Series: Estate Plannings Hardest Questions

Series: Estate Plannings Hardest Questions
#6: Asking Yourself 'Who is Family?'
By Melinda Gustafson Gervasi


Every now and then I'll have a client lean in during our first meeting, where we discuss their life situation and estate planning goals, and nearly whispers "can I name someone other than my relatives?"

"Of course, estate planning is about taking control and nominating the people who are right for the job!" I proclaim.

In the various seminars I give on the topic of estate planning and probate I emphasize the need to ask yourself "who is your family?  We share our DNA and branches of a family tree with a group of people.  We also share life with a group of people; the joyous celebrations, the mundane tasks of life, and the times of despair.  Sometimes they are the same group of people, and sometimes they are two distinct groups.

Personally, I am one who has two different groups.  With the exception of my spouse and children, there are people walking the planet who share my DNA or my family tree, but they are not the ones who share in the joys and sorrows of my life.  Why the fissure?  The reason is immaterial.  What matters is asking myself, who is family beyond my spouse and children.  They are the people who leave bananas and ginger ale waiting on your counter when they learn you are getting over food poisoning while on a transatlantic flight.  They are the people who cheer your 7 year old daughter on for her first ice skating show.  They are the people who help you tear soaked carpeting out of your basement following a flood.  And they are the people you sit down with to give Thanks at the end of November.

This can be a very hard question for some people to ask themselves.  Admitting relatives are not family can sting.  But it is a vital question.  Who knows you well, who respects your wishes, who brings you support?  Those are likely the best suited people to be nominated in your estate plan.

Please remember, a blog is not legal advice.  Please seek legal counsel from an attorney in your state of residence.  Thank you for reading.

Series: Estate Plannings Hardest Questions

Series: Estate Plannings Hardest Questions
#5 - Answering 'What If They All Die?'
By Melinda Gustafson Gervasi


It begins with the question "Am I correct to assume you want all assets to pass to the surviving spouse?"

Without hesitation, both clients respond "yes."

I return with "And if both of you were to die, either together or one and the other, you want your assets to be shared equally among your children."

Again, without hesitation the clients in unison state "yes."

This time I volley with "and if a child of yours were to predecease you, would his or her share pass to any children he or she may have left?"

My question is often met with a pause and a head snapping back as though it had been slapped.  Looking at one another and then me, the clients stammer "well....well....yes, I guess that seems appropriate."  As a mother as well as a lawyer I can see the glimpse of horror in the clients' eyes; parents die first, not the children, or so it is desired.

I end with "what if neither your spouse nor any of your offspring survive you, what would happen to the estate?  Some clients do not want the state statues to control what happens to their property."

At this point, one if not both clients sit, mouth agape, stunned by the question, saying "well, we NEVER thought of that!" 

"That's my job, imagine the worse case scenario and plan accordingly." I counsel. "It's unpleasant, but important to ask because you may not want your estate to pass according to the statutes."

Nine times out of ten the clients will ask to think about it for a few days.  They could leave it all to some favorite nonprofits.  They could divide it 50/50 and let state statutes control the distribution to his and/or her surviving next of kin.  Or they could do a mixture of distributions: 50% to their surviving siblings; 25% to their faith organization; and 25% to an alumni association.  The options are endless so as the percentages add up to 100% in the end.

We shake hands as the clients leave, I smile saying I enjoyed our conversation and add "please, help yourself to chocolate....I have Frango's in the waiting area.  You deserve one after having me kill off all your loved ones in a space of an hour."  A chuckle usually follows, and nearly all clients opt for a chocolate.

It's hard, asking yourself what will happen to your estate if you are the last one standing.  Yet, it is essential if you do not want state intestacy statutes to distribute your probate estate.

Please note, a blog is NOT legal advice.  Please seek counsel from an attorney in your state for guidance on estate planning and probate for your state of residence.

Series: Estate Plannings Hardest Questions

Series: Estate Plannings Hardest Questions
#4 Where Should I Keep My Will?
By Melinda Gustafson Gervasi

"Well, let's put ink to paper and make this will legally binding" I say to a client in our final meeting.  Pens are passed around, pages are initialed, the witnessing completed. 

I slide the will into the kelly green folder each client receives to hold his or her completed forms.  The client, with eyes downcast on the desk puts the papers in order, and digests the fact they did it -- they completed or updated a will. 

Slowly the client's eyes move upward, connecting with mine, and then the question -- "now where do I keep this?"  Puzzlement clearly written across the face.

Copies of powers of attorney should hold the same legal authority as the original, however, that is not likely the case with a will.  It is very important to keep the original safe.  Many clients assume the safe deposit box is the answer.  What used to be the go-to may not be the wisest move today.  A will locked in a safe deposit box can be tricky to access once the testator has died.  I'll skip the technical hurdles that may develop and just say, personally, it's not my first choice for a will.

