Conservative Christian Law

What Happens When You Die?

This is a subject matter that nobody really wants to talk about; in fact I have had clients literally refuse to discuss this subject matter because they thought that if they talked about it, it would happen quickly.  The subject matter is death and, I am sorry to be the bearer of bad news, but unless Jesus returns soon (which I hope he does), this is the reality for all of us.  You can delay it for a long time with a healthy lifestyle and good choices, but the truth of the matter is that at some point God calls us to leave this earth.

 

Now, I am not going to spend a lot of time focusing on the theology aspect of this subject matter, although I will hope that you have accepted the Grace of God given through the blood of Jesus Christ for all of us.  Instead, I will focus on the legal aspect and what normally occurs when a person dies.  When I am listing these points, they are steps that I have personally observed as an attorney who has administered multiple estates and trust estates, so I am speaking from experience, but some of these points will vary with each situation.  Here are some things to think about and prepare for:

 

  1. Your funeral, (If you want one). Sadly, most of us have probably attended a funeral at some point in our lives.  A funeral is a time where your loved ones can find healing and closure at the time of your death, but it is not required.  However, I strongly recommend that you take some time to pre-plan your funeral to ensure that your loved ones know exactly how the event will occur.  I have been a witness to many family fights that happened due to how a person was dressed in their casket, what pictures are hung at the service, who are the pallbearers, etc.  It is an emotionally charged time, thus it is easy for families to become very volatile during the first days after your death.  I HIGHLY recommend that you take some time to sit down with a funeral home director and make sure that all of the details of your funeral are specifically indicated, as it will literally prevent your loved ones from potentially fighting during this difficult time.  I also recommend that you prepay your funeral, as it can literally save your loved ones thousands of dollars for this expense when you die.  There are many investment options available that are similar to a life-insurance style policy that will pay for your funeral expenses when you die.  However, keep in mind that you DO NOT need to have a funeral service if you do not want one.  As I always tell people, funeral services are for the living and not for the deceased.  It is a time for your loved ones to say their final goodbye and come together to celebrate the events of your life.  However, if you do not wish to have a funeral service, it is important to clearly indicate this decision during your lifetime.

 

  1. Your cremation or burial. Obviously when you die there must be a decision made regarding the disposition of your remains.  It is extremely helpful for your loved ones if you leave an indication regarding your final wishes in this area, as the funeral home can hold on to your remains until they have a unanimous decision from your family regarding whether your remains will be buried or cremated.   I always advise my clients to indicate their wishes regarding burial or cremation in their Healthcare Power of Attorney, as it will be honored at the time of your death.

 

  1. Your bills have to be paid. This is a very important fact that must be planned for.  When you die, your assets are still here, including the debts that might go along with them.  Now, there are some exceptions to this fact, such as student loans, which can be forgiven at your death.  However, many of your debts will still need to be paid even after you have died.  This is the one question I receive the most often from the acting Executors or Trustees of an estate when they first start the administration.  The first responsibility of your acting Executor/Trustee is that they must resolve your debts out of the remainder of your estate, if there is anything left.  If those debts are not paid, the creditors could file a claim against your estate or begin a foreclosure process to ensure that they are compensated for the debt that you created during your lifetime.  There are some circumstances where the debt might be so small that the creditor will forgive the debt, but you cannot expect that to always happen and you should not want to burden your loved ones with financial struggles when you are gone.  This is also why it is so crucial to establish an estate plan whereby you can indicate who is appointed as the Executor or Trustee of your assets when you are gone and can then resolve the issue of your final debts.

 

  1. Your estate will be administered. If you have read any of my previous articles, and I hope that you have, you will know that after you have died, your assets will either be subject to the probate laws of your state or will be administered through your Revocable Living Trust.  Hopefully you have read my previous articles about how to avoid the probate process and have your assets administered according to your trust agreement.  Either way, your assets will be distributed to the people that you want them to go to or it will be determined by the probate laws of your state.

 

  1. Your Last Will and Testament must be filed with the Circuit Clerk. Assuming that you have prepared some type of Last Will and Testament, upon your death it is normally required by law for your named Executor to file your Will with the Circuit Clerk’s office of the County that you were a resident of at the time of your passing.  Many states actually can charge the Executor with a felony charge if they do not file the Will within the required statutory time frame.  This is required to prevent the Executor from commencing any type of fraudulent activities with your estate or failing to pay your final expenses.

 

These are some of the basic starting points of what occurs when a person dies.  There are many additional steps that can occur, especially if you have not taken the time to resolve these issues during your lifetime.  Just like birth, dying is a natural life process that we must all face.  The question that remains is are you going to make the mature and responsible decisions to ensure that these issues are handled in a responsible manner and that your loved ones will not face unnecessary burdens upon your passing, or are you comfortable with leaving chaos that will be resolved after some unnecessary stress and financial burdens?  I hope you make the right choice and take care of those you love.

 

 

 

 

You Can’t Have Your Cake and Eat It Too.

Many (many) years ago when I was in my junior year of high school I took an economics class and was presented with one of the most intelligent and important questions of my entire academic career.  It was an essay question, but it only contained one line, which read as follows:

 

“Explain the phrase there is no such thing as a free lunch.”

 

I remember looking at the question and thinking that there must be a catch or that it was some type of trick question, as it seemed too simple to be true.  Sadly, I chose not to answer that particular question, opting to answer a more lengthy fact scenario question.  I now look back on that decision with some regret.  When we reviewed the question, I realized that it was a question that literally could explain most of the problems that we face as a society and as a nation today.

