Monday, August 1, 2016

What I've Been Reading: Being Mortal by Atul Gawande

What I've been reading.....

My decision to read Being Mortal: Medicine and What Matters in the End by Atul Gawande was driven by recommendations from both friends and clients. For the past few weeks I've been reading at a sluggish pace, unable to be swept away by a compelling narrative. My reading drought ended with Being Mortal, a nonfiction look at the end-of-life questions we should all be contemplating no matter our age or stage in life. As Gwande writes, "we only die once" -- let's get it right.

Gwande writes from the perspective of a physician, educator, and son helping his aging relatives on their final journey. Stories from his life and his patient's lives blend expertly with anthropological views on dying to modern statistics to an examination of what independence means to Americans. 

Only one element was missing from this book in my opinion; the book was missing a nice neat list of questions a patient could pose to his or her doctor when faced with a possible terminal illness. Gwande's book illustrates how important the role of physician can be in making the most of one's final days, and sadly that physician is not common place. Those questions might help with deciding which medical expert to work with. Having read Being Mortal I know that the questions "what do you fear the most?" and "what are your goals, what matters to you?" are key. Answers to these questions are vital to navigating the plethora of options laid out by physicians. 

From caretaker to medical professionals to loved ones to patient, anyone would benefit from reading Being Mortal.

Wednesday, June 1, 2016

When An Estate Is Too Small For Probate

It was a Tuesday evening.  Talk radio voices floated through the kitchen air while I prepared dinner.

Host: Welcome Randy from New York, what's your question?

Caller:  Hey, glad I got through.  I've got a question for you.  My aunt died and I'm taking care of her affairs.  She had a retirement account, and a car with a loan on it.  How do I sell the car and pay the loan?

Host: Well, looks like you'll be doing a probate.  Not much there, one retirement account, one car, and a loan you gotta pay before you distribute anything.  Now I'm no lawyer, but seems like you'll have to open a probate.....geesh, unless there is someway around it, but how are you gonna sell the car and sign the title.  Maybe you need a lawyer....

Caller:  Thanks, I'll see what I can do.

Why I thought they'd hear me, I do not know. One, this was radio, and two, it was an archived show. But that didn't stop me: YOU NEED A SMALL ESTATE AFFIDAVIT. STATES HAVE THEM! Not only did my thoughts float into thin air, our family cat who was calming waiting for my dinner preparation to turn toward the cabinet where I keep the moist food, cocked her head in disbelief wondering what her crazy human was doing.

Here in Wisconsin the form is called a Transfer by Affidavit, and can be used when a person dies owning $50,000 or less in probate assets.  Probate assets are assets that have no label or beneficiary form on them indicating who gets them at the owner's death.  Probate assets are distributed via will, or if no will, via state statute.  All states are different, but Wisconsin is not alone in having a simple procedure to oversee the distribution of a small estate without the formality (and length and cost) of a probate proceeding.

I love my financial talk radio, especially shows focused on smart frugal living.  But wow, they get a lot of calls about how to handle wills and probates.  This was not the first, nor will it be the last time I holler into the air of my kitchen with my thoughts on the callers question.  No one really likes a lawyer, but maybe these shows should have one on to answer questions occasionally.

Friday, November 27, 2015

A Grateful Lawyer: Reflection on 10 years of practice

Sitting in seat 15A of a jumbo jet's dimmed cabin, hovering somewhere above the Pacific Ocean doubt struck for a brief moment.  It was 1998 and I heard "Attention passengers, if there is a doctor on board would you please identify yourself."  With that 10 second announcement doubtful thoughts burrowed into my brain.  Heading from Honolulu to Madison via Seattle to begin a 3 year journey through law school, a process best described as going through boot camp while on Jeopardy, I realized I would never be on a plane and hear "Attention passengers, if there is a lawyer on board would you please identify yourself."

