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What Happens when Mom Refuses to Create an Estate Plan?

This is a tough scenario. It happens more often than you’d think. Someone owns a home, investment accounts and an inheritance, but doesn’t want to have an estate plan. They know they need to do something, but keep putting it off—until they die, and the family is left with an expensive and stressful mess. A recent article titled “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late” from Kiplinger, explains how to help make things right.

Most people put off seeing an estate planning attorney, because they are afraid of death. They may also be overwhelmed by the thought of how much work is involved. They are also worried about what it all might cost. however, if there is no estate plan, the costs will be far higher for the family.

How do you get the person to understand that they need to move forward?

Talk with the financial professionals the person already uses and trusts, like a CPA or financial advisor. Ask them for a referral to an estate planning attorney they think would be a good fit with the person who doesn’t have an estate plan. It may be easier to hear this message from a CPA, than from an adult child.

Work with that professional to promote the person, usually an older family member, to get comfortable with the idea to talk about their wishes and values with the estate planning attorney. Offer to attend the meeting, or to facilitate the video conference, to make the person feel more comfortable.

An experienced estate planning attorney will have worked with reluctant people before. They’ll know how to put the older person at ease and explore their concerns. When the conversation is pleasant and productive, the person may understand that the process will not be as challenging and that there will be a lot of help along the way.

If there is no trusted team of professionals, then offer to be a part of any conversations with the estate planning attorney to make the introductory discussion easier. Share your own experience in estate planning, and tread lightly.

Trying to force a person to engage in estate planning with a heavy hand, almost always ends up in a stubborn refusal. A gentle approach will always be more successful. Explain how part of the estate plan includes planning for medical decisions while the person is living and is not just about distributing their assets. You should be firm, consistent and kind.

Explaining what their family members will need to go through if there is no will, may or may not have an impact. Some people don’t care, and may simply shrug and say, “It’ll be their problem, not mine.” Consider what or who matters to the person. What if they could leave assets for a favorite grandchild to go to college? That might be more motivating.

One other thing to consider: if the person has an estate plan and it is out of date, that may be just as bad as not having an estate plan at all, especially when the person has been divorced and remarried. Just as many people refuse to have an estate plan, many people fail to update important documents, when they remarry. More than a few spouses come to estate planning attorney’s offices, when a loved one’s life insurance policy is going to their prior spouse. It’s too late to make any changes. A health care directive could also name a former brother-in-law to make important medical decisions. During a time of great duress, it is a bad time to learn that the formerly close in-law, who is now a sworn enemy, is the only one who can speak with doctors. Don’t procrastinate, if any of these issues are present.

Reference: Kiplinger (May 11, 2020) “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

If Not Now, When? It is the Time for Estate Planning

What else could possibly go wrong? You might not want to ask that question, given recent events. A global pandemic, markets in what feels like free fall, schools closed for an extended period of time—these are just a few of the challenges facing our communities, our nation and our world. The time is now, in other words, to be sure that everyone has their estate planning completed, advises Kiplinger in the article “Coronavirus Legal Advice: Get Your Business and Estate in Order Now.”

Business owners from large and small sized companies are contacting estate planning attorney’s offices to get their plans done. People who have delayed having their estate plans done or never finalized their plans are now getting their affairs in order. What would happen if multiple family members got sick, and a family business was left unprotected?

Because the virus is recognized as being especially dangerous for people who are over age 60 or have underlying medical issues, which includes many business owners and CEOs, the question of “What if I get it?” needs to be addressed. Not having a succession plan or an estate plan, could lead to havoc for the company and the family.

Establishing a Power of Attorney is a key part of the estate plan, in case key decision makers are incapacitated, or if the head of the household can’t take care of paying bills, taxes or taking care of family or business matters. For that, you need a Durable Power of Attorney.

Another document needed now, more than ever: is an Advance Health Care Directive. This explains how you want medical decisions to be made, if you are too sick to make these decisions on your own behalf. It tells your health care team and family members what kind of care you want, what kind of care you don’t want and who should make these decisions for you.

