King & Wood, P.A.

An Estate Plan Can Say, ‘I Love You’ More than Flowers

“Planning, whether it’s related to creating a special day or evening for someone or their future, is one of the greatest expressions of a person’s love.”

Estate planning is more romantic than you might think. It ensures that someone or a group of people you care about receive instructions for challenging situations and how assets are distributed. It’s about ensuring that someone has a power of attorney and medical directives. These are acts of love, according to a recent article from Wealth Management, “Say ‘I Love You’ With an Estate Plan.”

With an estate plan in place, family members aren’t forced to make difficult decisions or worry about someone’s wishes not being granted. Without it, loved ones may face a lifetime of regret.

You may think spouses automatically receive everything upon the death of a spouse. However, it doesn’t always work this way. If there are children and there is no will, the assets are divided between the spouse and the children in many states. If the children are minors, the surviving spouse may be left scrambling to make up the difference to support the children. They won’t be able to access the minor children’s inheritance, as a court-appointed conservator may control the assets.

The last thing you want a grieving spouse to have to do after you’ve passed is to deal with legal complications, unexpected expenses and a struggle to pay bills. Creating an estate plan with an experienced estate planning attorney prepares the spouses for what will happen when one passes and allows the family to focus on grieving and caring for each other, instead of untangling disorganized finances.

Planning for estate taxes is another act of care for loved ones. Life insurance is often used to cover the cost of any taxes, which reduces the taxable estate and adds to the assets a loved one will receive. Without planning, an estate can lose one-sixth of its value in taxes alone, so tax planning should always be part of an estate plan.

To make estate plans more meaningful, you may want to leave a written note to loved ones. Often called an ethical will, this personal message shares the life lessons you’ve learned, values and encouragement. For some family members, the message of thoughtful and loving advice becomes an annual ritual, where the ethical will is read every year and often referred to when facing tough decisions in their personal and professional lives.

When someone dies unexpectedly or has no opportunity to say goodbye, having these final words can anchor loved ones through life. Putting your love and wisdom into a letter will add to your legacy.

Estate planning is more than paperwork. It lightens the pain of loss, preserves peace among the family and demonstrates caring for those you love. If you don’t have an estate plan, give yourself and your loved ones peace of mind by making an appointment today.

Reference: Wealth Management (Feb. 13, 2025) “Say ‘I Love You’ With an Estate Plan”

Caregiving and Estate Planning Provides Peace of Mind for All Generations

“With so many responsibilities on a farming or ranching operation, caregiving plans can often get overlooked until it’s too late.”

If your goal is to keep the farm, ranch, or small business in the family, planning, including estate planning and caregiving, is the number one strategy to making it happen. Families may dissolve the farm or business without advance planning to pay for long-term care expenses. A recent article from AgWeek, “Caregiving plans can provide peace of mind for farming and ranching families,” explains what needs to be done.

Part of the issue is that most ranchers and business owners won’t qualify for Medicaid because they own a significant asset. Having to sell off something they’ve worked their entire lives to build is often a result of no planning.

If you have a long-term care insurance policy, it needs to be carefully reviewed to determine what conditions need to be met for benefits to be paid. For example, most policies have a “waiting period,” so you’ll need to plan how to pay for caregiving during the months before the policy kicks in.

There’s also confusion about the difference between Medicare and Medicaid. Medicare is health insurance for medical expenses, while Medicaid is usually used for long-term care and caregiving needs. However, Medicaid is a needs-based program. An estate planning attorney can help the family determine what needs to happen in advance, whether the goal is to protect the farm, ranch, or small business while helping the aging parent become eligible for Medicaid.

Estate planning includes planning for incapacity, which can occur at any time but is more likely as we age. Suppose the individual hasn’t completed a power of attorney, healthcare power of attorney, and other medical directives. In that case, the family will need to go to court to obtain conservatorship or guardianship to take over the person’s financial matters and make healthcare decisions on their behalf. An estate planning attorney can help the family prepare the documents and create a plan.

Having an estate plan in place is also another means of protecting the family’s assets from elder abuse. Everything needs to be documented, and records need to be well-organized so every family member knows where documents are, where assets are and the plan for the inevitable events of aging.

