You have rights, rights, privileges and choices yet for many of us, the day to day grind of the here and now distracts us from taking the simple steps necessary to insure our choices are of our own choosing.
During our lifetime we invest heavily. We invest in our careers, we invest in our material possessions and we invest in our relationships. We accumulate stuff, mementos of special times, art and music. We purchase vehicles and homes. We build relationships, friendships and partnerships.
Yet, with the things we consider ours, the laws of the state can step in and dictate their dispensation at the time of our death unless we act upon our legal rights.
Rules, laws and regulations have long been in place to protect the privacy and rights of individuals and families. One segment of the population that benefits from this protection are those that are most vulnerable due to age or infirmity.
When we become sick who will care for us? Who will advocate on our behave? Who has the right to speak with the medical professionals and to make decisions regarding your care?
If you are part of a non-traditional relationship, the old adage Blood is Thicker than Water holds very little truth however it might be said that certain laws base the rights of decision and ownership upon this questionable axiom. These same laws allow for personal choices But Only If one takes the proper legal steps to establish and declare their own wishes and decisions.
A Catastrophic Illness or a simple accident can land us in a hospital or nursing home, and these serious incidences are not strictly reserved for the elderly. More and more often medical facilities will only discuss the condition and care of the patient with the patient’s legal guardian. If the patient has not taken the simple legal steps to appoint whom they want to serve as their legal guardian in matters of health care, and they are unable to make decisions due to their condition, the courts need to intervene. A court appointed conservator or a costly court proceeding by a friend or relative is often the next step. Wouldn’t the domestic partner have a better idea of the choices that need to be made on behalf of the patient? In many cases this may be true, but lacking the required legal paperwork, the domestic partner has no say in the medical care or decisions that will need to be made.
When the medical facility directive is that no one other than family can visit the patient, what previously documented steps could allow for the presence of a domestic partner? Failing to prepare for this possibility could find a partner sitting in the waiting room hoping that a sympathetic family member will be willing to share information.
The passing of a loved one is difficult enough. In a non-traditional partnership where a residence is shared, assets are mingled, and possessions are held in common. Life becomes more difficult as the blood relatives step in to exercise their legal responsibilities and rights.
Think about that last sentence. “Their legal responsibilities and rights”. You need to carefully consider that statement. Today you control what happens to your assets and possessions. Do you want to sell, buy, trade, make a gift of, donate, invest, or hang onto the things you have worked hard to acquire. This is your legal right, which we easily take for granted. Of course with these rights we understand that there are also responsibilities and obligations. But we can not be naive about the inevitable. Your legal rights and responsibilities, at some point in the future, will and must be transferred to another person. Illness, incapacitation, incompetency, old age or death require that someone step in to manage your business affairs, make decisions about your care and eventually administer the assets that make up your estate. Who will make these decisions for you?
If you have planned ahead, taken the necessary steps and acquired the proper legal documents your wishes will and must be honored. This is not a difficult undertaking, but one that requires a certain commitment and maturity. A commitment to those people you love and care about and a maturity to face up to the reality that all of us will at some point in the future face illness and / or death. The fact that you are reading this now is an indication that you still have time to take these important steps, but procrastination can be your enemy here just as our inability to face up to our own mortality. We all know people who died unexpectedly way too soon. Living well includes leaving behind your affairs in an orderly manner that honors your friendships and relationships.
So what are your choices when it comes to Proper Legal Documentation? At this point I will restate that any and all information here is for informational purposes only and what documents and planning is best suited for you and your situation will be determined in a personal interview with your qualified estate planning attorney.
There are only two documents that are recognized by the state when a person passes away. The deceased either has a Will or a Trust. If they have not taken the steps to acquire one or the other of these, the state will give them a will that frequently falls short of reflecting the true wishes of the deceased.
A Will is the most common document of which we are aware. Most of us had not considered nor thought there was any other option
Consider what does happen when a person who has a will dies? First we need to understand that a will only has provisions for after a person dies. Legal guardianship and power of attorney which become of great importance if Illness occurs, are handled in separate documents, which can be loosely tied together with the will.