 

It is a rather simple concept and sadly one that most members of the Democratic Party cannot seem to grasp.  Nothing is free.  I don’t care what promises are made by politicians of “free” education, healthcare, cell phones, etc.  Nothing is free.  You want to receive a “free” education and diploma, who pays the teacher for his or her time in the classroom?  Who pays for the computers, the textbooks, the paper, the desks, etc.?  If you receive a “free” cellphone, who pays for the materials needed to make the phone?  Who pays the employees who helped put the phone together?  If you go to the doctor’s office to receive your “free” healthcare, who is paying for the nurses, the physician’s assistants, and the doctors?  Someone has to pay for the time, materials, and help that are offered; i.e. there is no such thing as a “free lunch.”

 

Which leads me to my subject matter today; I receive regular phone calls from people asking the same question, “If I prepare an estate plan, will it protect my assets from nursing home expenses?”  In other words, how do I get free nursing home care in my final days on this Earth?  I always provide the following answer: “Maybe.”  Here is why:

 

  1. Who do you want to own your assets? The issue of whether or not your assets will go to pay for your nursing home expenses primarily focuses on who is the owner of the assets in question.  If it is your bank account and/or your real estate, you should expect that it will be subject to the possibility of being used to pay for your nursing home care.  There are exemptions allowed, such as a homestead exemption, which can protect some or all of the value of your residence, but if you want the best possible protection for your assets, you cannot be the owner of the property.  Not only that, but in most instances, you must also not be the owner of the property for a minimum of 5 years before you can apply for assistance.  One of the exceptions to this situation is for Veterans who apply for assistance from the VA.  In those situations, there is no look-back period, but the financial assistance that is provided from the VA is rarely ever enough to pay for the entire nursing home expense.  So, here is the most important question that you must answer:  Who do you want to own your assets?  Are you ready to transfer control of them to someone else and can you trust that person?

 

  1. Who or what can you transfer your assets to? If you choose to transfer your assets, who will they go to?  Does it have to be a person or are there other options?  You can transfer your assets to another person, but you must realize that when you do so, it is no longer yours.  That is a serious condition to consider.   I have met with many people who advised that they either chose to convey their property to another relative or their attorney advised them to do so.  In my opinion, this is an extremely bad idea.  As mentioned above, when you convey your property to someone else, it is no longer yours and you no longer have control over it.  When you transfer your property to another person you also expose that asset to their liabilities.  Are you positive that the person that you transferred the property to will not file bankruptcy?  Are you sure that they won’t file for a divorce?  These are serious legal ramifications that you must consider before making this decision.

 

  1. Should you create an Irrevocable Trust? In my opinion, the better option for conveying your property to another party is to create an Irrevocable Trust and convey your property to that Irrevocable Trust. Now be careful here, as there are some attorneys and financial advisors out there who I believe are misleading their clients and creating illegal or fraudulent “Irrevocable Trusts.”  When you create an Irrevocable Trust, you CANNOT be the named Trustee; someone else must be named in that role.  You also have to create a separate Tax ID number for the trust and you must complete a separate income tax return for the trust each year.  If someone creates an “Irrevocable Trust” that still uses your social security number and you are still the Trustee, you were provided with poor legal or financial advice and your trust agreement is not what was promised to you.  So, much like my last point, make sure that you choose someone that you have the utmost confidence in to act as the Trustee, as you are no longer in control.  Unlike the last point of transferring your property to another person, this option is safer, as you still retain some limited power over the Irrevocable Trust as the Settlor/Grantor of the trust.  Also, the primary goal of the trust is to hold the assets of the trust for the benefit of the Settlor/Grantor of the trust.   Finally, as with the previous point, when you convey your assets to the Irrevocable Trust, you must still wait for the look-back time period to pass before you apply for the nursing home assistance.  However, if this is your goal, it is clearly the better option of the two transfer choices.

 

  1. Who pays for your end of life care? Here is where most people apparently don’t appreciate my advice, but if they care about our nation and our future they should.  Somebody has to pay for the care that you receive in your final days on this Earth.  There is no such thing as a free lunch.  I appreciate that we work hard (hopefully) for all that God entrusts to us during our time on this Earth and I also appreciate the desire to provide for future generations, but as I advise my clients, the primary focus should be to take care of yourself.  Do you really want to go cheap for your care in your final days on this Earth?  Are your children so poorly raised that they can’t wait for you to die so that they can “cash in?”  If you spend the last penny that you have at the exact same time that you take your last breath, then well done!  Our country is approximately 21 trillion dollars in debt, it continues to get worse on a daily basis, and it is leading to the death of our Republic.  Regardless of what most liberals will admit, the largest part of our spending is on entitlement programs.  People are too interested in getting their “free lunch” and not focusing on being financially responsible.  Make no mistake, when you hear that something is “government” funded, it is not, it is taxpayer funded.  Our government is broke and there is no end in sight.  We have hit rock bottom and have decided to get the jackhammer to keep going.  Do you want to contribute to that?  Should other people pay for your care in your final days when you have the ability to do so yourself?  Is that good stewardship of the resources that God provided to you?

