A Lesson From The Bard On Estate Planning

A Lesson From The Bard On Estate Planning

October 14, 2024

By Melinda Gustafson Gervasi

Red taillights sprawled in front of us as we headed east along Wisconsin’s Highway 14.  It was after 10pm on a Sunday evening, and we were one of the many couples who had made the annual journey out to American Players Theater in Spring Green, Wisconsin.  As the road entered into the more populated suburbs it widened into two lanes and my breathing eased just a bit, as it always does when I leave a highway known for its deadly accidents.  High speeds, deer running about at night, and an undivided highway make for a tense drive.  Especially having just watched King Lear; a play where nearly every character dies in the end.

It was a night out for my husband and I.  Our teenagers were at home, focused on their homework with a simple pasta dinner.  Yet, sitting there under a night sky dotted with stars, my mind could not quite relax into the moment.  Instead it dashed about, just like the bats flying around the stage lights at this picturesque outdoor amphitheater situated in the woods of South Central Wisconsin.  As the three act play unfolded, my work brain kept kicking in.  I’ll blame Shakespeare...

The Stage at APT - Image by M. Gustafson Gervasi 2024

King Lear may have been written in 1604, however, it’s full of modern estate planning concepts.  It opens with the King directing his three daughters to state their love for him.  Two daughters comply, professing their love and devotion in front of an audience that senses their deception.  Lear’s third daughter, Cordelia, refuses to engage in such behavior and remains silent.  Her silence causes Lear to fly into a rage.  He banishes Cordelia and divides his kingdom between his other two daughters, Goneril and Regan.   Listen closing and you will hear the words of my profession: heir, issue, perpetual, and disclaim.  You will also witness the pain and suffering a parent may experience when they relinquish control of their assets to dishonest children.  Lear’s plan failed to unfold as he hoped, and he found himself descending into madness while wandering around in the middle of a horrible storm. Oh King Lear, why did you not consult your lawyer first!

If you would like to minimize the level of Shakespearian drama in your own estate plan, avoid copying King Lear.  Quite simply, do not make a plan when you are emotional.  Here are three simple ways to keep the emotion low, resulting in a sound estate plan that you will be content with:

• Gather information on your family, assets, liabilities and goals.  At my office I accomplish this through a client questionnaire.  The form helps my clients capture information and feelings about their estate plan.  
• Sketch out a draft of your plan, then pause to reflect on how it feels.  With my clients we meet initially to review their questionnaire and determine what documents they need and what the forms should say in order to accomplish their goals.  This meeting is followed by a second meeting held a week or two later.  Then I walk them through the forms paragraph by paragraph.  They can ask questions, and they can make edits.  It is the perfect time to dial back the emotion and drama a hastily made plan can generate.  
• About 10 to 14 business days later, finalize your estate plan by executing it in the presence of witnesses (each state in America has its own witnessing requirements – make sure you follow the correct laws).   

In play parlance, this would be three acts.  One, setting up the situation by gathering your thoughts and goals on estate planning.  Two, rising action where you see those thoughts on paper and decide whether to move forward or get out the eraser.  And three, the resolution of the situation by ending with a legal execution of the paperwork.  

Thank you for reading.  Keep in mind that a blog post is not legal advice.  It is meant to spark thought, reflection and conversation.  Always consult a licensed attorney in your home state for advice specific to your situation.  Be well and may your estate plan end in a less tragic way than King Lear's.

Want a Stellar Estate Plan? Have These 4 Conversations!

Want a Stellar Estate Plan?  Have These 4 Conversations! 

September 23, 2024

By Melinda Gustafson Gervasi

Image by M. Gustafson Gervasi, 2024

September is National Preparedness Month, which aims to remind the general public about the importance of being ready for disaster and emergencies.  In 2024 there is a specific theme, conversation.  The title “Start the Conversation”, is a campaign that nudges the public past its resistance about addressing potential risks and dangers. It encourages the public to have regular talks with loved ones about how to handle emergencies. While the focus of National Preparedness Month is on natural disasters, such as floods and hurricanes, the motivation fits well in my focus area – estate planning and probate.

Estate planning is the act of creating documents that state who should act if you are alive but too sick to make decisions about our health care as well as finances, as well as, who will handle your final affairs.  Moreover, an estate plan directs where your assets will go after death.  Illness and death are a given for all of us; it is not a question of “if”, but a question of “when”.  A sudden illness that leaves you incapacitated or an untimely death can rock the ground of your loved ones much more severely than an earthquake.  It will happen, so be prepared and take action now while you have the opportunity. 

