Lawful New
Years Resolutions
Bob Mason
Originally
published in Coastal Senior
(January 2008)
Happy 2008.
Here’s another article on
New Year’s resolutions. I’m
not going to ask you to lose
weight, eat less, drink
less, read more, or exercise
more. I am going to ask you
to resolve to do three
things (of a legal variety)
that will do nothing at all
for you . . . but make quite
a difference for your
family. Just three.
Resolution Number One. I
WILL do a Will (unless I
already have one less than 5
years old).
I am amazed by the number of
people who sit before me and
sheepishly admit they have
no will, or have wills
written when the Gipper was
president.
The biggest excuse seems to
be either “I just haven’t
gotten ‘roun to it” or “I
didn’t think I really needed
one”. To the first I say,
borrowing a Nike line, “Just
do it” . . . I can’t do much
more than that to a
procrastinator other than
try to scare him (not to
death . . . remember, he
doesn’t have a will).
Wills are important for a
number of reasons. Avoiding
intestacy (dying without a
will) is usually a must.
Most married couples want to
benefit each other upon the
death of the first. That
won’t happen under intestacy
because a share (at least
half or more) will go
directly to children. If
there are no children or no
surviving spouse, the state
intestacy rules will
determine who among the
heirs “gets what and how
much”.
Also, state statute may have
ideas different than yours
as to who should wind up
your affairs. Further, by
foregoing a will you might
bypass many planning
opportunities that could
insure the protection of
your property after your
death.
There are plenty of wills
available on the internet
for just $100 or so. I’ve
even seen some guy on TV
advertising software for
$69. Those options are
better than nothing, I
guess, but they are not
worth more than what you
paid for them.
I suggest you pay (yes, pay)
an attorney to evaluate your
situation and discuss your
options. She may have some
great ideas you missed
surfin’ the web.
Finally, prepare a will if
you love your family. I
haven’t looked at my
records, but I would not be
surprised if I have earned
more fees slugging it out
between warring and hateful
siblings and first and
second families than I have
earned writing wills. To the
extent you leave a
well-thought-out plan you
may avoid The Family Feud.
Resolution Number Two. I
will insure that I have an
effective Power of Attorney.
Powers of attorney are
incredibly important and
often overlooked. A power of
attorney involves a
principal (you) appointing
someone else as agent or
attorney-in-fact (maybe a
spouse or an adult child) to
manage the principal’s
affairs, especially if the
principal becomes
incapacitated.
Without a power of attorney,
often the only solution is a
guardianship or a
conservatorship. Those are
expensive and intrusive . .
. and involve submitting
yourself and your affairs to
the supervision of a probate
court.
Properly drafted powers of
attorney are also important
to enable gifting. By
“gifting” I am not talking
about Christmastime, I am
talking about the ability to
convey and re-title assets
after your incapacity if
that should make sense.
Transferring assets often
makes tremendous sense after
incapacity.
Even a power of attorney
that says “I give my agent
power to do anything and
everything I could for
myself” does not authorize
gifting. That is because
agents under a power of
attorney are called
fiduciaries and are subject
to state fiduciary law.
Fiduciaries include
trustees, executors and,
yes, agents under a power of
attorney. Fiduciary law says
that unless the written
authorization specifically
and clearly directs
otherwise, a fiduciary may
not squander, transfer to
others or transfer to
herself the principal’s
assets. That certainly
covers gifting.
Of course gifting powers can
be made subject to special
restrictions. For example,
“My agent must secure the
written permission of at
least one sibling before
making any transfer”.
Resolution Number Three. I
will execute advance health
care directives and discuss
my medical treatment
preferences with my family.
I wrote here last summer
that Mom and Dad have a
harder time talking to the
kids about end-of-life
medical preferences than
they did forty years earlier
talking to the same kids
about . . . uh . . .
you-know-what.
If you value your
preferences and you love
your family, spell them out
in writing and have The
Talk. It will avoid much
confusion, heart ache and
recrimination later on.
Have a great New Year!