 

  1. Then how should you take care of the nursing home issue? So, this leads us back to the pending issue of protecting your assets, not acting in an illegal/fraudulent way, and paying for your potential nursing home expenses.  The answer is really quite simple: set money aside when you can, as often as you can, and have it reserved for your future nursing home care.  You can do this by establishing a long-term care insurance policy, which I highly recommend, but it has some problems that you should be aware of.  The first is that long-term care insurance can be very expensive and you might not be approved for it, depending upon your age and health issues.  Second, if you created the long-term care insurance policy and need to take money out of it for expenses that are not healthcare related, you will likely be penalized for the withdrawal or not be allowed to take the money out.  Finally, if you place a large sum of money into the long-term care insurance policy and do not end up in a nursing home, it is possible that neither you, nor your family will receive that money back as a death benefit when you pass away.  It is important to review the terms and the restrictions that your long-term care insurance policy has before investing in this method, but I do recommend this possibility.  However, if you want to protect your assets from potential nursing home expenses and you want to avoid the potential pitfalls of the long-term care insurance policy that I just mentioned, I recommend that you speak with a credible financial planner about the possibility of establishing an investment account where you can regularly invest funds that are specifically intended for your potential nursing home expenses.  Unlike the long-term care insurance policy, the account will most likely not have a penalty for a distribution that is taken for needs that you have that are not healthcare related, and the policy should have a death benefit that you can pass on to your future heirs.

 

So there it is the answer to possibly one of the most important question you might ask.  Some might disagree with my thoughts and I am happy to know why, but with all of my years of estate planning and administration, I firmly believe that these concepts are the best options on how to proceed.  As always, I recommend that you speak with a competent estate planning attorney on these matters, as each situation is different.  But if you choose wisely, the end result could be the protection of the assets that God has entrusted you with, the protection of your loved ones, and an honorable means of supporting your end of life care without placing unnecessary additional burdens on our nation.

Do You Respect Your Attorney?

“What’s the difference between an attorney and a bucket of pond scum?  Answer:  The Bucket!”

 

“What’s the difference between a dead snake in the middle of the road and a dead attorney in the middle of the road?   Answer:  The brake skid marks before the dead snake.”

 

Do you respect your attorney?  Strange way to start a new post, but it is a valid question that I have discovered over my 20+ years of working in the law.  As I advise my clients and my students on a regular basis, your attorney is supposed to help make your life better and should resolve the questions and problems that you are currently facing.  Shocking right?  However, it is the truth.

 

Now, I know that with the exception of Jesus, no human being in the history of our Earth is perfect and at some point of your life, you will be disappointed in other human beings.  After all, we live in a fallen world and we are fallen people.  However, I have always hoped that when I interacted with others, especially other professionals in service industries, I would receive the utmost respect and care that the service provider could give.  Naïve, right?

 

Several years ago at a family gathering, my wife’s grandfather sat down with me and asked me a rather poignant question, which was: “Jeremy, do you know what’s wrong with you?”  After picking up my jaw from the awkward situation and reflecting upon the fact that I didn’t seem to remember asking for a self-analysis, he answered, “Your problem is that you are an intelligent, hard-working, and common-sense oriented kind of person, BUT, you expect everyone else in the world to be the same way; which is just going to lead you to disappointment.”  He wasn’t wrong and, to be perfectly honest, it is terribly sad to realize that.  Shouldn’t we expect the best out of ourselves and out of others?  If you were presented with a task to help someone who is a close family member, or if you were doing the same task for a non-relative client/customer, would you offer the same service to both?  Isn’t it disappointing that there is a gap in service there?

 

With all of those questions to ponder, why is it that there is such disdain for attorneys?  That is a rhetorical question, as there is sadly not enough paper, ink, and time in the world for everyone to provide specific examples of how their attorneys have let them down.  I have personally met several members of my profession who literally make my skin crawl each time I meet them and I do everything I can to be the opposite of them.  But even as hard as I work for my clients, why is the attorney the first person to be thrown under the bus when something goes wrong?  Why do I meet with people on a regular basis who clearly don’t mind getting answers to their problems, but are less than thrilled to pay for answers and solutions to their legal issues?

 

If you take your car to a mechanic, do you expect the mechanic to repair your car for free?  If you have water leaking all over your kitchen floor or have a septic problem backing up in your house, do you call a plumber to ask for free advice?  When you have a sore tooth with a cavity, do you sit down with your dentist and ask how to remove the cavity on your own?  When you have chest pains, labor pains, or other health issues, do you negotiate the fees with your surgeon/doctor while on the operating table?  So why is it that when people contact their attorney, they ask for free legal advice and dispute the attorney fees?

 

Sadly, I believe the most obvious answer is my original question: “Do you respect your attorney?”  As stated above, if your attorney works hard and shows you the respect that they hopefully show everyone who enters their office, then your attorney can literally save you and your loved ones years of problems, worries, and financial burdens.  Do you value the advice, counsel, and answers that your attorney provides?  Ultimately, what is that worth to you?

Happy New Year! What Are You Waiting For?

Happy New Year and happy new decade!  So, you have probably heard this all before, but how are your New Year’s resolutions coming along?  If you are like most people, and the statistics support this, you have sadly probably already broken your resolutions and we are only into the second week of the New Year!  Personally, I don’t put much into resolutions, not to discourage anyone, but I always try to focus on setting a direction in my life and being consistent.  Each day is a new opportunity to focus your efforts and thoughts in a positive direction and make sensible decisions.

 

However, since we are in the New Year, the one question that I always seem to get in the first couple of months is, “When should I take care of my estate plan?”  My answer to this question is somewhat facetious, but it is also serious and it is: “Your estate will be fine, as long as you take care of everything the day before you die.”

 

Now, I am not trying to make light of a very serious question, but it is the truth.  We are all only on this earth for a limited time and only God knows when he will call us home.  During the time that we are on this Earth, we acquire “stuff” and it is our responsibility to make sure that all of that “stuff” goes to the right people or places when we are gone.  In the book of Psalms, Chapter 24, verse 1, the Scriptures state that “The Earth is the Lord’s, AND EVERYTHING IN IT, the World, and all who live in it.  What that means to all of us is that we don’t actually own all of the “stuff” that we have, including ourselves, it all belongs to God; we are just stewards of it.

