There are triggering events which make estate planning, or editing an estate plan, necessary in Oregon. Remarriage is one of these triggers. This is especially true if your new marriage includes children from previous marriages, stepchildren, and additional children from your current marriage.
Even in the most well-adjusted blended families, death challenges relationships. This makes a clear estate plan vital if you want to provide for family members while also reducing conflict. You must also avoid making the same estate planning assumptions that are appropriate in first marriages but are likely to backfire in subsequent ones. Here are four unique considerations when creating an estate plan after remarriage.
Conflicts of Interest
The natural inclination is to leave everything to your spouse and for your spouse to do the same. This is a safe avenue in first marriages when children only come from that marriage.
Remarriage changes that dynamic. If you pass all your property and money to your current spouse, understand that they have no obligation to consider your children from a previous marriage. Your death may create distance between them and if your current spouse outlives you considerably, he or she will be more likely to account for his or her own children and any new spouse. They are not likely to pass property to your children, especially if they have not spoken to each other for years.
One solution is to place your property in trust to provide income to your current spouse. Once your spouse passes away, remaining property is distributed to your children. You may include children from both your previous and current marriages and any stepchildren in that distribution.
If you decide to take this approach, appoint an uninterested third party to serve as trustee. Otherwise, there is a strong possibility of a conflict of interest based on self-interest.
If you appoint your spouse as the trustee, they may choose to invest your assets in low-yield options that leave nothing for your children once your spouse passes away. Likewise, your children may choose more long-term approaches that leave your current spouse inadequate income. An independent trustee is more likely to manage assets to everyone’s advantage.
Sometimes, the best approach to provide for children is with non-probate assets. Making them beneficiaries on your life insurance, retirement, and investment accounts is an excellent way of ensuring they receive something after your death. You are then safe to pass property and money to your spouse through your will.
This strategy is easier and less expensive than a trust but it requires attention to detail. Check the beneficiary designations on these assets and change them now. Most importantly, let your family know you made these changes and why. You do not want your spouse to expect a life insurance payout only to find out after your death that they are no longer entitled to those funds.
Your estate plan will likely include an advance directive and a durable power of attorney. These cover decision-making should you become incapacitated. The advance directive appoints a health care representative who makes health care decisions on your behalf. A power of attorney appoints an agent who manages your financial and business affairs if you are unable to do so. A power of attorney dies when you do.
Spouses are often the first choice for these appointments. In blended families, this may not be the best idea. Hurt feelings and conflict can arise if your children from a previous marriage do not feel your spouse is acting in your best interest or puts his or her self-interest above your needs.
You are better off choosing family members who are suited to these tasks rather than focus on relationship status. For example, you may discuss end-of-life decisions more frequently with an adult child rather than your spouse. Your child may listen better while your spouse shuts down when you bring up the topic. Or you may run a small business with a daughter, who is likely a better candidate to be your power of attorney.
The important part is, you want to appoint individuals to get along well with all family members, including your spouse. If there is so much tension that this is impossible, consider appointing someone outside your immediate blended family, like a close friend or sibling.
Dangers of Intestacy (when you don’t have a Will)
It may be tempting to do nothing and let intestate statutes take control. This may seem to prevent difficult discussions but it will only lead to many, many problems for your loved ones after you pass away.
Intestate succession only considers blood relatives. It will ensure support for spouses, children, parents, and even siblings. But if you are close to your stepchildren and want them to inherit assets or take over a small business, intestate succession will not allow that. Your stepchildren may also have special needs that you want to be provided for if you pass away. Again, intestate succession will not even take them in account, even if you had a close relationship. This only changes if you adopted them, which often does not occur if you remarry their parent when they are adults.
Blended families offer distinct estate planning challenges, but they are not surmountable. Find solutions by discussing them with an Oregon estate planning attorney. Call Diane L. Gruber today to schedule a consultation.
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.
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.