At the core of my decision to submit myself to the law school process and subsequent career path through the legal field was a firmly rooted desire to help others.  Would I be able to do that if I opted to be an attorney? I did the best I could at the moment, transferring my doubtful thoughts to an entry in my journal and then closed my eyes and continued down the path I had opted for the previous Spring.  I was headed to law school, time would tell if my wish would be fulfilled.

This past October marked 10 years of solo private practice for me in a practice where I a focus on estate planning and probate.  In more simple terms, I spend my days sorting through matters of illness, death and taxes.  During the past decade I have been summoned to the hospital bed of former clients in need of update documents as well as new clients desperately attempting to put their affairs in order.  Tethered to a hospital bed, a lawyer who answers the call for help is their only answer -- mobility is severely limited.  And a lesson I learned over the years; the lawyer needs to be able to furnish witnesses as well, something hospital shy away from more and more out of fear an employee of theirs will witness something and later end up in a court drama over contested documents.

Beyond offering on-site meetings in homes and hospitals for those who cannot make it to my office, I have also been the eyes, ears, and hands on the ground in Wisconsin for frail and elderly relatives living far away, unable to visit the area to attend to the home a recently departed loved one has left behind.  Part translator, part guide, part educator, I've been told I've eased their journey through the painful path of tending to a loved one's final affairs.

No, I never have and likely never will be startled awake on a flight to administer legal counsel, but after 10 years I can say I have been able to help others. And for that, I am thankful.  I look forward to another decade (or two) of helping others!

Image by M. Gustafson Gervasi, 2015

Wednesday, October 21, 2015

When To Update a Will & Estate Planning Documents

Final meetings with my clients end with me offering them water from the fridge in the waiting room and a Frango Mint (or two) that I keep in the waiting area.  Final meetings also end with a discussion of various housekeeping items, such as safekeeping of a will and the ever important question -- when should I update my will and estate planning documents?

Most clients assume I will answer with a specific number of years; seven to ten years is the most anticipated answer.  But what I actually say is the most dreaded answer I lawyer can offer, it depends.

When to update a will is fact dependent more than time dependent.  Take my life for example:

  • In 2006 I got married, and my name went from a long name to a very long name and my middle name fell away;
  • In 2008 our son was born;
  • In 2009 my father died;
  • In 2010 our daughter was born; and 
  • In 2014 my mother died.
All of those events mark a time when estate plans should have been reviewed and updated to reflect name changes, additions to the family, as well as exits from the family.  And it was not just my husband and I who should have reviewed our papers, it was our parents as well.   Spouses passed on, grandchildren were born, names changed, etc.

If you are wondering if it is time to update your will, ask yourself:
  • Have I moved states?
  • Did anyone key to my plan get married, die or have a child?
  • Are the people named in my will still apart of my life, or have we become estranged for some reason?
  • Has someone new entered my life who was not there the last time I considered my will.
Remember, a blog is educational rather than legal advice. Please consult with an attorney licensed in your state for assistance specific to your need.  And thank you for reading!

Monday, October 12, 2015

Which Is Faster: A Will or a Trust?

Engine of a Space Shuttle.
 Image by M. Gustafson Gervasi, 2015
"Which is faster, a will or trust?  I just want my family taken care of as soon as possible."  After ten years of serving clients in the estate planning capacity, this is one query that tops of the list of client questions. My answer is often not expected.

"Honestly, whether you use a will or a trust, it doesn't matter. What matters is how organized you are with your final affairs, and more importantly, how organized the person is who you appoint to handle things when you died.  If the person you appoint is crippled with grief, overwhelmed in their own personal life, or simply is an indecisive procrastinator -- then your estate will creep along at a snails pace, trust, will, whatever device you use just doesn't matter."

