Daddy’s Dyin’ . . . and we ALL know where the will is!

Lack of planning is funny in the movies

There are way too many movies that start with an impending death and then descend into a madhouse of maneuvering among the heirs – and secret potential heirs. This scenario makes for a treasure box full of comedy and intrigue and we all love to watch other people trip over themselves and muddle through family trauma (for some reason I have yet to figure out). The headline on this post is a reference to the movie “Daddy’s dyin’, who’s got the will?”

Lack of planning is not funny in real life

In real life, though, these are exactly the scenarios lawyers are trying to prevent, although lawyers can make a lot of money off of feuding families. Personally, I would rather help lots of families for less money from each, than to get rich off a years long representation in a will contest for just one dysfunctional family.

Having a good estate plan in place will not eliminate the dysfunction in a family, but it will close off one outlet for expressing that dysfunction. If you are one of those people that enjoy the comic possibilities in a madhouse family, I assure you that you will still have plenty of opportunities to sit back and watch them in action. On the other hand, no one’s inheritance will be pointlessly delayed – or paid out to the lawyers – if everyone has a good will or trust in place.

Add in a family member with special needs who requires an extra and specialized layer of protection, and there is just no reasonable way to justify not having an estate plan in place.

Now, what does all this have to do with this week’s Thanksgiving Holiday?

First, upcoming family dysfunction is top of mind.

Second, and most importantly, the gathering of family members presents a perfect opportunity to have some conversations about your own estate plans, to make sure family members who have been named as executors or trustees understand your plan, and that they know where the documents are. This is the time to talk to family members about what resources your child with special needs will have and how they will be managed.

Of utmost importance, this week is an opportunity to make clear to your loved ones that you want all of them (or specific ones of them if your family is one of THOSE families) to stay involved in the life of your child with special needs even if they haven’t been given a formal role as guardian or trustee. Make sure your family knows that they can and should continue their relationship with your child in whatever form it takes, even after your death.

​If you haven’t created an estate plan yet, this week is a good time to start talking to family members about the roles they would be willing to play in your child’s life after your death. That will give you a head start on the estate plan that I am sure you will be getting started on soon.

With love and thanks,

Pamela Parker

If you need to talk to us, schedule a time here:

A few more favorite movies/shows about estate planning you can watch this holiday weekend:

Knives Out

The Descendants

Downton Abbey

Greedy

The Aristocats

​I’ve previously written about these estate planning movies:

Rainman

Cinderella

Ghost

Batman

Black-ish: The Disquieting Job of Designating a Guardian for Your Children

A few years ago the ABC sitcom Black-ish did something you hardly ever see – they aired an episode that centered on estate planning! Specifically, the decision about who to name as potential guardian for your minor children. (If you want to watch the episode, it’s on Disney+ and some other streaming channels, season 2 episode 19).

Naming a potential guardian for your minor children is one of many tasks that are part of preparing an estate plan, along with writing a will and creating a durable power of attorney. It is also often one of the more difficult and emotional tasks that couples face.

The show did a pretty good job of following the thought process of a typical couple as they work toward a decision about guardians for their children – starting with the reason they went down that road in the first place. 

Mortality Hits

It happened during family movie night.  The Johnson’s and their four children were discussing what movie to watch, with Lion King being one of the options. The youngest was inadvertently told that Simba’s father dies, but is reassured that Simba gets to go live with a warthog or a meerkat or something, and so everything is just fine.  The little boy then asks who his warthog would be if the parents die.

Mom and Dad then leave the room to freak out in the kitchen about the possibility of their own mortality showing up, and decide that they need to figure out who will raise their children if something happens.  Mom wants to embody the spirit of Hakuna Matata from the movie, by which she means don’t worry about it, let the fates decide.  Dad convinces her that’s not the best approach – although many couples do indeed handle the question that way.

Family or Friends?

They start by both assuming it would be someone from their own side of the family, and progress to cancelling out each other’s mother’s, going through each of their siblings and ruling them out for both good and bad reasons – and a couple siblings who rule themselves out. 

They then go down their list of friends, discussing lifestyles and financial means of each.  It was interesting, and not unusual, that they considered financial means more seriously when discussing friends than family.  People tend to assume that family can be leaned on no matter the circumstances, but placing too high of a burden on a friend is uncomfortable. Ultimately, none of their friends seems quite right.

