Ensuring Smooth Transitions: Gene Hackman's Will Teaches Us the The Importance of Survivorship Clauses

Ensuring Smooth Transitions: Gene Hackman's Will Teaches Us the The Importance of Survivorship Clauses

By Melinda Gustafson Gervasi

May 2, 2025

“Alright, and then on page six of your will you will see the section called ‘Survivorship’ – this means that a person can outlive you, but not survive you long enough to inherit.  For example, if there is a car accident and you die at the scene and your spouse dies two weeks later, she did not survive you by 90 days (the time frame noted here in the will), so the will treats her as though she predeceased you and your assets will go to the contingency you named.”  Weekly, as I educated my estate planning clients on the basic mechanics of a will, I offer these comments.  In recent weeks I have started to point out that they may have heard about the Survivorship concept because the will of Actor Gene Hackman apparently did not have a survivorship clause. Meaning his share of their combined estate will likely be distributed according to the intestacy laws of New Mexico; flowing to his children who he may not have intended to inherit. “It always amazes me that an actor with an $80 million estate has a will without this basic concept – did they have their entertainment lawyer draft it?”  I say with a shake of my head, then I move on to discussing the next steps in my client’s estate planning process.  

Gene Hackman portrayed a savvy and skilled lawyer in the 1993 movie version of The Firm, but his real world estate plan appears to have been lacking. Survivorship clauses in a will are useful for several reasons:

• Preventing Double Probate: If beneficiaries die shortly after the testator, their estates would also need to be probated, resulting in additional costs and delays. A survivorship clause streamlines the process by avoiding this double probate.
• Ensuring Intended Distribution: As demonstrated in the example above, survivorship clauses help ensure that assets pass to the intended beneficiaries, especially in cases of simultaneous or near-simultaneous death.
• Avoiding Unintended Heirs: By specifying a survival period, you can prevent assets from passing to individuals you may not have intended to benefit.
• Clarity and Certainty: Survivorship clauses provide clarity and certainty in the distribution of assets, reducing the potential for disputes among heirs.

Keep in mind that some states may have default survivorship periods.  For example, in Wisconsin the default survivorship requirement is 120 hours ( or 5 days).  In the scenario of the married couple in a car accident, if there had been no will with a 90 survivorship requirement, the wife would have lived long enough to inherit.  Likely triggering a dual probate process. While it may seem like a minor detail, a survivorship clause is a vital component of a comprehensive estate plan. It provides crucial protection against unintended distributions and ensures that your assets pass smoothly to your intended beneficiaries.

Remember that a blog is not legal advice; it is meant to spark thought and reflection.  Please discuss survivorship clauses with your estate planning attorney in your home state. They can help you understand the implications and tailor your will to your specific needs.  Thank you for reading, be well!

Decluttering for Peace of Mind: An Earth Day and Estate Planning Perspective

Decluttering for Peace of Mind: An Earth Day and Estate Planning Perspective

By Melinda Gustafson Gervasi

April 22, 2025

Once again a gentle Spring rain greeted my teenagers as they silenced the alarms on their phones and started their day - Earth Day 2025.  Year round they bike to school; studded tires make a Wisconsin winter bike commute a possibility.  Now that the snow is behind us (we hope) its the wet days that spur them to ask for a ride instead.  I said no, not today, and sent them on their way.  And then I zipped up my rain coat, laced up my tennis shoes, and walked to the office in the rain.  

Morning walk - the sun arrives

My 30 minute walk gave me time to think about all the clients I have helped over nearly 20 years of practicing estate planning and probate.  Many put a huge amount of energy in writing documents, making sure they are stored correctly, and leaving written instructions.  The one area that seems to be neglected by many is the art of decluttering.  Having an estate plan on paper is a great thing; only 32 percent of Americans have a will.  But, if you really want to make your passing as easy as possible on the loved ones you leave behind, I suggest decluttering now.  It will be a gift to your loved ones, and to Mother Earth.

