When you visit the office of Diane L. Gruber, Attorney at Law, for your estate planning appointment, we frequently suggest other documents in addition to your will or trust. One of these includes a durable power of attorney. This document appoints an agent to handle your financial or business affairs if you are incapacitated or unavailable. It becomes invalid when you die.
This is a fairly simple document that does not add much to your estate planning expenses. When you need it, it is often a dire situation which makes this an essential part of long-term care and planning. If you do not have a power of attorney when you need one, it can make things difficult for you and your family members. Here are three possible horror scenarios if you do not have a valid power of attorney.
Unmanaged Insurance Claims
A power of attorney may go into effect immediately or if you become incapacitated. Since incapacitation often leads to filing a disability insurance claim, you may need an agent to handle that process for you.
However, an insurance company is not going to let just anyone file the forms, grant permission to access your medical records or make decisions during claim processing. Your spouse is not automatically granted this privilege since the law sees married people as unique individuals, not one unit. The only way for your spouse, sibling, business associate or good friend to help you through this process is with a power of attorney. When you appoint any of these people as an agent, they only need to provide the claims adjuster with the power of attorney and that grants them the authority to manage your claim.
Otherwise, appointing an agent to act on your behalf becomes expensive and complex. You will secure disability benefits quicker if you prepare just in case of incapacitation.
Limited Access to Assets
If you do not have a joint checking account with your spouse or you have business assets that are only in your name, your family will not have access to these income sources if you are incapacitated in a hospital bed. The only way your separate assets can be used for your benefit is if you execute a power of attorney.
This can be especially necessary if your incapacitation is for the long-term or you face an uncertain prognosis. The power of attorney may grant permission to a business partner to transfer income to your family or allow your spouse to access a business account.
This not only provides income but assures other functions are carried out too–like paying bills, filling out automatic deposit forms, and managing investments. If you are single, it is unlikely you have a joint owner on your accounts. Unless you want to return from incapacitation with a defaulted mortgage and past-due bills, you want to appoint someone to manage these affairs in case you are unable to do so yourself.
Poor Asset Management
Sometimes, it is a matter of finding the best person for the job. Powers of attorney also apply if you are leaving the country for a while and need someone to manage your property in the United States. Sometimes, that can end with a bad surprise when you return home.
For example, you may allow a spendthrift relative to stay in your home while you decide to live in Italy for the next five years. It may be difficult to trust this relative to pay the mortgage on time or keep utility bills current.
However, with a power of attorney, you can appoint a responsible manager for your home and its expenses. This individual can pay the mortgage and utilities from your account, and demand reimbursement each month from your temporary resident. If they fail to pay, your agent can start eviction procedures on your behalf by hiring an attorney and making decisions throughout the case. Your interests are protected better if you go this route rather than rely on someone who may not follow through.
There are also instances where clients trust their oldest child more than their spouse to make investment and financial decisions. Single people who live estranged from their families may desire that their live-in partner or best friend handle assets in case of absence or incapacitation. Just because an individual is a joint owner or physically present does not necessarily mean your best interests motivate them. You take better control of your situation with a power of attorney.
So when we recommend a power of attorney at your estate planning appointment, do not scoff. Perhaps the circumstances requiring one will never arise. But if they do, you want to make everything as easy as possible for you and your family. Plan for contingencies and make an appointment with Diane L. Gruber today to create a solid estate plan.
Most people do not need to avoid probate. They need the right tools to make it easier. The first step to that is drafting a will and informing loved ones of its location and contents.
Even then, the challenges are only beginning. In addition to managing the paperwork and legal formalities that follow a death, your loved ones are also facing their grief. This is an overwhelming time where even a simple telephone call to a life insurance company feels like a monumental task.
Efforts made now can make this easier for your friends and family in the future. Once you finish your will, complete these five tasks to assure a more efficient probate process for your loved ones.
Keep It All Together
Once you draft a will, keep the original in a safety deposit box, a copy with your attorney, and another copy with your executor, the person named in your will to manage your estate. Let other family members or close friends know you have a will and who has copies of it.
Wills do no favors if they are kept secret. If no one knows you have a will and/or cannot find it, then your loved ones will be forced to file an intestate probate in order to transfer your assets. An intestate probate is a probate without a will. It is more time-consuming and more expensive than a probate with a will. Moreover, this leaves your loved ones wondering what to do. A will expresses your wishes and directs your loved ones what you want to become of your assets after your death.
