Aaron Charles Gregg

Why Not Have a Will?

“Out of sight, out of mind isn't just an everyday adage—it's one of the reasons why people 50 and over fail to write a will, update a previous one, or make other estate planning decisions.”

For one couple, this important task was set aside for more than four decades. They had a will created when their children were toddlers to name guardians and ensure financial security for the children, as described by Next Avenue in the article “6 Reasons You’re Putting Off Writing a Will and How to Overcome Them.”

This important task is all too easy to put off. However, it’s a big mistake to do so. Here’s why.

You think you’ve time to “get around to it.” However, the last few years have shown, we don’t know when illness will strike. A better approach: make an appointment to meet with an experienced estate planning attorney. Write it down on the calendar and don’t postpone it. There’s no guarantee you’ll live a long life, no matter how much we’d all like to.

You think you don’t have enough assets to bother with a will. Here’s the thing. An estate plan is not just about money. It also includes end-of-life planning, naming someone to have control of finances if you become incapacitated and can’t do so for yourself. It also includes giving someone the power to make healthcare decisions. A Power of Attorney, Healthcare Power of Attorney (or Proxy), and Living Will can prevent your loved ones from the expensive and time consuming process of having to go to court to be appointed a guardian or spend the rest of their lives wishing they’d known what you wanted.

You’d rather not think about your own mortality. Join the club. None of us wants to think about death, dying, or being seriously ill. However, if you wait until you’re too sick to deal with these issues, you may get care you don’t want, prolonged suffering when you wanted to be allowed to die, etc.

If you die without an estate plan in place, your children may be left fighting over everything: whether to sell the house, how to distribute assets fairly, who gets Dad’s license plate collection or Mom’s silver tea set. Some siblings never reconcile after spats over personal possessions.

You think it’ll take too much time. Unless you have a vast empire of real estate holdings, investments and millions, an estate plan and related documents do not take any more time than planning a vacation. After meeting with an experienced estate planning attorney to review your assets, discuss your wishes for the future and review your family situation, the documents can be sent back and forth via email until they are completed. Executing the documents will take another office visit, unless your state permits remote signatures, which many still do. It’s time well spent.

You don’t want to make hard decisions. Neither does anyone else. However, if you don’t, the state will, as your estate will be governed by the laws of your state. You may not like the distributions You can also make changes to your will and other estate planning documents. It’s on paper, not stone.

The final sticking point: you don’t want to pay for an estate plan. This is the problem you, your spouse and your children will run into. If you don’t have a proper estate plan created and the court decrees that your handwritten will is invalid, none of your wishes may be followed. Your family will end up paying more to retain an attorney to clean up the mess, and some of the problems they encounter may not be fixable.

Your loved ones won’t be grieving, they’ll be battling. The cost of not having an estate plan will come out of their inheritance.

The fix is easy. Call an experienced estate planning attorney, make an appointment and get started. You and your family will be better prepared for whatever life brings you. You’ll also enjoy the peace of mind of knowing that you’ve done the right thing for your loved ones.

Reference: Next Avenue (Feb. 25, 2022) “6 Reasons You’re Putting Off Writing a Will and How to Overcome Them.”

Does Your Will and Estate Planning Documents Need to Be Updated?

“It’s generally recommended that you review your will and other end-of-life documents at least every few years, although there can be reasons to do a checkup more often.”

It seems like a global pandemic would push people to get their estate plans in order, but more than half of American adults still do not have a will. For those who do, a recent article from CNBC advises “Be sure to keep your will or estate plan updated. Here are 3 key reasons why.” As for those who don’t have a will or an estate plan, the time to get this done is now.

We may think of an estate plan as end-of-life documents, but many estate planning documents are used while you are living. Having them updated protects you and your family. Certain trigger events, like birth, marriage, divorce, death, adoption of a child, inheritance or moving to another state, should all be followed by a review of your estate plan.

Your will and estate plan reflects the people in your life, and like it or not, relationships change. Your executor is the person you name to carry out the directions in your will. Are you still close with the person you picked five, ten or twenty years ago? Are they able to serve, or have they died? The executor has a big job of liquidating assets, making sure beneficiaries receive inheritances and even selling your primary residence. Are they still the right person for the job?

Guardians named when children were born also need to be updated. First, if your adorable babies are now adolescents, does the same person still want to be their guardian? If you named their grandmother when the kids were little, could she handle teenaged turbulence? Do not forget to name a second and even a third alternative guardian. If the primary guardian does not want to or cannot serve, a backup guardian could be the difference between a loving, familiar home, and foster care.

