Law News and Tips
Without a plan in place things fall apart.
Fred L. Vilbig © 2019
Life is short. The older I get, the more evident that becomes. When I was young, 30 seemed so old; 60 seemed like forever away and 70 was an eternity, and 80 or 90 was just incomprehensible nonsense. And then suddenly, it’s here. We don’t necessarily feel that old. In fact, in our heads, we’re still 25 or 30, but the mirror tells us something entirely different. How can all of that happen?
And when you start to think about the brevity of life, you can start to think about what your life has meant. We take ourselves entirely too seriously (and probably rightfully so) to just see ourselves as some passing mist – here today and gone and forgotten tomorrow. Many people start to think about their legacy – when we’re gone, how will people remember us?
That was brought home to me recently when working with some business owners. They had spent most of their adult years nurturing and growing a business, and now time was catching up. They wanted to plan what to do carefully so there wasn’t a train wreck when they died, but they were having trouble letting go. This is very common.
One of the business owners had a child involved in the business and two others who weren’t. He really wanted things to end harmoniously for the family as a whole, protect the son in the business because of the grandchildren, and also protect the employees, some of whom had been with him for years. It was sort of complex calculus.
Another business owner didn’t have any family active in the business, but the business was the principal asset of his estate. The most likely successors to his business were some key employees. So he wanted to plan a fair transition that protected employees while also providing an inheritance for his family.
Although there may be similarities in different business plans like this, I have found that subtle differences in focuses can have major impacts on the resulting plan. The dynamic relations between family members can result in vastly varying solutions. The complex politics of a business can require a carefully finessed plan that makes individuals feel valued without undermining the operation of the business. And then there’s the question of getting it all financed.
And I’ve seen many times where business owners just run out of time. Once a fifty-year-old trial attorney I knew dropped dead on the beach because he was so stressed out about his partners forcing him to take a vacation. Several times we have had healthy people simply go to sleep never again to wake up. And without a plan in place (sure they had thought about it), things fell apart: the business was sold to outsiders at a discount and the surviving family got shortchanged.
So what is your legacy? Will you be soon forgotten for lack of a plan, or will you be fondly remembered through the continuation of the business you have (almost miraculously) grown into a success? I’d love to have a chance to talk with you about this.
HOME FOR THE HOLIDAYS
Fred L. Vilbig © 2018
The holidays are great. The food, getting together with family, other people’s decorations. Yes, I said other people’s decorations. We have a peak on our roof that is about 30 feet up, and it must be at least 100 feet down. Yes, I’ll get the decorations up, but it is a death defying feat if I say so myself.
So where was I? Oh, yes: the holidays. My wife’s favorite holiday is Thanksgiving because it just involves cooking a big meal, and she’s a great cook. That’s lucky for my kids since I am not such a great cook, and it really stresses me out trying to get everything on the table at the same time while it is still hot.
But either at Thanksgiving or Christmas, the family gets together for a big meal. The out-of-town kids fly or drive in, and the in-town kids come over for a full house like it used to be. It seems that our holiday dinners last a long time with people staying around the table reminiscing about things. My wife and I often listen to the stories about what the kids did when they were young. Later we’ll check with each other and find out that neither of us knew anything about those things. Often we’re surprised, but at least no one got seriously hurt.
In addition to all of the good times that we have at the holidays, they are also a good time to check up on family members, particularly our parents. For some, we see our parents on a regular basis. We may not notice the little, subtle changes that may be taking place. For others who see their parents only once or twice a year, the accumulation of these little changes can be shocking.
When you’re home for the holidays, you may want to pay attention. Are they eating right? Are they dressing appropriately for the weather? As we age, we all get a little forgetful, but are they getting forgetful to the point that it is a problem? Have they gotten lost when going to the store? Do you see big changes in habits that seem to be ways of compensating for something? Did they use to be social, and now they are a homebody? Do you see big changes in their personality?
As we age, there are changes, but the question is whether they are creating problems. If not, it might still be a good idea to check to make sure that everything is in order. Do they have a will and/or a trust? Do they have a durable power of attorney? Do they have a medical directive that includes a medical power of attorney and a living will? And it’s important for the children to know who is going to be primarily responsible if something happens.