This is especially important for people who are living together without the legal protection that being married provides. While some states may recognize registered domestic partners, in other states, medical personnel will not permit someone who is not legally married to another person to be involved in their health care decisions.

Personal information that lives only online is also at risk. Most bills today don’t arrive in the mail, but in your email inbox. What happens if the person who pays the bill is in a hospital, on a ventilator? Just as you make sure that your spouse or children know where your estate plan documents are, they also need to know who your estate planning attorney is, where your insurance policies, financial records and legal documents are and your contact list of key friends and family members.

Right now, estate planning attorneys are talking with clients about a “Plan C”—a plan for what would happen if heirs, beneficiaries and contingent beneficiaries are wiped out. They are adding language that states which beneficiaries or charities should receive their assets, if all of the people named in the estate plan have died. This is to maintain control over the distribution of assets, even in a worst-case scenario, rather than having assets pass via the rules of intestate succession. Without a Plan C, an entire estate could go to a distant relative, regardless of whether you wanted that to happen.

Reference: Kiplinger (March 16, 2020) “Coronavirus Legal Advice: Get Your Business and Estate in Order Now.”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

Retitling Assets to Align with Your Estate Plan

When you purchase a house, you purchase the title to the home. It’s an important legal document concerning the transfer of property. In an estate plan, how accounts are named, or titled, is a critical part of changing the asset’s owner from a person to the legal entity that is a trust. This is an important step in the estate planning process, says The Black Hills Pioneer in a recent article, “Titling of property is just as important as your Will or Trust.”

There are some kinds of property that, depending on how they are titled or who’s the named beneficiary, will flow outside your will or trust.

For instance, if you designate a beneficiary to your life insurance policy or on your retirement account, that money goes directly to the named beneficiary at your death—not in accordance with your will or trust (provided you haven’t named your estate or trust as the beneficiary).

In addition, you could designate another person as payable on death (POD) designee or transfer on death (TOD) designee on your investment account or your bank account. These types of accounts also transfer automatically to the named designee and not with any regard to your will or trust (unless you named your estate or trust as the beneficiary).

Any jointly owned real estate will typically flow to the surviving joint owner, not pursuant to your will or trust. However, the fact that two people own one piece of real estate doesn’t mean the property will flow automatically to the survivor. It depends on how the property is titled. For example, in South Dakota, language needs to be included in the deed conveying that real estate to both individuals as “joint tenants with rights of survivorship.”

You can, therefore, see how critical it is that you discuss these issues with your estate planning attorney. In addition to questions about wills and trusts, you should also be discussing the titling of your property and the beneficiaries you’ve named on your life insurance and retirement accounts, along with any POD and TOD designees you’ve named on your investment accounts or bank accounts.

By completing this final task of your estate plan, your family will receive the protection that you had wanted. Without doing so, your legacy may go unfulfilled.

Reference: Black Hills Pioneer (August 5, 2019) “Titling of property is just as important as your Will or Trust”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

What Exactly is Probate?

Probate is a legal way to properly dispose of a deceased person’s property after death, with the required approval from a probate court.

The Street’s recent article on this subject asks “What Is Probate and How Can You Avoid It?” The article looks at the probate process and tries to put it in real-life terms.

Probate is an estate planning process that works within a probate court, with a probate judge presiding over the proceedings. Usually, surviving families and other interested parties initiate a probate process, to address issues relating to the deceased individual's estate settlement. These include:

• The handling of the deceased’s valid will;
• Properly citing and categorizing the deceased’s assets;
• Appraising the deceased's estate and property;
• Paying off any of the deceased's existing debts; and
• Distributing the deceased's property to those directed by the will (or, if there's no will, the probate court will direct the distribution of estate assets, according to the laws of intestacy).

The executor handling the deceased's estate will typically start the process. Here are the basic steps:

File a Petition. The estate's executor will file a request for probate where the deceased resided. The court will then assign a date to confirm the executor and, once that is done, the probate judge will officially open the probate case.

Notice. The executor must send a notice that the deceased's estate is officially in probate to all applicable beneficiaries, heirs, debtors and creditors.