When you take the time to declutter now you can rehome items efficiently, minimizing what gets tossed into a dumpster.  You can also save loved ones hours and hours of time sorting through your possessions, trying to decide what to keep and what to toss, make all the more difficult because they are operating in a cloud of grief.

This is not a new topic for those who follow my writing.  Here are 2 different book reviews I’ve written that might motivate you to tackle the clutter yourself, and not leave it up to your heirs:

• The Art of Swedish Death Cleaning -- click here for the review.
• Inheriting Clutter -- click here for the review.

A blog is meant to spark thought and reflection - it is not legal advice.  Please consult with an attorney in your home state for advice specific to your situation.  If you have found this post helpful, consider sharing a link on your favorite social media platform.  Also, enter your email above, upper right, to receive a message when a new post hits. Be well, and thank you for reading.

National Healthcare Decision Day - What to Know

National Healthcare Decision Day - What to Know

By Melinda Gustafson Gervasi

April 11, 2025

“Brain, brain, what is brain” quipped my almost 15 year old daughter as we wove our way through information tables at the recent UW Carbone Cancer Center Open House.  Among the display tables, all featuring interesting swag, one table offered rubber gloves and the chance to pick up a human brain.  She quoted an episode from her beloved Star Trek (she is very much her father’s daughter in terms of Sci Fi preferences), and then quickly exited the area.  I on the other hand had a few questions for the eager medical students armed with knowledge and props.  As an estate planning and probate attorney, I routinely discuss organ donation with my clients as they complete a power of attorney for health care.  When we think about “donating my body to science” we likely do not think about the role actual human organs play in community outreach!  Now I have a new perspective to share with my clients.  I also have no insight into my scientifically inclined daughter – she will not be working with anything involving formaldehyde.

Organ donation used for community outreach

Ever the teenager, my daughter was not pleased to be spending her Sunday afternoon at a scientific open house.  “Mom, these events are for 3rd graders, not me.  And it SMELLS in here!”  I agreed, but countered with a positive “well, at least we know you don’t want to work with human organs.  Identifying what you do not want to do for a career is likely more important than settling on a specific career before you can vote!”  There is intense pressure on our teens to decide on a career path at an early age.  Sometime too early in this mama’s opinion.  And I offer this same approach to you dear reader, when it comes to making decisions and you feel stymied, start with ruling things out.  That may help you zero in on what you do want.  For example, it's time to make healthcare decisions.

Next week we’ll celebrate National Healthcare Decision Day on April 16th.  Organized by The Conversation Project. The day is meant to encourage Americans to make decisions about your healthcare preferences and to make those choices known.  Specifically, you can create a Power of Attorney for Healthcare where you can appoint another person to make your medical decisions when you cannot due to an accident or sudden illness. For example, the person can consent to surgery, schedule medical appointments, or set up in home healthcare.  Another document is called the Living Will (aka Advance Directive) which tells your medical team what measures you want in an end of life situation.  For example, whether you wish to receive life-sustaining treatments like CPR, dialysis, or mechanical ventilation.

Laws related to estate planning and probate are state specific.  Each state has its own set of laws and regulations related to powers of attorney for healthcare.  It is important to learn the laws of your state, and follow them accordingly.  Here in Wisconsin, we are not a “next of kin” state.  That means there is no automatic assumption under the law about who can make healthcare decisions for you if you are incapacitated.  As a result, the courts would then appoint a guardian.  This may be someone you would not have wanted to act.  If at all possible, make a decision about who should speak for you, and then make it legally binding by creating a power of attorney for healthcare.

You are likely the best person to decide who should act for you.  If this topic is new to you, consider the following factors when selecting your healthcare agent:

• Who has the time, or can make the time, to handle decisions if you are seriously ill
• Who has the skill set to be your advocate in the overcrowded healthcare world
• Who will honor your wishes and follow your wishes when making medical decisions
• Who will remain the most calm and level headed it you are in the ICU

Thank you for reading.  Remember that a blog is not legal advice, but rather a platform to encourage thought and reflection.  Please seek legal counsel from an attorney licensed in your home state.  Consider sharing this post on your favorite social media platform if others might enjoy it, and sign up above (upper right hand corner) to receive an email for future posts.  Be well!