Many clients prefer to keep a will in their home fire box or gun safe.  This can work, however:

• fire proof does not necessarily mean water proof (a weakness underscored by the recent historic flooding here in Southern Wisconsin);
• thieves may walk away with your fire proof box hoping to find prescription drugs, passports, or cash -- put they may get your estate plan instead;
• combinations need to be known by those who survive;
• purging papers and clutter seems like a great activity, but it may result in the unassuming will being pitched into the shred box; and
• it may take weeks for loved ones to sort through an entire home's contents to finally locate the will.

A cold Kentucky Rain -- image by Melinda Gustafson Gervasi, 2017

My will (and my spouse's will) are on file with the Dane County probate court, in a sealed enveloped assigned a file number.  When the time comes, they will be moved from one section of the courthouse to another, the probate office.  Minimal chance of destruction, theft, misplacement or unintentional destruction.  The fee in my county is $10/will......not per month or per year, just $10.


I wouldn't stop when the ink dries on the signature line, not asking the hard question, where will this will be safe until it is needed? No option is perfect for all testators (that's the fancy title you get when you sign a will).  Assess your situation, and the situation of those the will empowers to act. 

Thanks for reading, and remember a blog is not a lawyer, it does not give legal advice, it simply shares with you my thoughts as an estate planning attorney daily navigating the waters of estate planning and probate.  Please consult with an attorney in your home state (these laws are state SPECIFIC) and for current law.

Reader's Corner: The Green Burial Guidebook by Elizabeth Fournier

Recently I read The Green Burial Guidebook: everything you need to plan an affordable, environmentally friendly burial by Elizabeth Fournier.  It was a segment on WPR's Central Time that led me to this interesting book.

At a slender 150 pages, the book is a straightforward and easy read, complete with detailed notes and resources at the end.  Fournier first introduces the reader to the concept of "what is a green funeral" and then in the second half provides a guide to a green burial.  For those already familiar with the go green movement in the area of funerals, the first half of the book may be repeat information.  However, in the second half of the book Fournier takes the reader well beyond having a burial minus the coffin and vault, into various "shades of green" as she calls the spectrum of options available to making their death affordable and earth friendly.

There is detailed information for those with families that can provide preparation of a body for burial on "family land" as well as smaller, more realistic (through distance and dysfunction, many families may not be able to go as green as those who literally wash a body after death) such as carpooling visitors to a service, to using seed cards as thank you notes, to the new form of cremation - alkaine hydrolysis.

All in all this is an excellent resource for those wishing to have their death be as simple, affordable and earth friendly as possible.

Series: Estate Plannings Hardest Questions

Series: Estate Plannings Hardest Questions
By Melinda Gustafson Gervasi
#3 - Who to Name as Personal Representative

Wisconsin is my home state, meaning we use the term "Personal Representative" (hereafter "PR") instead of the more commonly known "Executor".  The role of the PR is to file a will with the court, collect the deceased person's probate assets, pay the final taxes, funeral and medical costs, and any other liabilities of the deceased.  The PR distributes the remainder to the beneficiaries as stated in the will, or if no will, follows state statute on disbursing funds.  This is an oversimplified version of the work required of a PR, but it provides the general gist of the work involved.

Knowing the type of work involved, and the fact a probate on average takes 12-18 months from start to finish, you can develop a good sense of the skill-set required by the person you nominate to by the PR.  I do not recommend a knew-jerk reaction and name your first born because s/he is the oldest or your sister because you know she'll harass you until the day you die if you do not name her.  Instead, nominate someone who is well-suited for the job. When speaking with the public or with clients I say "aim for Switzerland -- who is neutral, precise and efficient?" 

Look at your collection of family and friends.  Who:

• does not have a "dog in the fight" -- trust me, even the most serene families can erupt in arguments over the most mundane items when a loved one dies.  It's usually not the thing, but rather who has control;
• who is Type A -- this is where teachers, nurses, engineers, accountants and the occasional lawyer can translate their Type A behaviors into the role of PR;
• who is going to be emotionally stable when they are: selling your car, filing a final income tax return; emptying the fridge, disposing of your medications; listing the home for sale; and balancing the monies so that dollars into the estate equal dollars out of the estate.  Not everyone has this skill set;
• who has the time to take all this work on?; and
• who is able to delegate work when it makes sense to do so and is needed to keep the process  moving along.

If you get through your list of friends and family and realize none listed possess the requisite skills you are not without hope.  Instead of settling for someone you know, but who is ill-equipped, consider a professional.  This is where wealth management departments of banks can be of tremendous support.  My will lists a local bank to act as PR if my husband cannot.  I have many lovely friends and limited family, but the complexity of our estate would be more efficiently handled by a professional fiduciary.  That might be hard to admit, but sometimes the best course to take is not the easiest.