Keep other important documents near your will as well. These may include real estate papers, car titles, stock certificates, and life insurance policies. If all these documents are together in one place, life for your grieving executor just became easier.
Make Lists Now
One of the largest tasks in probate proceedings is the inventory. This is a list of all your assets and their values. The court uses it to determine the value of your estate and the distribution of your property.
Start keeping updated lists now to make this job easier for your grieving relatives. If you have a special collection of art, jewelry or other high-value items, keep track of these items in a spreadsheet or even a notebook. List values if you have them. Your executor may have to get some items appraised, but even just a list will make the inventory step easier for your executor.
If a loved one is a joint owner on a real estate deed or car title, tell them. This makes it easier for them to take possession of these items after you die and keeps the asset out of probate. The same is true for any life insurance policies. If beneficiaries know they are entitled to these funds, they may be able to collect them without the involvement of the court or your executor.
Likewise, if there are family members who are not receiving any of your property, be direct about this situation and who is affected. You may want to tell a trusted family member. Being clear about all your wishes, even those that work against family members, prevents problems after your death.
Organize Your Finances
Just as you own assets, you may also carry debt. Keep mortgage documents, credit card statements, and medical bills in an accessible place and maintain a current list. Then when you executor must send out notices to creditors, they do not have to engage in an exhaustive search to find them all.
Provide Attorney Contact Information
When you pass away and your family and friends grieve, your estate planning attorney can be a guiding voice of reason during a difficult time. It is much easier to complete a probate filing with the attorney who knows you, and drafted your will, then to start from scratch with a new attorney.
Your attorney’s name, address, telephone number, and email address should be in the margins of your will. Inform your family members who you hired to handle your estate planning. Even if your attorney moves from the area or retires, having that information can still help your loved ones find someone else to represent them in the probate proceeding.
Diane L. Gruber, Attorney at Law, offers estate planning and probate guidance for Oregon residents. Not only can we design an estate plan that best reflects your wishes but we can make the probate process more efficient and effective for your family. Contact our office today to schedule an estate planning or probate consultation.
Avoiding probate should not be your primary goal when estate planning in Oregon. For most people, probate is a quick process that allows you an appropriate vehicle for distributing assets, protecting loved ones, and honoring your charitable wishes. Trust companies convince you otherwise so you will buy their product–not because it necessarily works to your advantage.
But there are exceptions. Our law office encounters a few clients who may benefit from avoiding probate and should create a trust as their main estate planning vehicle. Here are four possible reasons why clients may need to establish a trust in order to avoid probate.
Need for Continuous Asset Management
During the probate process, your assets are essentially placed on hold until the court approves their distribution. This can be troublesome if your assets generate income that may be vital to supporting your family.
If you own a business, rental properties or even investment accounts, these assets continue to generate income but that cannot be distributed unless a special motion is filed with the court or probate concludes with assets being liquidated or passed on to their new owners. In cases of incapacity, a power of attorney allows an agent to pay bills or distribute income. But once you die, that agent no longer has the authority to accomplish those tasks.
When you own multiple income-producing assets, a living trust may be your best option. It continues distributing income until it is dissolved which reduces interruption of support and hardship.
Probate is a public process. Technically, anyone can access your court files and see your asset inventory and the value of your estate.
This creates anxiety for some people. A contentious divorce or family estrangement leads some clients to want to keep the assets of their estate private. Sometimes, the motivation is less conflict-driven. Clients may not wish to compromise their family members’ safety by making the ownership of high-value property public. There is always a risk that if it is known a family member owns an expensive car or rare work of art, they may become a target for crime.
In most cases, you do not need to keep the distribution of your assets after death private. If you are worried about social security or credit card account numbers, those are kept private anyway. However, if you believe a public probate will compromise safety or heighten tensions within your family, a trust could be a better option for you.
When assets are placed in a trust, they technically no longer belong to you. They belong to the trust which is why they are not subject to probate proceedings.
This works well for clients whose estate is valued over $1 million. You can move assets into a trust and reduce the estate’s overall taxable value. Income and property are then distributed to your loved ones rather than used to pay a tax burden.
The cost of probate in Oregon is modest compared to some other states. Unless your estate exceeds $1 million, you are unlikely to lose a significant amount of it in administration fees or taxes.
However, if you live in Oregon and own property in other states, it is likely that you will need an ancillary probate in each of those states, as well. An Oregon probate proceeding cannot address property outside the state. If you own a hunting cabin in Alaska, for example, you must file a separate probate proceeding there.