 

I often pose a trick question to all of my clients and students when it comes to estate planning, which is: “What type of vehicle do you not see at a funeral home or a cemetery?”  Need some time to think on that one?  The answer is: a moving truck.  Again, facetious, but true as there is some significant truth to the old saying: you can’t take it with you.  I have heard of some strange situations where people have purchased a large mausoleum  or they have tried placing large amounts of personal property in their caskets with them, but the reality is, they are not taking it with them.  Our “stuff” stays here and we leave this Earth at some point.  It will be distributed, whether you like it or not and it will be distributed either by your own plans or by someone else, it is up to you to decide.

 

So, my main point of this article and the most important question for you in the New Year is: What are you waiting for?  If you want a resolution that everyone should complete, this is the one.  You have the ability to take care of your “stuff” and, more importantly, leaving a lasting legacy that will provide for your loved ones and ultimately for God’s Kingdom.  After all, shouldn’t this be our main focus in this world?

Live or Let Probate, Part 3

Well, if you have stayed with me this long, and I hope that you have, then you will know that this is the final article regarding the best way to avoid the probate process for your estate.  Up to this point we have covered the pros and cons of the probate process, the writing of a Last Will and Testament, and the process of listing a beneficiary on your assets.  Now we turn to one of the most important steps of the estate planning process, especially as it relates to the avoidance of the probate process, which is the creation of a Revocable Living Trust.

Now, what exactly is a Trust?  Isn’t it only a legal process that “rich” people partake in?  Are they a new legal process?  Is it worth it for me to create a trust?  The answers to all of these gripping questions will be answered below:

  1. In the simplest form, a Revocable Living Trust is just a contract. You might ask yourself, “well, who is making the contract?”  The answer is also quite simple: in most circumstances, you are making the contract with yourself, but the terms of this contract with yourself have to be very clearly indicated in the actual trust agreement.  Here are the main points to consider:

Parties to the Contract– In a standard Revocable Living Trust, you will indicate that you are the   Grantor/Settlor on one side of the contract and you are also the Trustee on the other side.  The      Grantor/Settlor is the individual who creates the trust agreement and is responsible for          transferring all of the assets into the trust name or names the trust as a beneficiary.  The Trustee     is then responsible for receiving the property and administering it in such a way as to protect                 and benefit the Grantor/Settlor.  This is a fairly simple expectation in a standard Revocable         Living Trust as you will be both parties and one can hopefully assume that you would act in such       a way as Trustee that would benefit yourself as Grantor/Settlor.  Obviously, if you are married,          the terms would be slightly altered to name you and your spouse as Co-Grantors/Co-Settlors         and as Co-Trustees.

The one caveat to mention here is that some people will name another person as the Trustee   under their trust agreement.  There are several reasons to do this, such as trying to avoid               nursing home expenses, limiting liability issues, or for tax purposes.  However, as I have                 cautioned many of my clients, this is a very serious step to take, as you are losing the ability to          control the assets in the trust, as you will not be the Trustee.  Do you want your house to be sold                 and you are not the person to make this decision?  It is a foreseeable outcome when you name                 someone else as the Trustee.  However, as stated before, the Trustees main responsibility is     to take care of the Grantor/Settlor, so choose wisely as to whom you are possibly and literally         placing your “trust” in to take care of your assets.

  1. So, what assets should you place in your trust? Do you have to be wealthy to create a Revocable Living Trust?  The answer to these questions is related and, for the most part, revolves around your real estate.  Every state has a legal “benchmark” indicating what value a property must be at in order to be subject to the state probate laws.  Each state is different, thus why it is important to speak with an estate planning attorney to know what the exact amount is for what assets you might have that will be subject to the probate process upon your passing.  However, the good news is that when you transfer your property into the trust name, you no longer have to worry about the probate value.  Anything that is titled into the name of your trust will not be subject to the probate laws of your state upon your passing.  This is why most people create a Revocable Living Trust and the most important asset that they will convey to their trust is their home.  It is very likely that your home will be subject to the probate laws, thus when you transfer your home to the trust, via a deed, this is no longer a concern.  As mentioned above, when your home is owned by the trust, you are still in complete control of all aspects of your home as Trustee of your trust agreement and your real estate will not see the inside of the probate courtroom.  It is important to note that you can still buy and sell future real estate in your trust as the trustee, but you will always want to remember that your trust agreement is the legal owner of the real estate.

 

  1. It is also important to know that your trust can be named as an owner of your financial accounts or as a beneficiary of those accounts, just like a person. So, in addition to deeding your property into your trust, it is important to either transfer the ownership of your accounts to your trust, or name the trust as the beneficiary of the account.  I actually prefer naming the trust as a beneficiary, as it allows more flexibility during your lifetime and will still be conveyed to your trust, but either situation is favorable.  However, it is important to discuss this step with your attorney, financial planner, or accountant, as there are some very negative tax implications that can occur when you name your trust as the beneficiary of some of your tax deferred accounts, such as IRAs.  If you have life insurance, I always encourage that my clients name their trust as the beneficiary, as it is not taxable and it is an easy way to assure that there will be some liquid funds in your trust upon your passing.  Your trust will be administered when you die and there will likely be some expenses during the administration, such as funeral expenses, final medical bills, and real estate expenses, thus having these liquid assets available for the acting Trustee will be essential.

