To steer clear of many unpleasant and costly consequences involving both time and money, one really needs to execute a Last Will & Testament. Here is the true story (the names have been altered to preserve confidentiality) of John Smith,aged 65 yrs, who came to us to get his estate planning documents executed before going in for a very minor surgery. His wife had advanced stage of dementia and he wanted to make sure that all of the assets she received would be distributed to her in trust so that her children could be entrusted to manage her money to take care of her needs. The only thing he did not have time for was a guardianship proceeding over his wife which he told us he would take care of as soon as he came out of the hospital. Most unfortunately the unexpected did happen and he never made it out of the operating room. However, while his family still did have to go through the guardianship of the wife upon John’s death, the Executor did not have to file for emergency guardianship nor delay the probate process. By executing his Will and naming his trusted son-in-law as the Executor, John had prudently avoided both the costly bond obligations required of Administrators of intestate estates (where there is no Will) as well as lengthy delays in securing renunciations from immediate family members. In a perfect world, had we more time, we could have put assets into a revocable living trust and named the son-in-law or the children named as Co-Trustees or Successor Trustees so upon John’s death, the family could have smoothly transitioned over into the role of trustees thereby avoiding probate altogether. But under the circumstances, this was making the best out of a bad situation that could have easily turned into a nightmare had things not been in place before John died.
Freida got married to Sunny about 10 years ago. They had 2 wonderful children ages 5 &9. Tragedy befell the young family when Sunny died in an unfortunate accident leaving Freida to pick up the pieces and take care of her family all on her own. She transferred all of the assets into her bank account and began to raise her minor children with strength and independence. When Freida came to us a year after her husband’s death, all she had wanted to do was to execute a Will for herself to ensure that her kids would be properly taken care of should something happen to her. However, what she was not prepared for was finding out that since she was not a US citizen, all of the assets that passed to her from her husband would be subject to immediate estate taxation. Fortunately we were able to find provisions in the IRS code which allowed us to put her assets in a tax deferred trust (also called the QDOT or qualified domestic trust) even with the year long delay. But the damage in terms of the significant expenses of legal fees and stress could have been avoided had Sunny prepared a Will which allowed for the QDOT to be established upon death. Additionally, proper advance estate planning could have been done to avoid significant assets passing to the non-US citizen spouse causing a taxable estate.
Martin was an agent on his dad’s Power of Attorney (“POA”). Dad was in his 90s and was in the pink of health. However, a recent fall caused dad to go in and out of rehab causing Martin concern over dad’s long term care. Martin sought us out for guidance on what if anything he could do to protect what dad has from getting exhausted in paying for long term care. We prepared a strategies report for him showing what can be done to get dad Medicaid eligible. However, none of the strategies recommended could have been implemented if dad was already incompetent because the existing POA did not have the necessary language required for Medicaid planning. Fortunately since dad was still competent, we were able to prepare and execute a new POA to ensure that all of the planning could be done in time.