People who own a number of out-of-state property and investments will see their costs rise with each separate probate proceeding. Placing out-of-state assets in trust or owning them jointly with a spouse or other family members may prevent this dilemma.
Before you choose a trust company and decide to transfer all your assets into a trust, see if that is necessary for you. Diane L. Gruber advises clients on all their Oregon estate planning options including those for avoiding probate. Contact us today to schedule a consultation and see what is necessary for you.
An advance directive is a complimentary service when you hire Gruber & Associates, P.C. in West Linn, OR for estate planning. Its scope is limited so it works best with other estate planning documents. While it definitely offers advantages and eases health care decision-making for your loved ones, an advance directive also has its limits. That emphasizes the need for a complete estate plan.
An advance directive indicates your health care preferences if you are unable to communicate them to your doctor. It appoints a health care representative who executes these decisions, including any preferences regarding life-sustaining medical treatment.
Apppoints an Advocate
While many people do not want to consider it, there is a possibility that you will suffer injury or illness substantial enough to leave you unable to communicate or make decisions. While healthcare providers use their best discretion, there is another possibility that their decisions will not match your preferences.
The healthcare representative acts as your voice when you cannot speak. Since most clients appoint someone in this capacity that is close to them, this individual understands your motivation and feels honor-bound to respect your wishes. Many clients choose a spouse, sibling or even a good friend to fulfill this role. If you have someone in your life you would prefer for this duty, it is a good idea to execute an advance directive.
Define Course of Health Care
Health care decisions may have religious inclinations, like Jehovah’s Witnesses and their avoidance of blood transfusions. Other times it is simply a preference for particular courses of treatment.
An advance directive allows specific instructions. You can designate specific doctors, health care facilities, and, if you are terminally ill, your choice for hospice care. There may be circumstances where you prefer to continue palliative treatment at home and avoid future hospital visits. If you have detailed preferences like this, you need an advance directive.
Limit Life-Sustaining Medical Procedures
The best-known feature of the advance directive is your decisions regarding life-sustaining medical procedures. Many clients execute one because they do not wish to be kept alive by machines. Others make different choices.
While an advance directive is sufficient for ensuring your wishes are granted, you may also sign Physician Orders for Life-Sustaining Treatment or POLST. This is an additional document provided by a doctor, clinic or hospital that remains in your file and removes any doubt of your decision. It is presented not only if you are terminally ill but sometimes before surgical procedures. Do not be surprised if one is presented to you if you are admitted to the hospital.
Advance directives define your course of health treatment but they have their limits. These are reassuring more than inconvenient, especially if you have a finished estate plan.
Indicate Burial Preferences
If you have any burial preferences, you should list them in your will. The advance directive is not an appropriate avenue for expressing this information.
Other options may include pre-planned funerals where you can confirm any religious or personal preferences. If you decide on something different, like donating your remains for study, that requires additional forms and an advance directive is not effective to assure that occurs. Many preferences require additional steps so discuss those first with your attorney before thinking one written note or document guarantees them.
Affect Insurance Coverage
There are concerns that insurance companies may require patients to sign an Advance Directive or face claim denial. This is not legal and any insurance company who insists on this should be reported to the Insurance Commission.
Signing an advance directive has no effect on insurance coverage or at least should have no effect on it. If you are not comfortable with executing an advance directive or feel pressured to do so, do not do it.
There are occasional concerns that the Oregon Death with Dignity Act may authorize health care representatives to choose euthanasia over further treatment, However, the law makes that impossible.
To be eligible for death with dignity, a patient must be a resident of Oregon who is 18 years of age or older. If they are diagnosed with a terminal illness where death is imminent within six months, they must also be capable of communicating their own healthcare decisions at the time they request death with dignity. An attending physician determines whether a patient meets these criteria–not a healthcare representative.
Since the patient must choose and self-administer the euthanasia drugs, physicians cannot be involved at all except to determine if the situation is appropriate for this option. Between the mental capacity requirement and the self-administration one, there is no way that a healthcare representative can authorize this course of action–or legally compel a physician to administer the drugs.
It can be difficult to consider these worst-case scenarios, but taking the time to do so offers reassurance and peace of mind. To start designing your estate plan and long-term care decisions, contact Diane L. Gruber, Attorney at Law today to schedule an appointment.
Fall is starting soon and with it, Halloween celebrations. However, horror is not limited to one holiday. It can infiltrate your life and the lives of your loved ones anytime you die intestate (without a will). Impacts go well beyond the fun party-horror of Halloween. There are real consequences if you avoid estate planning.