4 Steps for Pet Lovers to Include in an Estate Plan

4 Steps for Pet Lovers to Include in an Estate Plan

By Melinda Gustafson Gervasi

April 4, 2025

Her name was Kiki, and she was a full-of-life 5 year old cat who all of a sudden found herself in need of a new home.  When her human companion suffered a sudden and severe illness, it became clear that under no circumstances would they be able to continue sharing the downtown condo they had called home.  Like countless other animals, Kiki's path was uncertain – now what?  

It was the promise of a dear family friend that secured Kiki secured a new family.  And that family is my own. Kiki's sudden need for a second family is not unique, and is one I routinely discuss with clients.  Now aged 18, she remains full of sass and demands her breakfast and dinner with the precision of a Swiss train. 

When assisting people in drafting powers of attorneys, wills, and trusts – I routinely ask them “what if questions”.  And more often than not I hear “Oh, I hadn't thought of that!”  In the case of clients who are human companions to dogs, cats, and other animals I offer the following suggestions:

• Program the ICE in your Smart Phone (it's the In Case of Emergency key) to have a Pet Contact. Should you be in a car accident or other situation where you are fall ill away from home, make sure emergency personnel know about animals in your home that may need care within the next 12 hours.  It is common practice for authorities to use your phone to locate loved ones, and it can alert them to special circumstances in your home.
• Post a Care Contact Document on your fridge.  Parents of young children often have a magnet on the fridge with the phone number for the pediatrician, etc.  Those with animals in the home should create a similar document and list: name and phone number of veterinarian; list of prescription food or medicines for each animal, if any; contact information for a short-term pet sitter; and the name and number of one or two people who are willing and able to offer a new permanent home to an animal.
• Create powers of attorney for finance, which allow your agent to manage your financial affairs if you are alive, but too sick to act.  This should include services related to animal health and care.
• If medical or other care costs will be a financial burden on future caretakers, consider creating a pet trust in a will.  This tool can be simple (usually four paragraphs long), and allow you to transfer animals and money to a trust managed by someone you appoint, cared for my a person of your choosing, and direct where any remaining monies should upon the death of the animal.

Ms. Kiki - now aged 18

Please know that a blog is not intended to be legal advice.  Rather, it is meant to spark thought and reflection.  Please consult with an attorney licensed in your state.  Be well, thanks for reading, and share this post on your preferred social media if you think others might enjoy it as well!

Financial Elder Abuse: What is It and What to Look For

Financial Elder Abuse: What is It and What to Look For

By Melinda Gustafson Gervasi

March 14, 2025

Waiting for the A line on the BRT

Once a month I bus to downtown Madison, WI for a Legal Association for Women luncheon.  Over a lovely meal at Copper’s Tavern the group listens to a guest speaker, fulfilling our requirement to complete 30 hours of continued legal education every two years.  I enjoy my Sweet Corn Salad with Chicken (yes, I get the same meal every month) while a speaker expands my knowledge on subjects outside my area of focus.  This past week the speaker was preaching to the choir; as an estate planning and probate attorney I have a front row seat to the growing concerns related to elder financial abuse.  

What is elder financial abuse? It involves the illegal or improper use of an older adult's funds, property, or assets. It can range from simple theft to complex schemes involving power of attorney. A power of attorney is a legal document that gives authority to someone you appoint to make financial decisions for you.  Sometimes this power is only “triggered” if you are incapacitated and unable to act.  Other times it takes effect immediately.  It is up to you to decide under what conditions you want another person making your financial decisions.  Note, at death the authority to act for you ends.  