Meeting with an estate planning attorney to create the last will and testament, power of attorney and all other planning documents can minimize the stress and costs involved. Without planning, everything becomes far more complicated, costly and stressful for all concerned.

Reference: AgWeek (May 14, 2024) “Caregiving plans can provide peace of mind for farming and ranching families”

Why You Need Two Kinds of Power of Attorney Documents

“Power of Attorney documents are often an afterthought when someone thinks about their estate plan.”

Wills and trusts are used to establish directions about what should happen to your property upon death and who you want to carry out those directions, explains an article from Coeur d’Alene/Post Falls Press, “Power of attorney documents come in two main varieties—do you have both?” However, the estate planning documents addressing what you want while you are still living but have become incapacitated are just as important. To some people, they are more important than wills and trusts.

A comprehensive estate plan should address both life and death, including incapacity. This is done through Power of Attorney documents. One is for health care, and the other is for financial and legal purposes.

A Power of Attorney document is used to name a decision maker, often called your “Agent” or “Attorney in Fact,” if you cannot make your own decisions while living. You can use the POA document to state the scope and limits the agent will have in making decisions for you. A custom-made POA allows you to get as specific as you wish—for instance, authorizing your agent to pay bills and maintain your home but not to sell it.

The financial POA document gives the chosen agent the legal authority to make financial decisions on your behalf. In contrast, a Health Care Power of Attorney document gives your agent the legal authority to make healthcare decisions on your behalf.

By having both types of POA in place, a person you choose can make decisions on your behalf.

Suppose you become incapacitated and don’t have either Power of Attorney documents. In that case, someone (typically a spouse, adult child, or another family member) will need to apply through the court system to become a court-appointed “guardian” and “conservator” to obtain the authority the Power of Attorney documents would have given to them.

This can become a time-consuming, expensive and stressful process. The court might decide the person applying for these roles is not a good candidate, and instead of a family member, name a complete stranger to either of these roles.

The guardianship/conservator court process is far less private than simply having an experienced estate planning attorney prepare these documents. While the records of the legal proceedings and the actual courtroom hearings are often sealed in a guardianship/conservatorship court process, there is still a lot of personal information about your life, health and finances shared with multiple attorneys, the judge, a social worker and any other “interested parties” the court decides should be involved with the process.

For peace of mind, having an experienced estate planning attorney prepare these documents when creating or updating your estate plan is a far better way to plan for incapacity.

Reference: Coeur d’Alene/Post Falls Press (Oct. 11, 2023) “Power of attorney documents come in two main varieties—do you have both?”

Revocable Trusts Make Sense for Retirees

“If you plan to pass assets through a will, just remember that most of the time, that will becomes public once the probate estate is closed. Therefore, if you left one of your childrenout, left your favorite a bit more or are just a private person, you may be better off with a trust.”

Estate plans are not a one-size-fits-all commodity, especially when it comes to trusts. A revocable trust makes sense in many, but not all, cases, says a recent article from Kiplinger, “Four Reasons Retirees Need a (Revocable) Trust.” How can you tell whether or not you need a revocable trust?

Would you prefer to avoid probate? When people tell their estate planning attorney they need a trust, no matter what, there’s usually a family story involved. Maybe a parent created a trust that worked well, or maybe their parents didn’t have a trust, and they had a difficult experience in probate court.

Avoiding probate is a good reason to have a trust. Assets passing through a will go through probate, which is different depending on your jurisdiction. It can be expensive and time-consuming, although it can also be painless. A local, experienced estate planning attorney will know what you can expect.

Trusts are especially useful for people who own assets in multiple states because assets must be probated in each state. With a trust, assets pass to heirs directly and efficiently.

Do you want to control your estate? If some of your adult children are good with finances, but some are not, a trust allows you to structure asset distribution with great specificity. A certain percentage of assets can be released at certain ages, or annual distributions can be made according to any guidelines you set.

Would you prefer your estate to be private? Creating an estate plan is often an emotional process, balancing your goals and family dynamics. These wishes are typically kept private, except those who have some role in creating the plan. If your assets pass through probate, remember the will becomes part of the public record once it is admitted to probate. Anyone, from an estranged family member to a scammer, can see what you gave and who you gave it to. Trusts, on the other hand, are private.