Whether you are creating a plan for the first time, or you are updating an out-of-date plan, or you are looking to enhance your current documents, here are 4 conversations that will elevate your plan to A+ standards:

1 - Talk with yourself and get real with your situation.  None of us are immortal.  Illness and death will find us all, so act while you are able and take control over who you appoint to make decisions when you cannot.  Be honest with yourself and nominate people who have the skill-set to manage health care decisions, financial matters, and the assortment of final affairs tasks (filing taxes, making funeral arrangements, cleaning out your home).  

2 - Talk with your money people.  From your financial advisor to the benefits manager where you work, to the retirement office for your investments or pension – it is crucial you communicate with these people to confirm what you own and what happens to those assets or benefits upon your death.  Do not assume you know, confirm it. While we live in a digital age, I personally prefer a piece of paper to keep in my 3-ring binder that serves as an easy to access roadmap to those I’ve put in charge.  It is likely to be far easier for the person you appoint to open a binder you create than your phone, computer, email, etc.

3 - Talk with the people you appoint to act on your behalf.  When you nominate another person to make your health care and financial decisions when you are too sick to act, or appoint someone to handle your final affairs at death, talk with them about your wishes and preferences.  Even better, put those thoughts in writing. A simple letter with bullet points can be a lighthouse in the fog to someone who is not only grieving, but also making decision after decision in the wake of your death. Check out another post I wrote specifically on what to include in such a letter, click here.

4 - Talk with the caregivers you name in your paperwork.  For those with minor children, the legal way to nominate a guardian of your children is via your will.  Give great consideration to who nominate. Who shares your values on education, religion, money, and day-to-day habits? If you have teenagers, you may want to ask them for their opinion on naming a guardian.  Also, do not overlook your four-legged or feathered dependents - pet owners should also consider a plan for their animal companions in case of a prolonged hospital stay or death. Make sure these caregivers know the pattern of your everyday life in regards to your child(ren) and or pets: medications, allergies, schedule, and contact information for the organizations in their orbit (such as a school, day care, medical office, etc).

Now you have a blueprint for conversations that will elevate your estate plan.  It’s time to take action. Fall officially arrived in the Northern Hemisphere at 7:43am, Sun, Sep 22, 2024.  Here in Madison, Wisconsin, where I live, Mother Nature delivered a cold front with plenty of rain, wind, and cooler temperatures.  It’s the perfect time of year to pour a cup of hot coffee (or tea or cider) and start talking.  

Image by M. Gustafson Gervasi

Thank you for reading, and please share this article if you found it helpful.  You can also “Follow” my blog; enter your email by clicking Follow in the upper righthand corner to receive a message when a new piece is posted.  Remember that a blog is not legal advice. Rather, it is intended to spark thought and reflection.  Be well and thank you for reading. 

What's More Important Than an Estate Plan? The Act of Planning!

What's More Important Than an Estate Plan?  The Act of Planning!

By Melinda Gustafson Gervasi

September 16, 2024

OMG! Austin, in AUGUST! Are you both nuts???? My teenage son scoffed.

It will be hotter than Hades, this is crazy! Yelped my soon-to-be high school daughter. 

And so began our family discussion of driving from Madison, Wisconsin to Austin, Texas. In August!

It was early summer, and my husband and I had decided to chip away at our goal of taking our children to all 50 states. By Fall they would both be in high school.  The window for family vacations was narrowing. So I cooked up a route that would take us to 5 Presidential Libraries as well as towns with friends and family.  

My son, the elder of the two kids, realized this was not negotiable. We were going.  He is my realist and commented to his sister “well, they’ve made up their minds, we might as well look up good places to eat along the way!” 

And so it began; a 2500 mile road trip. We pulled out of Madison on July 31st with a plan:

• First stop - Iowa to see friends and visit the Hoover Presidential Library in West Branch, Iowa;
• Second stop – Kansas to see more friends and visit the Eisenhower Library in Abilene, Kansas;
• Third stop – Dallas to see family and visit both the George W. Bush and George HW Bush Libraries;
• Fourth stop - Austin, Texas to see the LBJ Presidential Library; and
• Fifth stop - Oklahoma City to see the Alfred P. Murrah Federal Building Memorial and the National Cowboy & Western Heritage Museum.

Backing out of our driveway with our vehicle packed with luggage and snacks, we reminded ourselves we have a plan that is subject to change.  Over the years our travels have included many mishaps forcing us to change plans due to illness, poor travel conditions, and vehicle troubles. 