Inventory Assets. The executor will then collect, list, and present a value for all of the deceased's assets and supply this to the probate court.

Pay the Bills. The executor will need to pay all outstanding debts owed by the estate.

Complete Any Tax Returns. The estate may also have existing tax returns that need to be filed. An accountant can be hired by the estate to work on this, or the executor may choose to file the taxes on his or her own.

Pay the Heirs. The executor can now distribute the remainder of the estate to any heirs, according to the will's instructions.

Close the Estate. Finally, the executor will file paperwork with the court and file to close the estate.

Probate can be a long and tiresome process. Ask your estate planning attorney about the ways you can avoid probate or remove certain assets from this process.

Reference: The Street (July 29, 2019) “What Is Probate and How Can You Avoid It?”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

Why You Need an Estate Planning Attorney

Having a will created to protect your family is not that difficult, if you have the help of a good estate planning lawyer. The amount of angst that can be avoided, not to mention taxes and court costs, should make this an easy decision. Yet two out of five Americans over the age of 45 still don’t have a will, according to a study done by from AARP.

The Reflector’s recent article, “Things people should know about creating wills,” says that writing your wishes down on paper helps avoid unnecessary work and stress when you die. Signing a will allows heirs to act with the decedent’s wishes in mind and also will make certain that assets and possessions go to the right people.

Many people wisely turn to estate planning attorneys to make sure this important task is done correctly and legally. Here are some of the estate planning topics to discuss with your lawyer:

List of Your Assets. Create a list of your assets and determine the ones covered by the will and those that will have to be passed through joint tenancy on a deed or a living trust. For instance, life insurance policies or retirement plan proceeds will be distributed by the beneficiaries you named in each account. Remember that your will can list other assets, like memorabilia, antiques, cars and jewelry.

Naming a Guardian. Parents with minor children should definitely designate the person or persons whom they want to become guardians, if they were to die unexpectedly. They can also use their will to name a person who will be in charge of the finances for the children.

Remembering Your Pets. It’s common for pet owners to use their will to detail guardianship for their pets and to leave money or property to defray the cost of their care. However, remember that pets don’t have the legal capacity to own property, so don’t leave money directly to pets in a will. A pet trust is legal in most states and is the best way to leave money and name a caretaker for your pets.

Stating Your Funeral Instructions. Settling probate won’t occur until after the funeral. As a result, any funeral wishes in a will frequently aren’t read until after the fact.

Designate an Executor. This is a trusted individual who will execute the terms of the will. He or she should be willing to serve and be capable of executing the will.

What happens if you die without a will? Your assets are distributed according to the laws of your state. A court-appointed administrator and not a family member transfers assets and property. Your long-lost brother, who you haven’t spoken with in decades, could inherit everything. Or a distant cousin, if there are no closer heirs, could end up owning your home.

That’s not what most people would want. The solution is simple. Contact an experienced estate planning attorney, make an appointment and have an estate plan completed. You’ll feel better, and your family will appreciate it long after you have passed.

Reference: The Reflector (July 15, 2019) “Things people should know about creating wills”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

What Happens to Credit Card Debts When You Die?

Some things don’t disappear when you die, and that includes your credit card debt. It doesn’t matter whether you have the high status titanium card or a simple green one, your estate will end up having to foot the bill.

The good news is that your heirs are not responsible for paying the bill. It just means that these types of liabilities come off the top—or are satisfied first—before any bequests or remaining assets are distributed to heirs.

In other words, Newsday’s recent article “Help your heirs avoid having to pay your credit card debt” says, your heirs will pay those cards off indirectly, because money that comes out of the estate means less for them.

In a time of sadness and stress, no family wants to talk to creditors looking to get paid for delinquent balances.

There are a few ways to avoid this situation and to lessen the burden on your family. Let’s look at ways to skip the situation altogether.

Pay off the debt. Of course, since you never know when you might die, keep on top of your expenses. It’s always a best practice. Remember, less or no debt means less or no headaches and frustration for your heirs.