 

  1. In addition to your Revocable Living Trust, you will need to create a Pour-over Last Will and Testament. This is due to the fact that you likely have some property that cannot be conveyed to your trust either by a change of ownership or via beneficiary designation; this is your personal property.  Your personal property, such as clothes, furniture, jewelry, etc. does not have title work, thus cannot be conveyed to your trust.  This is why the Pour-over Will is essential.  In the Pour-over Will you will have the opportunity to indicate where you would like your personal property to go upon your death and you will include a pour-over provision that will indicate that if any of your real property was somehow overlooked and not conveyed to your trust, the real property will “pour-over” to your trust estate at the time of your death and be distributed according to the same provisions as your trust agreement.  However, the pour-over provision will only apply to property that does not exceed the probate benchmark in your state, thus why it is still essential to transfer your property to your trust during your lifetime, as mentioned above.

So, the moral of the story is that if you plan accordingly and use good stewardship with the assets that the Lord has entrusted to you, your estate should never be subject to the probate laws.  However, important planning and decisions must be made during your lifetime and YOU are the only person who can accomplish it.  We have now started a new year and a new decade, if you haven’t completed this important step, then why not?  It could be one of the most important decisions you have ever made.

Live or Let Probate, Part 2

One of the best ideas of any award-winning movie or gripping novel is to keep your audience in suspense awaiting the resolution of a dilemma.  With that being said, I clearly must have been looking to create the greatest drama for my reading audience by not producing part two of this article for several years!  What can I say, life gets too busy and good intentions do not always come through.  So, if you read the first part of my “Live or Let Probate” article, you can now breathe a deep sigh of relief, as I am now posting part two of this important article.  If you did not read part 1, please feel free to do so now.  If you did read part 1 before, it is probably a good idea to refresh your recollection by reviewing it now, before diving in to the points that I will be making here in part 2.

Most people who call my office or attend one of my speaking presentations about estate planning immediately advise me of the fact that they would not like to have their estate be probated upon their death.  If you are unsure why people focus so diligently on this goal, again please review my points in part 1.  When you really get down to the basic levels of avoiding the probate process, there are essentially two ways to accomplish this important goal, and I will be discussing the first option in this article.

So, without further ado, option 1 of avoiding the probate process is….Beneficiaries.  When you appoint a beneficiary on your assets, you have essentially created a contractual agreement whereby you have advised the world of who will receive your assets when you die.  There are several ways to name beneficiaries on your estate but, as with everything, they have positives and negatives.  Here are some points to each:

  1. Adding a Payment on Death (POD), a Transfer on Death (TOD) indication, or a Beneficiary indication on your accounts. Do not confuse this with a POA, which is a Power of Attorney, which helps with the administration of your assets while you are alive, but you are incapable of making your own decisions.  The POD or TOD, depending on what your financial institution calls it, simply indicates the person or people who will receive your assets upon your death.  The Beneficiary designation is self-explanatory, as you are simply indicating the person or entity that will receive the asset when you die.  You can name one person, multiple people or an organization to the designation and you can indicate what percentage they receive.
  • Positives The obvious is the fact that, as mentioned above, when you indicate a POD, TOD, or Beneficiary, that recipient will receive the asset upon your death and it should NOT see the inside of the probate courtroom.  It also allows you to name the specific beneficiary, rather than the laws of the state that you reside in when you die.
  • Negatives There are sadly quite a few, here are some to be aware of:

 

  • It is crucial that you name back-up beneficiaries on the accounts, in the event one of your named beneficiaries dies before you. If you do not, then there is a very real possibility that your asset will be back in the probate courtroom to decide who will receive it, due to the death of the initial beneficiary.  I am going to take some time to give you a quick lesson in the Latin language, which is dead, but the legal profession keeps it going, probably for masochistic purposes; here it is:  Per Stirpes (pay attention to the spelling here, it is Stirpes, NOT Stripes) or Per Capita.  Per Stirpes means that if your named beneficiary dies before they receive the asset, it will pass down to their heirs.  Per Capita means that it will NOT pass down to the heirs of the deceased beneficiary, but will go back to the other named beneficiaries.  Thus, if you named 4 beneficiaries, Per Capita and one dies, the other three will divide the ¼ share of the deceased equally.  Most people do not check these points and it has the potential of being very problematic.
  • A HUGE problem with naming beneficiaries is the fact that when you die, there are likely to be expenses that will have to be paid, such as funeral expenses, final medical bills, etc. When you name a beneficiary, the financial institution will legally distribute the asset to the named beneficiary.  Those named individuals may take the funds and keep them for themselves, thus leaving your Executor, Trustee, or Administrator without the necessary funds to be able to pay your final expenses.  This can lead to the potential of litigation being filed against your estate for these final bills.  This situation can be avoided by the use of a Revocable Living Trust and I will explain that in Part 3.

 

  1. Naming a Co-owner on your asset If you purchase a property or open an account with another person as the co-owner, upon your death, the asset immediately transfers to the other owner, if you properly establish the ownership terms.  This can be complicated in real estate matters, thus it is crucial that you have the assistance of an attorney when purchasing property.
  • Positives The only real positive is already mentioned and that is the fact that the asset will avoid the probate process for the initial surviving co-owner.  Many married couples come to me and advise that they are not worried about their assets, as they know it will transfer to their spouse upon their death.  This is true, but when I ask where the asset will go when they BOTH are deceased, I usually get the response of stunned silence.  When the initial co-owners are deceased, there must be an indication of who receives it after them.
  • Negatives When you name a co-owner on an asset, you are exposing yourself to their legal liabilities.  THIS IS HUGE!  I have literally had clients in my office who named their children or grandchildren as co-owners on their assets and found out that when their child or grandchild was in the process of divorce, bankruptcy, or some other type of legal action, their asset became part of the lawsuit.  Make no mistake on this, if you name someone as a co-owner on an asset and they are being sued, the asset that you own with them can become part of their legal liability.  Except for a married couple, I NEVER recommend that you name someone else as a co-owner, just to avoid the future potential of probate.  In my opinion, the risk far outweighs the benefits.  If your attorney advises that you name a co-owner for probate avoidance, I recommend that you seek another attorney.

