The form Will that the father had filled out had spaces for specific bequests – specific items that he wanted to go to certain people.  So the father had filled those out.  Then he signed the Will in front of two witness and had it notarized. 

As the years passed, some of the things the father had left to people went out of his estate – cars were sold, bank accounts were closed and new ones opened – and some of the people he was leaving things to had died.  And no where in his Will were these things taken into account.  There were no contingent beneficiaries, people who would inherit if the first beneficiary died before the father.  The residuary clause – the catch-all clause that says "anything else I may own at the time of my death goes to the following people:" – wasn't even on the form. 

When a Will is properly drafted with an attorney, the attorney will ask questions of the person making the Will – "You want to leave that account to Sharon, ok, do you want to leave all bank accounts to Sharon? What if you close that account and open another, what would you like to have happen? What if Sharon passes away before you? Do you want her share to go to her children or to her siblings? Are her children minors? Do any of them have special needs? What about the grandson you mentioned who's having problems with drinking? – and so on and so on. 

That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers.  We know how to read the hesitation in your voice when you are trying to decide who to choose as guardian or executor, and how to tease out more information so that you can make the best decision for your family.  And we are here when your life changes and you or your family need some guidance on what to do next.  We are here when the Power of Attorney you signed has to be used by your children and the bank is giving them a hard time.  We are here when your sister has to use your Health Care Proxy and she can't find her copy and she doesn't have a key to your apartment because she never thought anything like this would actually happen. 

So, what will happen to that father's estate? The things that are still in the estate and are mentioned in the Will will pass through the Will. The things that are left to someone who has predeceased would have passed through the residuary clause to someone else of the father's choosing but will now pass by Massachusetts Law, through the Intestacy Statue, which differs greatly from the father's wishes.  Those things which were not mentioned in the Will at all, the new bank accounts the father had opened, those will pass through the Intestacy Statute as well.  For some things, the Court's guidance may need to be sought, for others a guardian needs to be appointed for a minor child who is inheriting "unintentionally", all of which involve more time and more money, which the father was trying to save by doing it himself. 

There are ways to keep costs under control when preparing your estate plan. Buying documents online just doesn't happen to be one of them.  Working with an attorney ensures not only that your wishes will be honored, but also that your estate can be administered in the most timely and cost effective manner after you pass away. I always tell my clients "when your affairs are in order, I become the last person your family calls in the event of a crisis and instead of the first," which is how it should be. 

________
Estate
Planning, Probate and Trusts involve complex areas of law. Individual
circumstances must be considered before any advice can be given.  The
general information above is not to be construed as legal advice, which
can only be given after consideration of the unique facts of each
matter. Please seek the advice or counsel of your attorney, financial
advisor or CPA as it may be appropriate.

It depends on how the document is written, so you'll want to read over your Will or Trust, and it's a good idea to have your attorney review the documents as well.

If your estate planning documents distribute your property by percentages, or have all your property distributed to one person, they probably don't need to be revised just because the size of your overall estate has shrunk. For instance, if you have 50% of your property distributed to your son and 50% to your daughter, then the distributions will be equal whether your estate has $500,000 or $50,000 in it. 

However, if you made specific distributions of certain property to people, thinking that they would be approximately equal – you may want to revisit those.  For example, say you drafted your will a couple of years ago and you left your house (worth $600,000) to your son, and your stock accounts (worth $600,000) to your daughter thinking that would make for an equal distribution to each child, as you wanted.  And today your house is worth $500,000 but the stocks have gone down to $350,000.  If you were to pass away today, the distributions to your children would be unequal, which may not be what you want.  You should speak to your attorney about how to revise your will to make sure the distributions reflect your wishes. 

Another way an estate can end up being distributed unequally is if you spend a large portion on the cash or stocks, and leave the child who is inheriting those items with a smaller distribution than you may have wanted.  Or, in the above example, if you sold the house and put the proceeds into stock – you would no longer have a house to leave to one child, and the stock account would be significantly larger than you had intended.

Your attorney can help you draft your will or trust so that your wishes can continue to be carried out even as the size your estate or how it is held fluctuates.  It's a good idea to revisit your estate plan every 3 to 5 years, but you don't want to have to be doing it every time the stock market takes a dip. 

________
Estate
Planning, Probate and Trusts involve complex areas of law. Individual
circumstances must be considered before any advice can be given.  The
general information above is not to be construed as legal advice, which
can only be given after consideration of the unique facts of each
matter. Please seek the advice or counsel of your attorney, financial
advisor or CPA as it may be appropriate.