Thanks for reading, and remember -- a blog is not legal advice.  Please consult an attorney in your home state for advice on current laws related to estate planning.

Series: Estate Plannings Hardest Questions

Estate Plannings Hardest Questions

Two of Six -- Who to Name as Guardian of Minor Children
By Melinda Gustafson Gervasi

Contemporary parenting is full of reminders that some children may face a future without both parents at his or her side.  From Cinderella to Harry Potter, children's books and movies regularly set an orphan out on a life adventure, weaving an exciting story with plenty of milestones. 

While it may be a common writing technique, the idea of orphans can leave many a parent feeling vulnerable -- who would raise our (my) child(ren) if we/I die?  It's a question that, depending on your emotional fortitude, can feel like a punch to the stomach.  But again, in my opinion it is one a parent should face, decide, and put in a legally binding format (laws differ state to state, and day to day, please consult with an attorney for up-to-date advice relevant to your state of residence).  Without answering this question yourself, it may lead to a dispute about who a child should grow up with.  After having lost one or both parents, does a child really need to become the center of a court case?

As a parent and an estate planner, it's my opinion that no one person can replace you.  Given that, aim for who is the best fit.  Points I personally take into consideration are who aligns the most with our family on topics of:

• religion,
• education,
• financial management, and
• daily life (urban vs. rural, dual income vs. one parent at home, etc.).

This may be the hardest question in the estate planning world.  Face it, update it as needed, and relax knowing it is taken care of, and hopefully never needed.  Oh, and you may want to avoid children's books and movies that start off with an orphan -- I personally limit my exposure as much as possible, life is harsh enough without those added thoughts bouncing around in my mind when I try to fall asleep.

Smidge and Rooster joined us for a Wedding Anniversary at Lilianna's earlier this summer.  We were helping them develop finer dining experiences.  They loved it more than Culver's.....we created some expensive dining taste with these two.

Thanks for reading, and remember a blog is not a lawyer.  Please consult an attorney in your state of residence for advice specific to your situation.

Series: Estate Plannings Hardest Questions.

Series:  Estate Plannings Hardest Questions

One of Six -- Who will be my back-up agent for Power of Attorney
by Melinda Gustafson Gervasi

Control, it is the central part of estate planning.  When you sit down to create or update an estate plan you are taking control of the situation.  You have the ability to say who will do what tasks, and you will say where will your assets will go when you are gone. 

One piece of estate planning is the nomination of an agent and back-up agent for your power of attorney for health care as well as your power of attorney for finance (these documents say who can make decisions in these areas if you are alive, but to sick to act).  In my experience it is relatively easy for people to name the primary agent, but when it comes to picking a back-up, things can get dicey.

• married couple has three adult children, which child should they name;
• childless clients (single or married), a dear friend would be nice but the person is the same age as the clients;
• client has a very small circle of family/friends and choices are limited.

Over the years, through personal and professional experience, I've adopted the belief that selecting a back-up is easier when that person has a pressure valve.  The back-up agent tends to be far more eager to agree to be nominated if s/he knows that there is another person in line after them who is willing to act.  It relieves the pressure the back-up might feel for accepting such an important and likely long-term time consuming job.  If at the time they are called they are sick themselves, spending 6 months outside of the country, overwhelmed with work, etc., they know they can decline without harsh consequences.  It will pass to another trusted individual you nominated.

So,when it is time to ask who should be the back-up, create a short list of folks creating a release of pressure for those being asked to act.

2017 Image of M. Gustafson Gervasi. 
Taken in Iceland while traveling; travel is my pressure valve for being a  solo practitioner. 
A break here and there allows me to advise year after year.

Disclaimer: Remember, a blog is not legal advice.  It is vital for you to seek counsel from an attorney in your state for advice based on your state's laws at the time you are taking action.  The law is not static, and is often not the same in all 50 states.

Beware of The Trust Mill

When you hit a certain age you can bet on receiving some sort of invite in the mail offering you a free dinner at lovely restaurant close to your home, served with a side lecture on 101 ways to avoid probate.  Now I love a free meal, but proceed with caution, it  may be a trust mill.

What's a trust mill?  It's usually an LLC that sets up shop in an area for several months, fires off a mass mailing to people over a certain age, gives you free food and attempts to scare you into a Living Revocable Trust.  This sales pitch is likely to contain lies, all designed to get you to sign up for a $5,000 or more trust document.  And chances are fairly good the speakers are not attorneys.

I'm not alone in my dislike of trust mills.  This was recently posted on a Wisconsin Estate Planners Listserve:

"Thought all you fine people should know the truth:  I have a nice lady whose elderly parents are about to become victims of a trust mill.  These fine folks tell the elderly that they should stay away from lawyers because probate costs 8% of the estate and takes 2 years."

