Building Legacies that Last Estate Planning and Elder Law

Use a Trust to Avoid Disputes

If you know that your family is likely to fight over your estate, you can limit the fight greatly, by using a trust instead of a will. Bigstock-Family-Couple-Relationships-Cr-5604405

Many family fights over estates are predictable. People know when their family members do not get along and are likely to fight over their inheritances. They know that “unequal” inheritances are more likely to trigger trouble, too.

When it comes to estate planning, it is important to understand that those fights quite often result in protracted court cases over the estate. This is especially true, if the main instrument used to distribute the estate is a will that has to go through probate by its very legal nature. Some of this mayhem may be avoided by using a trust instead as the Times Herald-Record discusses in "Trusts avoid inheritance disputes among family members."

Since trusts do not go through probate, there is no open probate case for family members to easily file a claim. That in and of itself makes a trust much less likely to lead to litigation. It is also easier to use the trust document itself to create language making family fights less likely. Even if there are fights, an independent trustee can often referee those fights and thus avoid any litigation.

It is nearly impossible to completely guarantee that no family fight will ever occur over an estate. An estate planning attorney can help make those fights much less likely, by creating a good trust.

Reference: Times Herald-Record (April 5, 2018) "Trusts avoid inheritance disputes among family members."

 

Joint Tenancy Is a Bad Idea

Bigstock-Elder-Couple-With-Bills-3557267Adding a child as the joint tenant of your home to avoid probate is always a very bad idea.

Some bad ideas in estate planning never seem to go away. No matter how many times estate planning attorneys try to tell people that the ideas are bad, people continue to make the same mistakes.

One common mistake is when people try to do their own estate planning to get around probate. For example, a widow may add an adult child as a joint tenant on the deed to her home. While it is true that if all goes according to plan, the child will inherit the house after his mother passes away without the need for probate. This approach can be a bad idea.

Why? Normally, the trouble comes because the child has a creditor who can attach the home to pay off the child’s debts.  However, there are other potential issues, as was recently discussed in the Napa Valley Register in "Can new wife inherit home?"

In this case, a married couple added their daughter to the deed as a joint tenant. The wife passed away, which made the father and daughter co-owners of the home. The father then remarried to a much younger woman.

The daughter refused to give up ownership and allow for a new deed allowing the new wife to inherit the home. When the father passes away, the daughter will inherit the home and be free to throw the new wife out if she wants.

Instead of looking for ways to avoid probate on your own, go to an estate planning attorney for assistance. The attorney can give you better ways to accomplish your goals and help you avoid these types of problems.

Reference: Napa Valley Register (April 5, 2018) "Can new wife inherit home?"

 

Tell Someone about Your Advanced Medical Directives

MP900448483If you have a health care power of attorney and living will, you should make sure that someone you trust knows where to find them.

It is very easy to get advanced medical directives today. You can often get living wills and health care powers of attorney as part of the process of admission to a hospital. If you tell a doctor about your wishes, it is often good enough for the doctor to make a note of them in his or her notes. However, getting those documents at a hospital or by telling a doctor can be a problem.

The system of medical records used in the U.S. does not make it easy for doctors to know that you have expressed your wishes ahead of time, especially when they actually need the information as The New York Times reports in "You've Detailed Your Last Wishes, but Doctors May Not See Them."

There is a potential way to mitigate the possibility that this problem will happen to you. Get your living will and your health care power of attorney ahead of time, by going to an estate planning attorney. These documents are routinely created as part of the estate planning process.

Once you have created the documents, you should store them in a secure place.  However, do not stop there. Make sure that someone you trust knows where to find the documents. That person can then get them when needed, to the doctors providing care for you.

This is not a perfect plan that will work all of the time, but it is better than relying on the current system of medical records.

Reference: New York Times (March 27, 2018) "You've Detailed Your Last Wishes, but Doctors May Not See Them."

 

Digital Asset Availability Limitations

MP900442500Gaining access to the digital accounts of deceased loved ones is slowly becoming easier. That means that people need to think about what type of access they want to grant as part of their estate planning.

Even just a few years ago, it was almost impossible to gain access to the digital accounts of the deceased. Even when ordered to allow access by judges, tech companies would point to their terms of service and deny that access. This created many problems for families and estate administrators who needed access to those accounts for a variety of reasons.  In Maryland, the legislature passed a law which became effective on October 1, 2016.  The law allows Maryland residents to name a fiduciary, during incapacity and upon death, to access the resident's online accounts. DC has not yet enacted such legislation.  For details on how to manage your digital assets, see an estate attorney.

In response to this problem, state legislators have slowly been passing new laws to gain access to digital accounts.  As a result, some tech companies are beginning to change their policies to account for this. However, when it comes to your estate planning, do you want someone to have access to your digital accounts after you pass away? If yes, for how long should they have that access?

This subject was recently considered by the Wills, Trusts & Estates Prof Blog in "Digital Assets Estate Planning — Alternatives to Perpetual Access."

The problem? The longer a digital account remains open without someone monitoring it, the more likely it is to be hacked by someone who can use the information in it for criminal, fraudulent or other nefarious purposes. Cases of this happening are becoming much more frequent. It sometimes means that estate administrators must deal with all of the problems associated with identity theft in addition to their more traditional duties.

Given these potential abuses, you might want to direct in your estate planning that your accounts be closed completely, after the period of time necessary to wrap up your affairs.

Reference: Wills, Trusts & Estates Prof Blog (April 6, 2018) "Digital Assets Estate Planning — Alternatives to Perpetual Access."