These may be tough, maybe even awkward questions to ask, but they are important. Surprises are not welcome, particularly when it is too late to fix things. In prior columns, I have written about times we have fortunately discovered problems before it was too late. And in other columns, I have written about those times we were too late to fix the problem directly, but we were able to find ways to work around the problem. But there are times when we discover the problems too late to fix other than by going to court, and the client ends up paying a lot of money in legal fees. So even though the questions may be tough and awkward, not asking them can end up costing a lot of money and aggravation.
So enjoy your holidays, but you might want to ask some questions … before it’s too late.
PLANNING FOR YOUNG CLIENTS
A friend recently called me. He has two daughters in their 20’s. They recently got jobs, and they were in the process of applying for benefits. They were asked about whether they had a will, whether they had a power of attorney, and who should be called to handle medical emergencies. That got them thinking, and they turned to their dad for advice. That was nice.
It may seem strange that a 20-something single person needs to think about a will. At that age, dying is one the last things people think about, but it makes sense. With a will, you get to say where your property goes when you die. You can cover that with pay-on-death and transfer-on-death beneficiary designations, but those can be of limited value, and people miss things. So a basic will makes sense.
In addition to saying where things should go, you get to pick who is going to go through your stuff and administer your estate. Even a 20-year-old (or maybe particularly a 20-year-old) doesn’t want just anyone going through their stuff, even when they’re dead.
So even if you think you’ve done all of your planning, it is possible to have missed something, and will is a good safety net. If you don’t have kids, the will can be very simple, but if you have kids, you want to say who is going to be their guardians, and you probably want to avoid having the court administer their money sort of like in a Dicken’s novel.
In addition to a will, a young person certainly would want to have a durable power of attorney. Maybe it’s just my job, but I constantly run into situations fairly regularly where someone is in an accident or gets ill and can’t handle their business affairs. A durable power of attorney (and the word durable needs to be in it) allows someone to handle these things when you can’t.
And finally, a young person needs to have a medical directive of some sort. These do several things. First, they are a medical power of attorney that authorizes someone you name to make medical decisions whey you can’t. Second, they need to include HIPAA authority so that a doctor can talk to your family about your condition. I recently reviewed a medical directive that did not have HIPAA authority. Fortunately, we caught it before they needed to use it because, with that authority, doctors and hospitals won’t talk to anyone about anything.
The last thing that a medical directive should include is a living will. If someone is in a car accident, close to death, with no hope of improvement no matter what is done, do they want to be kept “alive” on machines or just allowed to die a natural death? It’s not a pleasant thing to think about, but it is so important when the time comes.
So when my friend called and asked what his daughters should do, I told them they needed to do some planning. It can make a lot of difference if the unthinkable happens.
NOT WHAT SHE HOPED FOR
Fred L. Vilbig © 2018
Joe (these are not the real names) came to see me about estate planning. He knew that he needed to do something, but he didn’t really know what. Sometimes you don’t even know what you don’t know, but at least he knew he needed to do something more.
Some time ago, his wife, Leslie, decided she wanted to do some estate planning. She didn’t know any attorneys, but she had heard about online estate planning websites. She went to LegalZoom and liked what she saw. She thought she’d need a will, a general power of attorney, and a medical directive. So she worked those up, printed them, signed them in front of a notary, and she was done.
But time can change things. Leslie had been a very intelligent person holding down an impressive job before she retired. After that, she started forgetting things – little things at first, but over time, more and more. She had trouble thinking through problems, big ones at first, but soon even the little stuff. She started making some bad decisions like going outside in a heavy coat in the heat of summer or wearing shorts outside in the depths of winter. Or she might just go outside and stand in the rain totally oblivious to it. If she had just had momentary, isolated lapses, that would’ve been one thing, but it all became the regular course of daily life. Joe knew something was wrong.
He took Leslie to the doctor. The doctor confirmed Joe’s worst fears: it all pointed to Alzheimer’s. All of a sudden, Joe’s entire world, his future, was turned topsy-turvy.
But Joe thought everything would be okay legally. After all, Leslie had prepared her legal documents. But Joe had heard about probate and trusts , so he called me to see if he needed to do something more to protect Leslie if he died first; after all, he was 80. He wanted to do everything he could to protect her. A good guy.
He came to see me, and we discussed the situation. I recommended a trust to take care of Leslie and avoid probate. He liked the idea. We could set up a trust, and using Leslie’s power of attorney, Joe could transfer assets to the trust to avoid probate. So at least that much was covered. But there were still problems.