Do you have a plan for incapacity? Your estate plan should contain a number of documents in case of incapacity, including Power of Attorney, Healthcare Proxy and a Living Will. In addition, a revocable trust with a successor trustee will create continuity and simplicity in managing your financial matters. The successor trustee named in the trust document will manage the assets according to the terms of the trust if you become incapacitated. Without such a trust in place, your family would need to go through the legal process of seeking a conservator to manage the assets in the trust.

An estate planning attorney is the best person to discuss whether or not a revocable trust belongs in your estate plan, along with other planning strategies.

Reference: Kiplinger (Sep. 13, 2023) “Four Reasons Retirees Need a (Revocable) Trust”

What is the “I Love You” Last Will and Testament?

“An ‘I Love You Will’ works great as long as everything goes as planned. However, there are three reasons that kind of will may not love you back.”

Having a will and an estate plan created is one of the most loving things a couple can do for each other and all the people and causes in your life, says a recent article, “I Love You, But Your ‘I Love You Will’ Needs to Go” from Kiplinger. However, if what you and your loved one have in mind is an “I love you will,” you need to know that this isn’t always the best option. Sometimes, the unintended consequences can send a very different message.

I Love You Wills refer to reciprocal last wills created by spouses where each leaves the entire estate to the other spouse outright. The remaining assets pass to their mutual children upon the surviving spouse's death.

These types of wills are usually created for couples making their first wills, those with simple estates and those who want to have a will, any will, in place before a significant life event, like getting married, having their first child or going on a long trip. Others opt for I Love You Wills because they want to avoid thinking or talking about death and creating a will and would rather have the simplest plan.

However, an I Love You Will can be an “I don’t care so much” will in some circumstances.

Control on the death of the survivor. Nothing stops the surviving spouse from changing their will after the first spouse’s death. They can easily reduce or outright eliminate any gifts to children of the marriage in favor of a new spouse, new children, stepchildren, or any other person named in the original will.

One way to address this is to create a trust for the surviving spouse. An independent trustee or co-trustee would then serve with the surviving spouse and assess distribution decisions. This makes it harder to disinherit those included in the original will, as long as they are named trust beneficiaries.

Lost opportunity for a ‘primary’ charitable bequest. Philanthropically minded people may have wished to leave something to a charity. It may be better to include a bequest in their own will, rather than waiting for both spouses to pass. A will simply stating that assets pass on the first spouse’s death to the survivor could easily cause any charitable bequests to evaporate.

No protection for incapacity. If your spouse was incapacitated when you died and couldn’t manage their financial affairs, who would be in charge of their legal, financial and health care? What would happen to their inheritance? Most people would prefer to choose the person in charge of their property on behalf of their spouse, rather than a stranger named guardian or conservator by the court. A will leaving all assets outright to the surviving spouse doesn’t offer any protection for incapacity.

While having a simple will is better than no will, having a comprehensive estate plan addressing inheritance and incapacity issues is the best plan for the future. Speak with an experienced estate planning attorney to create your estate plan to protect you, your spouse and your family.

Reference: Kiplinger (May 2, 2023) “I Love You, But Your ‘I Love You Will’ Needs to Go”

Could Your Estate Plan Be a Disaster?

“We’re all looking to save taxes, court costs, legal fees and ‘make it simple’ for our heirs. A last will and testament is the cornerstone of all estate planning, maybe with a trust.”

You may think your estate plan is all set.However, it might not be. If you met with your attorney when your children were small, and your children are now grown and have children of their own, your estate could be a disaster waiting to happen, says a recent article “Today’s Business: Your estate plan—what could go wrong?” from the New Haven Register.

Most estate planning attorneys encourage their clients to revisit their estate plan every three to five years, with good reason. The size of your estate may have changed, you may have experienced a health issue, or you may have a new child or a grandchild. There may be tax law changes, statutes may have been updated and the plan you had three to five years ago may not accomplish what you want it to.

Many people say they “have nothing” and their estate is “simple.” They might also think “my spouse will get everything anyway.” This is wrong 99% of the time. There are unintended consequences of not having a will—accounts long forgotten, an untimely death of a joint owner, or a 40-year-old car with a higher value than anyone ever expected.

Your last will and testament designates who receives your assets and provides for any minors. A will can also help protect your wishes from a challenge by unwanted heirs after your passing.