The usual impacts of dying without a will have been discussed in detail in other articles. But real-life situations illustrate the point better. Here are three intestate horror stories of people who died before they signed a will.
Prince Rogers Nelson
Few people made it through the 1980’s without hearing about Prince. A talented musician known for his flamboyant fashion sense, he won seven Grammy Awards, one American Music Award, a Golden Globe, and an Academy Award for his work in Purple Rain in the course of his career. He was inducted into the Rock and Roll Hall of Fame in 2004, the first year he became eligible.
Prince was a fanatical organizer when it came to his numerous intellectual property rights and financial investments. When he died on April 21, 2016, the discovery that he never performed any estate planning was rather astounding considering the attention paid to other portions of his life.
The result was an estate estimated at $200 million and approximately 45 people coming forward claiming to be heirs. There were fraudulent claims, like an inmate in Colorado insisting that he was Prince’s son. (A DNA test invalidated the claim.) A niece and grandniece were also eliminated from the possibilities. In the end, a Carver County, Minnesota probate judge ruled six siblings and half-siblings as his official heirs. Although Prince had tense relationships with most of his siblings, that was never considered in the intestate proceeding. The judge had no choice but to strictly follow Minnesota’s statutes.
After one year, this is the only issue sorted out. There are still questions of who will eventually own his intellectual property rights, including the singer’s post-1995 catalog and unreleased material. Contracts remain in dispute and with that, there is no certain date of when heirs will take possession of his assets.
One of the most famous intestate deaths was Howard Hughes who passed away in 1976. A reclusive billionaire known for eccentric tendencies, he created a 34-year mess by passing away without any signs he made an effort towards estate planning.
Hughes did not have any direct descendants or immediate family to make this easier. Court authorities started with an extensive search for a will in a desperate attempt to wrap up his estate in an orderly fashion. Interviews with attorneys, banks, employees, and even the owners of hotels he frequently patronized revealed nothing. Newspaper classified ads basically begged for someone to come forward with a will and in a last-ditch effort, even a psychic was involved. It became abundantly clear that this estate was about to become an intestate nightmare.
Despite claims that Hughes hated his family and did not want them to benefit from his estate, the court still considered potential heirs. Distant cousins came out of the woodwork and before long, Nevada, California, and Texas authorities came forward to insist that Hughes owed state taxes and that his estate needed to be managed in those jurisdictions. Women claiming to be former spouses also filed claims although there were no marriage records on file.
In the end, 200 distant relatives benefited from the estate, collectively receiving $1.5 billion. Liquidation of assets continued until 2010 when the whole matter finally concluded.
Simon the Client
While there are numerous examples of famous people dying without wills (intestate), it is not just the talented and wealthy who need to draft estate plans. Regular working class, middle class and even “poor” people can leave nightmares for their loved ones if they do not have an Oregon draft a will for them to sign. One example was an estate this office handled years ago: It belonged to a client we will call “Simon.”
Simon was single with no children or grandchildren. He was an only child. His parents were gone, leaving him with no immediate relatives. Despite living an active life, he died unexpectedly at home at age 53.
Yes, Simon had assets. His modest home and one four-year-old car were owned free-and-clear. He had a live-in girlfriend for the last 10 years named Mary. A search of Simon’s safety deposit box after his death revealed what he BELIEVED TO BE a will, leaving everything to Mary. But it was not correctly witnessed and notarized. The probate court could not honor it.
That left the distribution of Simon’s estate to Oregon statutes. Since there is no room for intestate inheritance to unmarried partners, the house and car were liquidated with money passed on to distant relatives. The second cousins who benefited from the estate never had a relationship with him. Indeed, the executor (AKA personal representative) chosen by the court to manage the probate process, was a second cousin who had not seen him for 40 years.
Even though the unenforceable will made it clear that Simon wanted everything to go to Mary, the court could not honor it. Mary filed a dispute and held up the estate for eight months. In the end, she did not prevail and was evicted from Simon’s house.
Single adults who are estranged from living family have the most to lose by not having a will. However, there are no disadvantages to a will even if your situation is stable. If you are married, there is always the possibility that you and your spouse will die in the same incident. You cannot assume your spouse takes care of everything when you die–you must make allowances in case you are both gone. That is how a will can save your loved ones a lot of stress.
Avoid creating your own intestate horror story and make an appointment to draft a will that is enforceable in Oregon. Gruber & Associates, P.C. serves Washington, Multnomah, Marion, and Clackamas counties and can get you started. Contact us to schedule a consultation.