Planning, it turns out, was also a topic of interest for our 34th President. On Day Two of our travels I found myself pausing in front of a poster in the Eisenhower Library.  “Plans are worthless, but planning is everything.” 

Image by M. Gustafson Gervasi, 2024

I was on vacation, yet my work mind instantly kicked into gear.  As an estate planning and probate attorney, the paradox created by Eisenhower’s quote caused me to pause and reflect on its meaning, and it has prompted others to write research papers on the apparent contradiction (click here for a link to one).  From my viewpoint an original plan may never happen due to constantly changing circumstances. However, there is great value in the planning itself.  Having a base plan allows for contingencies to come about more easily than if there had never been a plan.  Also,the process of planning helps us get our affairs in order to an extent better than if we had done nothing at all.

For those needing to create an estate plan, consider the following:

• Who do you want to make financial decisions for you if you are alive but too sick to act on your own?  If that person is unable to act, who is a good back-up?
• If you are unable to make your own health care decision, who in your circle of family and friends is best suited to speak for you?  Again, if that person is unable to act, who is a good alternative?
• Upon your death, who is the appropriate person to handle your burial and funeral?  Here in my home state of Wisconsin that automatically defaults to your next of kin.  For many people this default does not reflect their wishes about who will handle the arrangements.  Who would you name?
• After you have died, who is the best person to handle your final affairs?  In Wisconsin, the person who takes care of the probate is called the Personal Representative.  In other states the term is Executor.  This person will gather your assets, pay your final bills, sort through your possessions, file the taxes, and ultimately distribute your assets.  If the person you name is not able to act, who would you name second?  Would you name a person at all, or might you opt to bank a bank or other institution to perform these tasks?
• What should happen to the money and assets that you have left over after all the taxes, medical bills, funeral costs and other liabilities have been satisfied.  You may have an obvious answer, “my spouse” or my “children”.  However, life may not unwind as you predict.  What if you outlive your spouse and children?  Would you name a nonprofit or neighbor who has become your chosen family?  

Answering the Who and What questions is good.  Taking it another step or two out by asking what if they are no longer living will force you to create a plan that adapts to changing conditions.  

As for our road trip, no one got sick, we didn’t have car trouble, no venues were closed.  Our original plan unfolded and we visited all 5 Presidential Libraries as well as the friends and family along the way.  We ate well, learned a lot, and made some wonderful memories.  We are now settled into our school year schedules and routines.  Be well and safe travels for those heading out to see the Fall colors or check out foreign ports before the snow flies.

If you found this post helpful, consider sharing it with others.  You can also sign up (upper right hand corner) to receive an email for future posts.  Keep in mind that a blog is not legal advice.  It is meant to spark thought and reflection.  Be well and thank you for reading!

Artistic Cowboy, Bush Presidential Library

Joes BBQ - Kansas City, KS

Sign - Austin, Texas Food Truck Court

Images by M. Gustafson Gervasi, 2024

Lesson From Fisk, Season 2: Work Out Your Wishes Before Meeting the Attorney

Lesson From Fisk, Season 2: Work Out Your Wishes Before Meeting the Attorney

September 9, 2024

By Melinda Gustafson Gervasi

Season Two of the Australian comedy show Fisk ends with an all too frequent storyline -- the married couple that erupts into an argument as the attorney asks delicate questions about what happens when you die. In this episode Helen is working with a couple where there is a significant age difference, a baby from the union, and adult children from his prior relationship. As Helen asks questions the wife grows increasingly upset, objecting to the very notion that she might die.  It is clear she is at the meeting to prepare for her older husband to die. She goes beyond rattled by the mortality question into an entirely new level of upset, turning to social media and gottcha TV to turn her anger towards her attorney and away from the reality that death does not discriminate in favor of the young. 

My take-away from this episode is the importance for couples to discuss privately what will happen when one dies, when the other dies, etc.  Taking the "what if" question out a few layers helps reveal assumptions one holds but the other does not, or the process uncovers deep feelings about NOT giving certain family members any bequest.  After nearly two decades of writing wills I have witnessed firsthand the tension generated between couples who do not agree on a distribution plan.  Experiencing that is hard, and it is even harder when it unleashes in front of your attorney.

Remember that a blog is meant to spark thought and discussion; it is not legal advice.  Please consult an attorney in your home state for advice specific to your situation.  Thank you for reading.  If you find my posts helpful, considering sharing them on your social media.  Click above (upper right) to Follow this blog; enter your email, and receive a message when a new post goes live.