Your burial wishes should be written in a separate document and kept in a safe place. You may want to give copies to your family members or clergy, as well.  You can meet with a Funeral Director to do "pre-need" planning and prepay your funeral. Some of my clients have even written out the schedule for their memorial services, down to the music they want played and the type of flowers.  While these may seem like morbid topics, it makes things easier on those left behind if they don't have to be making too many decisions during their time of grief. 

The What If… Workbook by Gwen Morgan has an entire section devoted to end of life wishes and is a great way to have all of your important information in one place. 

For example, if you have one child, and you leave everything to that one child, what if he or she predeceases you? Where do you want the funds to go then?  Did you mean for them to go to your grandchildren?  Or you have multiple children and one predeceases you.  Did you want their share to go to their siblings or their children?   Or, perhaps you wanted the funds to to go to your daughter-in-law who took such good care of you.  Without specifying so, the money would not go to her, but rather to your next closest relative who may be someone you have never met, or do not even like. Or maybe you would like your college, or a certain charity to be the contingent beneficiary.  Maybe the person who would inherit the funds by operation of law is a spendthrift, or addict, or has special needs and the money would be better protected in a Trust.

Unfortunately, you will not be around to explain what you wanted, and the statutes which dictate how the funds will pass without your direction will not necessarily match your wishes.  When thinking about your Will, you must always think "What if this person passed away before me, where would I want their share to go?"  Then talk about it with your attorney, who will help you make sure that all contingencies are covered. 

If you do not have your original Will, make sure you check with the attorney who does have it to make sure they have your current contact information to be able to notify you in the event that they move their office, or are retiring.  Even better, have your old Will reviewed to make sure that it is still an accurate reflection of your wishes, that the people you appointed as Executor are still around, and that your planning needs have not changed in the last 20 years, which they probably have.  If you had small children when you first drafted the Will, chances are they won’t be needing those guardians that you appointed in the Will, and you may even want one of your children to act as Executor now.  And if you are nearing retirement, facing a long term  illness or have a child with special needs or addictions you need to know what types of protections are available to you and your family. 

So find your Will (the original), dust it off, and have it looked at by an attorney.  You’ll be glad you did. 

Your church may have several different locations where the funds can be distributed, and if you want your money to stay in your local parish, you’ll need to make sure it isn’t left to the state or national branch.  You may even be able to specify that you’d like it to be used for a certain purpose at your local level – such as religious education, upkeep of the facilities or other special uses.   Likewise, the Salvation Army and similar charities have both local and national branches.  If you don’t specify where you’d like the funds to go, they very often end up at the national level, even if you wanted them to stay in your community.  If you are leaving funds to a hospital, which are sometimes considered charitable organizations, you can also specify that the funds be used for a particular purpose.   

If you are unsure of your options, you can contact the charity or religious organization yourself to speak to someone in their planned giving department, or you can ask your attorney for assistance.  Many times, the attorney has dealt with bequests to that charity before, and can provide you with some guidance in determining how you’d like the funds to be used.  And, after you’ve made your decision, your attorney will coordinate with the charity to ensure that the appropriate wording is used in your estate planning documents.

When discussing charitable giving with your family, and ultimately with your attorney, make sure you specify where you’d like the funds to be left, and how you’d like them to be used.  This way, you know your wishes will be carried out and that your funds will be used the way you intended. 

While advice from a book does not replace a relationship with an attorney, it can certainly help you figure out what you want your plan to look like, and help you understand some of the things you’ll be talking about with your attorney.  And, the book is written with general advice that is not specific to any one state, so keep in that some terms or processes described in the book might be slightly different in your state.

If one of your New Year’s Resolutions is to get your estate plan in order, this book can be helpful in getting you started, but you still need to be the one to actually call your attorney and make the appointment. 

If you are dividing your estate up equally among all of your children, you may think there is no need to discuss your plans with them. However, if you are appointing one of them as the executor/executrix, you should let that person know that you are planning on appointing them, and you should let the others know your choice.  If you can’t decide who to appoint, you might want to talk to your children to find out if they have a preference.  One might be better equipped to take over management of your finances when the time comes, while another feels more comfortable making medical decisions. 

