The Risks of Do-It-Yourself Estate Plan Documents

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We hear this question all the time: “Can’t I just grab a will off the internet, do a transfer-on-death deed for my land, put my kids on my bank account, and be done with my estate plan?”

It’s just not a good idea. For the estate plan to work as you would want it to, it should account for plenty of complications. A good plan should protect your spouse and your children from loss of valuable government benefits, if anybody is or becomes disabled. The plan should avoid the delay and expense of probate court. The plan should protect money from children’s creditors or divorce or remarriage. It should be crafted to serve family harmony and to avoid disputes between children as joint owners.

Even a relatively simple situation is made up of many moving parts. Internet documents and joint-ownership devices just won’t do the job.

Also, assembling the moving parts so they work smoothly is just the first step. Your estate plan needs maintenance too, just like your car has a “check engine” light. Major family events like serious illness or death, marriage, birth, or financial reversals are alerts that you should tune up your plan to reflect those changes. Your plan shouldn’t be “one and done.”

It takes expertise to coordinate the various strategies available. Don’t risk a result that will cause your family problems and unnecessary expense. Call us to create a plan that harmonizes the moving parts, so the gears will work together and you will leave the legacy you intended.

At Goff & Goff, we specialize in building estate plans that are unique to your situation to safeguard your assets for your family and their future. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help. We welcome the opportunity to speak to you about your estate planning needs.

7 Negative Effects of putting off your Estate Plan

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  1. My family and I don’t own much. Can’t we put off planning until we can afford it?

You shouldn’t. It is crucial to give legal authority to a person of your choice, to care for your children if anything should happen to you. You don’t want your children to become wards of the court, or to be delivered to a family member you don’t like. Second, the cost to you at the front end (now) is much less than it could be later when you might face steep legal fees to get the job done. We’re all in favor of lawyers earning a living. We just never want any of our clients to have to pay for costs that are unnecessary or avoidable.

  1. My son just graduated from high school. He owns nothing but an autographed baseball and a 1997 Chevy pickup. Surely I don’t have to worry about an estate plan for him?

You should. Estate planning isn’t just about owning property. Life needs protecting, too. If your child should lose consciousness in an accident, and he or she is over the age of 18, you as a parent will no longer have the legal authority to decide what medical treatment he should receive.  Insurance companies might refuse to deal with you.

Just imagine the stress of it. You’d be there to help, but nobody would be legally required to listen to you. You would have to go to court and get guardianship – over your own child.

Instead, just think how much easier (and less expensive) it would be to get your adult child to come in to see us, while all is OK now, to make out powers of attorney. Those are documents that convey legal authority onto you, or on people of your adult child’s choice, to act on your child’s behalf if he or she becomes unable

  1. Our kids are grown and married. Can’t my spouse and I postpone planning?

You shouldn’t. First, you can never tell when disaster might strike. Second, your kids may seem happily married now, but there’s no telling how long for – and you don’t want to see their, and possibly your, money and property lost in bitter divorce proceedings or lawsuits or bankruptcies.

  1. Our kids are able-bodied, thank goodness. Why should we worry about protecting disability benefits for them if they don’t need them?

They might not need those benefits now. But if they become disabled in the future, and if they inherit money from you, inherited money could cost them thousands of dollars a year in benefits. We will help you to take simple steps to protect that money if your children do become disabled.

  1. My doctors know best. I’m not going to tell them how to do their jobs, and I don’t want anyone else doing that either. What’s wrong with that?

Do you want to be kept alive on machines, possibly for years, when you no longer can care for yourself, recognize loved ones, converse, or even swallow? These days, medical machines can breathe for you through a tube in your throat, keep your heart beating, and deliver food and fluids through a tube in your stomach. Many who are on these machines die in the hospital, their arms tied down to prevent dislodging the tubes. Health-care providers are ethically obligated to keep you alive to the bitter end. Few of us want that. You can decline those extreme measures with our carefully crafted legal documents.

  1. Can’t I just grab a will off the internet, do a transfer-on-death deed for my land, put my kids on my bank account, and call it done?

Just look at some of the complications, in the above answers. An estate plan should protect disabled children’s inheritances from the loss of valuable government benefits. It should avoid probate court. It should protect money from creditors or divorce or remarriage. It should avoid disputes between children as joint owners.

Even a relatively simple situation contains many moving parts. It takes expertise to coordinate the various strategies. Don’t risk a result you wouldn’t want. Call us to create a plan that harmonizes the moving parts, so the gears will work together and you will leave the legacy you intended.

  1. Can’t I just forget the whole thing and let my kids deal with it after I’m gone?

Sure you can. But your kids will not thank you for leaving a disorganized mess behind, and that may be how they remember you.

Here’s one good idea:

Come see us now. The documents we create for you might be “just pieces of paper,” but they are worth a great deal more than that. At a stressful time when additional hurdles are the last thing you need, powers of attorney and other estate planning options could save you and your family delay, expense, and heartache. Please contact our Ruston, LA office by calling us at (318) 255-1760 or schedule an appointment to discuss how we can help with your estate planning needs.

The Duties of a “Fiduciary”

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You may be asked to be the agent under a power of attorney for a family member or friend. Your fiduciary may be planning for when they might become unable to take care of their affairs. For example, they might become disabled or incapacitated, and they would need a trusted person to step in and manage for them. This is also necessary if the person is writing a will, and his or her estate must go through the probate process.

If you are named as a guardian, curator, executor of a person’s will, trustee, or agent under a power of attorney, the law calls you a “fiduciary.” You must act in the best interests of the person who has named you – “selflessly,” in other words. You must act loyally and in good faith.