The federal estate tax exemption today is $12.6 million, but if your will was created to minimize estate taxes when the exemption was $675,000, there may be unnecessary provisions in your plan. Heirs may be forced to set up inherited trusts or even sub-trusts. With today’s current exemption level, your plan may include trusts that no longer serve any purpose.

When was the last time you reviewed your will to see whether you still want the same people listed to serve as guardians for minor children, executors, or trustees? If those people are no longer in your family, or if the named person is now your ex, or if they’ve died, you have an ineffective estate plan.

Many adults believe they are too young to need an estate plan, or they’ve set up all of their assets to be owned jointly and, therefore, don’t need an estate plan. If one of the joint owners suffers a disability and is receiving government benefits, an inheritance could put all of their benefits at risk. Minor children might inherit your estate. However, the law does not permit minors to inherit assets, so someone needs to be named to serve as their conservator. If you don’t name someone, the court will, and it may not be the person you would choose.

What about using a template from an online website? Estate planning attorneys are called in to set things right from online wills with increasing frequency. The terms of a will are governed by state law and often these websites don’t explain how the document must be aligned with the statutes of the state where it is signed. Estate plans are not one-size-fits-all documents and a will deemed invalid by the court is the same as if there were no will at all.

If you don’t have an estate plan, if your estate plan is outdated, or if your estate plan was created using an online solution, your heirs may inherit a legal quagmire, in addition to your coin collection. Give yourself and them the peace of mind of knowing you’ve done the right thing and have your will updated or created with an experienced estate planning attorney.

Reference: New Haven Register (Oct. 29, 2022) “Today’s Business: Your estate plan—what could go wrong?”

Estate Planning Considerations for Minor Children

“When preparing estate planning documents, certain beneficiaries may need more protection than others. One particular class of beneficiaries that needs to be intentionally considered is minor children.”

Creating an estate plan with minor children in mind has a host of variables quite different than one where all heirs are adults. If the intention is for the minor children to be beneficiaries, or if there is a remote chance a minor child might become an unintended beneficiary, different provisions will be needed. A recent article titled “Children need special attention in estate planning” from The News-Enterprise explains how these situations might be addressed.

Does the person creating the will—aka, the testator—want property to be distributed to a minor child? If so, how is the distribution is to occur, tax consequences and safeguards need to be put into place. Much depends upon the relationship of the testator to the minor child. An older individual may want to leave specific dollar bequests for minor children or great-grandchildren, while people with younger children generally leave their entire estate in fractional shares to their own minor children as primary beneficiaries.

While minor children and grandchildren beneficiaries are excluded from inheritance taxes in certain states, great- grandchildren are not. Your estate planning attorney will be able to provide details on who is subject to inheritance, federal and state estate taxes. This needs to be part of your estate plan.

If minor children are the intended beneficiaries of a fractional share of the estate in its entirety, distributions may be held in a common trust or divided into separate share for each minor child. A common trust is used to hold all property to benefit all of the children, until the youngest child reaches a determined age. When this occurs, the trust is split into separate shares according to the trust directions, when each share is managed for the individual beneficiary.

Instructions to the trustee as to how much of the income and principal each beneficiary is to receive and when, at what age or intervals each beneficiary may exercise full control over the assets and what purposes the trust property is intended for until the beneficiary reaches a certain age are details which need to be clearly explained in the trust.

Trusts for minor children are often specifically to be used for health, education, maintenance, or support needs of the beneficiary, within the discretion of the trustee. This has to be outlined in the trust document.

Even if the intention is not to make minor children beneficiaries, care must be taken to include provisions if they are family members. The will or trust must be clear on how property passed to minor child beneficiaries is to be distributed. This may be done through a requirement to put distributions into a trust or may leave a list of options for the executor.

Testators need to keep in mind the public nature of probate. Whatever is left to a minor child will be a matter of public record, which could make the child vulnerable to scammers or predatory family members. Consider using a revocable living trust as an alternative to safeguard the child and the assets.

Regardless of whether a will or trust is used, there should be a person named to act as the child’s guardian and their conservator or trustee, who manages their finances. The money manager does not have to be a parent or relative but must be a trustworthy person.

