business in the event of incapacity or retirement and death. Due to these issues, asset protection planning and business succession planning can and should be included in the estate planning process.

Married Women. While not always the case, it is common for woman in a traditional marriage to marry a husband who is older, which means they are more likely to become widowed. Without proper estate planning while married, many will see their standard of living reduced during their retirement years. Those in second marriages have an increased need for estate planning, which may include providing for the surviving spouse while preserving distributions to their children from a previous marriage. Without proper estate planning, children from a previous marriage may become disinherited. Also, because most married women survive their husbands, they often have final say over who will ultimately receive the couple’s assets. Women must take an active role in the couple’s estate planning in order to understand the process and be prepared. If there was no participation in the planning process, the widow will likely be confused and uncertain; however, if she completed her planning and/or was involved during the planning during marriage, she will easily understand it and feel empowered.

Unmarried Women. Without a proper estate plan in place at death, her estate will end up in the Probate Court for California law to be applied. Persons who you may have wanted to provide for at death, including friends, charities and unmarried partners will not be among your heirs. For woman who are divorced or separated, there is an important need to update documents (including beneficiary designations) as soon as possible to prevent your ex-spouse from making life and death decisions for you or inheriting your assets.

Should you have questions regarding the need for estate planning and how these issues may affect you, please give my office a call to schedule your Life and Legacy Planning Session.  Thank you!

An additional Two More Estate Planning Mistakes to Avoid

An additional Two More Estate Planning Mistakes to Avoid

In the last two posts, we discussed why having a complete, up-to-date estate plan is so important by addressing four common estate planning mistakes – not having a plan, not naming guardians for minor children, relying on joint ownership and not having a plan for incapacity.  If you haven’t read the previous post, click here.

Here, we discuss two more common mistakes:

Not having a coordinated estate plan. It can be difficult to coordinate multiple beneficiary designations and titles so that your beneficiaries inherit the way you want. For example, while the benefit payable from a life insurance policy generally remains the same, real estate and investment values can fluctuate greatly. This makes it quite possible that one beneficiary will receive more and another will receive less than you intended. Keeping beneficiary designations and titles balanced while you are living is a challenge and nearly impossible if you should become ill or incapacitated. Also, if a beneficiary dies, you may want to control who ultimately receives that share of your estate instead of it letting the beneficiary choose who will receive it.

One easy way to coordinate all assets into one coordinated plan is to make a trust the owner and beneficiary of as many assets as possible, then put the distribution instructions in the trust document. This ensures that each beneficiary will receive the correct proportionate amount of the estate, regardless of the value of an individual asset. To add a beneficiary or change a beneficiary’s inheritance, only the instructions in the trust document need to be updated; this is a much simpler process than having to change multiple titles and beneficiary designations. The trust can also include your instructions for what happens to a beneficiary’s share upon his/her death, preventing the inheritance from falling into the hands of someone you might not approve of. An experienced estate planning attorney, such as myself, can assist you in coordinating your estate plan once a complete and customized plan is put in place.

Not funding a trust. A trust can only control the assets that are placed into it. The document may be written well and have excellent instructions, but until it is funded (by changing titles and beneficiary designations), it doesn’t control anything. By having a properly drafted Revocable Living Trust, the assets that are placed into it will avoid probate and government intervention. Please call Cheever Law, APC today to get started on your estate planning.

Estate Planning Mistakes to Avoid

Estate Planning Mistakes to Avoid

From time to time, it’s good to review why having a complete, up-to-date estate plan is so important. In addition to confirming our own actions, it can provide us with valuable information to pass along to friends and family who need estate planning. Here we discuss two common mistakes:

  1. Not having a plan. Every state has laws for distributing the property of someone who dies without an estate plan—but not very many people would be pleased with the results. This process is called probate. By having a plan in place, your family will be able to avoid probate when you pass away. State laws vary, but generally they leave a percentage of the deceased’s assets to family members. Non-family members will not receive any assets so it is crucial for same-sex partners and non-married partners to have a plan in place if it is your intention to provide for a partner. It is common for the surviving spouse and children to each receive a share during a probate proceeding, which often means the surviving spouse will not have enough money to live on. In addition, probate fees and costs diminish the estate. If the children are minors, the court will control their inheritances until they reach legal age (usually 18), at which time they will receive the full amount. This may be contrary to what parents prefer, who may want to have some restrictions on their inheritance until they are more mature. By having a plan in place, you make the decisions and keep your affairs private by avoiding government intervention and government involvement.
  2. Not naming a guardian for minor children. A guardian for minor children can only be named through a Will. If the parents have not done this, and both die before the children reach legal age, the court will have to name someone to raise them without knowing whom the parents would have chosen. Equally tragic would be that the minor children might end up in protective custody while the court gets around to hearing the case to nominate a guardian. By seeing me, a San Diego Estate Planning lawyer, you can have the peace of mind knowing an estate plan is in place, which includes naming a guardian, for the short term and long term, for your minor children.

Continue to read Part 2 Of This Series

Estate Planning Today Must Include Digital Assets and Social Media

Estate Planning Today Must Include Digital Assets and Social Media

It wasn’t very long ago that we had only paper for financial and tax records. We could simply point to a file cabinet or drawer and tell someone, “Everything is in there when the time comes.” But now we have computers and the internet, and so much of our lives is online. Unless we include our digital assets and social media in our estate planning, our family or administrator may not be able to find critical documents.

For example, if you scan documents or receive financial statements electronically, someone else may not even know these exist. If you use a program like Quicken or Quickbooks and tax preparation software, those records are on your computer. Facebook pages, blogs, email accounts and photos stored digitally on a computer or an online account would certainly have special meaning to your family.

Much of this information is password protected. Unless we make arrangements in advance, family members or administrators may not be able to access these and the information could be lost forever.

Estate planning for digital assets and social media accounts is similar to estate planning for other assets. You need to make a list of what you have and where it is located, name someone (with computer and social media know-how) to step in for you, provide that person with access, and provide some direction for what you want to happen to these assets.

Listing your digital assets by category (hardware, software, social media/online presence, online accounts) will help make the task less daunting. Next to each one, add user names, passwords, PIN numbers and the site’s domain name. Keep this list in a safe place and tell your successor where it is. (Do not store it unprotected on your computer; if it is stolen, the thief would have all of your passwords. If you store it on your computer, password protect the file and give that information to your successor.)

Think about what you want to happen to these assets. For example, if you have a website or blog and you want it to continue, you need to leave instructions for keeping it up or having someone take it over and continue it. If a site is currently producing or could produce income (e-books, photography, videos, blogs), make sure your successor knows this. If there are things on your computer or hard drive that you want to pass on (scanned family photos, ancestry research, a book you have been writing), put them in a “Do Not Delete” folder and include it on your inventory list.

Closing down accounts that are no longer needed will help to protect your family from identity theft after you are gone. The person you name as your successor will need a death certificate to do this. Consider naming this person as a co-trustee or co-executor with responsibilities limited to this area to give them legal authority to act for you.

Yes, this will take some time and thought. But, just like “other” estate planning, the more we can do now to put things in order, the easier it will be for our families later.

Top 10 Reasons for Estate Planning

Top 10 Reasons for Estate Planning

There are many reasons why estate planning is important for everyone, regardless of age. With the proper plan in place, you can:

1.   Protect your Loved Ones. 
Only with proper planning can you be assured that your loved ones will not be subjected to unexpected disasters due to your failure to plan.

2.  Avoid Probate. 
Without a trust, your estate will be supervised by the Probate Court and there are high legal fees associated with court control.  A Trust avoids the expensive, lengthy, emotionally draining and public probate process.

3.  Guardians for Minor Children.  
Who do you choose to raise your children if you pass prematurely? It is crucial that you name a legal guardian in your will so YOU make the decision about who will care for your children.