It gets trickier if you have a child with financial, drug or alcohol problems who you’ve either chosen to disinherit or have made special provisions for through a Trust. Often times, in cases like this, inheriting a large sum of money (even $10,000.00 at one time) could be harmful or deadly to someone with drug or alcohol problems.  If you are in contact with this child and you think they would understand the reasons for your decisions, you may want to talk to them.  If you are not in contact with the child or you think that bringing it up would cause problems, it may be best to not address it at this time.  Be aware that your child will in all likelihood find out the way you’ve distributed your estate after your death, and may become angry at their siblings who have inherited more.  You might consider drafting a letter to be opened by that child after your death, which explains your reasons.

If you do decide to talk to your children, you could follow the lead of one of my clients who threw a pizza party at her house and invited her children to come and talk about her plans for the future, who wanted to be appointed as what, and how they wanted certain items of her personal property distributed among them.  It might have even prompted her children to go home and think about their own plans for the future. 

What struck me about the article were the last few paragraphs:

Family members on both sides of the dispute agree on one thing:
Corky Sliwkowski loved his daughters dearly. In the two years before he
died, he saw the girls frequently, bought a camper to take them on road
trips, and planned to expand his Rhode Island home to accommodate their
visits, Joe and Barbara Sliwkowski said.

But Corky Sliwkowski
never changed his will to reinstate his children. His brother and
ex-wife said they believe the document was written when he was in a
dark period caused by the manic-depressive disorder he had been
diagnosed with a decade earlier. They said his illness could have
caused him to forget what the will said, or postpone revising it.

The
dead man’s longtime pastor, the Rev. Joseph Creedon, of Kingston, R.I.,
said he believes Sliwkowski would have changed the will in time.

"You don’t expect a will to come into play for years," he said. "So if you want to change it, you feel you have plenty of time."

While no one can ever know what he was thinking, it appears that his family and friends believed that he had changed his mind about disinheriting his daughters in his will. Sadly, he never changed his will to reflect his wishes.  The article points out that he did leave life insurance for the children so the finances may not have been an issue, but what child wouldn’t feel hurt at being left out of their father’s will?

If you’ve left someone out of a will and have had a change of heart, don’t wait to make the changes to put them back in. You never know what life holds.

Do you figure that since things are fine now, you’ll wait to fasten your seat belt until you feel the car start spinning out of control? Unless you have the reflexes of Superman, you probably won’t have enough time. 

Or do you just never buckle your seat belt and figure that your family and other professionals can handle things in the event of an accident, because you are just too busy to do it now. 

What does this have to do with estate planning? Well, other than the fact that you hopefully have your plan in place in the event of an accident, it seems that my clients fall into one of these categories when it comes to planning for the future.

There are those who want to be prepared, and who get their plan done in a few visits.  They don’t have to worry about what will happen to them or their loved ones in the event of a crisis.  They have had time to carefully think through their decisions, and make sure everything is just how they want it.  They are calm when they come to see me, and relieved when they leave.   They have their seat belts securely fastened and can enjoy the scenery. 

Then there are those who put off planning until it is almost too late.  They are leaving the country in 3 days and only have time to do a Wills, Powers of Attorney and Health Care Proxies and not the Trust and other planning that they wanted to do.  Or their mental capacity is slipping and the time they have to plan, before someone else needs to handle their affairs, is very limited.  What they have is better than nothing, but it will leave some complications for their loved ones to deal with in the event of their death or incapacity.   The expenses are higher, the risk of running out of time is greater.  They are stressed out when they come to see me, but mostly relieved when they are done. 

Then there are those who make no plan.  These are the saddest cases.  There has been a crisis in the family and instead of being able to concentrate on their parents or other loved ones, the children are visiting the attorney to try to sort out the legal mess.  They are trying to figure out what their parents have so that they can pay for their care, or apply for Medicaid for them.  Maybe they are having to go to Court to get a guardianship over their parents so that they can sell the house or handle the finances.  Maybe there are siblings who don’t get along and can’t agree over who should do what, and it’s back to Court to let the judge decide.  Things that could have been decided when the parents were competent, are now being fought over.   Adult children who have their own lives and families to think about are having to jump through ten hoops to accomplish the same thing that would have been completed with a simple task had their mother or father or aunt or uncle executed a Power of Attorney.

These clients are sad, stressed, worried, angry and scared when the come to see me.  As we work through the issues at office visits, home and hospital visits, trips to Court and telephone calls the burden starts to lift, but the feeling of relief does not come as soon or in the same way as if there had been a plan put in place when there was time.

If you are ready to stop thinking about it and start planning, please call me at 781-749-2284.