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

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!

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.  

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.

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.

Filed Under "D", For Death.....

Counselor, another name for lawyers.  We counsel clients, we teach them, especially in the land of estate planning and probate.  Yet, clients teach me, the lawyer, as well.  Case in point, recently a client emailed.  Trilled to have finally found the draft documents that had gone missing in her personal papers at home.  "I found them" the client wrote, "filed under D, for Death!".  My lesson -- clients filing systems vary from home to home, client to client.

Her system got me thinking --what other filing option may lurk in the filing cabinets of clients. Where might there loved ones eventually find the paperwork we worked so hard to craft?  One huge assumption here - that the paperwork is in a recognizable filing system.  My own parents, gone now, had a preference of keeping important papers in the freezer "in case of a fire!"

A for attorney
B for Bequest
C for Client Copy
D for Death
E for Estate Plan or End of Life
F for Final papers
G for Giving
L for Legal or lawyer
T for Trust
W for will

Those are the obvious titles that come to mind.  Whatever it may be, the freezer or a fireproof file cabinet with a tab for DEATH -- the key is to make sure loved ones know where to find them.  And until they are finalized, you remember where they are as well.  A plan that cannot be found is the equivalent of no plan.

Scatter Me Under The Bench; And Other Thoughts on Wisconsin's Authorization for Final Disposition

Ask my husband and he likely to blame it on my profession, but he'd be wrong. The spark that ignited my recent flurry of estate planning paper work was not flamed by my role as an estate planning attorney.  But rather by our upcoming annual vacation. Just like so many of my clients, "update estate planning papers" makes it to the short list of vacation preparation. No, I am not kidding.  It is the #2 most popular reason clients call for an appointment.

Day after day, week after week, month after month I sit at my little brown table with clients, reminding them to fill out their Wisconsin Authorization for Final Disposition.  Tucked into the left side pocket of their folder, the last form in the stack, it is the form I refer to as the "ever so cheery -- who is in charge when I die" form.

In Wisconsin, the power of attorney for health care ends with the declarant's death.  Last breath and the power ends.  Which raises the question of who will be in charge of your burial / funeral? In Wisconsin we have a statutory presumption that it is your next of kin.  For some clients, that is fine, at least for the first level of kin folk.  For others, it is not.  And each time I discuss this with clients a nagging feeling nestles into my brain -- "Um Melinda, you need to update yours now that your mom died, remember?"

Wisconsin statutes are fine with me on this matter since my next of kin in my loving husband.  But what if he could not make the decision (conjure up a vision of him in an ICU bed, or worse.....), then I start to stammer.  My kids are too young, and it would defer to my other relatives.  While we may share DNA, we do not share our lives.  They have theirs, I have mine.  Birthdays and holidays for me are spent with a group of childhood friends who have become my village now that my parents have both passed away.  When I needed to haul a urine soaked kiddo mattress out of my house to the curb while my husband was in Seattle for business, I called on The Village for help.  These are the folks who I can trust to carry out my final wishes if my earthly time should come to an end and my husband cannot act.

And so that is what I did this past Sunday -- I sat down and finally put my wishes into a legally binding format.  First my husband, then a friend, and if not, then another.  Witnessed by two individuals and signed by the three I have empowered, I can now advise clients without that nagging voice echoing in my head.

Cremation, direct cremation to be exact.  Use Informed Choice associated with Cress Funeral, if it is still around.   If they survive me, a small amount of they ashes should go to my husband and each child.  The rest should be scattered under the bench on the beach in Bayfield, Wisconsin.  The one next to the ferry station, just to the north of the renovated structure.  It is there, above in the photo, under the tree.  Contact my friend and Minister, Kelly Crocker at the First Unitarian Society of Madison for a Memorial Service. Have no more than 5 photos on display -- pick the nice ones, leave the rest. Blue Boat Home and Come Sing a Song With Me should be performed.  Bill the estate.  Keep the costs low, especially if my children survive.

That's me. What about you?  What would you want?  Who would you want running things?  Now......put it into a legally binding format.  And then enjoy your vacation.  I plan to.

Legacy - A Power We All Have

The story was secondhand, told to me by my husband. Overseeing the nightly bath vs. shower ritual of our children, ages 6 and 4, he was the parent on-duty.  It had been a long day of Spring Break play, inevitable growth spurts, and the competitive behavior of siblings.  Quickly the kids launched into an argument over who was going to use their shower/bath first:

Daughter: I said it first, I get a bath....NOW!!!!

Son: Not fair!  You take fooooooorrrrrrrevvvvvvver in the bath.  I want a quick shower!

Daughter: [with a smirk spreading across her face], I know, let's do a coin toss! 

For the reader, she has an uncanny ability to win these games of chance, something that has not gone unnoticed by our son.

Son; Okay [said with a bit of distrust].

Up went the coin, supplied by dad.  It landed heads up, just as our daughter had predicted.

