Tuesday, June 16, 2020

The Teacher Within: Channeling Debbie Downer (SNL)

The Teacher Within: Channeling Debbie Downer (SNL)
June 2020
Melinda Gustafson Gervasi, Attorney & Author

More often than not, in my legal counsel, I am the Debbie Downer in the meeting.  My role as teacher to my clients requires it at times.

Debbie Downer was a character on the NBC show Saturday Night Live played by actress Rachel Dratch who debuted in 2004.  The name "Debbie Downer" has become a slang phrase, meaning someone who frequently adds bad news and negative feelings to a gathering. In the end, she brings down the mood for everyone.

For example:

  • Great, you want your estate to go to your children if both spouses have died -- what happens if your children predecease you?
  • Who will you name as a back-up health care agent if both you and your primary agent are in a car crash together and s/he cannot act?
  • What happens to your estate if neither your spouse nor any of your children/grandchildren survive you?
  • Keeping a will at home is dangerous -- there are fires, floods, thieves walking off with your safe box, or a relative who reads it, disagrees, and tears it up.
And now I can add to the list -- don't overlook the chance your dog may eat and destroy your will.  Straight from the headlines -- a Texas Probate Judge hears a dispute about a missing will.  The decedent had three children from a prior relationship, and was married to a man that was not the father of her children. A daughter claims that a 2009 will, which gave the estate to the three children, was eaten and destroyed by the drafting attorney's dog (a 2 year-old Golden Doodle named Linus).  To complicate matters, the decedent made another will in 2003, leaving her assets to her husband.  And there you have it, a will dispute because the lawyer's dog is alleged to have eaten a will.  This is not made up.  It will linger in my mind until it comes up one day in a client meeting or seminar.  Plan for the worse case scenario.  You'll be thankful.  Apparently dogs don't just eat homework, but Last Wills & Testaments as well.

Remember, this blog generates ideas and conversations.  It is meant to be educational, and should not be taken as legal advice.  Please consult an attorney in your state of residence for legal advice specific to your situation. Thanks for reading. 

Thursday, June 4, 2020

Keeping An Estate Plan Organized During Chaotic Times

Keeping An Estate Plan Organized During Chaotic Times
By Attorney Melinda Gustafson Gervasi
June 4, 2020

Estate planning to me is planning for three things: illness, death and taxes.  Not all estate plans look alike, but all should address these issues.  Your documents might include powers of attorney, beneficiary forms, authorization for burial, a will, and sometimes a trust.  But an estate plan goes beyond paperwork. Estate planning is the act of taking control. 

Control includes saying who will do what, and where assets will go. However, control extends beyond putting your wishes in a legal binding format. It includes controlling your paperwork.  What good is an estate plan if it cannot be found when it is needed?  If a sudden illness or death happened tomorrow, would your loved ones know where to find your documents?

A simple 3-ring binder clearly marked may serve you well.  Include subject dividers, but instead of saying math, science, and history, they would say:

  • Powers of Attorney
  • End-of-Life wishes
  • Beneficiary Forms for your retirement, insurances, and or investments
  • Will and or Trust
  • Deed to your real estate
  • Car Title(s)
  • Phone numbers and emails of key people in your life: family members, primary care doctor; accountant; pet sitter; nanny; etc. 
  • Copy of your most recent holiday card mailing address list
  • Pre-written obituary or bullet points on key points
  • List of recurring bills on autopay
Kindergarten Chaos After Teddy Bear Sleepover

Thank you for reading this educational piece.  Please do not take it for legal advice, as everyone’s situation is unique.

Tuesday, May 26, 2020

What I've Been Reading: Bye-Bye Toys: A story about giving

What I've Been Reading -- Bye-Bye Toys: A story about giving by Anisha Mack Blumenberg. Melinda Gustafson Gervasi
May 2020

Are you a parent of young children?  Do you tuck a child in a night hoping to leave the room without stubbing your toe or twisting an ankle on the cascade of toys, books, and trinkets falling off of bookshelves onto the floor?  If so, you are not alone.  I'm prominently raising my hand as part of this group. 