If you do have unpaid debt, be sure your family is familiar with the laws, so they won’t fall victim to dishonest collections agencies and harassing bill collectors.

Make it easy on your heirs. Begin the process with a legally valid will that designates an executor of your estate. That way, there won’t be any arguments or questions about who will be in charge of handling the estate. This way no one has to jump through extra hoops and waste their time and energy to gain access to the estate.

Meet with an estate planning attorney. While you are working on your estate plan, bring a complete record of your finances, including all of your credit card, investment and retirement accounts. Include your mortgage, college and car loans, or any other debts you have. This complete list will be useful in determining what strategies are needed for your estate plan. Don’t forget to let the executor of your estate know where they can find this information, rather than sending them on a scavenger hunt while they are mourning your loss.

Reference: Newsday (July 14, 2019) “Help your heirs avoid having to pay your credit card debt”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

If Your Family Counts on You, You Need an Estate Plan

Estate planning allows parents to plan for their children’s well-being after they have gone, regardless of the size of their assets or their ages. It’s not just for the elderly or the ill either. Having an estate plan is important for anyone, and especially for those with people who depend upon them, as explained in the article “Why Estate Planning Is So Important” from The South Florida Reporter.

Estate planning is designed to protect your family from complications concerning your assets when you die. Many people believe that they don’t require estate planning. However, that’s not true. Estate planning is a way of making sure that all your assets will be properly taken care of by your family, if you’re no longer able to make your decisions, due to incapacity or death.

Without estate planning, a court will name a person—usually a stranger—to handle your assets and finances when you die. This makes the probate process lengthy and stressful. To protect your assets after you die, you need to have an estate plan in advance. You also need to address possible state and federal taxes. Your estate plan is a way to decrease your tax burdens.

With a proper estate plan, your final wishes for your assets will be set out in a legal document. With a will or trust, all of your assets will be distributed to your beneficiaries, according to your final wishes.

This will also save your family from having to deal with the distribution of your assets, which can become very complicated without a will. There can also be family fights from the process of distributing assets without a will.

It is also important to remember that if you do create an estate plan, you’ll need to update it every once in a while—especially if there’s a significant event that happened in your life, like a birth, a death, or a move. Your estate plan should be ever-changing, since your assets and your life can also change.

To be sure that your family is protected after you pass, speak with an experienced estate planning attorney who can create a plan that will be customized to your family’s needs. An estate planning attorney will know your state’s laws and tailor a plan for you.

It’s vital that you work with an experienced estate planning attorney who can help you draft the legal documents that will make certain your family is taken care of, after you pass away.

Reference: South Florida Reporter (June 12, 2019) “Why Estate Planning Is So Important”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

How Do I Know if I’m a Beneficiary?

f a person dies with a will, their will must go to probate court to prove that the document is valid. In that case, beneficiaries are to be notified no later than three months after the will is accepted for probate. If there’s no will, distribution of the assets is done by the court, according to the laws of the state.

An Investopedia article from last month asks, “When Are Beneficiaries of a Will Notified?” The article explains that in situations where the assets are structured to avoid probate (like setting up joint tenancy or making an assets payable upon death), there are no specific notification requirements.

Since probated wills are public record, when there are assets subject to probate and the will is filed with the probate court, anyone who thinks he or she may be a beneficiary is entitled to look at the will at the courthouse.

Probate is the legal process of proving that a will is valid and is administered by a probate judge. The court examines the will and directs the executor to gather the deceased’s assets and distribute them to the heirs, according to the instructions in the will.

Once the probate court says the will is valid, all beneficiaries are required to be notified within three months (in many states), but notification typically will happen a lot sooner.

Many county courthouses have a department called “Register of Wills,” where probated wills may be viewed.

It is important to understand that probate isn’t required in all circumstances. If the decedent has assets below a certain threshold (determined by the specific state), probate may not be necessary.

An estate planning attorney can help the family eliminate these kinds of concerns, by having a family meeting during the course of creating the estate plan. Conversations with family members can be guided to address how beneficiary notifications take place and along with other important discussions.