They then go back to discussing their own mothers.  Each think their own mother would be best, discussing physical location, familiarity with the kids, parenting style, and general quirks.  They decide that they should talk to the moms directly about this, and so they set up a discussion about the matter with them.  That attempt ends after both the moms’ seem to showcase all the reasons they should not be picked!

Denial and Acceptance

At a loss for a good choice, the parents decide the thing to do is to stay very healthy and not die while the kids are young.  They begin drinking healthy smoothies and the need to take separate airplanes when they travel. They then get very emotional thinking about the possibility of dying before their children are grown.  Parents of children with special needs often start the process with the emptional reaction.  It is this step where the majority of Parker Counsel’s clients diverge in their discussions.  While most families need to think about caretakers for their children only until the child turns 18, parents of children with special needs typically need to think about caretakers for their children until the end of their child’s life, usually long after the death of the parent.

After their flirtation with denial and grief, they begin to settle on choosing the grandmother that already lives close by and is involved with the children on a near daily basis as the best choice.  It is at this point that their oldest daughter comes to them and they realize something that is especially critical for families of children with special needs. 

It’s not all or nothing

The daughter points out that she is already 17, and she talks about all the ways in which she is already caring for her younger siblings.  She makes a case for naming her as guardian. While she clearly doesn’t fully understand the intensity of being full guardian of the children, the parents realize that the children already have a large and useful community of caregivers.  Even though many of them would be good only at a piece of the caretaking, by keeping all of them as part of the support system, the children would have a wonderful, safe, and loving group of caretakers to support them into adulthood.  By choosing one person to take the legal responsibility, but incorporating the entire group into an informal support system, the children will be well cared for.

Ultimately, this is how most guardianship decisions turn out. In some families, the choice of guardian is obvious and clear cut.  But in families where it is not, the importance of recognizing the value of an informal support system to aid the legal guardian makes the difference in parents’ ability to make this very emotional decision.

In the years 2015 – 2019 its estimated that approximately 3% of children under the age of 18 lost a parent to death. (The JAG Institute, founded by former NFL player Brian Griese and Dr. Brooke Griese)

For a brief idea of things that can go wrong when naming guardians, check out our discussion of Harry Potter’s childhood.

Parker Counsel Legal Services helps clients in Texas, Massachusetts, New Jersey, and New Hampshire prepare estate plans for their individual circumstances. Find out how we can help you – schedule a short phone call, email us at legal@parkercounsel.com or call 833-733-2668

keys

Confidently Appointing Executor, Trustees, and Agents in Your Estate Plan

the word Decision in 3D

Among the biggest decisions you will make while estate planning is who to place in various positions of trust to handle your affairs. These people are called “fiduciaries” because they have legal obligations to act in your interest.  They include your executor, trustees, and agents to carry out your wishes. This is one of the tasks involved in how to write a will. Below is a list of positions you may need to fill, and what each of them does.

Executor:

The executor is responsible for winding up your worldly affairs and carrying out the instructions in your will.  This person pays your final bills, finds and contacts your creditors, closes your accounts, takes care of your possessions and business until they can be sold or handed over to your heirs, and makes decisions about how and when to distribute your estate.  The executor can hire people to help, such as an attorney, a tax accountant, a financial consultant, etc., but all the decisions are made by the executor.

You should name two or more executors who can serve as substitutes if the first person you name cannot serve.  You can name co-executors, but that can be tricky as the two people will have to be able to cooperate with each other.

If you don’t name an executor, or if no one you named can serve, the court will appoint one. However, a court appointed executor must post bond.

Guardians:

If you have children under 18, you will want to name guardians for them.  There are several different scenarios.

  • If there is another parent alive, they will be put into the physical care of the parent, even if you name a different person.  If there are unusual circumstances, such as a parent who is incarcerated, has a history of abuse, or is mentally incapacitated, you should talk to your attorney about options for your children.
  • If there is another parent, but you are divorced or have never married the parent, that parent will get physical custody of your children, but you can create a trust for any money you may leave your children.  You can then name a trustee who will have discretion to distribute the money for the care of your child, and to distribute the money to the child as you instruct after the child reaches 18 or an older age.  You will want to name a trustee who is organized, trustworthy, and, preferably, knows you or your child.  However, if there is a large amount of money, you can name a bank or corporate trustee and appoint a family member or friend to act as consultant to the trustee in deciding how to use the money for your child.
  • If there is no other parent, you will name a guardian to take care of your child.  This person will be responsible for caring for and bringing up your child, and will have all the abilities that you as the parent have.  You can name an individual or a couple. If you name a couple, you must specify whether the guardianship changes if the couple is no longer married.  For example, you want your sister to raise your child, and so you name “Mr. and Mrs. Smith” as your guardians.  But suppose sister dies?  Did you really want her husband to raise your child even if your sister was no longer around?  Be clear about your wishes.
  • If there is no other parent, you will also have to name someone to take care of your child’s money.  This can be the same person you named as guardian to raise the child, but often it is not.  You may have one sibling who would be a wonderful parent, but is not very good at handling money.  You can name another sibling to act as trustee for your child. 
  • You do not need to name a family member as guardian or trustee.
  • If you fail to name a guardian for your children, the court will appoint one.  Guardians in this case are usually close family members.