4.  Manage Affairs in the Event of Incapacity.
In the event that you are unable to make decisions for yourself, who will make those decisions on your behalf?  By creating a durable power of attorney and an advanced healthcare directive can you be sure that your financial and personal affairs will be handled according to your instruction.

5.  Business Planning.  
If you own a business, proper planning can ensure that the business survives and continues on in accordance with your plan.

6.  Minimize or Eliminate Estate Taxes. 
You can prevent your assets from being subject to estate tax, which will allow more of your estate to be enjoyed by your loved ones.

7.  Charitable Giving. 
You can make gifts to your favorite charity or other worthwhile causes, while potentially getting income and estate tax benefits.

8.  Provide for Spouse.  
Without a proper plan, your spouse or partner may not receive the property you intended to provide.  For example, unknowingly holding property in joint ownership with someone other than your designated recipient may have undesired results down the road.

9.  Establishing Trusts for Minor Children. 
A good plan can preserve your assets for your children’s use and prevent those inherited assets from being wasted or lost by careless habits and harmful addictions.

10.  Designate Beneficiaries. 
By creating an estate plan you have wide latitude to choose who will receive your estate, what they will receive and when they will receive it.  You may distribute among your children equally or you may choose to eliminate one or all of them.  You have complete control over your estate, rather than allowing the legal system to do it for you.

The Disadvantages of Online and Do-It-Yourself (DIY) Estate Planning

The Disadvantages of Online and Do-It-Yourself (DIY) Estate Planning

With the number of online and do-it-yourself (DIY) legal providers continuing to grow, some of individuals may be wondering if they could do their estate planning themselves. The advertising is seductive: attorneys use similar forms, the cost is significantly less than hiring an attorney, and many of these websites and kits are created by attorneys. In addition, most people think their estates are not complicated, and many think they are just as smart as (or smarter than) professionals.

Most professionals know that DIY estate planning can be very dangerous. While completing the forms may seem easy and straightforward, a single mistake or omission can have far reaching complications that only come to light after the person has died. With that person not here to explain his or her intentions, the heirs could end up disappointed and confused, and could end up paying much more in legal help to try to sort things out after the fact than it would have cost in the first place.

 Those contemplating the DIY route should consider the following:

  • Legal Expertise: Experienced estate planning attorneys, like myself, have the technical expertise to draft documents correctly.  We also understand the technical terms and legal requirements in your state. Laws vary greatly from state to state, and a DIY program or kit may not tell you everything you need to know to prevent your plan from being thrown out by the court.
  • Counseling: Attorneys are called “counselors at law” for a reason. Most estate planning attorneys have counseled many families and they have seen the results of proper and improper planning. An experienced attorney can guide you with delicate decisions, including who should be the guardian of your minor children; how to provide for a child or elderly parent who has special needs without interrupting valuable government benefits; how to provide for your children fairly (which may not be equally); and how you can protect an inheritance from creditors and irresponsible spending.
  • Explanation of Intentions: If there is any confusion as to what your intentions were after you are gone, the attorney who counseled you will be able to explain them. This unbiased interpretation from someone who does not stand to benefit from your plan can help to avoid costly litigation by your beneficiaries and even maintain the validity of your documents.
  • Coordination of Assets: A Will only controls assets that are titled in your name. You probably have other assets that are controlled by a contract, joint ownership and/or beneficiary designations; these include IRAs, 401(k)s, joint bank accounts, real estate and life insurance. A Will does not control these assets. An experienced estate planning attorney will know how to coordinate these so that your assets are distributed the way you want to those you want to have them.  Also, a Will will need to be lodged in the Probate Court and the estate will need to be handled by a Judge in the process called Probate if the fair market value of the assets exceed $150,000.  An experienced attorney will explain this process and recommend a Revocable Living Trust to avoid the costly, time-consuming, stressful and public Probate process.
  • Tax Planning: The federal estate tax exemption has been a moving target in recent years. The current $5.49 Million exemption per person (indexed for inflation) has been made permanent, that is, until Congress changes the law. Also, many states have their own death or inheritance tax, often at much lower exemptions than the federal tax. Careful professional planning is a must in order to avoid paying too much federal and/or state tax.
  • Same Sex and Other Relationships: Because laws are frequently changing and vary greatly from state to state, it is vital to have updated advice from a competent professional. Without proper planning, many rights may be limited for unmarried cohabitants. Providing for your pets may also be very important to you.
  • Complexity and Cost: Most people think their estate planning will be simple. But the reality is, most of us discover we do need some personalized planning…and you may not know that without the guidance and counseling of an experienced attorney. It is far better to spend a little more now and make sure your plan is created correctly than to try to save money and have things turn out badly later. You won’t be around then to straighten things out. Don’t you think you owe it to those you love to do this the right way?

