DIY Estate Planning: A Disaster Waiting to Happen

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An abundance of information is at our fingertips. Any question we have can be answered by a few strokes on a keyboard. With all of that information readily available, it is no surprise that the DIY movement has exploded.

I personally am a huge fan of do-it-yourself crafts. My pinterest board is full of wreaths and how to repurpose furniture. While I will try my hand at a craft in a heartbeat, I would never follow a DIY on something that requires a professional, like plumbing or electrical. Everyday though, somebody somewhere thinks instead of hiring a professional, they can handle the job.

Including DIY legal documents.

People tell themselves, “How hard can it really be to get a will?” I can print it off the internet, have it signed and notarized, and BOOM, I’m covered. Cheap, Quick, and Easy.

Cheap, quick, and easy does not always equate to “legal and binding”.

The heirs of Anthony J. Ferrantino found that out the hard way:

LegalZoom was the target of a class action lawsuit in California, charging that the company engages in deceptive business practices and is practicing law without a license. The lawsuit was filed in California by Katherine Webster, the niece of the late Anthony J. Ferrantino, and the executor of his estate.

Knowing that he had only a few months to live, Mr. Ferrantino asked Webster to help him use LegalZoom to execute a Will and Living Trust. Based on LegalZoom’s advertising, Webster says she believed the documents would be legally binding and if they encountered problems, the customer service department would resolve them.

But after the Trust documents were signed, Webster could not transfer any assets into the trust because the bank that held his money refused to accept the documents as valid. Webster tried to get help from LegalZoom, with no success. The trust was still not funded when Mr. Ferrantino died in November 2007.

Webster was forced to hire a probate attorney to ask the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds — a more difficult task following Mr. Ferrantino’s death. The attorney also discovered that the Will had not been properly witnessed. All this cost Mr. Ferrantino’s estate thousands of dollars.

Can’t happen to you? Know about South Carolina and Witnesses? 

Under a SC probate law “purging statute” a person who acts as a witness to a Will’s execution and who is also named as beneficiary in that will, may have his bequest reduced and possibly disallowed. How many people who use their own form Wills downloaded from legal Zoom (or bought in packaged software) will be aware of that? How many people, will innocently ask other family members who are listed beneficiaries to be a witness to the signing?

I interned for a Judge one summer who loved to address the issue of DIY legal work with pro se litigants. It usually went like this:

Judge: “Mr./Ms. Person, let me ask you a question. If your appendix needed to be removed because it was inflamed and making you ill, what would you do?”

Mr./Ms. Person: “Well, I would go to the hospital and have a doctor remove it.” (I find it fascinating that every single time he asked that question, the person would answer this way. They would have a smile and such conviction in their answer because they had no idea they just fell into his trap.)

Judge: “I see. So, you would go the hospital and let a trained, qualified, doctor who attended and graduated medical school perform the surgery?”

Mr./Ms. Person: (A little hesitation in their voice) “Yes Sir.”

Judge: “So, you would go to a doctor, who has a degree in medicine, to remove the appendix. You would go to a doctor, over say, doing it yourself on the kitchen table with a sharp knife and some alcohol?”

Mr./Ms. Person: (confused look on their faces) “Yes Sir.” or even sometimes “Of course, I wouldn’t try to operate on myself.”

Judge: “I see. So if you would go to the doctor for a surgery, where would you go if you needed some dental work done?

Mr./Ms. Person: “A Dentist”

Judge: “I see. So you would go to a doctor for medical issues and a dentist for dental issues. Well, then, you seem like a very practical and intelligent human being. So, tell me, why on earth would you NOT go see an attorney for your legal issues? An attorney who has gone through law school, passed the bar, and knows the law like a doctor knows medicine?”

Mr./Ms. Person: (shocked and scared expression) “Umm, well.” (Litany of excuses follow).

Interesting way to picture this situation is it not? For every other matter, people seek out a qualified licensed professional. Why is legal work any different?

The bottom line is: Do-it-yourself legal documents might seem like a good idea at the time, but they are not worth the potential costly hassle they can cause. What you think is a good document could really be a useless piece of paper.

Talk to a qualified attorney today about your Estate Plan. Peace of mind comes from having documents in place that you can rely on 100%.

 

 

 

 

 

 

 

 

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Procrastination- Why You Still Don’t Have an Estate Plan

“If it Wasn’t for the Last Minute, Nothing Would Ever Get Done.”

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We all procrastinate. It’s just part of being human. Teacher assigns a project with a due date four months away, you think, perfect! I’ve got plenty of time to brainstorm my idea, put the project together, and make any adjustments! Then three and half months later, OMG I HAVEN’T EVEN STARTED! You throw the project together in two weeks and pray for an a passing grade. Usually, with enough effort, intelligence, and luck, you come out fine. Does that help with you NOT procrastinating the future? Nope.