Reference: Investopedia (June 18, 2019) “When Are Beneficiaries of a Will Notified?”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

Estate Tangle Has Just Begun for Rapper Nipsey Hussle

Nipsey Hussle's brother, Samiel Asghedom, was appointed as head of his estate, but that isn’t going over well with his ex-wife, Tanisha Foster, who is mother to one of Nipsey’s two children. TMZ reports that she is gearing up to request to be named administrator of the estate. Tanisha is mother to Emani, and his second child is Kross, whose mom is Nipsey’s longtime girlfriend Lauren London.

Pursuant to California law, that money would be shared equally between his two children.

As previously reported, Samiel Asghedom, known also as Blacc Sam, recently filed legal documents making a request to be designated as the administrator of his younger brother's estate, because Nipsey died without a will. A judge will make a ruling on this request early this summer.

iHeartRadio’s recent article, “Nipsey Hussle's Ex Wants Access To His Money; Plans To Take Family To Court,” notes that Tanisha is also fighting for custody of the daughter she shared with Nipsey. A judge recently ruled that Nipsey's sister Samantha Smith would maintain custody of his 10-year-old daughter for the time being.

If Tanisha is someday awarded custody of Emani, she would have some say in the handling of the money the girl is set to receive from her father's estate. Tanisha was recently seen storming out of the courtroom, after the judge's ruling to give temporary custody to Samantha. In tears, she said that she was "pissed off" about this decision. There’s another court hearing to discuss the custody of Emani scheduled for July.

Nipsey's ex-wife claimed Samantha took custody of Emani, after the rapper was killed in late March and refused to return her. In court documents, Tanisha objected to Samantha's earlier filing to be named guardian of the 10-year-old, arguing that her biological ties support the fact that she should be awarded custody.

Tanisha also claimed that Emani was visiting her father Nipsey on the day he was murdered and said that Samantha "unlawfully took the minor and as of this date, despite objector’s demand, refused to return the minor to Objector." She also said she believes "the best interests" of Emani are not being served by Samantha's "act of removing the minor from her mother’s custody; and by refusing contact between minor and mother."

An emergency request was made by Samantha to be appointed a temporary guardian to Emani in April. The judge denied it and said there was no urgency to granting this relief, until a May 14 hearing.

Reference: iHeartRadio (May 22, 2019) “Nipsey Hussle's Ex Wants Access To His Money; Plans To Take Family To Court”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899

What Estate Planning Documents Should Everyone Have?

If having a checklist makes you more likely to get things done, then this article from WTHR 13 “The 5 legal documents every adult should have,” should get you started.

1. General Durable Power of Attorney. This document states who you want to make decisions, if you’re unable to do so for yourself. Without it, your family may have to petition the courts to become your legal guardian, which can be time consuming and expensive. A power of attorney allows the person whom you select, to pay your mortgage or rent and your bills.

2. Health Care Power of Attorney. This document plans for the situation, if you are unable to make your own health care decisions. You name someone you trust, like family members or friends, to do this on your behalf.

3. Will. This says that when you pass away, here's what I want to happen. A will states who will get your assets after your death. If you don’t have a valid will in place, the state laws of intestacy will govern what will happen to your estate—which may not be what you want.

4. Living Will. This is the document in which you state your instructions for end-of-life care, such as life support. This document is used to make certain that your family and physicians know what you want your end-of-life care to be. A living will is much different than a will.

5. Revocable Living Trust. This document can be important, if you're a parent with young children and would like your assets passed down properly to your children, if you die. Typically, if children are under 18 or 21, they're legally minors and can't receive assets. A trust can help coordinate their receiving your property.

Be mindful that if you use an online document preparation service, you may be leaving your family with an invalid document. An estate planning attorney will work with you to create a comprehensive plan that addresses all and any possible scenarios to protect yourself and your family.

Reference: WTHR 13 (April 17, 2019) “The 5 legal documents every adult should have”

∗ For more information about this and other similar topics, please visit: www.LambrosLawLLC.com or call us at: (401) 383-9899