Estate Planning Practice Blog

How About This For End of Life Wishes?

This is circulating on a lawyer email group...

It's pretty funny. And actually you could include this in your Advance Health Care Directive. I don't see why not!

Living Will Form

I, __________________________, being of sound mind and body, do not wish to be kept alive indefinitely by artificial means.

Under no circumstances should my fate be put in the hands of pinhead politicians who couldn't pass ninth-grade biology if their lives depended on it. Nor in the hands of lawyers/doctors who are interested simply in running up the bills.

If a reasonable amount of time passes and I fail to ask for at least one of the following:

• Bloody Mary
• Margarita
• Scotch and soda
• Martini
• Vodka and Tonic
• steak, lobster or crab legs
• the remote control
• bowl of ice cream
• the sports page
• chocolate
• or sex

... it should be presumed that I won't ever get better.

When such a determination is reached, I hereby instruct my appointed person and attending physicians to pull the plug, reel in the tubes and call it a day.

At this point, it is time to call a New Orleans Jazz Funeral Band to come do their thing at my funeral, and ask all of my friends to raise their glasses to toast the good times we have had.

//Signed and Dated//

P. S. I also hear that in Ireland they have a Nursing Home with a Pub. The patients are happier and they have a lot more visitors.

Transferring Real Estate to Loved Ones.

Please consult with an attorney before transferring any real estate to members of your family or other loved ones.

If you are selling your real estate for fair market value, that's one thing.

If you are giving a gift or transferring title of your real estate to your parent or sibling or other loved one, it probably is not the wise thing to do. I can say this without knowing any facts.

Lots of issues pop up: property tax reassessments, gift tax, losing the stepped up basis for capital gain taxes, causing ineligibility for government benefits, and so on.

I am not going to write a detailed post today to explain what I just said. If you don't understand what I just said, then it is all the reason to please consult with an attorney regarding your real estate transfer.

You just might save yourself the biggest headache in your life.

Trust me.

If You Have Kids, You've Got to Have a Trust.

If you have kids and don't own your home, you might be able to get away with just a Will. Remember, a Will is the only document where you can nominate a guardian for your children in case you are unable to care for them.

But consider if you need a Living Trust as well -- here is a good reason to have a Living Trust even if you do not own your home.

A young Mom came to me three weeks ago. Her husband died from an illness. They have two children. He had a nice life insurance policy through his work. For some reason, he named his wife to receive half of the life insurance policy and the remaining half to be split among his children.

Guess what? His kids are minors.

The life insurance company paid the death benefit to the wife. And then they set up two checking accounts with their banking arm for the children's shares.

Guess what? The checking accounts earn 1%  interest.

So the widowed Mom wanted to invest her children's proceeds in something slightly better. She had in a mind a Certificate of Deposit or a money market account that paid greater dividends. She called the life insurance company; they told her that she needed to obtain guardianship of her kids so she can manage their money. This is true. Not all insurance companies have this kind of policy, but this one does. It is within their right to insist on "Letters" of guardianship before moving the money out.

That sucks.

Mom has to open a guardianship proceeding with the local court, pay the filing fees, attend a hearing and then get everything in order so she can move the money to an investment vehicle that has a better interest yield.

If there was a Living Trust ... you know where I am going ... this problem would have been avoided had the life insurance policy named the Living Trust as the beneficiary for the policy.

If you have kids, you need a Will. If you have other potentially significant assets like a life insurance policy, you need a Living Trust, too.

[Another option is that you could set up a Testamentary Trust in your Will.]

See an attorney for more details.

What Makes People NOT Do Estate Planning?

What are the obstacles for people NOT to do estate planning?

I can think of a few.

1. I think the biggest obstacle is price. Attorney fees to prepare estate planning documents are not a drop in the bucket. They can take some time to budget for many people.

2. Another obstacle is a fear that if you complete your estate planning, you will pass away or something else will occur. From what I hear from my clients and people I know, this is rather common.

3. Not knowing that you really need the documents or how much anguish it will cause your family.

Any other reason are probably a variation of one of the above three.

So, my shortlist:

1. Money
2. Fear
3. Unawareness (or ignorance, if I dare be so bold.)

Some people might want to argue with me and say, well, I have no family -- no one to give my estate too. That falls under number 3. Unawareness. You are causing a problem for someone. Give your estate to the local animal shelter then.  If you want to argue, please post... there may be a number 4, 5 and 6 that's skipped my mind.

If you do not have children, your need to have estate planning can be forgiven. You are not hurting those you brought into the world.

If you have minor children, there is no excuse for not having at least a Will. Remember, a Will is the only document where you can nominate a guardian for your minor children.