Everybody Procrastinates.

There are certain things in life that should never be procrastinated. Your estate plan is one of them.

Here are the top reason people of all ages, but especially Millennials, procrastinate their estate plans:

  1. The process of developing an estate plan is intimidating.
    • Yes, it can be if you think you have do it on your own. An experienced attorney can asses your assets, your goals for those assets, and easily identify the available estate planning options that best suit your needs.
  2. Too Expensive
    • Not all estate plans are expensive. The more complex your plan, the more expensive it will be. However, you can either pay now or let your estate pay more later after it goes through probate.
    • Simple plans that include a basic will, durable power of attorney, and healthcare power of attorney, cost usually less than $500 dollars for a single individual. Yes, I am aware most Millennials do not have $500.00 laying, but why not save up for it? You save up for spring break, beach trips, new clothes, and the latest gadget? Why not for your estate plan? Instead of going out and dropping $600 or more on the latest IPhone, why not actually invest that money in an estate plan?
    • Most attorneys will work with you on payments. You will never know until you go visit one.
  3. “I don’t have time”
    • There are 24 hours in a day. Somehow, we as humans manage to jam pack a lot things in those 24 hours. The whole “I don’t have time” spiel just does not cut it. If you can make time to go to the gym, go shopping, go to the movies,  to get your taxes done,etc., then you can make time to go spend an hour or so with an attorney and discuss your estate plan. DVR is a wonderful invention. Set your favorite show to record and make an appointment.
  4. “I don’t have a lot of assets or money”
    • You do not have to have a lot of money or things to have an estate plan. Powers of Attorneys are needed by everybody because they grant someone the authority to make decisions for you and tend to bills. Everybody has bills.
    • If you have a car, a house, kids, a bank account, a pet, a collection of some kind, etc. then you have assets and you need an estate plan. Period.
  5. Too Young (Millennial reason #1)
    • As I have stated over and over again, and will state probably a million more times. YOU ARE NEVER TO YOUNG TO HAVE AN ESTATE PLAN. Once you turn 18 years of age, your parents are not guaranteed to be able to make decisions for you.
    • Youth is not a good excuse. Especially those of us who are in are late 20s to early 30s. Buying our first homes, having kids, having bank accounts. All of those things will be at the mercy of the state if you fail to plan.
    • Youth does make you invincible.
  6. Invincibility – “I’ve got plenty of time”
    • The cold hard reality is, you might not have “plenty” of time. Death does not come for just the old and sick. Death is a heartless purveyor of souls who can swoop down and scoop up anyone, at anytime, regardless of age, health, or social status.
    • When you fail to plan and something happens, albeit death or incapacity, your family and loved ones are left to deal with the consequences.
  7. DIY Options are cheap and quick
    • Legalzoom and alike sites are quick and cheap. However, they provided really basic and general cookie cutter documents that will fall flatter than a pancake if challenged in court.
    • Also, these sites tell you THEY ARE NOT ATTORNEYS. Meaning, they cannot give you legal advice. If the are not giving you LEGAL advice on the LEGAL documents you are paying for, what good are they really?
  8. Lack of Understanding
    • The generalization for estate planning is “it’s something old wealthy people do”.
    • Estate planning is more than just a will. It is more than just simply delegating where your assets go. It’s about preparing for the unknown future.

In my short span as an estate planning attorney, I have seen far too many cases of people who waited to last minute to plan, something happened, and now their family is having to scramble to figure out what to do.

When the “last minute hits” you might not be able to make your plan. If you get in a car wreck, end up in a coma, and need someone to make medical decisions for you and you lack a power of attorney, how do you expect to grant anybody that authority? You can’t. It’s too late.

I think people wait because they believe they will “know” when they need to make a plan. Life does not give warnings. You are not going to an email or text saying “you are going to be hit by bus tomorrow, go to attorney today” or “you’re going to have a heart attacked Friday at Noon, is your estate plan ready?”

Only being PROACTIVE and not a PROCRASTINATOR will ensure you peace of mind in knowing whatever life brings, you are prepared and your family and loved ones have the tools to take care of you.

10 Reasons Every Millennial Needs a Power of Attorney

Dear Millennial,

If you become incapacitated and can no longer handle your affairs or make your own healthcare decisions, who will make those decisions for you? Your parents? A family member? Your boyfriend/girlfriend, roommate, or spouse?

