National Estate Planning Awareness Week

“I’m so confused!  The woman at the bank said I have to keep this account here.  The guy at the insurance company said I should really do this.  And my friend said she didn’t do any of this.  I don’t know what to do!”

The above is a general excerpt of conversations I have with Executors all the time.  The first few months of handling an estate can be tough.  You have just lost someone close to you and now you need to sort out what they left behind and are dealing with so many people on so many matters.  You will get advice from almost everyone you encounter.  You will hear stories about how the person you are interacting with handled it.  And you will most certainly interact with someone who will adamantly insist they know the law and what they are telling you is the exact opposite of what your attorney told you.  Or at least you think it is the exact opposite.  Come to think of it, now you are not so sure because you have heard so many different things from so many different people.
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We’ve noticed a pattern recently. It is often that I receive a call from a client or a relative of a client the day someone dies asking what they need to do. A person bereft with emotion, overwhelmed, and sometimes in a state of shock just trying to make sense of everything coming at them at once. My advice is always the same: Take a deep breath and take a moment to grieve. We’ll walk you through what you need to do and when.

My job is to make this process as painless as possible. In a majority of the estates I handle, the person tasked with handling the estate was close to the decedent and impacted by their death. It is completely understandable that this person would be overwhelmed by all of the new information and questions coming at them.
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What should I discuss with my family?

Discussing your eventual death is not a pleasant conversation to have, but it is a necessary one.  It is important to let your family know what your wishes are.  Depending on what your documents say, your family members may have some big decisions to make regarding your end of life care, burial, and dispositions of assets.  If you have never discussed any of this with them or told them where to look for your documents, they could be left in the dark during an already trying time.

I have many clients who come in to a meeting feeling like the weight of the world is on their shoulders, who visibly exhale with relief by the time we execute their documents.  Preparing and executing the proper document is crucial but take it a step farther.  Let someone know about your final decisions.  You took the first difficult step by having the documents drafted.  Now make sure someone knows where to find them and what to do with them.  This will provide peace of mind to you now and to your loved ones in the future.
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Do I really need a Power of Attorney?

There is no legal requirement that you execute a Power of Attorney, financial or otherwise.  You could go through life never having to give someone else authority to act on your behalf.  But, what are the chances that you will go through your whole life never needing someone to step in and act on your behalf even if it’s just for a short period of time?  That you will never find yourself in the hospital unable to transfer money to cover bills or unable to communicate your medical decisions?  That you will always maintain you mental faculties? Probably pretty remote.

So what happens if you never appointed an agent to act on your behalf?  The Court will have to intervene.  A petition will be prepared to have you declared incapacitated and a guardian will be appointed to make decisions on your behalf.  Once you are declared incapacitated, you can no longer make legally binding decisions for yourself.  The Court will now require your guardian to file annual reports of all of your assets and income.  This is an intrusion most people want to avoid.  Preparing a Power of Attorney and appointing someone to act as your agent for financial and medical decisions while you are competent avoids involving the Court in a guardianship process. 
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What happens to my pets when I die?

You can leave it up to your Executor to determine what happens to them.  But I suspect that, if you are looking for an answer to this question, letting someone else decide what happens to the four legged family members is not good enough for you.  Fortunately, the Legislature also didn’t think leaving it up to your Executor was a good enough option thus, in 2006, Pennsylvania became the 32nd state to adopt a pet trust law.  You can now create a trust to provide for the care and maintenance of your pets that were living at the time of your death.  The trust terminates when the animal dies or, if you are providing for the care of more than one pet, at the death of the last surviving animal.  Through this trust document you can set aside money for the specific purpose of caring for your pet.  You can also direct where the pet is to live and appoint a successor caregiver as you would for a guardian of children or an alternate executor.  Pet trusts are particularly useful when you have an animal with costly medical bills, or that requires some sort of special care.  You also know your pet better than anyone and are the best person to determine who can care for it. 
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What is Probate?

The formal definition is the process by which an estate is formally established for a decedent and representatives are appointed to handle the decedent’s affairs.  Probate is not always necessary.  Depending on the nature of the asset, some can transfer outside of the probate process.  These assets are generally assets that are

What is a Special Needs Trust and why would I need one?

A Special Needs Trust is a device that allows for those receiving public benefits for a disability to still be able to enjoy the benefit of inheritance, gifts, or other transfers of wealth.  Typically in order to receive Medical Assistance or Supplemental Security Income, a person must have less than $2,000.00 in assets.  So imagine this – you have three children, one of whom receives benefits due to a disability, making that child an equal beneficiary of your estate could disqualify the child from his or her benefits, which could be catastrophic depending on the nature of the benefits.  Without a special needs trust, your options are limited.  You either disinherit your child or you cause them to lose their benefits.  With a special needs trust, you can now treat them equally under your Will and allow them to maintain his or her benefits.  Special Needs Trusts are very technical and have various requirements that need to be followed.  If you or a family member believe a special needs trust is necessary, you should consult an experienced estate planning attorney.
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I’m sure you’ve heard or used the phrase, “hit by a bus.”  Have you ever known anyone who was hit by a bus?  How did that phrase become the standard for conveying a catastrophic injury?  A staff editor at the New York times offers some explanations here.  Now that you know some of the possible origins of this catastrophic cliché, I will employ it here.  Let’s say for example, you are in your second marriage and have two children from your first.  You are hit by a bus and succumb to your injuries.  You have no Will, but you and your spouse have talked about it and you are confident that he or she will follow your wishes.  Those wishes happen to be that your spouse gets everything, but will continue to take care of your children.  Or perhaps that everything will go to your kids.  Or a myriad of other scenarios. As long as you have thought about it and properly communicated it to your spouse, that is all you need right?  I mean you married your spouse, you trust them.  Everything will be fine, right? Unfortunately, more often than not, that is wrong.

Trusting your spouse to follow through with your wishes does not guarantee that your wishes can or will be followed.  First, sadly, there is no guarantee that your spouse will actually follow your wishes.  Even if you took the extra step to communicate what you wanted to happen with your assets on your death to another family member or trust friend, if you did not draft a Will, there is no way to legally enforce those wishes.
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“Oh that wasn’t so bad.”  “You weren’t as intimidating as I thought a lawyer would be.” “I’m glad that’s done!”  “Oh how I dreaded this meeting!”

These are all things I have heard clients say after we meet to discuss their estate plans.  For a lot of people the idea of thinking about their own mortality is difficult.  But add speaking with someone else about it and planning for all the what ifs out there? Forget about it.  They’d rather have their teeth drilled without Novocain. But it doesn’t have to be that scary or difficult.  When I meet with clients for the first time to discuss their estate planning documents, I first ask them which documents we are drafting.  I do this because many times people are not aware that a good estate plan starts with three basic documents- a Will, a Financial Power of Attorney, and a Healthcare Power of Attorney/ Advanced Healthcare Directive (for more information on these three documents, check out our blog article The Three Estate Planning Documents You Need).

After explaining all three documents, we determine which ones are necessary for that particular client.  While I usually strongly recommend that a client have all three, there can be situations where one or two of the documents are not needed.  I generally start with the Will.  Believe it or not, in a majority of cases, that is the easiest document to gather information for, especially when my clients come prepared.
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