Other documents your estate planning attorney can review with you include Power of Attorney and Healthcare Proxy. Maybe your favorite brother-in-law has divorced your sister and you do not want him anywhere near your financial affairs, if you become incapacitated. You need to review and update these documents.

The same person does not have to serve in multiple roles. The person you chose to be your Healthcare Proxy does not have to also handle your financial life. Review both of these choices.

Reviewing and updating beneficiary designations are often the source of great frustration for families. A life insurance policy purchased twenty years ago likely names a spouse as the beneficiary. Are you still married to the same person? Review investment accounts to be sure the beneficiary is still the person who you want to receive assets upon your death.

Beneficiary designations are distributed outside of probate estate, directly to the beneficiaries, by way of the contract between you and the financial institution. Whoever is the beneficiary on the document gets the assets—regardless of what changes may have occurred in your life.

Certain pensions and retirement accounts require current spouses to be the beneficiary, unless they sign legal documents disclaiming their rights.

If you have failed to designate a beneficiary on accounts with this option, or if the named person has died and there is no contingent beneficiary, the assets will go into your probate estate.

Even if your life has not changed, which is unlikely, there have been many big changes in tax laws. You may miss out on opportunities, another reason for a review with your estate planning attorney.

Reference: CNBC (Jan. 27, 2022) “Be sure to keep your will or estate plan updated. Here are 3 key reasons why”

How Important Is a Power of Attorney?

With a Power of Attorney, you designate which individuals are in control of your assets and who can take care of your affairs, if you are unable to do so.

People are often surprised to learn a power of attorney is one of the most urgently needed estate planning documents to have, with a last will and health care proxy close behind in order of importance. Everyone over age 18 should have these documents, explains a recent article titled “The dangers of not having a power of attorney” from the Rome Sentinel. The reason is simple: if you have a short- or long-term health problem and can’t manage your own assets or even medical decisions and haven’t given anyone the ability to do so, you may spend your rehabilitation period dealing with an easily avoidable nightmare.

Here are other problems that may result from not having your incapacity legal planning in place:

A guardianship proceeding might be needed. If you are incapacitated without this planning, loved ones may have to petition the court to apply for guardianship so they can make fundamental decisions for you. Even if you are married, your spouse is not automatically empowered to manage your financial affairs, except perhaps for assets that are jointly owned. It can take months to obtain guardianship and costs far more than the legal documents in the first place. If there are family issues, guardianship might lead to litigation and family fights.

The cost of not being able to pay bills in a timely manner adds up quickly. The world keeps moving while you are incapacitated. Mortgage payments and car loans need to be paid, as do utilities and healthcare bills. Lapses of insurance for your home, auto or life, could turn a health crisis into a financial crisis, if no one can act on your behalf.

Nursing home bills and Medicaid eligibility denials. Even one month of paying for a nursing home out of pocket, when you would otherwise qualify for Medicaid, could take a large bite out of savings. The Medicaid application process requires a responsible person to gather a lot of medical records, sign numerous documents and follow through with the appropriate government authorities.

Getting medical records in a HIPAA world. Your power of attorney should include an authorization for your representative to take care of all health care billing and payments and to access your medical records. If a spouse or family member is denied access to review records, your treatment and care may suffer. If your health crisis is the result of an accident or medical malpractice, this could jeopardize your defense.

Transferring assets. It may be necessary to transfer assets, like a home, or other assets, out of your immediate control. You may be in a final stage of life. As a result, transferring assets while you are still living will avoid costly and time-consuming probate proceedings. If a power of attorney is up to date and includes a fully executed “Statutory Gift” authorization, your loved ones will be able to manage your assets for the best possible outcome.

The power of attorney is a uniquely flexible estate planning document. It can be broad and permit someone you trust to manage all of your financial and legal matters, or it can be narrow in scope. Your estate planning attorney will be able to craft an appropriate power of attorney that is best suited for your needs and family. The most important thing: don’t delay having a new or updated power of attorney created. If you have a power of attorney, but it was created more than four or five years ago, it may not be recognized by financial institutions.

Reference: Rome Sentinel (July 25, 2021) “The dangers of not having a power of attorney”

Powers of Attorney and Advance Directives

“Some people think that, because their assets are jointly owned with a spouse or are in a trust, they do not need a Power of Attorney, or that if they become incapacitated, their spouse automatically has the authority to make medical decisions on their behalf.”

A medical crisis only gets worse, when you learn you don’t have legal authority to make medical decisions for a loved one, or find out after a loved one is incapacitated that you can’t gain access to assets in their trust. You need to have certain estate planning legal documents already in place, according to the article “Tips you should know for Powers of Attorney and Advance Directives” from seacoastonline.com.