 

  1. Naming a Transfer on Death Beneficiary to your Real Estate Much like the points indicated in Number 1 above, in most states, you can add a beneficiary to your real estate by completing a Transfer on Death Deed (or a Ladybird Deed) and filing it with the appropriate office of the Recorder or the Register of Deeds.
  • Positives As with my comments in point Number 1, the main positive is that this will avoid the potential of having your real estate being probated and, unlike the points I made regarding the liabilities of naming a co-owner, the Transfer on Death beneficiary is not an owner at the same time as you, thus you do not assume their legal liabilities.
  • Negatives As stated with the points in Number 1, there are very few times, if any at all, where you can name a back-up beneficiary on these deeds.  Thus, if you name a Transfer on Death beneficiary on your real estate and the named beneficiary dies before you, you need to update the Transfer on Death Deed as quickly as possible.  Also, when you die, the transfer is not automatic.  The named beneficiary will have to accept the transfer via Affidavit and a deed will have to be created and filed to officially accomplish the transfer.  This will most likely require legal assistance and fees, but it should be significantly less than the potential probate fees.

Whew!  That is a lot to take in for what is essentially a rather simple process.  I always try to keep my articles short and easy to comprehend, but this one might have pushed the limits on those concepts.  It is essential to make sure that you have an attorney who clearly understands these important points and can direct you in the proper way to proceed.  It can literally mean the difference of an easy transition for your loved ones, or a legal nightmare.  My next article will address the second way to avoid the probate process, which is Revocable Living Trusts.  Hopefully I will be a little bit quicker on getting that article to you, but in the meantime, the suspense is killing me!

Hello Everyone!

If you are receiving this letter, it is due to the fact that you have allowed me the honor of helping you with your legal needs over the past several years. Whether I have created your estate planning documents (including Your Will, Revocable Living Trust, Powers of Attorney, and Living Will), have helped you to create a corporation or LLC, have assisted you with the buying or selling of a home, have directed your family in the process of administering a trust estate, have handled the probate estate of a loved one, have assisted in the appeal of a VA claim, or have helped you in the process of dealing with a personal injury or medical malpractice case, I greatly appreciate your trust in my abilities as your attorney.

As we are in a new year, now is the perfect time to review the documents that we have created in the past or think about the legal needs that you or your loved ones may have in the upcoming year. If you are interested in reviewing your documents or you would like to discuss your future legal needs, I will continue to provide you with the same level of hard work and service that I provide to all of my clients.
Please remember to contact me if you or your family and friends need legal advice or counsel in the following areas:

1. Preparation or update of Estate Planning documents, including but not limited to:
* Last Will and Testament
* Revocable Living Trust
* Powers of Attorney for Financial and Medical needs
* Living Will
* Ensuring the proper funding of your assets into a Revocable Living Trust
* Indicating the proper beneficiaries of your financial accounts
2. Buying or Selling Real Estate
3. Creation of a Corporation or LLC
4. Estate administration, including the administration of a Revocable Living Trust
5. Probate cases and administration
6. Counsel regarding Personal Injury or Medical Malpractice cases
7. VA appeals

I look forward to continuing to serve you with your legal needs. If you have any questions, or if I may be of assistance at any time to you or your family, please do not hesitate to contact me at the number listed below.

Respectfully,

Jeremy Ramsey
Attorney at Law

Live or Let Probate, Part 1

If you watch the news or read a newspaper shortly after some noted celebrity dies, it is always remarkable how quickly the media turns from the so-called notoriety of the deceased person’s life, to “What did the individual state in their Will?” Of course with our world’s obsession with gossip and materialism, it is no stretch of the imagination to see this type of question. However, in the legal profession, when I observe these situations, I always ask the question, “Why didn’t their attorney do more for them than just write a Will?”

Most people will face a time in their life when they start to realize that they are not immortal. It is at that time that they begin to worry about what will happen in the future to their possessions and how will they take care of their loved ones when they leave this earth. In that time most people will ask around to find an attorney or simply find an ad in the yellow pages or on the internet of an attorney who supposedly practices estate planning. When they meet with the attorney, he or she will write them a Will. After all, that’s what everybody does, right?

What most people do not realize is that when they meet with the attorney who writes their Last Will and Testament, they are very likely to have the following results:

  1. The attorney actually completed a very simple legal document and, quite possibly, did the least that they could for the client.
  2. The attorney hopefully did not charge a fee that was too extravagant, because what they did not tell you (most likely) is that after your death, your family will probably re-hire that same attorney and pay a much larger fee, because……
  3. Your estate is most likely to go through the Probate process.

Now, as I am often asked, “What is probate?” Is it completely evil, a four letter word, one of the most malicious court process ever invented? The answer is usually, “No.” Let me answer it by stating that probate, in its simplest form, is the legal process where the State, where the person lived in, begins and completes the process of distributing the deceased individual’s possessions. The reason why a person has a Will is due to the fact that a Will is essentially a letter of instruction advising a probate judge of how the deceased person’s estate is to be distributed. The bottom line is that when you only write a will, you have essentially guaranteed a one-way ticket for your family to go through the probate process.

