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Elderlaw: 11/15/2015

Elderlaw Advocates



Dear Readers:

In our ongoing series on how to make your life and death easier to deal with, today we write about how to pick out your beneficiaries and what can go wrong when you do.

Let’s say you have only one child, a daughter, and you are leaving everything to her. When you die, if she’s the trustee and she’s getting everything, then the trust administration becomes a paperwork drill. As long as your daughter pays off your creditors and deals with federal and state income taxes properly, then transferring the assets to her is just a matter of paperwork. If you have two or more children and they get along, it can be just as easy.

But what if you have other beneficiaries? You’re a generous person, right? So you decide to graciously leave some of your life savings to charity, let’s say 10 percent, divided equally among ten different charities, worthy causes all. This is not such a good idea, because you have just made your daughter’s job a lot more complicated.

A beneficiary who is entitled to a percentage or fractional share of your trust is entitled to an accounting of every last financial transaction during the trust administration, balanced down to the last penny. As a rule, charities don’t waive the accounting. So instead of being a simple paperwork drill where your daughter could be a little fast and loose with expenses, as it’s all going to her, she has to be very organized and she’ll probably have to hire a bookkeeper to prepare an accounting – which isn’t just a simple check register. It’s double-entry accounting and unless your daughter is a bookkeeper or CPA, she doesn’t know how to do it.

So what do you do? Leave nothing to charity? No, go ahead and be generous. Instead, leave each charity of your choice a fixed dollar amount. If your trust leaves $10,000 to the puppies and kittens, all they want is a $10,000 check, and when they get it you’ll receive their thanks and your daughter will remain on their mailing list for life, but she won’t have to give them an accounting, because they won’t care.

The same applies to modest gifts made to grandchildren or more distant relatives. Leave them a dollar amount and the math will be easy. If you are concerned about losing everything before your death and leaving nothing to your daughter, your trust could say something like “$100,000 or 10 percent, whichever is less.” Your daughter may not get out of an accounting that way, but doing this will make sure that she gets what you want her to receive.

You should also pay close attention to the needs of your beneficiaries. If you have a disabled child, then he or she likely needs a Special Needs Trust to preserve his or her eligibility for Supplemental Support Income (SSI) and Medi-Cal benefits. If you have a child who has a substance abuse problem, then you should consider leaving that child’s share in a trust, instead of being distributed outright where he or she may use it to buy drugs. Your child’s trust could even have a provision allowing the trustee to restrict distributions unless and until the beneficiary passes a drug-screening test.

All of this is why it’s important, when you meet with your attorney, to fill him or her in on all of (or most of) your family secrets. Your neighbor doesn’t need to know that your son can’t save a dime to save his life, but your lawyer should know, so you can get the best estate planning advice possible.

Len & Rosie

Dear Len & Rosie,

My mother passed away last May without a will. My stepfather is in the hospital right now with only days left to live, again without a will. I do not have a power of attorney. My stepfather’s physician at the hospital wrote a letter stating that my stepfather is unable to make decisions and has a terminal disease. How do I get conservatorship or anything related so that I can handle his affairs? There isn’t much, but what there is I would like to take care of.

Tracey

Dear Tracey,

It’s important to have an estate plan. This may be a particularly hard lesson for you, because your stepfather is at least partially incapacitated and probably cannot give you a power of attorney or make a will to properly dispose of his estate. This lesson is more for other readers of this column.

At a minimum, all of you should have a durable power of attorney and an advance health care directive, so that trusted family members or loved ones can manage your finances, pay your bills, and make important medical decisions in case you become incapacitated. You should also have a will to spell out how your estate is to be distributed after your death, or, better yet, a revocable trust to avoid probate if you own more than $150,000 in assets. Tracey is looking at the prospect of filing for a conservatorship over her stepfather because he didn’t have a durable power of attorney. Don’t let this happen to you.

Tracey, you probably do not need a conservatorship. If your stepfather has only a few days to live, his bills will wait until his death when you can be appointed as the administrator of his estate by the probate court. The only reason you would need to be appointed as conservator now is if his medical care providers need someone to make decisions regarding his immediate medical treatment. In this case, you would become the conservator of your stepfather’s person (his health care decisions), as opposed to his estate (his assets).

Normally it takes at least a month to be appointed as conservator, because the law requires that 30 days notice of a conservatorship petition be provided to the proposed conservatee and his or her immediate relatives. You can, however, file an emergency petition with the court to appoint you as the temporary conservator of your stepfather’s person, pending the court hearing a month from now. If it is absolutely necessary, you can be appointed as your stepfather’s conservator within a day or two. Go see an elder law attorney immediately.

Because neither your mother or stepfather made wills, upon your stepfather’s death, his estate will be divided into two portions. Everything your stepfather inherited as a result of your mother’s death will pass to you and any other of your mother’s children. The assets your stepfather owned prior to your mother’s death will pass to his own surviving family members by intestate succession.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at lentillem.com. Len also answers legal questions each weekday on The Len Tillem Show, a podcast available via iTunes, Facebook, www.spreaker.com/user/lentillem and lentillem.com.
Email: lentillem@kenwoodpress.com

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