Power of Attorney. The power of attorney (POA) allows one person, the “principal” to appoint another person as their “agent” (also known as an “attorney in fact”). The agent has the authority to act on behalf of the principal, depending on the powers described in the document. Each state has its own laws about who can be an agent, if more than one person can be appointed as agent and if there are any limits to what power can be given to an agent. Your estate planning attorney will be able to create a POA to suit your situation.

A POA can be created to give extremely broad powers to an agent. This is sometimes called a “general” POA, where agents can do everything that you would do, from accessing and managing bank accounts, applying for Social Security, to filing tax returns. A POA can also be limited in scope, known as “limited” POA. You could permit an agent to only sign a tax return or conduct a specific transaction.

In most estate planning scenarios, the POA is “durable,” meaning the named agent can continue to have authority to act, even if the principal is incapacitated after the documents have been executed. This makes sense: a durable POA generally avoids having to go to court and have a guardian appointed. The person you have selected will be the POA, not a court-appointed person.

Advance Directive. The advance directive allows a person to appoint another person to make medical decisions on their behalf if incapacitated. In some states, this is called a durable power of attorney for health care, and in others it is referred to as a health care proxy.

In most cases, the advance directive becomes effective when one or more treating physicians determine the person no longer has capacity to make or communicate health care decisions. Having this document in place avoids having to go to court to have a guardian appointed. If time is of the essence, any delay in decision-making could lead to a poor outcome. If there is no advance directive and physicians have decided you are unable to make these decisions, they go by a hierarchy of relatives to make the decisions for you. If you have an estranged adult child, for instance, but they are your next-of-kin, they could be the one making decisions for you.

If you have children who recently became legal adults (usually age 18), these documents will protect them as well, since just being their parent does not provide you with the right to make these decisions.

Reference: Seacoastonline.com (June 27, 2021) “Tips you should know for Powers of Attorney and Advance Directives”

When can Family Members Make Medical Decisions?

“Ensuring that your wishes on your medical care are followed, is up to you. Take action now while you’re well, or you could later lose a say in the matter during a crucial time.”

Before the pandemic, it was not easy for people to get serious about the healthcare decision making portion of their estate plan. Today, there is greater awareness that incapacity from disease or injury is not a hypothetical. It’s reality, and there are tasks that must be done, as explained in a recent article entitled “Now Is the Time to Protect Your Health Care Decision-Making Rights” from Kiplinger.

You may have a fundamental right to make your own decisions regarding healthcare, but without planning and documenting your wishes, your right may evaporate in a heartbeat. Failing to have your healthcare wishes documented properly also leaves your family in the terrible position of having to guess what you want, and even go to court to settle a dispute between family members.

An estate planning attorney works with clients to plan how their assets will be distributed after they die (using a will and trusts, among other tools). However, they also help clients prepare for incapacity. Both are equally important. There are three basic solutions used in most states, although each state has its own specific rules, so you will want to work with an estate planning attorney from your geographic area.

A Living Will addresses what you want to happen, if you are in an end-stage medical condition or permanently unconscious with no hope of becoming conscious. The living will can serve as an advance written directive for the type of treatment you want to have, or what treatments you do not want to have. If you are unable to communicate your wishes, this document conveys them in a clear and enforceable manner.

A Health Care Durable Power of Attorney works differently than a Living Will. This covers health care decision making in all situations, when you cannot convey your own wishes. You appoint one or more agents to make health care decisions for you. They use their personal knowledge of you and what you would want to occur, if you were able to speak for yourself. They act on your behalf.

If you have not signed a Health Care Durable Power of Attorney or a Living Will before becoming incapacitated, there are Health Care Representative Laws that authorize certain family members to step forward to act as your health care representative and make health care decisions for you. This is the last and worst option. It is much better for you and your family to have a plan and the proper documents. First, the state decides who will make healthcare decisions on your behalf, based on the law. If more than one person is named and the family cannot come to an agreement as to what your care should be, they may end up in court. If you have an even number of children, they could come to a tie. If you have an odd number of children, they could end up estranged because of different opinions for your care, or withdrawal of care.

Create a plan for your healthcare when you are creating or updating your estate plan. It will give you the peace of mind that, even in the worst of situations, your loved ones will know what you wanted to occur clearly and be able to go forward in following your wishes.

Reference: Kiplinger (April 29, 2021) “Now Is the Time to Protect Your Health Care Decision-Making Rights”

Have Estate Planning Conversations with Aging Parents

“Nearly half of working-age Americans assume that they will receive an inheritance that will support them later in life, according to a survey by the financial services company HSBC.”