Joe realized that when Leslie prepared the power of attorney and medical directive, she had not included any backups. She had only named Joe. Due to his age and health, Joe was very concerned about what would happen to Leslie if he died first. Since Leslie had not provided a backup, when Joe died, without a court order, no one could make living arrangements for her; no one could talk to a doctor about or make decisions regarding her medical needs; and no one could administer Joe’s large IRA for Leslie’s benefit.
Joe’s only real option was to have Leslie judicially declared incompetent, get himself appointed as Leslie’s Guardian and conservator, and write a will identifying who should serve as successor guardians and conservatives. The court would be required to follow his suggestions, but it was the best he could do under the circumstances.
So Joe was faced with the unenviable choice of having his beloved wife paraded into court to be declared incompetent (and incur the costs for that) or just hope that she died first. A terrible conundrum to say the least.
Your loved one has passed away and your house is full of memories. At times, they are a comfort; at others, these memories serve as a reminder of the way thing were. You see your loved one’s clothing still hanging in the closet and momentarily forget they aren’t coming back for them. It’s a difficult situation and one that can make it harder to move on and actually heal. Moving into a new home can help you do just that while giving you a foundation upon which to build new memories.
Selling Your Home
Your Loved One’s Belongings
Packing and Moving
When a loved one who shared your home passes away, being in the house without him or her is an emotional roller coaster. If your house has too many memories, it may be time for a change of scenery. Moving into a new home can help you deal with the grief of losing a loved one and provide you with the strength you need to start a new chapter in your life.
HEALTH CARE PRIVACY
Fred L. Vilbig © 2018
HIPAA is the Health Insurance Portability and Availability Act. Many people refer to it as the “Privacy Law.” It’s a thick law (something like 2 inches), and it covers more than just protecting medical records, but that’s the provision that impacts people the most.Most doctors and hospitals have interpreted it to mean that without (written) permission, they can’t talk to anyone about anyone else’s medical condition. One of my former partners had to read the whole thing, and he didn’t think that was what it required, but that’s not what the lawyers for the health care industry thought.
When the law was first passed, medical providers became like Sergeant Shultz – “I know nothink!” One father (who happened to be an attorney) got a call from a hospital in Denver. His daughter had been skiing in Colorado, and the hospital told him he needed to come out. When he asked what was wrong, they said they couldn’t tell him because of HIPAA. Then there was the couple in a car accident. The husband was banged up, but the wife was unconscious and needed surgery. They asked him to sign an “informed consent.” When he asked what was wrong and what they were going to do, they said they also couldn’t tell him because of HIPAA.
Medical professional have relaxed these strict standards somewhat, but it can still be an issue. If you want medical professionals to be able to talk to your loved ones when you are unable to give consent, you need to execute a HIPAA authorization of some sort. Even more, it would be better to sign a medical power of attorney with HIPAA authorization in it allowing medical professionals to talk to family members. We usually do a Medical Directive which is a combination health care power of attorney and living will that includes broad HIPAA authorizations. We also do a separate HIPAA authorization (perhaps overkill) allowing medical professionals to talk to family even when you’re not incapacitated.
When I talk to clients about Medical Directives, they often tell me that they already have one. Upon admission to a hospital, patients are often asked (if not required) to sign a HIPAA release. They vary from place to place, so I can only talk about the ones I have seen, but in some instances (not all though) the releases are very narrow. They only apply to that particular stay at that particular hospital or doctor’s office. You can use those forms at any other time or any other place. So if you have a serious medical event, that HIPAA authorization won’t do you much good.
So even if you already have some sort of a HIPAA authorization, you might want to look at it. And if you don’t have one, you should think seriously about getting one. When you need it, it’s too late to sign one.
Fred L. Vilbig © 2018
Two recent high profile deaths highlighted one of the reasons people should consider using a trust for their estate plans.
On June 8th, Anthony Bourdain died.He was 61. He has been described as one of the most influential chefs in the world. Mr. Bourdain’s death was tragic because it was a suicide which is so tragic for everyone involved, but particularly for those who were close to the decedent. You always question whether there was something you could have done. It’s very difficult.
But very soon after his death, there were reports in the press about how he had taken care of his daughter with his estate. It’s not that it was a fortune, but it was just a discussion of how he took care of an important person in his life.
The second high-profile death was that of Richard “Old Man” Harris on June 25.He was the patriarch of the family on the TV show “Pawn Stars.”His death wasn’t necessarily a surprise. He was 77 and had battled Parkinson’s disease for some time. Still it’s always sad to lose someone you love.