Power of Attorney:

If you create a power of attorney for yourself, you will need to name someone whom you trust to take care of your personal and financial affairs.  This power can be used at any time you cannot take care of your own affairs, whether or not you are actually disabled.  However, this power ends at your death. Only the executor of your will can handle your estate.

Medical Power of Attorney:

You may name a person who can make medical decisions for you if a doctor certifies that you are not able to make your own decisions.  You can also name alternates who can serve if others that you name are not able to do so.

Trustee:

This person is responsible for carrying out the instructions in your trust.  The trustee makes decisions about distributing the money in the trust, in accordance with the guidelines you set up.  A trustee should be responsible and careful with record keeping.  The trustee, can, however, hire professional assistance as needed, such as on administration of the trust. 

 HIPPA form:

The HIPPA release allows you to name persons who may have access to your otherwise private health information.  In addition to giving the person access to doctors and hospital staff, this form is often helpful when a family member or friend wants to help in dealing with health insurance claims and other administrative matters during a health crisis or temporary disability.

 

Digital Assets:

Spend some time considering the various online accounts you have, as well as any websites, blogs, or sales pages, and decide which of these you need to provide instructions and access to.  Depending on your personal choices, these items may be dealt with in your will or in some other way, so initially you merely need to make a list of what you have, which accounts you want to leave access to, which you want to disappear, and what person(s) should handle each of these accounts.

Parker Counsel Legal Services helps clients in Texas, Massachusetts, New Jersey, and New Hampshire prepare estate plans for their individual circumstances. Find out how we can help you – schedule a short phone call, email us at legal@parkercounsel.com or call 833-733-2668

Rainman: Sanford Babbitt’s Mistakes Improve Your Special Needs Estate Plan

In the movie Rainman, Charlie Babbitt discovers he has an older brother with autism he never knew about after the death of their father, Sanford Babbitt. Despite the father’s attempt at a special needs estate plan, he made some crucial mistakes.

Charlie was three years old when his older brother Raymond was moved to a residential hospital for people with disabilities.  From then on, Charlie is raised by his widowed father without any knowledge of the existence of his brother.  Upon the death of his father and learning that he has been left almost nothing of the multi-million dollar estate he thought he was sole heir to, Charlie accidentally discovers Raymond, setting off a series of events that eventually lead to a full and tender relationship between the two brothers.

What did Sanford Babbit get right?

Sanford Babbit clearly consulted with a special needs law firm. He provided money for Raymond’s care, and he appointed a person who was well acquainted with Raymond to look after him.

Sanford understood that Raymond would need lifelong care and that he would need someone to manage and spend his money for him.  Upon his death, Sanford’s assets were placed in trust, and while we don’t specifically know from the movie whether it was a special needs trust or not, the money is clearly protected and designated solely for the care of Raymond.   

The trustee chosen to handle the money is the doctor who has looked after Raymond for 30 years, so he is well-acquainted with Raymond, his needs, and also with the priorities of his father, an important aspect of ensuring that Raymond’s life can continue with little to no disruption.

What did Sanford Babbitt get wrong?

Basically, Sanford failed to consider the possibility and impact of conflict on Raymond’s life. This left Raymond unprotected in some important ways. He either did not do everything recommended by his special needs law firm, or he was working with a firm that did not have enough experience with special needs planning.

Secrets can backfire

Sanford’s first mistake was in keeping Charlie in the dark about his brother. Certainly there is no law that says parents have to tell siblings about each other, not is there a law that requires parents to leave their estate to their children, but by letting Charlie think he was an only child, Sanford ensured that Charlie would be surprised, hurt, and probably angry when he discovered he had been essentially disinherited. Grief is difficult for people to deal with, and it tends to magnify feelings.