Concerned about an older loved one that might be subject to financial abuse?  Keep the following in mind:

1. Sudden Changes in Financial Habits:

• Are there unusual transactions in your loved one's bank statements? 
• Look for large or frequent withdrawals that don't match their typical spending patterns.  
• Are there new "friends" or caregivers exerting influence. 
• Be wary of individuals who suddenly become overly involved in your loved one's finances. 
• If your loved one suddenly alters their will or trusts, especially under pressure, it could be a red flag to abuse. 
• If your loved one is struggling to pay bills despite having adequate income, it could indicate financial exploitation. 
• Are valuable items like jewelry, electronics, or artwork disappearing?

2. Behavioral Changes in the Elder:

• Does your loved one seem afraid or uncomfortable around a particular family member, caregiver, or friend? 
• Are they withdrawing from social activities or becoming isolated from friends and family? This could be a sign that someone is controlling their access to others. 
• While cognitive decline can be a natural part of aging, sudden changes in mental clarity can also be a sign of manipulation or abuse.
• If your loved one becomes secretive or defensive when asked about their finances, it's a cause for concern.
• Are there signs they are not receiving adequate care, even though they have the money to pay for it?

3. Actions of the Potential Abuser:

• Does someone consistently interrupt or monitor your conversations with your loved one? 
• Are they constantly asking for loans or gifts? 
• Do they have access to bank accounts, credit cards, or online banking without a clear explanation? 
• Are they pressuring your loved one to sign documents without allowing them to consult with an independent attorney?
• Do they control the elder's access to mail, phone, or transportation?

Prevention may be key to keeping our seniors safe.  When possible, stay in close contact with your elderly loved ones and encourage them to discuss their finances with you. Help them understand their financial options and how to protect themselves from scams. Periodically review bank statements, credit card bills, and other financial documents for any irregularities.  For those in Wisconsin, there is an Elder Abuse Hotline to call to leave an anonymous report.  You can call 1-800-586-0107 or visit www.gwaar.org. 

Thank you for reading.  As a reminder, a blog is not legal advice.  It is meant to spark thought and reflection.  Please consult an attorney licensed in your state of residence for advice specific to your situation.  Again, thank you for reading.  Be well!

And The Academy Award Goes To…..Estate Planning Nightmares

And The Academy Award Goes To…..Estate Planning Nightmares

By Melinda Gustafson Gervasi

March 7, 2025

Sunday dinner was prepared far earlier than normal, a fact that did not slip passed my always hungry teenagers.  March 2nd marked the 97th annual Academy Awards, and even though I had not watched a single nominated film this year, I was determined to keep my tradition of watching the big show.  Dinner was ready early, and I settled into my favorite chair by 6pm to enjoy the glitz and glamour of Hollywood.  

Brush with a Start: Author (Melinda) with LeVar Burton
and her spouse, a huge Star Trek Fan 

Unlike prior years, the crop of films being recognized this year do not appear to delve into the nitty gritty complexity of family tensions in estate planning. However, several Oscar winning films of the recent past do just that – reflecting the real-life complexities of families and inheritances.  Family tensions, long-buried resentments, and unexpected inheritances can all collide, leading to dramatic and often heartbreaking consequences. Let's take a look at three films that illustrate this point:

1. The Descendants (2011)

This poignant film starring George Clooney delves into the complexities of family, grief, and land ownership in Hawaii.  The film highlights the importance of clear communication and planning, especially when dealing with significant assets like land. It shows how differing opinions and hidden family dynamics can surface when major decisions need to be made about an estate. The emotional weight of inheritance, and the responsibilities that come with it, are powerfully displayed.

2. Knives Out (2019)

This clever whodunit showcases a wealthy family riddled with secrets and greed, all vying for their patriarch's inheritance. "Knives Out" serves as a cautionary tale about the dangers of unclear or hastily changed wills. It underscores the importance of carefully considering all potential beneficiaries and the potential for family conflict when large sums of money are involved. The film brilliantly shows how hidden motivations can destroy family bonds.

3. Rain Man (1988)

This classic film explores the relationship between two estranged brothers, one of whom is autistic, and the inheritance left by their father. "Rain Man" highlights the importance of considering all family members when creating an estate plan, including those with special needs. It also raises questions about guardianship and the ethical considerations involved in managing someone else's assets. It shows that sometimes, inheritances can be a catalyst for family reconciliation, though it is often a very bumpy road.