For many the Pandemic of 2020 has given them plenty of time to sort, organize and purge items from every corner of their home.  While I love this idea, copious amounts of free time allude me for now.  But here and there, I purge.  A little one day, more the next.  Purging my own items is easy, I do not have attachments to a lot of stuff (books are my exception).  When it comes to my kids, it's a different story.

Me asking a child: "Look at this toy dinosaur, ready to pass this along to a littler kid?", and all of a sudden my child drops what s/he was doing, scoops up the toy and says "oh, I forgot about you Dino!  No, we can't give this away!!!!"   I've found that instead of saying "let's give this shirt away" the question "shall we give this shirt to William?" is more than likely met with concurrence by my child.  Passing on an item to a friend, or a specific organization focused on helping children helps them say good-bye to a long forgotten toy or outgrown clothing item.

For those with really little kids, you may enjoy reading Bye-Bye Toys: A story about giving written by Anisha Mack Blumenberg (who is also a Wisconsinite).  It is a very simple book you can read with a child to nudge them towards giving items to a new baby.  I'll admit the giving away for a teddy bear made both my kids and myself quiver a bit - stuffies for them are more than toys, and we'll hold on to them until my children are old enough to firmly say good-bye.  That might not be until High School or College. 

Best of luck. And may you not step on too many stray Legos in your quest to purge children's toys. 

Friday, March 27, 2020

The Educator Within: When Repeating the Past Creates Roadblocks

The Educator Within: When Repeating the Past Creates Roadblocks
By Melinda Gustafson Gervasi
March 27, 2020

Awareness hit me like a lightening blot this past Thanksgiving.  My life was upside down, literally.  We were in the middle of a kitchen remodel.  Cabinets were torn out, a sink was missing, and the crew took my old oven away.  No oven, no "traditional" Thanksgiving meal.  Yet, despite the facts in front of me I attempted to forge ahead with Thanksgiving.  The roasted turkey, mashed potatoes, green beans, and of course pumpkin pie.  Up went my creative energy.  Use a crockpot for the turkey instead of the oven, buy a pie instead of baking one, etc.  And then it melted away.  I awoke on Thanksgiving morning and realized my plan to save Thanksgiving simply wasn't going to happen, nor would it be festive or enjoyable.  I set aside the template for the holiday enshrined in my mind since my earliest memories, and called good friends who are neighbors.  I took them up on their offer for our family to join theirs.  We did.  It was lovely.  It was festive.  And it was nothing like the Thanksgivings of my past.

Pumpkin pie, homemade in 2020 by my 11 year old son.

As the days grew darker and another holiday approached my mind settled on the fact that my kitchen life was a lot like that of my mother, and even that of my grandmother. Living in the Midwest and possessing the basic skills to cook, my standard M.O. was meat, veggie and a starch at the evening meal.  And holidays required hours, over several days, to prepare.  But, my mom wasn't a lawyer.  She ran a plastics machine in a factory and left everyday with the 3pm whistle.  My grandmother wasn't a lawyer, she ran a home that raised 5 children.  Neither of them balanced a legal practice while raising two children with a spouse who had an intense career as an electronics engineer.  No wonder I felt so much stress.  I was attempting to run my kitchen as though it were the 1970 or 1940s.  And so I stopped, and life improved.

This does connect with estate planning dear reader.  As I sat across the table from a client with a contorted facial expression similar to my own that past Thanksgiving, I shared the story of letting go of how my family had done things.  She too was attempting to repeat a process of her parents and grandparents, but within the area of estate planning.  Her life in 2019/20 did not resemble the life of her older relatives.  What worked for them wasn't working well for her.  So she set aside the "old ways" and embraced modern options.  Soon her tension evaporated, her mind cleared, and her plan unfolded with efficiency.

If you find yourself struggling to recreate the estate plans of your parents or grandparents I urge you to step back and ask yourself why?  Just because it worked for them then, does not mean it is a good fit for you now.

Thank you for reading.  Please remember a blog post is intended to spark thoughts and discussion; it is not legal advice nor should be it taken as legal advice.  I urge you to consult with an attorney who practices estate planning in your home state.  Be well, and thank you for reading.