Much like in the case of Anthony Bourdain, soon after his death, articles began to appear in the press regarding his estate plan. Evidently in 2017, he amended his will to cut his son, Christopher (and his children!), out of his will. We don’t know why, but that didn’t stop the press from speculating. Who needs those kinds of things aired in the press for the vultures to pick at?
And that brings me to my point: privacy. Apparently both Anthony Bourdain and Richard Harris planned their estates using wills. When a person dies, his or her will has to be filed with the local probate court. With a little ingenuity, people (such as reporters) can get a peek at it, and then what should be private becomes public.
With a trust, everything is private unless a lawsuit makes it public. The trust beneficiaries are given a copy of the trust and accountings, but the only people who are in the know are the ones who have a need to know. That way all of the family business is kept in the family where it belongs. That’s a better plan!
To talk about planning your estate using a trust, feel free to contact me to take a closer look.
Want to avoid problems with your estate? Estate planning can avoid this type of situation.
SMALL PACKAGE; BIG PROBLEMS
Fred L. Vilbig © 2018
I recently got a call from another attorney saying she had a “difficult” probate case and wondered if we would mind taking it over from her. Since the beneficiary was the Catholic Cathedral Basilica, I agreed without really getting all the details. My paralegal warns me (maybe it’s abuse) not to do things like that. This may read a little like Abbot and Costello’s “Who’s on First” routine.
It turns out it was actually two estates. The first to die was the tenant (the “Tenant”) of a house owned by the second to die (the “Landlord”). Neither the Tenant nor the Landlord had any close family. The Tenant’s will provides that everything goes to the Landlord.The house was in the City, so the Tenant’s estate will have to be probated in the Probate Court there. The City Probate Court is really swamped, so this can present a problem. From what we’ve been able to determine so far, the Tenant’s estate has less than $40,000 worth of assets in it, so we should be able to do what is called a small estate administration, an easier process. The problem is that the house is a mess, so we’ll have to hire someone to clean it out. Are you confused yet?
The Landlord lived in the County. Since he owned the house, this will probably be a full estate. In order to probate an estate, we need a personal representative. In this case, the Landlord had a will that named a personal representative (the “PR”), but the PR is elderly with health issues. However, after talking about what’s involved, he did agree to serve. That was a relief since it can get really complicated when there isn’t a named PR willing to serve.
In addition to the house, the Landlord’s estate appears to include some life insurance proceeds. It turns out that the Tenant had a life insurance policy that was payable to the Landlord. Since the Landlord survived the Tenant, the uncollected life insurance proceeds are payable to the Landlord’s probate estate. Are you confused now?
The problem is we don’t know how much the life insurance policy was worth. We won’t know until we have a PR appointed. Life insurance companies (in fact any financial institution) won’t talk to anyone in an estate situation until a PR is appointed. I understand why; it’s just kind of a bother.
In the end, we were able to simplify all of this, and there will be a nice sum of money (but not a fortune) going to maintain one of the gems of our region. The Cathedral Basilica is the largest single collection of mosaics outside of Ravenna, Italy – the second largest in the world! And they’re beautiful! So I feel justified in taking on a couple of involved, albeit small, probate estates. But I’m sure I’ll hear different from my paralegal. Oh well.
Dementia and sleep disorders often go hand in hand. People who live with dementia often experience poor sleep as they progressively lose cognitive function.
It's common for dementia patients to experience longer sleep latency, increased sleep fragmentation and a decrease in sleep efficiency and total sleep
time. Some experience confusion and wander at night, making it difficult to get good rest.
How Sleep Routines Help Dementia Patients
At any age, bedtime routines support healthy sleep. When we maintain a regular bedtime routine, going through that routine tells your body it's time to sleep. This sleep schedule happens subconsciously, so you don't have to think about it or even recognize that it's happening to work.
The subtle cues of going through a bedtime routine can help dementia patients orient themselves to the time of day. It offers calming reassurance that can make it easier to relax and fall asleep.
Developing a Bedtime Routine for Dementia Patients
Keeping a regular bedtime routine is essential to improving sleep in dementia patients. Consider these tips for supporting dementia patients with a bedtime routine.
Start forming nighttime habits: What you do in your bedtime routine isn't as important as simply doing it, each night without fail. The simple practice of going through the same steps every night before bed will help induce sleep and make it easier to get settled down at night.
