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.
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.
Oregon residents frequently search for free legal forms and that includes wills. There is no approved State of Oregon Last Will and Testament form which allows legal document companies to take advantage of this market and tempt hapless consumers into saving legal fees.
Estate planning should not be a do-it-yourself activity and free Oregon will forms are the worst way to make this attempt. Here are four reasons why you need to stop wasting time finding a free form online and instead, call an Oregon estate planning attorney.
They are unlikely to be helpful
It takes effort to find a free will form online. Legal document services like LegalZoom charge for the service as they guide you through a series of questions. This is standard in this industry and in most cases, you will pay $30 to $100 for the service.
If you come across a free form, it is either extremely basic or without guarantees of legal validity. Most have not been evaluated by an attorney and are often thrown together by lay people hoping to attract website hits.
AllLaw offers a paid service to customize a will but also includes this free will form. You have to cut and paste the text from the window to start drafting and there is little guidance. The form contains a warning that it is not reviewed by legal counsel and exists only for educational purposes:
Even if your search reveals a form that appears legitimate and may even been drafted by an attorney, you still do not know for certain if it is appropriate FOR YOU. A free form is often not the solution to your estate planning issues but the beginning of new ones.
They don’t make you think
Most will forms are fill-in-the-blank projects that make the task appear easier than it is in reality. Completing will forms feels more like filling out information for a Costco membership than making serious long term plans. This underestimation of your will’s importance does not help you design a good estate plan.
Mainly, you may avoid giving your circumstances the consideration they require. When you visit an attorney’s office for estate planning, you have an opportunity to discuss your concerns, ask questions and talk about “what ifs.” This discussion arms you with the information you need to make the decisions THAT ARE RIGHT FOR YOU AND YOUR LOVED ONES. With fill-in-the-blanks forms, your focus is on filling in the blanks–not understanding the consequences of those decisions.
For example, specific property requests may seem benign. Here is where you can bequeath everything from your collection of glass miniatures to your car:
This can have three possible effects. You can make property awards that are not enforceable, like to your minor children. This adds time to the probate process as the court attempts to create a trust or appoint a conservator to manage your children’s assets until they reach adulthood.
Also, if you award too much property to a family member on government benefits, that bequest could render them ineligible and cause hardship. There are other ways to protect vulnerable dependents that will not kill their access to vital benefit programs.
Finally, some people will feel the need to list every item of property in this section which is time-consuming and usually unnecessary. It can become confusing if any of the property is no longer in your possession when you pass away.
Even if your estate is simple, reviewing circumstances with an attorney assures you cover important aspects and create an effective estate plan with no doubt as to your intentions. You also avoid the impacts of well-intentioned but poor decisions.
They are generic
Will forms of all types are an attempt to make one size fit all. This never works with estate planning and even if your situation is typical, the form may still not be appropriate. People and their estates are diverse and an estate plan perfect for one client rarely works for anyone else.
For example, these two paragraphs will not help you if you are single and simply fill in the blanks. You may have to change spouse to “friend” or “live in partner”:
Additionally, will forms frequently contain provisions that may not be necessary for your situation. If you are single, have charitable aspirations, and never had children, there is no need to designate a trust for minor children (which occupies two pages of this particular will form). That is an unnecessary distraction that prevents you from addressing other matters and may lead you to overlook important aspects of your estate.
There’s no accounting for special circumstances
As indicated above, there are estate planning decisions that can lead to dire consequences. If you care for an older relative or an adult child with special needs, you must handle bequests to them VERY carefully.
For many clients, it may be their first instinct to grant a special-needs child or older relative a large amount of money. If these individuals receive disability payments, Medicare or Medicaid, that decision can cancel out their eligibility. This introduces new complications as your adult dependents attempt to secure health insurance or stretch out the payment to cover all their daily needs.
However, if you see an Oregon estate planning attorney, you can learn about your options. A trust preserves your assets for these family members and allows them to receive payouts from your estate without sacrificing benefits. When you take the do-it-yourself route with a free will form, you may not execute this plan correctly and place your family at risk.
Correct execution becomes more challenging
Your will is not complete until it is executed. This includes your initial on every page, your signature at the end, and the notarized signatures of two witnesses. That end step could be the most challenging aspect of finalizing your will.
On your own, it can take effort to assure your witnesses and notary are available at the same time. Finding witnesses can be a challenge too. It is possible to use relatives as witnesses, even if they are beneficiaries. But attorneys often do not recommend it because that leaves wills VERY vulnerable to court challenges.
Your safest witnesses are disinterested parties with no connection to your will or estate. When you go through an estate attorney, those ready-witnesses include law office staff. Also, every law office contains notaries which make it easy to finalize your will in one appointment.
These logistics are often challenging enough that probate attorneys sometimes see do-it-yourself wills without witnesses or a notary block. That renders the will invalid and you end up with an intestate estate.
Free advice is worth what you pay for and Oregon will forms are the same way! If you want to draft a will without paying excessive legal fees, contact Diane L. Gruber, Attorney at Law to schedule a consultation.
This is the final installment of the Wills vs. Trusts series and it is clear that Oregon probate law can be ruthless to those who do not create a written estate plan. It also imposes serious impacts if clients do not create an estate plan that is right for them.
The right estate plan for you may involve a will, trust or a combination of both. This overview generally addresses who needs a will and those who require a trust.
Trusts are subject to misinformation in Oregon. Entire industries exist to scare people out of probate and create these large estate vehicles that are not always necessary. Most clients who fall for these sales pitches would save money by drafting a will and never creating the trust.
When used for the right reasons, a trust protects your family’s interests. If it is created solely to avoid probate, you will lose more money and time than you will save. Here is an overview of what a trust can and cannot do in Washington, Multnomah, Marion and Clackamas counties.