Son: Fine, take your God Damn bath!

He stomped off to our master bath for a shower on his own. At this point in the story, my husband is laughing.  After quoting our son's proper use of GD, he said, "and he sounded just like you -- tone, inflection -- it was you! Then with a slight frown of sadness he added, " He sounded just like your mom too."  My mom died just over a year ago, but part of her still lives on in what she passed on to me, and now to me to my children. That is the power of legacy.

From phrases we use, to foods we prepare, to acts of charity -- our children, young and old, model the behavior of their elders.  This is why you can make a difference in the world of nonprofits without having millions.  It is a point I make in my book, Middle Class Philanthropist: How anyone can leave a legacy.  The point is reiterated in this piece by Adrian Hirsch for In Register Magazine about making a difference without millions.

As Spring finally warms the frozen earth of our home town of Madison, Wisconsin we have daffodils blooming in our front yard.  On our kitchen counter is the 2015 version of the Easter Bunny Cake we will take to a gathering later today. Some version of this cake has been present for me every Easter since 1974, when I was not quite one year old.  When my mom's health declined the baking baton was passed on to me.  One day the baton will pass on to one or both of my children.  What else can I pass on to them?  With this post I have decided to give 1% of my life insurance policy to my alma mater, the University of Wisconsin. Being the first in my immediate family to attain a college degree (and then a masters followed by a law degree), the immense value of our public universities is brilliantly apparently to me.  Making this designation will model admiration for quality public universities to my children.

That is the power of a legacy.  How will you use your power?

Welcome Sharon!: Modern Day Grave Robbers

Over the past year I have grown accustomed to flipping through the mail at home and seeing at least one mailing addressed to my mother, at our home address rather than the 1121 Valley Stream Drive of my childhood.  She, my mother, left this earthly world February 16th of 2014, but her junk mail lives on.  Most of the time I mark the enveloped "deceased", leaving it for the carrier to cart off the next day, hoping the life insurance company or peddler of products to keep seniors in their homes will update their mailing lifts.  Sharon no longer needs their services.

And then one day a mailing caught my attention, it was from a huge on-line bank.  Tearing it open the warning I issue to clients here in my legal office struck home - identity theft of the dead.  Sharon -- Welcome to [insert Bank Name here]!  Here are the account numbers for your new 29 savings accounts!  A whirlwind of emotions ensued.  Sadness for a mother who was gone from my life. Frustration for yet another task falling onto my plate, she was a widow, my father died in 2009, and I was her only child.  And anger at the thieves who were attempting to steal her identity.  After a few clamming breaths, I called the bank and they quickly closed the accounts with the information I provided.

Yes, identify theft of the dead is a thing.  And not only just a thing, but a growing phenomenon.  Why on earth would a thief want a deceased person's identity?  Two main reasons come to mind.  One is the quick shopping fix they can run up with credit cards, etc., before the grieving family recognizes the theft.  And two, tax fraud.  Apparently there are people out there who spend their days (and nights) filing fraudulent tax returns for the recently deceased.  They will make up numbers for federal and state returns, file them with the appropriate authority, and have refunds deposited into on-line banking accounts they have fraudulently opened. Government agencies are under pressure to process returns before they can verify the reported numbers with the 1099s submitted by entities that paid out funds, such as employers, banks, and the like.  Voila, grave robbers for modern times.

How did theses folks get enough personal information to open bank accounts for my mom?  I am not sure.  I have heard that the Social Security Administration has a Master Death List of Social Security Numbers of the deceased.  Something comes up with a Google search, but I haven't the time to explore it more.  If it is true, my anger will probably boil over -- the banner claims its purpose is to thwart identity theft. There are all of those on-line family trees with dates of births and mother's maiden names.  And tricks of the trade that are well-beyond my luddite ways.

From my vantage point behind the desk of an estate planning attorney, I'd offer the following common sense moves if you wish to decrease the risk of a thief running off with your identity, or that of a loved one, after you depart the pale blue dot we call home.

• Review your will, trust (if you have one), powers of attorney for health care, and powers of attorney for finance to see if they contain your Social Security Number.  If so, create new documents and shred the old.  This month alone I had three new clients with this very problem -- SSN included in their dated estate plans;
• If a loved one has died and you are the Personal Representative / Executor, write a letter to the three credit bureaus stating the person has died, provide the SSN, death certificate, and paperwork putting you in charge;
• After the estate is closed, shred all statements for banks, credit unions, retirement accounts, etc.

Now I know that I can depress people.  So much so that I keep a box of Frango Mints in my office for clients, who often need a pick-me-up after planning what will go where upon their death, or what would happen if that person predeceased, etc.  While I cannot offer you a chocolate here, I can share a link to a lovely song I associated with that pale blue dot we call home, it is a favorite of mine, commonly heard around Earth Day, Blue Boat Home. Lyrics can be read here.