The most common approach to inheritance is to divide the parents’ estate equally among the children, so anytime a parent intends to leave their property differently it is helpful to keep the kids informed beforehand. Removing the element of surprise allows the kids to work through any feelings about the distribution plan without the element of grief muddying things up.

If Charlie had known in advance about Raymond and known that the bulk of his father’s estate was going to be set aside to care for Raymond, his behavior and reactions would not have been so disruptive to Raymond, even if Charlie was unhappy about his father’s choices, he would have had an opportunity to deal with those feelings without blowing up Raymond’s life and safety.

Formal Guardianship provides the best protection long-term

Sanford also left Raymond vulnerable by not setting up a court appointed guardianship for him. It is understandable that he probably felt that was not necessary due to Raymond’s living situation and his protection from outside influences, but it was the failure to have a guardianship that allowed Charlie to take Raymond with him to Los Angeles. The doctor who was Raymond’s informal caretaker had no legal right to prevent Raymond from leaving and no legal way to prevent Charlie from leaving with him.

If the doctor had been the legal guardian of Raymond, he would have had the ability to involve law enforcement officials to find and return Raymond to his home. Without that, the doctor had few options other than initiating a guardianship proceeding at that time, which of course is what ultimately happens in the movie when Charlie himself initiates the process in order to seek to have himself appointed as guardian. But Raymond was left unprotected and vulnerable in the interim.

Siblings are an important part of the community

And finally, Sanford erred by denying Raymond the ability to have a relationship with his brother Charlie. Even under guardianship, individuals generally have a right, to the extent they desire to and can exercise it, to maintain relationships with friends and family. A guardian does not have the right to isolate a person with a disability for reasons unrelated to the individual.

Sanford’s appallingly awful relationship with Charlie was between Sanford and Charlie. Raymond had a seperate and independent right to have a relationship with his brother, which was denied to him by Sanford’s petty actions.

Parker Counsel Legal Services is a special needs law firm providing estate planning, special needs trusts, guardianship, and more to families with children who have developmental disabilities. Offices in Texas, Massachusetts, New Jersey. To see how we can help your family prepare for the future, schedule a short phone call here, or call 833-Red-BOOT (833-733-2668) or email at legal@parkercounsel.com.

A wonderful home looks different for everyone, even those who require a little help

A large part of special needs planning involves thinking about the living situation your child will be in when they become an adult. Many families never really think about it and simply continue on with their now adult child living at home in pretty much the same way they have been all along, but without the structure of school. Other families struggle to come to terms with the fact that their child has needs the family can no longer handle on their own. And other families prepare elaborate, detailed plans for what they see as an ideal living situation, if only it existed.

There is no such thing as an objectively good or bad choice for your child’s home. The safety and happiness of your child are prime considerations, but what makes your child safe and happy may not look at all like what makes another person’s child safe or happy.

Your child’s adult living situation will depend on a number of things:

  • their physical and other needs
  • the family’s resources
  • the needs of other family members
  • your child’s wishes
  • available options
  • and an infinite number of other factors

Even between two people with the same diagnosis, the “best” living situation for each of them will vary just as it does among you and your own friends. While you may long for a rural cottage home, your best friend from high school might be living in a highrise condo in the city. Our children with special needs are no different – there is no one right answer for how they should be living once they reach adulthood.

Here are some examples of what clients of ours have done:

  • A family of a child with physical disabilities laid out a plan to modify their home and find caregivers so that the child could live with them as long as possible and still have mobility and room for equipment.
  • A family of a child with severe behavioral issues found that an outside residential care setting provided the best solution for their child and family.
  • A family with an adult child made plans to purchase adjoining homes so that they could maintain close contact while supporting semi-independent living.
  • A family with an adult child that was able to articulate her own goals for herself helped her find a group home that had the support she needed but met her goal of having her “own place.”
  • A family whose child had intensive medical needs determined that a nursing home setting  near their family home provided the best care while allowing lots of family contact.
  • A family with a special needs child built an apartment above their garage for the child to live in with some amount of privacy, while joining the family for meals and socializing.
  • A family with aging parents focused on finding a variety of support people to provide both physical and supervisory supports to their adult special needs child so that the parents could phase out of direct care giving.