Review your specific situation with your estate planning attorney to create a plan to protect your minor children, ensuing their financial and lifestyle stability.

Reference: The News-Enterprise (Sep. 10, 2022) “Children need special attention in estate planning”

Estate Planning Considerations for Minor Children

“When preparing estate planning documents, certain beneficiaries may need more protection than others. One particular class of beneficiaries that needs to be intentionally considered is minor children.”

Creating an estate plan with minor children in mind has a host of variables quite different than one where all heirs are adults. If the intention is for the minor children to be beneficiaries, or if there is a remote chance a minor child might become an unintended beneficiary, different provisions will be needed. A recent article titled “Children need special attention in estate planning” from The News-Enterprise explains how these situations might be addressed.

Does the person creating the will—aka, the testator—want property to be distributed to a minor child? If so, how is the distribution is to occur, tax consequences and safeguards need to be put into place. Much depends upon the relationship of the testator to the minor child. An older individual may want to leave specific dollar bequests for minor children or great-grandchildren, while people with younger children generally leave their entire estate in fractional shares to their own minor children as primary beneficiaries.

While minor children and grandchildren beneficiaries are excluded from inheritance taxes in certain states, great- grandchildren are not. Your estate planning attorney will be able to provide details on who is subject to inheritance, federal and state estate taxes. This needs to be part of your estate plan.

If minor children are the intended beneficiaries of a fractional share of the estate in its entirety, distributions may be held in a common trust or divided into separate share for each minor child. A common trust is used to hold all property to benefit all of the children, until the youngest child reaches a determined age. When this occurs, the trust is split into separate shares according to the trust directions, when each share is managed for the individual beneficiary.

Instructions to the trustee as to how much of the income and principal each beneficiary is to receive and when, at what age or intervals each beneficiary may exercise full control over the assets and what purposes the trust property is intended for until the beneficiary reaches a certain age are details which need to be clearly explained in the trust.

Trusts for minor children are often specifically to be used for health, education, maintenance, or support needs of the beneficiary, within the discretion of the trustee. This has to be outlined in the trust document.

Even if the intention is not to make minor children beneficiaries, care must be taken to include provisions if they are family members. The will or trust must be clear on how property passed to minor child beneficiaries is to be distributed. This may be done through a requirement to put distributions into a trust or may leave a list of options for the executor.

Testators need to keep in mind the public nature of probate. Whatever is left to a minor child will be a matter of public record, which could make the child vulnerable to scammers or predatory family members. Consider using a revocable living trust as an alternative to safeguard the child and the assets.

Regardless of whether a will or trust is used, there should be a person named to act as the child’s guardian and their conservator or trustee, who manages their finances. The money manager does not have to be a parent or relative but must be a trustworthy person.

Review your specific situation with your estate planning attorney to create a plan to protect your minor children, ensuing their financial and lifestyle stability.

Reference: The News-Enterprise (Sep. 10, 2022) “Children need special attention in estate planning” 

What Is the Purpose of a Guardian?

“A frequent concern for those with aging loved ones is the future need for guardianship. Unfortunately, the concept of guardianship can be confusing and overwhelming.”

The most frequently asked questions about guardianship concern when it’s needed, how the process works and is there a way to avoid it. The idea of guardianship may feel troubling if you’ve never known anyone who needed a guardian, says a recent article “Guardian process can be lengthy, difficult” from The News-Enterprise.

Simply put, guardianship is a court proceeding restricting or removing the right of a person to manage their own financial, legal and medical affairs.

Guardianship is not exclusive to elderly individuals, as it is often used to protect adults and older children with disabilities. Guardianship is mainly needed when the person is unable to manage their own finances, incapable of understanding the scope and consequences of making their own medical decisions or is at risk of exploitation due to diminished capacity.

The process for obtaining guardianship for another person is complicated and takes at least several months before a guardianship order is entered into the legal record.

The first step is for the person who seeks guardianship for another person to file a petition with the District Court in the county where the impaired person lives. The person who files the petition is known as the petitioner and the person who needs the guardianship is known as the respondent. The petitioner is usually a family member but may also be a concerned person or an institution, like a nursing facility.

The petition is often paired with a request for emergency guardianship pending a trial. If the court doesn’t order the emergency order immediately, a short trial may be needed to get an emergency order. The court then sets a trial date and issues an order for an evaluation.