So, what is so wrong with the probate process? There are several points to keep in mind when thinking about whether or not to allow your estate to someday be probated, they are as follows:

  1. Probate usually takes a long time to complete. All states have an amount of time established which indicates the minimum amount of time that a probate estate must remain open for, but the average time is six months. However, if your estate is contested, due to family fighting, creditors, etc. You are most likely looking at the probate process extending into many years. I have handled many probate cases and have never been able to close a probate case in less than a year. That is not to say that a probate case cannot be closed quickly, it is just very rare.

 

  1. Due to the fact that the probate case will most likely take a minimum of a year to resolve, it will be an expensive process. This includes court costs, newspaper publication fees, and of course, attorney’s fees. I personally try to charge flat fees on most of the cases that I handle, but with probate, a flat fee is usually impossible, due to the fact that it is so difficult to know how long the probate case will take. If your estate is contested, be prepared to have your children spend thousands of dollars on legal fees with the probate process.

 

  1. The probate process has to be published in the legal section of your local newspaper where you resided before your death. So, in addition to the fees associated with this, it also means that your probate information is public information. If you don’t want to let the world know about the value of your estate and who it goes to, as indicated in the statement regarding celebrities, then probate is not the choice for you.

 

  1. Due to the high visibility of your probate case as indicated above, your estate runs a higher risk of having claims and challenges filed against it in the probate court. This could occur even if the claims are frivolous in nature.

So, the moral of the story is: As a good steward of the resources that God has given you, going through the probate process is very often a bad idea. If you are planning for the future, which we all should do, take some time to research this process and find an estate planning attorney who is well versed in these concepts to provide you with the necessary counsel on how to avoid this issue. Probate can be avoided and there are some very simple steps to take in order to accomplish this important goal. What are they? You will have to tune in next week to see my next part for the answers!

Is America a Democracy?

For those of you who have read my earlier blog about battling ignorance, this will be a continued discussion on how to become more informed and finding a cure for ignorance.  For those who have not read my previous blog, please feel free to do so. 

One of my favorite Presidents was James A. Garfield, which might prove to be surprising, as President Garfield was only in office for 200 days before being assassinated.  One of the main reasons that I appreciate President Garfield is due to his very astute quotations and beliefs about government.  I believe that one of the best quotations from Garfield is the following:

“Now more than ever before, the people are responsible for the character of their Congress.  If that body be ignorant, reckless, and corrupt, it is because the people tolerate
ignorance, recklessness, and corruption.”

I use this phrase often when I teach courses to my students and I have referenced it many times in my discussions with people regarding politics.  However, there is one small change that I would make to this quotation, in that I would replace the phrase “Congress” with “Government.”  It is absolutely true that we the people are responsible for our government, as they are our employees and they are supposed to be working for us.  However, can we really expect much of our government when we spend our time in frivolities, foolish endeavors, and ignorance? 

I have read many research studies indicating the poor education status of the United States today, especially as it pertains to laws and government.  One need not look far to see that more people today can identify the members of the Simpsons family, tell you who won American Idol, and countless other pointless entertainment facts rather than tell you their God given rights that are protected under the Constitution and the Bill of Rights.  In fact, a few years ago Newsweek asked 1,000 adult United States citizens to take America’s official citizenship test and found that 29% of respondents couldn’t name the current vice president of the United States. Seventy-three percent couldn’t correctly say why America fought the Cold War. More critically, 44% were unable to define the Bill of Rights. And 6% couldn’t even circle Independence Day (the Fourth of July) on a calendar.  If you would like more evidence on these abysmal results, feel free to contact the Rutherford Institute, which is an excellent legal organization that I regularly use information from in my college courses. 

So, getting to my point; a few years ago there was a little bit of a hullabaloo at the Capital building in Madison, Wisconsin.  If you will recall, several people decided that it was their Constitutional right to break into the building illegally, occupy the premises for many weeks, refuse to bathe, shut down school systems, and act in mannerisms that were lacking integrity.  The sad part is that most of the occupants of this event did not even know why they were at the event or what it was about. 

At one point, there were several individuals in the Capital building holding banners that stated that what they were doing was a “Democracy.”  Now, I realize that we all have a right to peacefully assemble to petition the government for a redress of grievances, as indicated under the First Amendment and I hope that most of the people there were looking to achieve this, but was this really what was happening?  Was this really what a Democracy looked like? 

I have asked many clients and students over the years if they know what type of government we are given in the United States and the one constant response that I receive is that we are a “Democracy.”  But is this really true?  Did the Founding Fathers state this in any of their writings?  What does the Constitution state about this?

So in my constant goal to cure ignorance, I looked to the Wallbuilders organization regarding the writings of our Country’s Founding Fathers regarding a Democracy and found that most were not in favor of a Democratic government at all.  As proof, here are some sample quotations and the men who stated them:   

Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths. James Madison

Democracy will soon degenerate into an anarchy, such an anarchy that every man will do what is right in his own eyes and no man’s life or property or reputation or liberty will be secure, and every one of these will soon mould itself into a system of subordination of all the moral virtues and intellectual abilities, all the powers of wealth, beauty, wit and science, to the wanton pleasures, the capricious will, and the execrable cruelty of one or a very few. John Adams

Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide. John Adams

The experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating and short-lived. John Quincy Adams

A simple democracy . . . is one of the greatest of evils. Benjamin Rush

In democracy, there are commonly tumults and disorders. Therefore a pure democracy is generally a very bad government. It is often the most tyrannical government on earth.

Noah Webster

Pure democracy cannot subsist long nor be carried far into the departments of state, it is very subject to caprice and the madness of popular rage. John Witherspoon

So, clearly it was not the intention or the primary goal of many of our Founding Fathers to create a Democracy in the United States.  But the question remains as to what form of government are we supposed to have.  A simple reading of the Constitution in Article IV, Section 4 gives us the answer as follows:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

 

So what does that mean?  I have asked this question of many people only to get a blank stare and a general look of confusion.  President James Madison provided the answer to this by stating the following:

“In a republic, it is not the people themselves who make the decisions,
but the people they themselves choose to stand in their places.”

