Financial & Estate Planning Questions and Answers

This very valuable information has been provided by Matthew Meuli, Attorney/Counselor of Meuli Law Office, PC - Estate & Business Planning Counsel

DISCLAIMER: No information you obtain from the following questions and answers with the attendees of the St. Paul’s Death and Dying Series is legal advice, nor is it intended to be. You should consult an attorney for individualized advice regarding your own situation. No attorney-client relationship is intended or formed by your viewing these answers without a fully-executed, written agreement to enter into such a relationship.

Do I need a will if I have no property or financial assets and few possessions?

Probate, the process of ensuring that your final expenses and debts are paid, occurs with or without a will in place. There may be some allowances for your loved ones to receive some property even if your debts outnumber your assets. A will allows you to appoint a person to assist your loved ones so that the allowances are not missed and having a will may benefit the ones you leave behind.

Best and least expensive way to write a will, meaning “legal power of attorney” and “living will”

These 3 documents do 3 separate things, during the periods of your death, incapacity or vegetative state. The best way to handle these documents is to talk to an attorney who focuses on estate planning so you know all your options and can make an informed decision. Also, this may be the least expensive way, as not having documents or having incomplete or incorrect documents may force your loved ones to open a guardianship or conservatorship hearing in court.

Attorneys, how would you advise people who have limited resources in developing a will?

You need to clearly communicate your goals to others who can make decisions for you when you are no longer able. The goals we use for estate planning are: “I want to control what I have all my life as long as I am able, then leave what I want, to whom I want, the way I want, when I want, at the least possible cost in fees and taxes.” It may be best to have a legal professional who focuses on estate planning help you with this as we have seen many problems with wills that do not address potential family conflicts or do not specifically identify the property that is given away.

What about those online will templates? If our family situation is straightforward, can we use one? Or does it create problems?

Most online resources have a disclaimer that the document you get “is not a substitute for the advice of an attorney” and they “are not engaged in the power of the practice of law.” Furthermore, the online service “cannot guarantee that the information on the site is completely current” nor “is not responsible for any loss, injury, claim, liability, or damage related to your use of the site.” You may use an online source at your own risk as the service has no accountability to you or your loved ones if something goes wrong.

When I hear how much my relatives paid to set up a trust and have it modified a few years later, I think that it’s something for rich people, and maybe it’s not worth the expense for us. When is it important to set up a trust, or have a lawyer involved in a will? Why does it cost so much?

We have found that trusts may be the best way to take care of you during your incapacity. This is because your assets such as your house and bank accounts have been transferred (owned) by the trust and your successor trustee (second in command after you) can manage these assets on your behalf during your incapacity. Contrast that with a will that does not transfer any assets until you pass, leaving your loved ones funding the cost of your care while you are incapacitated. This is not a “rich person” issue as incapacity may affect everyone and a trust may take the burden off of your loved ones. A trust also may protect your assets from all being spent on your medical bills which may not be as much of a problem for someone who can pay for that care. If there is a chance you may need long-term care, and you do not have the means to fund that care, you may want to discuss setting up a trust. When setting up a trust, we believe that an attorney who focuses on estate panning should be involved. The “high” price of a trust is because you are paying the cost of transferring your assets when you pass now instead of waiting to have your loved ones pay that cost during probate when you pass. Many attorneys make more money writing the will and administrating the probate than they would in drafting the trust. Having a relationship with an estate planning attorney over time may actually lower the costs through periodic reviews and amendments to your trust, so you do not have to keep starting over. Our office likes to review the trust we write with our clients when needed yet no later than every 3 years.

Is there a way to leave my loved one’s financial assistance without it all going in medical bills?

Yes, there are several planning methods that can help shield some of your assets from going to medical bills. An elder law attorney can help you with this type of planning.

Is it better to have a friend or family member be the executor of your estate, or a lawyer?

We believe the most important consideration in choosing an executor or trustee of an estate plan is finding someone you trust who will carry out your wishes. That person needs to understand your wishes and be in a position to carry those wishes out. A well-drafted will allows a friend or family member to consult and enlist the services of an attorney to help with the administration of the will. A bad executor can ruin a good will.

Please talk about setting up trusts: revocable, etc. Also ages for maturity of the trusts for children.

A trust is set up according to the laws in your state. Typically, a trust is like a contract between the Grantor or Settlor (person who writes the trust), the Trustee (person who follows the rules the Grantor set up) and a Beneficiary (the person who benefits from the assets placed in the trust). The trust is a story about how the Grantor’s assets are going to be controlled during their lifetime and then outlines who gets those assets, when they get those assets, how they get those assets, and to whom they can give those assets. Determining when a person receives assets is usually not based solely on the age of the beneficiary. Just because you are 21 does not necessarily make you a financial genius. Our trusts usually leave assets to your children in a way that no one else can take them away (creditors or spouses) and that they can bring in advisors to help them manage the assets if necessary.

How can I make the process of transferring my assets after I die as easy and uncomplicated as possible for my family? Can I designate a car or bank account as “payable upon death”? How does that work?

We have found that a trust is the easiest way to transfer your assets to your family when you die and even more importantly, when you become incapacitated. Please note that a “payable upon death” designation does nothing for the time you may be incapacitated. Setting up a “payable upon death” depends on what type of assets you are trying to transfer. Some accounts use a designated beneficiary form, some a deed, some a title, or some other form provided by the bank or brokerage firm. Each document has different requirements for recording. In order for this type of transfer to work, you must die in the right order and not die at the same time. The “payable upon death” only postpones probate as the person you leave it to will have to make their own additional arrangements later.

Do I need a lawyer to be involved in order to designate the person who will make medical decisions on my behalf when I am not able?

While it is not required, it is advisable to work with an attorney who focuses on estate planning when planning who will make medical decision for you. You want to anticipate the situations that may arise if you are incapacitated. For example, if you need to go to long-term memory care, you may want to let your agent know that your wish is to remain in your residence as long as possible rather than being shipped off at the first opportunity to a memory care unit. Good documents can help guide your agent to make the decisions you would have made for yourself had you been capable. An attorney that focuses on estate planning can help you with this.

Legal Documents: What needs notarizing, what forms are “binding or apt to be followed, ie material goods, etc?

“Notarizing” a document may mean that the notary is authenticating that your signature did indeed come from you. A notary can also state that you are taking an oath that what you are saying is true. Some documents need to be witnessed as well as sworn to. It really depends on the document. If you correctly comply with all the formalities, the document is more apt to be followed and have less opportunities for someone to challenge what you have written. A good attorney can help you sort out all the requirements to the documents you are writing.