Different states have different requirements, which is why the help of an experienced estate planning attorney is needed. In some states, reports from three independent team members are needed: a healthcare professional, which is typically the respondent’s primary care physician; a mental health professional and a social worker, often from Adult Protective Services.

Each person from the team must conduct an independent evaluation and submit a separate report to the court with their findings and a recommendation. In some states, the guardianship moves to a trial, while in other states the trial is held in front of a judge.

If the guardianship is granted, by trial or by the judge, a guardian is appointed to make decisions for the person and a conservator is named. The conservator is in charge of the person’s finances. Both the guardian and conservator are required to file reports with the court concerning their actions on behalf of the respondent throughout the duration of their roles.

How can guardianship be avoided? It’s far simpler and less costly for the family to work with an estate planning attorney to have Durable Powers of Attorney and Health Care Power of Attorney documents created in advance of any incapacity. Paired with fully funded revocable living trusts, the family can have complete control over their loved one without court intervention.

These documents cannot be prepared after a person is incapacitated, so a pro-active approach must be taken long before they are needed.

Reference: The News-Enterprise (Sep. 24, 2022) “Guardian process can be lengthy, difficult”

Can We Prevent the Elderly from Being Scammed?

“As our children are entering adulthood, our parents need more of our time for many reasons—one being that older adults often fall victim to scams, on the internet or over the phone.”

Just as parents guide their children through adulthood and teach them about finances and how to manage their money, adult children of aging parents need to be alert for their parents before they fall victim to those preying on the elderly. It’s become all too common, according to the article “The Best Way to Protect a Parent from Scammers” from Kiplinger.

There are a few common scams seen across the country. One is to call an elderly person and tell them their beloved grandchild has been arrested and cash needs to be sent immediately to get them out of jail. The grandparents are told the child has told the police not to call the parents, so the call is secret. No police department calls grandparents with a demand for cash, but in the stress of the moment, flustered people often comply.

Another is a thief posing as an IRS agent and telling a surviving spouse that their deceased spouse owed thousands in back taxes and penalties. The senior is told to make a payment or risk being arrested.  There is also the scammer claiming to be from the DEA and warning the person their Social Security number and credit card were used to rent a car found abandoned near the Mexican border with suitcases stuffed with drugs. The person is told they need to verify their information to clear their record, or they’ll be arrested for drug trafficking. The voice is always very convincing.

Elderly victims are vulnerable for several reasons. One, the generation preceding the boomers was taught to trust others, especially people in positions of authority. As people age, their ability to think clearly when a dramatic and unexpected piece of bad news is easily shaken. Someone who would otherwise never have given out their personal information or sent cash or purchased gift cards becomes overwhelmed and complies with the scammer.

Taking control of a parent’s financial life is a hard step for both the aging parents and the adult children. No one wants to lose their independence and freedom, nor do adult children want to see their parents becoming vulnerable to thieves. However, at a certain point, adult children need to become involved to protect their parents.

A General Durable Power of Attorney (POA) is a legal document giving another person, typically an adult child, the power to act on behalf of another person immediately, once the document has been signed. It may not be effective in stopping a parent from giving money to a scammer, since the parents still have control of their money. fI transactions are done online, the bank may not have an alert set up for questionable transactions.

That said, having a POA in place and alerting the bank to its use will give the financial institution more freedom to be in touch with an adult child about their parent’s accounts, if fraud is suspected.

Guardianship or conservator is another way to address this issue, although it is far more invasive and brings the court system into the life of the person who becomes a “ward” and requires regular reporting. Guardianship is usually sought when the aging parent is incapacitated.

While we often think of trusts as a means of passing wealth to the next generation, they are also useful for protecting people in general and seniors in particular from scammers. When an adult child or other trusted person becomes the trustee, they gain complete control of the assets in the trust. If the aging parent is a trustee, they have control but someone else can step in if necessary. The co-trustee can see any changes in spending habits or unusual activity and take immediate action, without the delay that applying for guardianship would create.

Speak with your estate planning attorney about your unique situation to learn which of these solutions would be appropriate for your loved ones.

Reference: Kiplinger (July 25, 2022) “The Best Way to Protect a Parent from Scammers”