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.