Let’s start with this idea: maybe your parents are going to leave you a generous bequest as part of their estate plan. Do you know this for a fact, or is it wishful thinking? The only way to know, advises a recent article from Yahoo! Finance titled “How To Talk to Your Parents About Their Estate (Without Making It Awkward),” is to have a conversation, or a series of conversations. It’s not the first awkward conversation you’ll have with your parents, but it may be a bit stickier than you expect.

No matter how you approach it, this is a sensitive issue. How do you avoid appearing greedy or selfish? There is actually a lot more to know beyond the inheritance issue. You need to know how to ensure that your parents’ wishes are carried out, while they are living as well as after their deaths.

It will be helpful to be aware that the prospective inheritance amount may change over the course of your parents’ remaining lives. You also don’t want your parents thinking that you consider yourself entitled in any way to the assets they have built over the course of their lives.

Instead, start the conversation by talking about their estate plan. Explain that you want to be able to follow their instructions. You might reference an article or blog post that you have read about the importance of estate planning. You can also talk about your own estate plan, explaining that you have created an estate plan to protect your children and family members and to be sure that your instructions are followed.

Don’t be afraid to acknowledge how difficult this conversation is for you. Reassure them that you are not looking forward to their demise, but you have concerns about how things will work out when the time does come.

Depending upon your family dynamics, holidays may be a good time to address estate planning. This provides an opportunity for all family members to be included and for concerns and plans to be shared among involved siblings.

This does not mean discussing inheritances at the dinner table. Focus on what your parents’ wishes are and include a conversation about what values they would like to pass on to the next generation. If there are family histories or stories to share, this is also part of your inheritance.

Regardless of when or how you approach the topic, you do want to be sure your parents have a plan in place, so there is a path for whoever will be taking care of them and their assets. Ask if they have these key legal documents:

• A Last Will, also known as a Last Will and Testament
• A Power of Attorney to designate someone to make financial and legal decisions, if they are not able to do so for themselves.
• A Living Will or health care directive that will designate someone who can make healthcare decisions and address end of life care for them.

Ask where your parents keep these documents, and how you can find them when the time comes. Are they in your father’s night table, or in a lockbox in the attic? If they have a financial advisor or estate planning attorney, who is that person? You’ll need to be able to access the documents and speak with their estate planning attorney.

A few awkward moments now will help all of you as your parents, and you, move through the coming stages of life.

Reference: Yahoo! Finance (March 25, 2021) “How To Talk to Your Parents About Their Estate (Without Making It Awkward)”

What Estate Planning Documents Does My Child Need Now That They’re an Adult?

“Parents may be surprised to learn that without some specific documents in place, they will no longer be able to obtain information or help their loved one should they be in an accident or other situation, where they can’t advocate for themselves.”

Your child may graduate from high school and head off to college or start a full-time job or vocational training program.

Although they’re still your children, the law sees them as are adults. As a result, parents’ “rights” to protect their adult children or make decisions for them immediately becomes quite limited.

The Tewksbury Town Crier’s recent article, “Is your child turning 18? Here’s what you need to know,” explains that people often have an estate planning attorney draft the appropriate documents, so they will be legal and binding. Let’s look at a list of documents to consider and discuss with your young adult:

• HIPAA Authorization: if your 18-year-old has a job in another state or will be attending college and needs medical records or assistance making appointments, ask her to go to the doctor’s and dentist’s office and sign forms that designate agents to act on her behalf. Due to HIPAA laws, information can’t be released without the adult child’s permission.
• Healthcare Proxy: Have your 18-year old complete this document, make a copy, put a copy on each parent or guardian’s phone and put a copy on your child’s phone. This is for an emergency, like when the child can’t speak for herself. However, don’t wait for an emergency. If your child is at college, the school will only contact you as the emergency contact, but the proxy is between you and the hospital and includes mental health issues. A healthcare proxy lets you to participate in life and death decisions, should your child not be able to advocate for herself.
• Durable Power of Attorney: A general durable power of attorney or financial power of attorney must also be signed by the 18-year old, designating his parents, guardians, or others as agents authorized to act on his behalf. This allows the agent access to financial information, so that he can participate in the financial issues with a university or business in the event that the child cannot.
• FERPA: This is an educational records release, which allows the educational institution to share grades, transcripts and other related materials with parents or designated agents. Without it, the school will not provide you with access to any information.

Finally, encourage your young adult family member to register to vote.

Reference: Tewksbury Town Crier (December 8, 2019) “Is your child turning 18? Here’s what you need to know”