Some choices are obvious and easy, and other children’s needs present very real challenges in figuring out adult housing. Remember that nothing need be permanent – if you try something and it’s not a great fit, try something else. Housing and adult support looks different for everyone. Setting your adult child up in a home that is not with family is not right for everyone, but it is right for a lot of people and should always be at least considered. The reality is that most children with special needs will outlive their parents, and so will be in housing without family at some point in their lives. Finding that housing and preparing them for it while the parents are still alive and able to be involved may be a kindness both to the adult child and also to the rest of the family.

Once you have an idea of what you want your child’s future home to look like, talk to a special needs law firm who can help you figure out how to set it up and finance it.

While home may look different for everyone, good planning is always needed to pull off the goal. When you’re ready to start, call or email Parker Counsel Legal Services for a quick consultation on how we might be able to help. legal@parkercounsel.com or 833-RED-BOOT (833-733-2668)

Safeguard Your Loved Ones By Reviewing Old Beneficiary Designations

Stick this chore under the heading “As adult as adulting can get.” You’re doing great at adulting if you have a retirement plan, life insurance, investments accounts, bank accounts, and the like. Checking the beneficiaries periodically is part of the package, though, so if you haven’t done it in a few years, it’s time.

Retirement Accounts

Circumstances change, and even if you think you know who you named as beneficiaries, you’d be surprised how many folks check and find out its someone they forgot they had named, or thought they had already changed. If your retirement plans (401(k)s, 403(b)s, or IRAs, etc) are held or managed through your employer, they can probably help you find your designations. If they can’t find your designations, contact the company (or agency, if it is a state sponsored plan) and ask.

While your retirement plans will go to your probate estate if there are no beneficiary designations, or if they cannot be located, this is a more cumbersome and expensive process than having a beneficiary designation. There can also be unfavorable tax implications if the account passes through a probate estate, so it is worth the time to make sure you have and update beneficiaries. And while you’re at it, make sure you get a copy of the designation page to keep with your will so that your representative will have an easier time taking care of things.

Life Insurance and Financial Institutions

Life insurance polices may also need to have beneficiaries updated periodically. A payout to a named beneficiary is typically much faster than having a policy distributed through your estate.

And finally, call your banks and check for beneficiary designations on all your accounts. It is fairly common for the paperwork provided upon opening an account to include a question about beneficiaries, and many people don’t even remember that they did this when opening their accounts. So take a look and make any updates needed.

A special needs law firm can help you identify areas of your planning that might jeopardize your overall plan for your child.

Parker Counsel Legal Services is a special needs law firm providing estate planning, special needs trusts, guardianship, and more to families with children who have developmental disabilities. Offices in Texas, Massachusetts, New Jersey. To see how we can help your family prepare for the future, schedule a short phone call here, or call 833-Red-BOOT (833-733-2668) or email at legal@parkercounsel.com.

Improve Estate Plan: Five Quick Ideas to Alleviate Fear of the Unknown

face with a "wow" expression when told how to improve estate plan

You may be sick of the word “unprecedented,” (I know we are!) but the truth is this year has been like no other. If you haven’t before, you probably have been confronted with the reality that our lives and all the safeguards we have gathered around us are fragile and impermanent. Knowing how much our special needs kids depend on us will make you either freeze with fear or go into high gear trying to prepare for every contingency. If, like so many of our recent clients, this past year has caused you to think more than usual about making sure your “affairs” are in order, we have some suggestions for things to be thinking about to improve estate plan for your family.

  • If you have an estate plan, get it out and look it over. Make sure it still fits your family’s needs.
  • If it took you a while to find your estate plan, pick a good place to keep it from now on and let your trusted family members know where you keep it. Make a note in your calendar for a year from now to go look at it again, and tell yourself in that calendar entry where it is.
  • Touch base with the people you have named as executor, trustee, agents in your powers of attorney, and any backup people you have named. Ask if they have any questions about what their duties are and what they should do when you pass. Your older and adult children especially want to know what you have planned – read one sibling’s perspective here. 
  • If you haven’t done your estate plan yet, take some time to think about what you want to do. We’ve posted some light hearted articles analyzing how famous movie deaths have been affected by estate planning choices. Seeing how estate planning can have consequences for your family might get your planning juices going. BatmanCinderellaGhost, Harry Potter
  • Compile or update the non-legal information about your special needs child. If you suddenly come down with a severe fever and have to isolate and can’t communicate, will your child’s substitute caretakers have easy access to information about emergency numbers, medication, and daily care? Create a binder or accessible computer file with the information that will be needed quickly in a pinch.