Making Up for Another Lawyer's Misdeed.

I don't know where to begin with this post. I am not even sure I should be posting about it... but I will.

On Saturday, April 1, 2006, Michelle and I participated in Bill Handel's Law Day. Read my post about it here.

I spoke to many people that day. I also spoke to a very warm and loving middle aged couple. They told me that they hired an attorney based on a recommendation from her work for estate planning. I do not wish to write everything that transpired other than they paid him $1500.00 for estate planning documents.  And to this day, they still haven't received their documents.

I believed them.

I offered to prepare their estate planning documents at no charge to show them that not all lawyers are greedy and irresponsible. The stereotype of greedy lawyers bothers me. I do not think I am one of them. Or rather, I hope not.

After multiple correspondence by phone, email and fax, they came into my office this afternoon to execute their estate planning documents. They live almost two hours away. They made the trek. I did the work. They are nothing but thrilled and relieved to have their estate planning documents in place.

They have lodged appropriate complaints about this attorney with various agencies including their referral source.

It felt good to be able to help them out.

Don't-do-it-yourself Probate...

On March 18, I linked to a blog that talked about handling probate matters yourself.

Over the past month, I have been working with a client who was handling a probate matter on his own. Papers had been filed, a court appearance was made and things turned into a mess.

I almost hate to say it, but California probate is not easy.

The first order of business is completing the Petition for Probate form. On this form, you must indicate to the court who the decedent's heirs are. First, you indicate if there is a surviving spouse. If no spouse, then are there surviving children? If no children, then are parents of the decedent still alive? And so on it goes... it's hard to know how to answer the boxes if you don't know which facts about the decedent are important.

Yes, it is important that the decedent had no spouse, no kids, no surviving parents, but had a half-sister who died and left children. I do not want to offer any more detail to protect my client's privacy.

But if you decide to go at it "in pro per" ... be sure to consult with an attorney first to get the lay of the land. Either that or crack open the Probate Code book.

Claustrophobic and Hate Fires? Let Your Agent Decide.

One option with respect to burial or cremation -- is that you can allow your agent to make the decision for you when the time comes.

Many of my clients have strong feelings when it comes to burial and cremation. When I ask their preferences for completing their estate planning documents, they have their answer ready usually followed by a short explanation.

Today, my client presented an interesting paradox. My client is claustrophobic so does not want to be buried. My client is also fearful of fires so does not want to be cremated. I never thought of it that way before. Instead, I was told to put in the Advance Health Care Directive that the designated health care agent can decide.

I thought it was an interesting perspective.

On a personal note, I really do not like fires. After watching Artie Bucco, the owner of Nuovo Vesuvio, get his hand burned in a pot of spaghetti sauce last night on Sopranos -- I've recommitted to my own decision to be buried. I think it was Tony who said last night that his skin came off like a glove. Gah.

Pearls Before Swine Funnies on Organ Donation.

Organ donation must be on everyone's mind these days.

Stephan Pastis from Santa Rosa, California draws Pearls Before Swine, which is a hilariously funny comic strip. Today, he drew a great strip on organ donation. Check out April 22's strip... yeah, it's funny.

Factoid: did you know that Stephan Pastis is or was an insurance defense attorney? Read this 2005 article from the San Francisco Chronicle.

Click here for a transcript of Pastis's live online discussion at Washingtonpost.com in 2002.

Hospital Visitation Authorization -- a Must for California Partners.

If you are not married to your significant other or are in a same sex relationship, you should consider having a Hospital Visitation Authorization.

This is because many hospitals permit only family members to visit their loved ones in a hospital.  Certainly some hospitals enforce this more strictly than others, it is wise to have a Visitation Authorization in place.

Thus, to ensure that you and your partner are able to visit each other during a hospital stay, both partners should execute a Hospital Visitation Authorization.

I recommend that my unmarried clients have one available in case they need to show it to hospital personnel before being allowed to visit your significant other.

A Very Important Document -- That Advanced Health Care Directive.

Without naming names or being too personal, a dear friend of mine's parent was hospitalized last week for intestinal troubles. It turned out that this person needed emergency surgery to remove an obstruction a day after hospitalization. The surgery occurred on Easter Sunday.

It is now three days later and the parent has yet to awaken from the surgery and remains on various life support systems to assist with recovery.

Can this person fully recover?

I don't know.

What did this person want with respect to life support and continuing life support?

I don't know.

The hospital asked if there was an Advance Health Care Directive in place. The answer was and is no.

You never know what will happen -- take the time to complete your medical directive today. It can mean the world to your loved ones.

Here is a link to the California Office of the Attorney General's website to complete a Advance Health Care Directive at no charge.