Key Takeaways from these three films:

1. Communication is crucial: Open and honest conversations with family members about your estate plans can prevent misunderstandings and conflict. 
2. Clarity is essential: A well-drafted will or trust can ensure your wishes are carried out and minimize the potential for disputes. 
3. Seek professional guidance: Consulting with an estate planning attorney can help you navigate the complexities of inheritance and create a plan that protects your loved ones.

These films provide entertaining drama, they also offer valuable lessons about the importance of proactive and thoughtful estate planning. Don't let your family become the subject of a real-life estate planning nightmare.

As we move through 2025, I vow to return to my movie going ways -- hopefully I will see most, if not all, of the films nominate at the next awards ceremony.  Thank you for reading!   Remember, a blog is not legal advice.  Consult with an attorney, licensed in your home state, for advice specific to your situation.  Be well, and subscribe to my blog (enter your email in the upper right corner) so that you never miss new content.

What Exactly Is An Estate Plan?

What Exactly Is An Estate Plan?

By Melinda Gustafson Gervasi

February 28, 2025 

Crown - Copenhagen, Denmark, Image by M. Gustafson Gervasi

“So, what exactly is an estate plan, and do I need one?” asked the client seated across from me earlier this week.  “Um, my life is really pretty simple…do you think I need something like that?” they added.

My response was a simple “Yes”. To me an estate plan means preparing for illness, death, and taxes. It may not look like the estate plan used by the rich and famous, but it will address preparing for illness and death”

Here are common types of documents that make up an estate plan:

• Power of Attorney for Finances is a document that allows another person to handle financial tasks and decisions, such as banking, taxes, real estate, legal actions, and professional assistance if you are alive but too sick to act.
• Power of Attorney for Health Care – is a document that gives someone else the power to make health care decisions for you if you are unable to do so yourself.  For example, consenting to surgery, coordinating in home health care, or securing long-term care. 
• Advance Directive (also known as a Living Will) is a document that allows you to express your wishes about feeding tubes and other life sustaining procedures if you are in a persistent vegetative state or are terminally ill and the physicians do not think you will recover. 
• Authorization of Final Disposition is a government form that allows you to designate a person to make burial and funeral arrangements as well as express your intention for cremation or green burial.  In Wisconsin, when you die your powers of attorney end and our statutes assume your next of kin will make burial decisions.  This may not mirror your wishes, especially if you are in a committed relationship but not legally married.  
• Beneficiary designations are labels you place on assets that direct the assets distribution at your death.  You can create these for life insurance, retirement accounts, pensions and annuities with a death benefit, financial investments (brokerage, HSA, money market, etc), standard bank accounts such as checking, savings, and CDs, as well as real estate in some states (in Wisconsin it is called a Transfer on Death Deed).  
• A will is a legal document that facilitates probate (a will does not avoid probate).  A will tells the court who will be in charge of administering your estate (called an Executor in many states; in Wisconsin the role is called Personal Representative); nominates guardians for any of your minor children; and distributes property that did not have a co-owner or named beneficiary.  
• Living Revocable Trust is an instrument that you create during your lifetime to hold your assets, and then upon your death the instrument states where the assets held in trust shall be distributed.  This designation means they pass outside of the probate process.  They are very useful in states with high probate fees.  

The expression Estate Plan may come off as highfalutin; do not let it deter you from the important work of creating a plan for illness and death.  Without legal documents in place, a sudden illness or death can cause chaos on top of grieving.  Make the time to make a plan, then put it into a legal binding format that conforms to the laws of your state of residence.

Thank you for reading. As a reminder, a blog is not legal advice.  It is meant to spark thought and reflection.  Please seek legal advice from a licensed attorney in your state of residence.  Make sure to receive future posts; enter your email in the upper right corner to receive notifications when new material is posted.  Thanks again for reading, be well!