Although estate planning may seem overwhelming, the attorneys at Parker Counsel Legal Services, a special needs law firm, can guide you through the process and provide ideas drawn from real life to help you put a plan in place and help you keep it up to date with your own changing circumstances. We’re here when you need us.

Peace.

Parker Counsel Legal Services is a special needs law firm providing estate planning, special needs trusts, guardianship, and more to families with children who have developmental disabilities. Offices in Texas, Massachusetts, New Jersey. To see how we can help your family prepare for the future, schedule a short phone call here, or call 833-Red-BOOT (833-733-2668) or email at legal@parkercounsel.com.

Cinderella’s Dad Could Have Easily Prevented the Whole, Horrible Step-Mother Thing

Cinderella lost her mother when she was very young.  Her father remarried in an attempt to create a family for Cinderella, wedding a woman with two daughters of her own.  Apparently things were hunky dory when when dad was alive, but sadly, he also died when Cinderella was still a young girl.  At that point the step-mother became the step-mother that all step-mothers since have tried to disassociate themselves from.

What went wrong?

Cinderella’s dad, believing his second wife to be a loving mother to his daughter, left all his fortune in her control and his daughter in her care. However, step-mom prioritized her biological daughters and was imprudent with the money, leaving the family in less fortunate circumstances than they had been.  In order to conserve the money that was left, Cinderella was turned into the family housekeeper, cook, and all around caretaker, while the step-sisters and their mother were pampered with what remained of the inherited money.

Cinderella’s dad may not have been able to know what would happen after his death, but he could have made far better preparations for his family, and his daughter in particular, that would have minimized the unexpected turn in his wife’s behavior.  While step-mothers do not always turn on their step-children, they do sometimes run into other circumstances that can thwart a deceased parent’s intent.  Severe illness, serious accidents, drug addictions, mental illness, early onset dementia, and other things can derail even the kindest step-parents.  The desire to protect against unknown events is a great reason to set up safeguards in your estate plan when it comes to providing for minors or disabled children. 

A better choice

Instead of leaving everything in the unfettered control and discretion of his second wife, Cinderella’s dad should have considered having a separate trust set up for his daughter, to be used solely for her needs or accumulated and given to her when she reached majority.  This would have prevented the step-mother from diverting all the funds away from Cinderella, or given Cinderella a remedy if the step-mother failed to meet her fiduciary duties as trustee. He could have even had a trustee other than the step-mother, to provide an additional point of view in the care of his daughter.

With better planning on her dad’s part, Cinderella may have been able to see more choices for her future than merely securing a rich prince to care for her needs.  After all, not everyone can get a prince, so we need to give our children the means to go forward on their own.

If your family includes a child with a developmental disability, it is even more important for you to find a special needs law firm to put together a great plan that will protect your child. Take a look at our review of the estate planning in the movie Rainman here.

Planning matters. Blended families need extra special planning. When you are ready, give Parker Counsel Legal Services a call at 833-Red-Boot (833-733-2668), email legal@parkercounsel.com , or make an appointment here to talk about your needs.

“Ghost”: Estate Planning Case Study

Situation:

Couple in late twenties or early thirties have recently purchased a New York City loft and done extensive renovations. One partner is a money manager, the other is a potter.  Most of the income is likely provided by the money manager, who is murdered and dies on the spot.

Issues:

Unmarried, substantial assets, surviving partner without resources to purchase or maintain partner’s assets on her own.

In the supremely romantic movie “Ghost,” Sam Wheat and Molly Jensen are a visibly loving couple who have just moved into a New York City loft in a not-yet-gentrified area.  We can surmise that they have purchased it, rather than rented, based on the extensive interior renovations they are doing themselves. Because we know that Sam works in a money management or investment firm handling exceptionally large amounts of money, and that Molly is a potter who is currently spending the bulk of her time working on their new loft, we can guess that Sam makes a fair amount of money and is either the sole or primary income for the couple. Since they have purchased and are working on the loft together, we can guess that they intend to be permanent partners, despite not having married.

Marriage gives each partner to the union certain legal rights to property held or acquired during the marriage. This protects partners whose cash earning, or cash resources are unequal, so that they can continue to have a means to provide for their needs until adjustments to being single can be made.

But when partners are unmarried, even if they intend to share their economic resources as well as their lives, the law does not recognize that partnership without other documents that acknowledge and create it.  This means things like a will, or joint title to property, or payable on death and beneficiary designations on accounts are essential.