Lesson From Fisk, Season 2: Get The Name Correct

Lesson From Fisk, Season 2: Get The Name Correct

September 2, 2024

By Melinda Gustafson Gervasi

Episode 5 in Season Two of the Australian comedy Fisk takes the viewer on a tour of the probate landscape when a will mentions a nonprofit that no longer exists.  The show opens with Helen attempting to find the Australian Cat Welfare League.  Through a conference call with an American nonprofit of a similar name, she learns that in the 1970s the American nonprofit forced an Australian nonprofit with the same name to change its name.  However, a recently deceased client who did a will in early 1972 named the Australian nonprofit prior to the name change.  Now Helen has to sort out where to direct the $10 million dollar bequest.  Quirky adventures follow, but in the end (spoiler alert) she is able to deliver a huge check to support Australian cats in need.  Maybe it is my fondness for cats (we have four of them in our family home) or my interest in everyday people including nonprofits in their wills, but this was by far one of my favorite episodes.

My take-away here is two-fold.  One, you do not need to have $10 million before including a nonprofit in your will or estate plan.  Anyone, and I mean anyone can, with a bit of thought and plan, be philanthropic at death.  In 2013 I released a small book (Middle Class Philanthropist: How Anyone Can Leave a Legacy) meant to inspire this very type of bequest.  And two, if you are going to name a nonprofit be certain you have the full legal name as well as the phrase "or its legal successor organization" or something of that nature.  That way, when a nonprofit modifies its names (and they all seem to) the bequest will follow and avoid costly litigation on what you meant for the bequest.

Remember, a blog is meant to spark thought and discussion.  It is not legal advice.  Please speak with an attorney licensed in your home state for counsel specific to your situation.  Thank you for reading.  Click the Follow button in the upper right hand corner to receive future posts in your email in-box.  

Lessons from Fisk, Season 2, Don't Be a Dumpster Diver

Lessons from Fisk, Season 2, Don't Be a Dumpster Diver

August 26, 2024

By Melinda Gustafson Gervasi

Most families have them -- unique and quirky belongings that mean the world to us, but to others they are nothing more than rubbish.  Episode Four, Season 2 of Fisk has Helen overseeing the purge of a home as part of probate.  Out with the old before the property is sold and the new moves in.  Unknown to Helen and the crew she hires is the beloved Polish recipe book.  It's added to the trash, but only when the granddaughter comes into the office does Helen realize she mistakenly tossed something the value viewed as priceless.  Into the dumpster dives Helen, emerging with success and a need for a shower.

Avoid being a dumpster diver.  Work with family and friends to make sure the personal items that mean a great deal to us are called out with instructions on where the items should go at death.  Everything from photographs to hobbyist tools to rare collections, make a list of what it is, where you keep it, and where it should go. This may include: family, friends, co-workers, thrift stores, charitable organizations, or a museum or heritage center.  All it takes is an afternoon or two to review your belongs, identify what means something to you, and then sketch out a plan.

Thanks for reading.  Remember that a blog is not legal advice; it is meant to spark thought and discussion.  Please consult an attorney in your home state for advice specific to your situation.  Be well, and click the Follow button in the upper right hand corner to receive future posts. 

Lessons From Fisk, Season 2: Letter of Wishes, the Supporting Documents of Estate Planning

Lessons From Fisk, Season 2: Letter of Wishes, the Supporting Documents of Estate Planning

By Melinda Gustafson Gervasi

August 16, 2024

Episode 3 of Fisk, Season 2, has Helen working with two estranged brothers.  Once upon a time the two had played in a band together, but life took them separate ways.  Their unhappy mother addressed the break up via her will, in a manner that left one brother feeling left out.  Helen discovers that "Mum" had left a Letter of Wishes in the attorney file, which explains the reasoning behind the unequal distribution. And it provides for a remedy.  The take-away from this episode is the role of supporting documents in an estate plan.

Generally and estate plan includes your powers of attorney as well as a will and or trust.  When I work with clients I routinely provide them with sample letters.  There is one to the Personal Representative (called an Executor in most other states).  Another for the Trustee or the children's Guardian.  When you create an estate plan, do not overlook the opportunity to create a letter that provides some guidance or explanation of your thoughts and wishes.  It might just lead to the band getting back together again!

Thanks for reading, and check out Fisk on Netflix for some laughs.  Remember that a blog is not legal advice; it is meant to spark thought and discussion.