Tuesday, March 24, 2020

The Nudge: What Pushes Us to Update or Create an Estate Plan

The Nudge: What Pushes Us to Update or Create an Estate Plan
By Melinda Gustafson Gervasi
March 24, 2020

An estate plan, it's something most American adults know they should have.  Yet, many put it off.  From what I've read it is less about embracing the idea of illness and death, and more of an inability to wrap their minds around the financial pieces of their life.  What pushes them over the hump from having it on their mental to-do list and actually have one signed and tucked away?  A nudge.

Until recently those nudges fell into certain groups for clients:

  • Travel, especially international travel;
  • Stage 4 cancer diagnosis;
  • Birth of a child;
  • Imminent retirement; or
  • Watching the mess unfold from a loved one who had died without a plan.
As of this week I can add:
  • Pandemic.
My heart goes out to the various callers I have talked to this week.  From those with parents in their 80s who do not have plans, to those expecting a first child, to those on the front lines of medical services, I hear the concern.  I am doing all I can to assist via phone and video meetings.  And I'm not alone.  The cooperation of estate planners all over Wisconsin on list serves about how we can serve those with urgent needs, and still comply with witnessing requirements as well as social distancing, has been inspiring.  

Thursday, March 5, 2020

What I've Been Reading: Friendship, by Lydia Denworth

What I've Been Reading
Friendship: The Evolution, Biology and Extraordinary Power of Life's Fundamental Bond by Lydia Denworth
By Melinda Gustafson Gervasi, March 2020

But for the persistence of a close friend, the client would have died.  That was the take-away from a client meeting I had a year or so ago.  Like many people, the client was older, single and lived alone.  Contrary to the client's normal ways, a Saturday evening dinner was canceled because the client was under the weather.

The next morning the client called in sick to teach Sunday School, and upon hearing this news the client's astute and caring friend new something was amiss and showed up at the client's door.  Visibly disoriented, the client's friend knew medical attention was needed.  Refusing the astute friend to call 911, the client agreed to be driven to the ER.  And then the client's memory fades to black. Afterwards the ER doctor told the client "had you stayed at home one hour longer, you would be dead."  Septic shock nearly killed my client.  A friendship saved a life.

Today I finished reading Friendship: The Evolution, Biology, and Extraordinary Power of Life's Fundamental Bond by Lydia Denworth. Her book pulled this memory from the back of my mind to the forefront.  As an estate planning and probate attorney I spend my days preparing client documents related to illness and death.  And I see the strain on faces when I ask who will be your health care agent? Who will be your backup?  So many people have no obvious answer, and the stress is visible.

Denworth's book is heavy on the hard science behind friendship, however, it is worth pushing through if you are more of a social policy student like myself.  Sprinkled throughout the book are the personal stories that bring the science to life, at least for me.  From birth to retirement age (and beyond), Denworth discuss how friendships are formed, and the benefits they provide.  My take-away from this book is that a power of attorney for health care is important, forming the bonds to know who to name is critical.  The more "isolated" an individual feels, the greater the risk of illness.  Denworth states "those who answered that they had five or fewer interactions per month with close friends and family were considered isolated".  Meaning mortality risk was increased.

My only criticism of the book is that it was a bit lite on the how of friendship.  She touches on the role of co-workers, faith-based organizations, community groups, and a group of friends and family.  I would have enjoyed a bit more discussion, and suggestion, on how to build the critical face-to-face time into our busy lives.  I can say her book influenced me.  While reading this week my youngest asked for a sleepover on Friday night with 2 friends.  My first thought was "no, we have a busy weekend, yada yada yada."  Thinking about Denworth's discussion of her children's friends I went against my instinct and not only said "sure", but also invited a friend of my son's to stay over as well.  So our house will be filled with 5 children's voices Friday night.  And when they have trouble settling down and not talking, I'll remind myself that they are forging critical friendship bonds, a lifelong need.

Thank you for reading.  As always, a blog is intended to spark thought and discussion.  It is not legal advice, nor should it be taken as legal advice.  Please consult an attorney in your state of residence for advice specific to your situation.  