Set a regular bedtime: Going through your bedtime routine at the same time each night offers reinforcement and reassurance that it's bedtime and time to wind down for the night. Try to help your patient go to bed at the same time each night and wake up at the same time each morning. A regular bedtime practiced consistently can offer a sleep cue that helps dementia patients feel sleepy and ready to go to bed at the appropriate time.
Avoid disruptive activities: Abstain from stimulating activities before bedtime as part of your routine. Turn off bright lights, and turn off the TV or other sources of noise. Offer a light snack, but be careful to avoid heavy meals or food that contains excessive sugar, fat, or even caffeine, as these can interfere with sleep.
But, be active during the day: Although stimulation at night isn't a good idea for dementia patients in need of sleep, activities during the day are an excellent choice. One option is to start your bedtime routine in the early afternoon, practicing light exercise such as walking or stretching.
Choose an enjoyable evening activity: Decide on a calming evening activity that can be done to wind down before bed. Good ways to wind down include crocheting or reading books aloud. Avoid watching TV, as the bright screen can interfere with maintaining a healthy circadian rhythm.
Practice massage therapy: Release tension built up throughout the day with a gentle massage. It can be practiced as the patient is lying down in bed, or in a chair before starting the rest of the bedtime routine. Massage can help dementia patients relax and improve circulation.This article is written by our Guest Blogger from: Tuck -Everything You Need for A Good Night's Sleep
Tuck Sleep is a community devoted to improving sleep hygiene, health and wellness through the creation and dissemination of comprehensive, unbiased, free web-based resources. Tuck has been featured on NPR, Lifehacker, Radiolab and is referenced by many colleges/universities and sleep organizations across the web.
AFTER MOM DIES?
Fred L. Vilbig © 2018
I recently met with a client whose mom had died. I’d written his mom’s trust almost 20 years ago, and now we had to administer it.
The first thing I always want to do is I want the named trustee to find out what assets were actually in the trust.When we do a trust plan, I always give clients a funding letter explaining how to transfer assets into their trust, but things get missed.This may or may not include joint assets which automatically pass to the surviving joint owner, if there is one.We are only interested in those assets that were only in the decedent’s name or where the decedent was the last surviving joint owner.
If there are assets outside the trust, then we need to determine whether we can do a small estate or we have to do a full estate. For instance, many people overlook their cars, as this client had, but as long as the total value of the probate assets is less than $40,000, we can administer those assets by simply filing an affidavit and the original will (if there is one). It’s simple and easy to do.If the probate assets are over $40,000, then we will need to do a full probate, and that discussion is beyond the scope of this article.
I always recommend that we file a decedent’s will. In addition to a trust, I always have my clients execute what we call a “pour over will.” This works kind of like a safety net for probate assets. If we had to open a full probate estate, the pour over will would simply scoop up those assets and pour them over into the trust. Even when we think that there aren’t any non-trust assets, we file a will in case assets are discovered later. A will is void if it isn’t filed with the probate court within a year of a person’s death, so we want to just be careful.
I also suggest that we publish a notice of trust. This is a notice published in a legal paper just saying that the client died, and there is a trust. What that does is it notifies creditors that if they have a claim, they need to file it with the trustee within six months of the publication of the notice. Without a notice, the claims period is one year. If anyone has a claim against the decedent, they would have to file within six months (or one year without the notice) of the notice publication date or be barred from filing the claim.
We then talked about taxes. If there is a surviving spouse, then he or she just files a tax return including all of the couple’s joint income. If there’s not a surviving spouse, then the fiduciary has to file a tax return for the decedent reporting income and paying taxes incurred up to the date of death. That is filed using the decedent’s Social Security number. Whether there is a surviving spouse or not, if there is real estate to be sold or if it is anticipated that the trust or estate will earn more than $600 before things get wrapped up, the fiduciary needs to get an employer identification number (and “EIN”). Any amounts held by the trust after death will need to use that EIN. And when real estate is sold, the title company is going to insist on having an EIN. And if the trust has more than $600 of taxable income, then a Form 1041 will have to be filed.
One of the more complicated things in administering the trust is the need for an accounting. Missouri law requires it if a beneficiary asks for it, but it just makes sense anyway. You need to start with the date of death value on all of the assets; show all of the income, payments, and adjustments made during the course of administration; and then come up with the remaining balance at the end showing who gets what. A thorough accounting can avoid a lot of problems at the end.
As you can see, there is a lot to administering a trust. If you want some direction, give us a call.