You are not allowed to use the person’s property for your own profit. You cannot give gifts to yourself or others if the person has not authorized you to do that. You cannot mingle your person’s property with your own. If you spend the person’s money, you must carefully document the amount you spend and for what purpose.

What is a Fiduciary Relationship?

The “fiduciary” relationship imposes the highest duty in law. If you violate that duty, you may become personally liable.

Or, if you are the one who is thinking about whom you would like to name as your power of attorney (or the like), you must be sure you trust that person absolutely.

A recent New Jersey probate case shows what can go wrong. Mother Christine named Patricia, one of her daughters, to be the executor of Christine’s will. On Christine’s death, her other daughter, Diane, received a check from Christine’s estate for $10,000.00 – yet Christine’s house had sold for nearly $230,000.00.

The judge ordered Patricia to produce an “accounting” of where all that money had gone. Accounting is an inventory of estate assets and a record of all income and expenses. Patricia would not do so. Examination of the estate’s inheritance tax return revealed that despite a gross estate value of $319,368.00, the estate bank account contained only $6,886.00.

Patricia had spent $40,000.00 on what she claimed were home repair expenses, but she could produce no building permits. She had also given herself $110,000.00 as “fees” for her executor duties, plus a “gift” to herself of $27,000.00. No wonder she pled the Fifth Amendment.

The judge entered a judgment against her of $200,422.00. The judgment was affirmed on appeal, but with the requirement that the trial judge calculates the damages more specifically.

The case is In re Cenaffra, and can be found here:

https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2020/a5731-17.html

Most people are not like Patricia. If you are named as guardian, curator, agent under a power of attorney, or executor, follow a few simple principles. Make sure you don’t personally benefit from what you do with the other person’s property. You might be able to be compensated fairly for your work, but refrain from doing anything that might look like a conflict of interest. If there are other beneficiaries waiting to receive their inheritances, be transparent. Keep the beneficiaries informed. Write down why you acted as you did, at the time you acted. Document everything. Keep receipts. (If you are the executor / executrix or administrator / administratrix for someone’s succession, then you also owe a fiduciary relationship to the creditors of the deceased.)

If you have questions or would like to discuss your particular situation, please don’t hesitate to reach out. We help people determine who should act in their best interests, and we can help those who are already named. Please contact our Ruston, LA office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help. We welcome the opportunity to speak to you.

Is Your Estate Plan Current?

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You should check your estate plan documents every so often, to make sure they’re still good, especially with big life changes like births, marriages, divorces, and moving to another state. Children grow up, marriages dissolve, property gets sold, residences change. That’s why we recommend that you consult us for an estate-plan check-up every five years or so.

If you retire to another state, your will would probably be good, but powers of attorney vary from state to state. Documents from the “old” state might not work in the “new” one, and your documents would not be there for you when you need them.

Suppose you willed your property to your spouse and appointed that person to be your power of attorney. You got divorced, but you never got around to changing your plan. The law would usually step in to prevent your ex-spouse from inheriting, but you might be stuck with that person holding power of attorney over your property and health care.

Maybe you named your ex-spouse’s father as your executor and agent. Now he can’t stand you and blames you for the break-up.

Perhaps you willed your property to your two children equally – but now one child is addicted to opioids. Your will did not restrict how money should be spent. If your addicted child inherits a lot of money in one chunk, that money could vanish to drugs and your child’s survival might be at risk.

Or, you deeded your house to one child and made a will leaving money to your other child. Then you forgot about the deed and made another will, years later. That will split everything equally. The law would invalidate the second will as to the house because deeds supplant wills. Consequently, one child might end up receiving more value than the other. That unfairness might sour the children against each other forever.

If you got divorced, sold property, moved to another state, or did your documents more than five years ago, come see us for an estate plan check-up.

When it comes to estate planning, “once is not done.” Please contact our Ruston, LA office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help. We welcome the opportunity to speak to you.

The Risk of Adding Your Children to Bank Accounts

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I want to leave my bank accounts for my children when I’m gone. Can’t I just make the children joint owners?

That idea sounds better than it actually is. In Louisiana, this will not allow you to avoid court proceedings when you pass. Moreover, you’d put yourself at risk, at a time when you might need your money yourself. Your accounts would be exposed to your children’s divorcing spouses, bankruptcy, liability for legal actions, or, last and doubtless most uncomfortable to think about, your children could simply spend your money without your permission. The best way to resist temptation is to avoid the opportunity in the first place.

 

Payable on Death (POD) Accounts

Although Payable on Death accounts are allowed in Louisiana, there are many restrictions. Even if set up properly, attempting to utilize one of these accounts as part of your estate plan without the guidance of an estate planning attorney or elder law attorney can cause more trouble and cost than it is worth. This is because although the POD account is allowed (which merely tells the bank to pay your designated person upon your death), the fact of a POD account does not alter general substantive inheritance laws. For example, if you list a spouse as your POD beneficiary of money that your kids would otherwise inheritance, this account is not going to alter their rights. You could be setting up an avoidable fight and expensive litigation between your spouse and kids.

Plan for the Future of Your Finances

While you are alive, it is essential to designate a person you trust to pay your bills when you can’t. With our comprehensive enhanced power of attorney document, your trusted person can take care of your finances when you aren’t able. Avoid downloadable internet versions. Come see us instead. You don’t want banks and insurance companies to reject your document as insufficient when you most need it!

 

Power of Attorney

If your power of attorney is powerful and detailed enough, you can be confident that your trusted person will take care of your finances if you become disabled.

For help with your planning needs, please give us a call. We’d be honored to help make sure your plan is what you want and that it is properly documented. Please contact our office by calling us at (318) 255-1760 and schedule an appointment to discuss how we can help.

Protected: What a Personal Property Memorandum Can Do in Addition to Your Will or Trust

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