Friday, February 28, 2020

Spring Cleaning With Charitable Twist

Spring Cleaning With Charitable Twist
By Melinda Gustafson Gervasi
February 28, 2020

Recent headlines applaud Rock Star John Oates, of the duo Hall & Oates, who will auction off a vintage race car to benefit the Amelia Island Concours d’Elegance Foundation through RM Sothebys on March 8th. The media does a wonderful job of casting the spotlight on millionaires and their 6 or 7 figure charitable donations.  My wish is the media would also sprinkle in a few stories about middle class Americans who are also philanthropic.  That's why I wrote Middle Class Philanthropist: How anyone can leave a legacy in 2013.  A small book, it is designed to encourage everyday people to consider an end of life gift to a favorite non-profit.  But we don't need to wait until we are gone to be charitable, nor do we need a vintage race car.

We are poised to enter March, the month when yard and garage sales sprout here in my hometown of Madison, Wisconsin, in 48 hours.  The snow continues to cover the ground, but Midwesterners turn their faces toward the rising sun, sense a whiff of Spring, and get restless.  At the same time, many of us have become familiar with the Swedish Death Cleaning movement, which caught on with the Simplify Your Life trends.  While Swedish Death Cleaning focuses heavily on purging before you die, anyone can benefit from a purge.  After all, you'll either move or die.  One way or another you (or someone) needs to figure out what to do with all your stuff.

Spring presents a great time to clean out what you no longer need, and be charitable at the same time.  It's simple -- put together a yard or garage sale with all proceeds benefiting your favorite nonprofit.  Advertise the fact it is going to a "good cause" and have literature about the organization on hand.  Salute the fact that we can all make a difference in this world -- vintage race car not required.

Thank you for reading, and remember a blog post is intended to spark though and conversation.  It is not legal advice, nor should it be viewed that way.  Please consult an attorney in your home state for legal advice specific to your situation. 

Tuesday, February 11, 2020

The Teacher Within: Powers of Attorney End At Death

The Teacher Within: Powers of Attorney End At Death
By Melinda Gustafson Gervasi

Nearly every day of my elementary school days I "played school" upon returning home.  My older brother, 10 years my senior, thought I was a weird kid.  My parents thought they would raise a teacher.  Wrong!  A lawyer emerged.  What my family did not realize was the extent to which a lawyer educates as part of her legal practice.

Today's lesson -- powers of attorney end with death.  It is a new concept to my clients, who suddenly find themselves wading into the terms and processes associated with planning for, and administering an estate.  I will get a call in which I hear "I am my dad's power of attorney, and he died last week, what do I do?".  My answer: "you were his power of attorney.  That authority ended with death.  Was there a will or trust?  If so, who was appointed to act now?  Who is the Personal Representative and/or trustee?" And the educating begins.

What startles me is the number of times, usually weekly, that I need to provide this lesson to financial professionals.  Today it was a huge company's retirement division.  The front line staff refusing the court appointed Personal Representative's request for W2 information.  The proper paperwork from the court was provided.  Yet, Customer Service Rep #1973 demanded a Power of Attorney.  Tone cannot accurately be determined from an email, but it certainly appeared authoritative with a hint of indignation. My work day ended with a short informative lesson about the laws here in the Great State of Wisconsin, and a hope that the "student" we see the light, and release the necessary information. 

No, I do not hand out grades or edit papers in the way of our  public school teachers.  But I do put on an educator hat on regularly, ready to educate and hopefully ease the already difficult path of filing incomes taxes for a recently departed loved one. See mom, I am a teacher in a way!  And hopefully a bit kinder than Prof. Kingsfield.

Please note that a blog is NOT legal advice.  It is intended to spark conversation, and nothing more.  Please consult an attorney in your state of residence for legal advice specific to your situation.

Thursday, January 30, 2020

Stay In Your Own Lane: When non-lawyers give flawed legal advice

Stay In Your Own Lane: When non-lawyers give flawed legal advice
January 30, 2020
By: Melinda Gustafson Gervasi

With a deep, long sigh my frustration and annoyance was revealed to the client sitting across my conference table.  It's hard to hide it anymore.  After 15 years of counseling clients on the ins and outs of estate planning and probate, I wonder what my work day would be like if I did not have to spend so much time unwinding flawed legal advice dispensed by non-lawyers.  It's the financial planners, bankers, and in some cases tax experts that fuel my trademark sigh. 