Here are some things you can do to help keep costs down:

  • Become educated consumers. The more we learn and understand about estate planning, the less time an attorney will need to spend educating us as to the process.
  • Prepare a list of assets and liabilities; gather relevant documents (deeds, titles, beneficiary designations, etc.); consider beneficiaries and any special needs they may have.
  • Consider what you think you want, but be open to the attorney’s suggestions.
8 Estate Planning Things to Do before you Travel

8 Estate Planning Things to Do before you Travel

Before any trip, most of us create a “to-do list” of things we have put off and want to take care of before we leave. Here is a checklist of estate planning things to do before you take your next trip. Taking care of these will help you travel with peace of mind, knowing that if you don’t return due to serious illness or death, you have made things much easier for those you love.

1. Have your estate planning done. If you have been procrastinating about your estate planning, use your next trip as your deadline to finally get this done. Be sure to allow adequate time to get your estate plan completed in advance of your trip.

2. Review and update your existing estate plan. Revisions should be made any time there are changes in family (birth, death, marriage, divorce, remarriage), finances, tax laws, or if a trustee or executor can no longer serve. Again, be sure to allow enough time to have the changes made.

3. Review titles and beneficiary designations. If you have a living trust and did not finish changing titles and/or beneficiary designations, now is the time to do so. If a beneficiary has died or if you are divorced, change these immediately. If a beneficiary is incapacitated or a minor, set up a trust for this person and name the trust as beneficiary to prevent the court from taking control of the proceeds.

4. Review your plan for minor children. If you haven’t named a guardian who is able and willing to serve and something happens to you, the court will decide who will raise your kids without your input. If you have named a guardian, consider if this person is still the best choice. Name a back-up in case your first choice cannot serve. Select someone responsible to manage the inheritance.

5. Secure or review incapacity documents. Everyone over the age of 18 needs to have these: 1) Durable Power of Attorney for Heath Care, which gives another person legal authority to make health care decisions (including life and death decisions) for you if you are unable to make them for yourself; and 2) HIPPA Authorizations, which give written consent for doctors to discuss your medical situation with others, including family members.

6. Review your insurance. Check the amount of your life insurance coverage and see if it still meets your family’s needs. Consider getting long-term care insurance to help pay for the costs of long-term care (and preserve your assets for your family) in the event you and/or your spouse should need it due to illness or injury.

7. Organize your accounts and documents. It used to be that we could just point to a file cabinet and say everything was “in there.” But now so much is done online that there may not even be a paper trail. Make a list of ALL of your accounts, where they are located, and the user names and passwords, then review and update it before each trip. Print a hard copy in case your computer is stolen or crashes and let someone you trust know where to find it. Clean up your computer desktop and put your financial and other important files where they can be easily found. Make a back-up copy in case your computer is stolen or crashes, and let someone know where to find it. Be sure to include on your master list any passwords that might be needed to access your computer and files.

8. Talk to your children about your plan. You don’t have to show them financial statements, but you can discuss in general terms what you are planning and why, especially when any changes are made. The more they understand your plan, the more likely they are to accept it—and that will help to avoid discord after you are gone.