• Lie number one, Wisconsin has a probate fee of 0.2 percent, not 8%
• Lie number two, probate can take as little as 90 days, but more like 8-12 months depending on the time of death.  My mother died on 2/16/14.....I had to wait until February 2015 so that final income tax returns could be filed.
• Lie number three, not all assets will go through probate.  Many assets have direct beneficiaries: retirement accounts, bank accounts, life insurance, even real estate in Wisconsin can have a TOD Deed in place.  And the older population often rents and has fewer financial instruments if they have consolidated.
• Lie number four, the folks running Trust Mills are most likely not attorneys and cannot actually help you fund the trust (that means putting assets into the trust, if that isn't done probate would happen any way).  When in doubt if the person is an attorney ask them for his/her State Bar Number.  A real attorney can recite that number in a flash, we type it all the time.

Being the first in my family to attend college and the child of blue-collar workers, I know people work hard for their money.  It really bothers me to see this type of company roll into town and siphon off $5k or more from people who just didn't know the facts about probate in Wisconsin.

Windmills are lovely, especially when you stumble across one in Sweden.  Trust mills are not so lovely.  Consumer beware.

Photo my M. Gustafson Gervasi - Malmo, Sweden, March 2016

Children's Literature: An Unlikely Source of Estate Planning Lessons

Think Children's Literature and Estate Planning lessons do not go hand in hand? Think again. 

This phenomenon first hit me in 2014 when I watched Disney's film Cinderella with my then preschool aged children.  As I said then in a blog post, if you are a parent without a will nominating a guardian for your child(ren) and setting up a children's trusts, watch Cinderella and you'll find your motivation.

Each new year of parenting has brought changes: diapers are a thing of the past, larger and larger bowls of oatmeal are required for the kids' breakfast, and the books and films they digest grow in complexity.  In the Treasure Hunters Series by Jams Patterson four adolescent siblings navigate the world of espionage and foreign seas in the midst of parents lost at sea.  Pulling his nose from the book my son raised a question -- "mom, what's 'their legal guardian' mean?"  Most recently it was Roald Dahl's Matilda that caused me to analyze and estate planning problem within the plot of a classic kids book -- a missing will and a crazed relative.

Matilda is the precocious protagonist of this 1988 classic kids book of the same name. Yet it is Ms. Honey, Matilda's teacher, that presents the link to keeping wills safe.  As a back story the reader learns that Ms. Honey lives a life of poverty while her aunt, and head teacher at the school where she works, lives in Ms. Honey's upscale childhood home.  It appears that the aunt took possession of the house when Ms. Honey's father (a widower, of course) died.  In the end of the book the will is found, Ms. Honey is declared the proper heir, and she returns to her home and the comforts of modern life (running water for example).  As both a mother and an estate planner, I shudder when I think about a parent's will being "lost" and unscrupulous relatives sliding in to claim possession or control of assets and/or child(ren).  You just cannot lose your will!  We live in the digital age, but when it comes to wills, the original hard copy is required.

Here in Dane County, Wisconsin one can file his/her will for "safe keeping" with the court for a $10 fee.  It is stored, in a sealed envelope, in the courts records.  Nothing is ever perfect, but my parental gut tells me the courts record system is safer than anything I could put in place at home.  Phew, one worry I can set aside as we pass through the stages of child development and the ensuing books and movies of youth.

What I've Been Reading: The Gentle Art of Swedish Death Cleaning

It is not often that I find one book that captures so many of my core interests, but I hit the trifecta with The Gentle Art of Swedish Death Cleaning: How to Free Yourself and Your Family from a Lifetime of Clutter by Margareta Magnusson.  This little book hits on my key interests: one, it relates to my practice of estate planning and probate administration; two, it nourishes my frugal lifestyle; and three, it feeds my obsession with the Nordic way of life. 

Billed the next big fad to hit the US, Swedish Death Cleaning means to remove unnecessary things from your home, making the home orderly and nice at the time you depart Mother Earth.  At just over 100 pages, the book is a light-hearted memoir of the author’s later life when she “death cleaned” following the passing of loved ones.  Sprinkled throughout the book are suggestions for motivating yourself to get started and completing the act of taking control of your personal items to declare what is meaningful and purge the rest in creative and earth-friendly ways. 

I would add to Magnusson’s work two thoughts: one, death cleaning need not be reserved for those 65+, no age is immune to taking a final breath; and two, do not overlook the digital clutter you have accumulated -- digital photos, social media accounts, and countless megabytes of stored documents. 

If you are interested in learning more or discussing the idea of Swedish Death Cleaning, join me for a book talk on Saturday, February 10th, 2pm at the Cross Plains public library.  Library staff request pre-registration for this FREE event, which can be done online at www.rgpl.org.