Category: Uncategorized

Comedian Sarah Silverman announced today (read her facebook post here) that she’s spent the last week in the hospital in intensive care after going to her doctor about a sore throat.  It turns out she had a potentially life threatening bacterial infection.  Her medical team knocked her out during the many days of treatment, so she was completely, and suddenly without warning, out of commission.  She calls herself “insanely lucky” to be alive.

Preparing for short term disability isn’t something most people think about, but it’s immensely important.  If you find yourself unexpectedly out of commission like Silverman did, without advance planning documents like HIPAA releases and medical and durable powers of attorney, your friends and family might have a really difficult time getting information about your condition, and on the much worse end of the spectrum, you might find that your rent or mortgage check didn’t get turned in and you now have either big late fees or, even worse, an eviction notice to deal with.

Just listen to the morning traffic report and its long list of accidents and you’ll know that many people are likely finding themselves in this vulnerable position.  You, however, can take care of this right now while you’re thinking about.  Call your local friendly lawyer and ask about getting your death and disability planning done now.

As always when a celebrity dies, a few days after news of the death you will find mentions of whether or not there was a will.  Why?  Who cares?  And beyond the public’s curiosity, does it even matter if there was a will?

Yes, there are a lot of reasons why it matters, and here’s a few of those reasons.

• The public loves dirt.  Wills are filed with the court and become public.  So if a celebrity has a secret lover, or is disinheriting a child, or wants a long time employee to inherit everything, the public gets to know.  They want a window into the private life of high profile people, and a will often gives them that.  Which is precisely why most celebrities use trusts in addition to a will to protect their personal affairs.  Trusts are not available to the public, and the particulars of who gets what stay private.
• We want to know if the celebrity was smart or not.  Anyone with an estate over about six million dollars has the potential to pay federal estate taxes, a tax that is in addition to ordinary income taxes.  Estate planning allows people with large estate to minimize the amount of estate tax paid when they die, in much the same way itemizing your tax returns can save on income taxes over simply taking the standard deduction.  It’s perfectly legal and quite prudent to do what you can to minimize the estate tax owed, but if no will or any other planning has been done, the estate may pay large amounts to the federal government that could have gone to the heirs. When a celebrity dies without a will, it almost certainly means that “too much” will be paid in taxes.
• Lives are complicated, and not everyone you love is related by blood.  When there is no will, the only people who can inherit are those related by blood (or adoption in most cases).  Which blood relations inherit depends on the individual state laws, but no one who is not related can inherit from someone who is not a blood relation or a spouse at the time of the death.  Celebrities with large estates have the means to spread their love around, and they often do . . . but the court cannot award anyone, even those who were clearly close and clearly financially dependent on a celebrity, anything not provided for in a will or trust.
• Are we going to remember the person, or the mess?  The old saying “death is a part of life” doesn’t just mean that all life includes death.  It also means that all the circumstances surrounding your own death become part of your life story.  If your death without a will, or with a poorly written will, means that your name is forever after mentioned with a tag line that goes something like ” . . . and s/he left such a mess when s/he died,” then you have obscured the good things about your life for eternity.  Who among us can think of Anna Nicole Smith without also thinking about the long and bizarre court battles over her estate?  Who among us doesn’t have at least one relative who died without a will and caused all sorts of stress and problems for the family?

It’s too early to know if Prince’s life and work will be marred by ongoing stories about his estate, but by failing to write a will he certainly did not protect his legacy the way he protected his music during his long career.  Even we less purple humans can protect what we have and those we love.

It’s not often that stories are written about the exciting world of estate planning.

Tonight’s episode of the television show “Blackish” revolves around the parents’ realization that they haven’t, but should, name guardians for their children in case of their own deaths.  The kids are now pre-teens and tweens, so the parents decide they need to get moving on this.  Good for them!

But then it devolves into arguments over whose family would make the better caretakers, and whose family shouldn’t even be allowed near the kids, and we see some of the stress that leads parents to put this off until the need for it disappears. Fortunately, there are ways around this.  Watch this short youtube video I made a couple of years ago for ideas on what to do when you don’t know what to do.

If you need to do this important planning, give my office a call to set up an appointment to get it done.

And if you decide to pretend like you are immortal, you can listen to this song I found on Youtube while looking for my guardianship video.

I have a good friend who works at the IRS, and every year I get emails from her for about a week before April 15 reminding to get my taxes done.  It’s not that she thinks I’ll forget, she’s just so excited about Tax Day she can’t help herself!

Frankly, I don’t get nearly as excited about it as she does, but I do like to get them in on time and I really like to do them correctly.  So here’s the answer to the big question many families have when a member is receiving SSI benefits: do you have to file taxes?

SSI benefits, which are available to individuals over 18 who have a developmental disability and have never worked or who make only a very small income, (and some children under 18 whose families have lower incomes), are not taxable by the federal government.  If your child receives SSI benefits and has no other income, then it is not necessary to file a tax return.

However, if your child has other income – including social security benefits through a parent, then some of the income may be taxable and you may need to file a return.

For more information, you can check out IRS Publication 907.

Life does not stand still, but your estate plan will if you don’t actively keep up with it. Planning is not a one time event.