Personally, I think trusts are a bit oversold.  Here in Wisconsin we have a low probate fee, 0.2 percent of the inventory value.  Other states can be as high as 8.0, 10.0 or even 12.0 percent -- that can easily drive probate costs higher.  Given this, many clients in my office opt for the probate route, using a will which facilitates rather than avoids probate.  When naming a Personal Representative (also known as The Executor in Hollywood as well as the State to our South), I advise choosing someone who:

  1. Is neutral and can help maintain the peace in a grieving family;
  2. Is good with finances and economical concepts (i.e. reviewing medical bills, completing taxes, selling a home, etc.);
  3. Has the time to sort through your bills, contact creditors about final costs, clean out your fridge, sell your car(s), drop off items at the local thrift store, complete final tax returns, and more; and
  4. Is able to make a decision and execute procedures.
As you run through the list of family and friends who fill your life and find you  have few or no choices, consider a professional. Banks, trust departments or even the family accountant may all be able to fulfill this role and help achieve your goal of efficiently getting your final assets into the hands of those loved ones you leave behind.

Thank you for reading, and remember -- a blog post educates only and should not be viewed as legal advice.  Please consult a licensed attorney in your home state for legal advice.  

Monday, October 5, 2015

Dying Without A Will: 34% of Americans Do Not Have a Valid Will

Image by M. Gustafson Gervasi, 2015
"Show of hands, who here does not have a will?"  A standard question I pose to audiences when asked to speak on the basics of estate planning.  Usually one-third to half of the audience raises his or her hand indicating that no, they do not have a will.

A recent reported stated that while 69 percent of Americans have given serious consideration to setting up a will, only 34 percent actually have a valid will.  And of those that know it is important, but have not acted, 95 percent say it is because they lack the financial know-how, and not that that topic of death is too taboo.

Even as an estate planner the 34 percent shocked me, I would have guessed about 48 to 49 percent of Americans have not created a will.  But I would disagree with the wording in the report that only 34 percent of Americans have a will.  Here is why: "Guess what, those of you with your hands up -- you do have a will.  One the State Legislature wrote for you.  If you won't sit down and write one, they did one for you as a back-up.  Some folks may agree with their assumptions, otherwise will not." And then I show them a flow-chart of Wisconsin's intestacy statute.  The law that says where your probate assets will go if you have not drawn up a will (or other means of distribution: trust, TOD Deed, joint ownership, etc.).  So one does not really die with a will, but rather they die without having stated his or her wishes. They die with a default will.  It might be fine, it might be horrific.  Take control, and put your wishes in a legally binding format.

Monday, September 28, 2015

An Overlooked Bequest: Allowing a Garden to Live On

Image by M. Gustafson Gervasi, 2015
Back in July, as irises still bloomed in my garden, I sipped a coffee and glanced at our local free weekly paper The Isthmus.  A story on page 6 caught my attention -- America's longest-serving state legislator, Fred Risser, and his wife Nancy Risser, were profiled for creating an urban oasis in downtown Madison.  Over the years the couple worked to turn an apartment complex parking lot into a lush and welcoming garden.  Towards the end of the article a nugget of estate planning insight jumped off the page -- the bequest of perennials.

Nancy is quoted as saying "A garden is a living thing" after she recounted transplanting iris bulbs from her late-grandmother's home in Texas to the garden here in Madison -- the transplant spurred by Nancy's father's death.  While the focus of this article was about creating and fostering natural beauty in an urban setting, the estate planner in me saw the often overlooked bequest -- bequeathing perennial plants and bulbs.  Are you a gardener or an aspiring gardener?  Not a gardener but yet you hold a loved one's garden in awe?  What will happen to those plants when his or her time comes?

As a daughter who has had both parents pass on, I have transplanted bulbs myself.  Hostas and ferns that once sprang to life every spring and summer at my childhood home now have a place in our family garden.  My children pass them each morning on our walk to school, reconnecting me with my first walk to kindergarten, sparking a memory of carrying a rose from my mother's garden to give to my teacher, Mrs. Hoops.  And the estate planner in me has written at least one will in which the testator has made a gift of his or her perennials, and even much loved house plants.

As the sun sinks lower in the horizon and the northern hemisphere shifts into fall and heads towards winter, leaving plants dormant for the winter, ask yourself; could I?  should I? make a gift of the plants that wait underground for another season of warmth and bloom?  If so, talk with an attorney about how to make it so.