A will is a simple document that can be prepared by an attorney or an individual. With proper witnesses and unambiguous language you can express your wishes regarding how your possessions will be distributed after your death, but these are only your wishes. The final decision of how your estate is settled lies with the judicial supervisor in whose court room your estate will be probated. Probate is the required legal process through which all Wills are taken. The probate process is difficult to describe since everyone’s experience with it differs. Some will say it was not a big deal while others will tell you of the nightmare they went through dealing with attorneys, relatives, forms, fillings, and fees. In most cases, time, money and emotions are heavily invested and the potential for disagreement and disappointment can be high.
Since probate is carried out in the public courts – it is a matter of public record falling under the rules of open records. This process allows anyone to access all the details of your will and the distribution of your assets. In studies conducted by AARP, Elder Law Solutions and in the book Beyond the Grave by Gerald Condon, it has been estimated that the cost of probate can deplete an estate of between 4% and 7% of its total value.
What it will cost to probate your estate no one can say. Will the cost of probate be increased by family members who wish to contest your will and your wishes? “Contestable” means someone disagrees with the provisions of your will and goes in front of the judge to complain. By law it is up to the judge to decide the merits of the complaint and to alter your will if they deem the merits of the contest are valid. So your will and your wishes may not be honored using this document choice.
Bottom line, since a will is contestable and the final decision on how assets will be distributed happens within a court of law, there is great uncertainty. The full implications of this uncertainty are ones we must be aware of as we plan for our future. This is especially true if we are involved in a non-traditional relationship and our wishes are that our possessions be distributed to people other than blood relatives. What will happen to my home and financial assets? Who will be allowed to live in my home? Can my family of origin simply pack up my belongings and sell my home? Addressing these questions and concerns is an important part of good planning.
In summary – the probating of a will takes time, costs money and is a public affair. It is often contested and the final decisions rest with the courts.
What other options do we have?
A Trust is the only other option. For the purpose of this discussion we will speak in general terms of a Revocable Living Trust. There are multiple ‘flavors’ of trusts and which would be the best for your situation will be determined by you and your attorney.
Unlike a will which is a document and stipulates what will occur after death, a Revocable Living Trust provides living benefits as well. The Trust specifies while you are living who controls the assets it holds (the Trustor, that’s you); who manages the assets (the Trustee, that’s you also) and who benefits from the assets held in the trust (that’s you again). It clearly specifies who takes over in managing the assets within the trust when you no longer can and it spells out who will receive the assets when you are gone.
By making changes to the ownership of our assets from you to the trust, a process called ‘Funding’, you now own nothing and the trust owns everything. You control and manages the trust. The legal concept is that at your death whatever assets are in the ownership of the trust avoid the probate proceedings. By assuring that all of our assets remain in the trust, our successor trustee, the person you choose to take over at your death, can settle the trust without having to go through the courts. The reduced amount of time needed for this process and the privacy involved allows a trust to be handled free from being contested. Your wishes are honored.
Revocable Living Trusts can be altered and changed by the trustor, you, any time prior to death. Once a person dies the trust becomes irrevocable and can not be changed. A properly drafted Revocable Living Trust should also include provisions for guardianship and power of attorney if the owner of the trust becomes ill and needs help with medical or business affairs.
Non-traditional couples will often find a Revocable Living Trust to be the best method to assure that in a relationship not recognized as binding by the laws of the state, that their assets and possessions are distributed according to their wishes and avoid costly and time consuming heartaches.
The Revocable Living Trust also stipulates who will be in attendance and in charge in medical matters, another important benefit for the non-traditional couple.
Is a Revocable Living Trust right for your situation? This is a choice you need to make. Doing nothing and avoiding the issue only causes our loved ones problems and anxiety in the future.
Obtaining a Trust to protect your estate and your loved ones is only the first step. Properly funding the trust, retitling all of your possessions into the trust, can be a complicated process. Assuring that the trust stays current also is important, as your life, assets and tax laws change. Of utmost importance is arranging that assistance is on hand for the time when you are no longer here and the task of settling the Trust is given to the person you have chosen to be your Successor Trustee. Arranging for this needed assistance can mean the difference between a long and costly settlement and a quick and cost free process for those you leave behind.
I congratulate you for persevering through the reading of this information. Perhaps this information has brought up many additional questions for you. I would be honored to discuss these questions with you and explore further how I might be of assistance.