Don't get me wrong, I value the advice these experts provide on mortgages, index funds, and tax deductions. I just cannot tolerate it when they veer out of their lane, going full speed ahead with brazen authority, dispensing directives on what my clients can, and cannot due, within legal documents.  I stay in my lane, eyes on wills, powers of attorneys, trusts, domiciliary letters and the like.  I will not counsel on aspects of a mortgage, investment diversification, or whether a tax return should be filed.  I know enough to see red caution flags and direct my client to seek the advice of the appropriate expert.  But I do not give advice outside my area of focus. Sadly, this is not always the case when it comes to the law.

The importance of staying in your name no matter the horsepower.  Image by M. Gustafson Gervasi 2019
Doing well in a "business law class" as part of an MBA program does not make you a lawyer.  Listening to a lawyer present on the difference between probate and non-probate assets does not make you a lawyer.  Reading an article in the Wall Street Journal on the use of a trust in estate planning does not make you a lawyer.  Even going to law school and passing the bar does not mean one should counsel on estate planning and probate unless that is the person's area of focus.  What happens when these guidelines are ignored, when people veer out of their lane?  Accidents.

Accidents in estate planning and probate have consequences.  Inadvertent tax liabilities develop.  A well thought out and planned estate plan is pushed aside when a beneficiary form on an asset is filled out in a way that does not parallel the will or trust.  And clients can move their business elsewhere when they learn what they were told, "you simply cannot due xxxxx", is in fact wrong.  Dead wrong.  Dispensing bad advice puts your client on the exit ramp from your office, usually with a pit stop in my conference room for clarification.

My take-away for you -- just because it is free advice does not mean it is advice you should act on.  Moreover, a blog is not legal advice.  A post captures my thoughts and reflections from this side of a  lawyer's desk.  Please seek legal counsel from an attorney licensed in your state of residence.  And thank you for reading.

Wednesday, January 22, 2020

New Year Resolutions!

It's 2020!  A new year.  A new decade!  A new !?!?!?  Along with signing up for gym memberships, getting an estate plan seems to be one of the top new years resolutions.  Each January we open a fresh new calendar and plan for growth and adventures.  We resolve to be more organized, to be healthier, to be on top of things.  If you are one of the many Americans making the resolution to get your estate in order, here are a few things to consider.

  1. Estate Planning boils down to control.  Who will do what, what will go where?  If you do not make the decision and put into a legal format someone else will, often dictated by state statute.  If you need a source of motivation to roll up your sleeves and take action, focus on "control";
  2. Hire a professional.  We live in a DIY society, and that is a wonderful thing -- if you have the time, patience and skill set to complete the project appropriately.  My husband and I recently updated our kitchen, but not on our own.  We hired experts.  The result was a quality kitchen in a short period of time.  There are plenty of resources about doing an estate plan, but are they the right fit for your situation and skill set?
  3. Accountability.  Who will make sure you actually finish creating an estate plan.  It's easy to order books on Amazon, download forms off the web, or attend a free seminar at the local library.  But until you put ink to paper on final documents, you do not have an estate plan.  Do you need a "workout buddy" to keep you motivated?  Perhaps a friend, a spouse, or an attorney that will check in on you to keep the project moving forward.
  4. Don't Procrastinate.  Life happens, and ends, in a second.  Medical events develop leaving one incapacitated and unable to create a plan.  Sometimes a death is out of the blue and instantaneous, leaving no time to make decisions.  All too often someone falls gravely ill and while processing diagnoses and treatment plans, they attempt to wrap their energy and mind around putting together an estate plan.
Wishing you a wonderful 2020, and if it's on your to-do list, may you update or create an estate plan that gives you peace of mind.   Thanks for reading.  As a reminder, a blog post is not legal advice.  It is simple thoughts from my side of the desk.  Please consult with an attorney in your state, and obtain legal advice specific to your situation.