This means that in a Republican form of government, we elect people and those people must represent us by making decisions that reflect the will of the people.  If you want a law to be passed, then educate yourself and find the candidate who best represents what you believe in and vote for that person.  If your candidate loses the election, then try all the harder the next time, but don’t break the law and violently invade buildings to see your face on the television. 

The question remains however, of whether or not we really have a true Republican form of government.  It is now reported that now, more than ever in our history, we have the most elected millionaires in our federal government.  People who do not live paycheck to paycheck, who don’t worry about the skyrocketing price of gas at the pump, who get the best doctors, houses, cars, etc.  In other words, people who don’t know what real work is like.  Can people like that really represent our needs?  To answer this, I simply need to refer back to the quote from President Garfield.  When we the people are ignorant, reckless, and corrupt, our government will be the same.  Perhaps we do have a Republic after all?

As always, my hope is in God.  I have read the entire Bible many times and will continue to do so and the great news is that in the end, God and his people win!  However, it is still my hope that the people of our great nation will follow the instructions of 2 Chronicles 7:14, which states:

If my people who are called by my name humble themselves, and pray and seek my face and turn from their wicked ways, then I will hear from heaven and will forgive their sin and heal their land.

 Perhaps if we do, our elected officials will follow the same path?

 

“A lady asked Dr. Franklin ‘Well Doctor what have we got a republic or a monarchy’ — “A republic,” replied the Doctor, “if you can keep it.” ”

—Anonymous, from Farrand’s Records of the Federal Convention of 1787

— President James Monroe

 

Should a Christian Prepare an Estate Plan

I have had this question presented to me many times in my years helping people plan for the future and it is a valid and extremely important question to ask.  It is surprising to me that so many people delay in making this decision or simply refuse to act on it at all.  I have had several people come to me for estate planning assistance and literally say, “Why do I care, I won’t be here when it happens and everybody will figure it out.”  This is a very unfortunate and selfish way to respond and it goes against the wishes that God has for us.  So, does the Bible provide any references to this topic?  Are there any indications as to what God wants us to do with our assets?  The answer to both of these questions is, not surprisingly, yes.

Before diving into the specifics of how to address this matter, it is important to understand one very important fact: we are not the real owners of our property.  Read that statement again, but take some time to think about it.  We all like to think that we are in complete control of our possessions and that we work hard to obtain them.  This is somewhat true, as it is incredibly important to develop a good work ethic and God actually expects this out of us.  However, this fails to acknowledge the fact that the only reason why we have anything, such as our work, our homes, our money, our bodies, etc. is due to the gifts that God gives us.  As King David so eloquently stated in Psalm 24: “The Earth is the Lord’s, and everything in it, the world, and all who live in it.”  It is also reiterated in Psalm 50:9-10 as follows: “I have no need of a bull from your stall or of goats from your pens, for every animal of the forest is mine, and the cattle on a thousand hills.  Our time on this earth is limited, as is our control over God’s property.

So, what are we expected to do with the resources that God has given us?  Another key concept that we need to understand as followers of Jesus Christ is that we are simply stewards of the property that God has allowed us to oversee while we are on this side of heaven.  Which prompts another question: What is stewardship?  This is actually a fairly simple concept.  Stewardship is simply the process of managing someone else’s property.  As stated earlier, we are clearly not the ultimate owners of our property, but we have been given the task by God to oversee it during our brief time on this earth and we should clearly strive to make decisions that bring honor and glory to our Heavenly Father.  As it is stated in Luke 12:34: “For where your treasure is, there your heart will be also.”  Notice that this scripture reference does not limit its approach only to our time on this earth; I strongly believe that it also applies to how we direct God’s resources when we leave.

What type of legacy do you want to leave?  Sadly we have all probably attended a funeral at some point in time of our lives.  At the funeral, we hopefully spend the majority of the time remembering the good times and memories of the person who has passed, but we also look to the lasting legacy that that person left while on the earth.  What did he or she do to help others, to live life, to bring Glory to God?  Now that they are gone, how did they establish a plan to continue the work that God entrusted to them while on the earth?  We can see a couple of examples of this type of planning in the Bible.  The first is in the book of Genesis 25:5-6, where we witness the first estate plan of the Bible.  In it, Abraham leaves everything he owned to his son Isaac, but while he was still living, he gave gifts to the sons of his concubines.  Also, in the book of John 19:26-27, we see Jesus providing for the future as well.  While on the cross, it is stated that Jesus saw his mother and John and said to them, “Woman, here is your son,” and “Here is your mother.”  Clearly Jesus knew that Mary would have to be cared for after his departure, thus he addressed this matter by planning accordingly and appointing John for this important role.

So, how do you want to leave?  When you meet our Heavenly Father for the first time in a face to face manner, how will you answer the question of stewardship?  Will you be able to not only tell God that you took care of his assets in an honorable manner while on the earth, but that you also established a plan that would continue that legacy after your departure?  We all (hopefully) give to Ministries, Churches, and others in need during our lives, but what happens when you are gone?  I personally think that there are not enough Pastors, Preachers, and Ministry leaders who think about this issue or present it to their congregation.  Do you love your Church?  Do you want your favorite Ministry to continue on for years to come?  How are you going to help to make sure that this goal is accomplished?  It is a question that we all must answer and I hope that you will reach the decision that God intends for you.