Here’s what would have happened if Sam and Molly did not do any sort of planning: If the loft was titled in Sam’s name alone because it was purchased with Sam’s money or based on his income, and he left no will, then the loft would legally pass to either his parents, any children he had with a previous partner, or his siblings.  Molly would lose her home.  Even if Sam had put Molly’s name on the deed as a joint owner with right of survivorship, if he failed to leave her any of his cash accounts in a will or with beneficiary designations, then she would have had to sell the loft for lack of money to pay the mortgage, taxes, and insurance.

Similarly, if Sam and Molly were both on the title to the loft and both owners of the cash accounts, unless the form of ownership specifically included a right of survivorship, then Molly would likely only own one half of everything after Sam’s death with his half going, again, to the parents, kids, or siblings.

Imagine Molly’s state when she realized Sam is present and wants to inhabit Oda Mae’s body so he can feel her again – instead of the iconic, bittersweet, love scene we all swoon over, most probably Molly would have been whipping his sorry ass for leaving her homeless and without immediate means to take care of herself. That would have been a very different movie.

Planning matters. When you are ready, give us a call at 833-Red-Boot (833-733-2668), email legal@parkercounsel.com , or make an appointment here to talk about your needs.

Harry Potter and the Great Estate Planning Fiasco

A lot of families find it helpful to hear what other families have done in their estate planning, and they get ideas from what others have done.  It’s most helpful, I think, when you know something about the family itself, so let’s talk about Harry Potter. (We have previously discussed Batman here) As a special needs law firm, we find it is especially important to get to know the family.

Who will care for the orphan?

Harry was famously orphaned as an infant when his parents were murdered by Voldemort. At the time, though, it was believed that Sirius Black had either killed them or was involved in their killing.  Because Harry’s parents, James and Lily, had named Sirius as Harry’s godfather, under wizarding law that would mean he was the designated guardian for Harry in the event something happened to the parents, which of course, it did.  But because it was believed that Sirius was involved in the killing, Dumbledore stepped in and took Harry to be raised by his relatives, the Dursleys, which in hindsight was a very bad deal for Harry.

[If you’re interested in more case studies and discussion about how the wizarding world handles it orphans, like Tom Riddle and Teddy Lupin, you might want to check out this chatboard. ]

In the muggle world, if a family had named a designated guardian for the child who was determined to have killed the parents, a court, much like Dumbledore, would likely determine that person not to be a suitable guardian, and refuse to appoint them, even though the parent’s had named that person.  A judge will always look to see if the named person is otherwise suitable at the time the appointment comes along, thus protecting the child much as Dumbledore attempted to do.

While James and Lily could not have predicted that Sirius would be alleged to have been involved in their murder, they could have predicted that for a variety of reasons Sirius might not be able to serve as guardian when the time arose, and their best course of action would have been to name backup guardians.  With an apparently large number of close friends in the wizarding world, naming a backup to Sirius would have allowed Dumbledore to consider other people as guardian before turning to the Dursley’s, and Harry might have been spared the closet and abuse he endured as a young child.

How to handle the money

Lily and James also would have needed to create a plan for the property and money they had, and how that would be left to Harry.  Kids who inherit from their parents while still minors are never handed the keys to the bank account, but they generally do get full access and control of the property and money as soon as they turn either 18 or 21, depending on the state. In the wizarding world the age is 17, so Harry would have gotten full control of everything in the Gringott’s Vault as soon as he turned 17, which is a scary thought for most parents. Butter Beer for all!

The better way for the Potters to have done this would have been to appoint a trusted person – and some back up people since Sirius would likely have been their first choice – to act as trustee for the property until Harry reached an age that they felt he would be able to appropriately handle the money.   Until that time, the trustee would make decisions about spending for Harry’s benefit.  The actual age chosen by each set of parents depends on what they know about their child, their own philosophy of money and adulthood, and the amount of money likely to be available. The scenes where Harry heads to the Gringott’s vault at the beginning of each school year and grabs a bunch of money, with no supervision and no thought about budgeting or accounting, should make every parent cringe.  Setting up your estate plan to avoid that is easily accomplished.

If you’re ready to avoid your own estate planning fiasco, call Parker Counsel Legal Services or email us for a quick consultation on how we might be able to help. legal@parkercounsel.com or 833-RED-BOOT (833-733-2668)