If you have a current will or full estate plan, you know the feeling of relief that hits as soon as you sign that last paper.  It feels great to have your death and disability planning done. But as important as that is, it is just as important to review your documents regularly and make sure they still do what you need them to do.  Sometimes it’s obvious your will or other documents need to be changed, but some things that might trigger the need for revisions aren’t as obvious.

Major Life Changes

A marriage, a divorce, and a new child are all times when the lawyer should be called and updates made to your documents.  But you should also discuss whether changes are needed when you have a drastic change in income, or move to another state, or when you or a close family member develop a chronic health problem or disability.  All of these major life changes might require changes to your plan and should be discussed with your attorney.

Many Purchases Should Trigger Updates

Wills and trusts lawyers help you plan for what you own at the time you are planning, as well as any reasonaly likely changes.  But if you acquire or lose major property after you create your will, your plan may need to be updated. For example of you gain or lose a large life insurance policy or pension fund, or if you transfer assets from cash or stocks or real estate into another type of asset, there may be changes needed in your will to make sure that all property is distributed appropriately.

Annual Review

You may not need to make changes to your plan every year, but you should review your plan each year to be sure.  A simple read through of your documents may jog your memory as to things you wanted or needed to change.  Death and disability planning is intended to protect you and to carry out your wishes after death, and it is more likely to do so if you review regularly and keep it up to date.

My left hand is not very good at doing most of the things my right hand can do.  It doesn’t move as fast and it’s less coordinated, which leads to problems like poking my mouth with the fork if I try to eat with my left hand.  I can write with my left hand, but it would take a cryptologist to read it.  I can type with it, of course, but if I go too fast the letters on the right side of the keyboard overtake the letters on the left and typos pile up.  Even shaking my hands when I do the hokey pokey requires accepting that they will not shake in tandem, rather, the left will put up a good show but the right will get all the shaking glory.

In other words, my left hand can do the same things my right hand can do, but it really should leave the right to do the things it excels at and the left should stick to the things it does well – like hold the baby safely in my arms while my right manipulates the bottle.  Like stabilizing the tape dispenser while the right hand deftly tears a piece off.  Like holding the glass still while the right hand pours the milk.  You get the idea.

Why do I bring this up, you may ask?  Because I’ve seen a lot of people who are not attorneys try to write their own wills, their own trusts, and take care of their affairs on their own.  The problem is, these folks are doing the thing they are good at, which is deciding how they want to distribute their things, who they want to handle their affairs for them, and what kind of provisions they want to leave their family, but then going farther and trying to do the things they are not good at, which is knowing how to make sure what they want to happen actually happens.

You are the best person to decide how you want to handle your affairs. But an attorney is the best person to make sure you consider all the right circumstances and to make sure that all the right legal documents are created to ensure that what you want is what actually happens.

Don’t try to make your left hand do things it doesn’t do very well.  You might wind up poking your family in the eye with a poorly put together estate plan.

Here’s a question too few people ever answer:  After you die, who do you want to decide what kind of funeral you have and what happens to your remains?

Probably the most common answer is “What do I care, I’ll be dead?”

Some people clearly do care.  Gene Roddenberry, the creator of Star Trek, requested his body be cremated and shot into space.  (His ashes were carried into space by a Spanish rocket in 1997).  Napoleon Bonaparte wanted his head shaved and the hair given out to his friends. Another gentleman directed that his funeral procession grab a whopper at the Burger King drive-thru on the way to the cemetary, to be buried with him. It’s unclear if he wanted fries, too.

Aside from doing unusual things, there’s a very important reason you should think about this question and come up with an actual answer.  Families that have twists and turns are the most vulnerable to black comedy movie worthy battles upon the death of an elderly member.  When there are children from a previous, or multiple, marriages, and a final spouse who is unrelated to some or any of the children, epic power struggles can emerge over, well, over anything really.

The struggle is real.  Grown children frequently feel they have more right to choose the final resting place for a mother or father than a spouse they may not know well or may actively dislike.  But in the eyes of the law, the spouse nearly always has the full authority to make all final decisions – that is, unless the deceased has properly spoken otherwise before his or her death.

While you, as the deceased, won’t have to deal with any fallout,  do you really want to create a situation where your loved ones spend time and money and psychic energy on whether you have a white casket or get cremated and dispersed in a firework instead of moving on with their life and treasuring happy memories of their time with you?

Do you really want your children to think you cared more about a new spouse than you did about them?

The solution is easy – make your wishes known in a legally enforceable way before you die.  You can either lay out all the details of your funeral and disposition of your body, or you can simply make clear which person in your life should be given authority to make all the decisions.  It’s up to you.  Doing nothing risks creating a family rift that could have been avoided and may never heal, and that’s not a pretty legacy to leave.

On this day in 1791, the first ten amendments to the United States Constitution, known as the Bill of Rights, became the law of the land.  In 1941, Franklin D. Roosevelt issued a proclamation designating December 15 “as a day of mobilization for freedom and for human rights, a day of remembrance of the democratic and peaceful action by which these rights were gained, a day of reassessment of their present meaning and their living worth.”

THE BILL OF RIGHTS – FULL TEXT

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.