If you do not have a Financial Power of Attorney and/or a Healthcare Power of Attorney, naming an agent, the answer is none of the above. Once an individual reaches the age of eighteen (18), they become an adult under the eyes of the law, and must grant an agent the authority to make decisions in the event they cannot.

There are two (2) types of Power of Attorney; Financial and Healthcare. Both types name an agent and grant that agent specific authority in regards to your finances and healthcare. For example, in a financial power of attorney, you can designate that your agent has the ability to pay taxes, bills, and access your bank account. In your healthcare power of attorney, you can grant your agent the power to discharge or admit you to any healthcare facility, to make decisions regarding medications, and even to make end of life decisions.

The purpose of these documents is to enable someone you trust to make those everyday decisions that you no longer have capacity to do.

Life is unpredictable. No one has a magic crystal ball to tell them the exact moment when they will need a power of attorney. No one is guaranteed to reach an “old age” before a power of attorney is needed.

So, with that being said, here are ten (10) reasosn every Millennial should have a power of attorney.

  1. Granting someone the ability to access your bank account.
    • Unless your bank account is a joint account with another person, a bank will not let a parent, family member, or partner access your bank account without a financial power of attorney.
  2. Choosing who is able to make financial or health related decisions
    • If you have no power of attorney and you become incapacitated, the court will appoint you a Guardian. Court will appointment the person they believe to have your best interests at heart and be the best person to care for you during your incapacity. The persona appointed might not be the person you would have ever chosen.
  3. You have strong feelings about certain healthcare decisions
    • If you have very firm religious or personal beliefs regarding life saving treatments like tube feeding or life support, to ensure those wishes are followed, you would need a healthcare power of attorney
    • For example, you get in a car accident and are rushed the emergency room In order to save your life you are placed on life support. If your wish is to not be kept alive artificially, but you lack a healthcare power of attorney, that decisions will be made by a court appointed agent. The court appointed agent could decide to keep you on life support.
  4. You have very specific ideas about certain medical treatments
    • For example, if you are a pregnant, you can designate in a healthcare power of attorney that any medical procedures to save the baby be done, at the expense of your own life. Or you can designate that you refuse to be given any kind of potentially addictive pain killer, like oxycodone. If you do not have a designated agent to stand up for these wishes, they might not be followed.
  5. You will never be able to create one “when you need it”
    • To validly execute any document, the principal must have capacity. Power of Attorneys come into action when you lack capacity to make your own decisions. Therefore, when you need the document, you lack the capacity to execute one, and therefore must settle with the court appointed agent.
  6. You will prevent arguments and conflicts between family members, partners, and friends
    • Again, the best case dealing with this reason is Terry Schiavo.
    • If something happens to you, your partner and parents could have very different ideas about “what you want”. Those differing opinions will cause conflicts and heartache for both parties and potentially cause the guardianship process to be lengthy and expensive. Plus, once the court appoints a guardian, the party not chosen is going to be even more upset because of feeling “your wishes” are not being met.
  7. Caring for your pet
    • If you have a pet at home and you get in an accident, who will take care of the pet? Naming an agent and specifically granting them the authority to pay for vet bills, foods, pet daycare, etc., ensure your pet is taken care of when you cannot.
    • It also ensure your pet is taken care of by the person you feel is most suited to caring and tending for your pet.
  8. Ensuring your bills and monetary obligations are paid.
    • If you do not grant somebody access to your bank account, how will your bills get paid?
    • Student Loan payments, life insurance, health insurance, car insurance, rent, etc. are just a few examples of bill that will need to be paid during your incapacity. If no one has the authority to access your bank account, no one will be able to pay your bills.
  9. Granting access to your medical records and medical bills
    • As of 2003, every healthcare power of attorney should include a HIPPA Waiver. HIPPA Waivers deal with the privacy laws surrounding medical records and medical bills. If you have not granted your agent the authority to review/receive your medical records and medical billing information, no one is going to be able to assist in making healthcare decisions for you. Hospitals and Doctors are not going to talk to somebody about your condition barring the HIPPA WAIVER.
  10. Peace of mind for you and loved ones.
    • Financial Power of Attorney and Healthcare Power of Attorney’s are the “best insurance” you hopefully never have to use.
    • Having these documents in place in the event of your incapacity will make the process of assuming the decision making for you smooth, and easy. These documents are written instructions of how to best take care you and tend to your needs.

These ten (10) are just a few reasons why a Millennial should have powers of attorney. It is hard to think when you are in your 20s that you would not be able to pay your bills and dictate your healthcare. Youth brings with it a sense of indestructability.

The harsh reality is this: No One is Indestructible.

So, ask yourself this; How would your life and loved ones be effected if you have no power of attorney?

Sincerely,

The Millennial Lawyer