November 2022 Newsletter

Lannik Law, LLC | Your Elder & Estate Planning Law Firm | Legal Lines News | Estate Planning And Elder Law

November 2022 Issue

Is Your Estate Plan Bulletproof?

Even with the best of intentions, challenges to wills and trusts happen all the time. Such disputes often turn very ugly, very quickly. Resentment can build between family members, and the financial consequences can be devastating for all parties involved.

Here are several ways to prevent potential disputes from arising in the first place, avoid estate litigation, and help ensure your wishes are carried out.

Try to treat siblings as equally as possible

Granted, in some family situations this may seem easier said than done. For example, if you have two children, leave each of them the same amount.

However, the “equality principle” doesn’t just apply to money. The issue of control is always at play. For example, if one of your children seems better able to manage money and you name them as executor (called Personal Representative in Massachusetts) of the estate (or trustee of the trust), the other child will likely feel slighted. Naming a corporate executor or trustee can nip this thorny issue in the bud.

You may also play to your children’s strengths by giving them each a “special” role in your estate plan. For example, I had a client who appointed daughter A as Personal Representative and daughter B a Health Care Agent. You know your children, and if the issue is money, then a corporate fiduciary might be the best route.

Another potential problem is when inheritances are left to grandchildren, and one sibling has more grandchildren than the other. However, if you follow the equality principle, many conflicts can be avoided.

Never underestimate the emotional value of certain family heirlooms and other tangible property

A statement in a will or trust that essentially says “tangible personal property should be divided as my heirs see fit” can lead to a host of conflicts. While that vase in the foyer or old sofa in the living room might not seem valuable to you, to certain members of your family it could hold special meaning and value that they’d be willing to fight for. By putting specific items that you believe are of interest to certain family members in writing, and discussing these decisions in advance, many emotionally charged disputes can be avoided.

If you gave money to one heir in the past, don’t forget about it your plan

Let’s say that several years ago you gave one of your sons $20,000 to help with the down payment on a home. Since your goal is to treat all of your children equally, you might want to address this gift in your will or trust. For example, it can be classified as an advancement, with the $20,000 counting as part of the money you ultimately leave to that particular son.

Consider putting a no contest clause in your will

If you suspect that one of your children, or their spouse, might make trouble over your will, a no contest clause can help avoid potential problems. In essence, this clause makes the risk of challenging your will outweigh the potential benefit of doing so.

A no contest clause typically stipulates that if a beneficiary contests the will’s validity or its provisions, their interest in the will is forfeited. Of course, you have to leave the heir in question enough of an inheritance to motivate them not to challenge the will.

Prove that you are of sound mind

This might sound “crazy,” but it’s an extremely important step. Challenges to wills often involve allegations that the maker of the will (the testator) was not of sound mind when the will was signed. This tactic is particularly common when changes have been made to the will shortly before the testator’s death. You can help prevent this type of challenge by obtaining an evaluation from a treating physician and a psychiatrist right before you sign or make changes to your will.

If you are going to disinherit someone, make sure it is noted clearly in your will

Children can, and sometimes do, disappoint us. Sadly, the level of disappointment may be so severe, the behavior so egregious, that the only solution seems to be disinheriting the son, daughter, or grandchild entirely. If you find yourself in this situation, make sure your decision is noted in your will. You don’t want to give a reason for your decision, as this could become the foundation for a potential lawsuit. However, you need to make it clear that your decision was intentional.

Celebrating Caregivers This November

Caregiver, carer hand holding elder hand.

November is National Family Caregivers Month (NFCM)! It’s a time to recognize and honor family caregivers and offers an opportunity to raise awareness of caregiving issues and increase support for caregivers.

If you are serving as the caregiver in your family, you need to understand the difficulty of what you are undertaking and recognize the signs that you may be trying to do too much. Many caregivers work so hard caring for the people around them that they forget to take care of themselves. The result can be what is often referred to as “caregiver burnout.”

A good way to begin is to ask yourself the following questions:

Am I always exhausted, even after sleeping all night?
Do I catch an inordinate number of colds or flu?
Does it seem like my whole life revolves around caregiving, but I don’t get any satisfaction from it?
Have I lost the ability to simply relax?
Am I increasingly impatient with and irritated by the person in my care?
Am I feeling overwhelmed and helpless, sometimes even hopeless?

If your answer to any of these questions is yes, and the symptoms seem to have appeared after you began to assume the duties of caregiver, it is quite possible that you have reached or are close to burnout.

First, it’s important to understand that what you are feeling is normal. Caregiver burnout is quite common— increasingly so, given that Americans are living longer than ever before and frequently need long-term care as they grow older.

Here are some steps you can take if you believe you might be suffering from caregiver burnout.

Learning as much as you can about your family member’s illness and how to care for that illness. The more you know, the more effective you’ll be and the better you’ll feel about your efforts.
Recognize your limits, and take a more realistic approach to how much time and effort you can give. Then, be sure to express those limits to doctors and family members.
Learn to accept the way you feel. Anger, fear, resentment, guilt, helplessness, grief… all of these emotions and more are commonly felt by caregivers.
Talk to people about what you feel. Keeping your emotions bottled up doesn’t do you or the person you are caring for any good. Confiding in trusted friends and family members can prove invaluable.

This last step is extremely important. Remember— you are not alone. Support is available from people who understand what you are going through and can help you cope with the stress involved. You must do whatever it takes to avoid a sense of isolation. You’ll find support groups within the community online, in the phone book, through your physician, and organizations associated with the health problem of the loved one under your care.

A Personal Note From Susana

They say, “You can’t take it with you.”

The most notable exception to that rule is Pharoah Tutankhamun, better known to us as “King Tut.” Last weekend I visited an exhibition that show-cased the lavish grave offerings from his tomb which had been opened about a century ago, and remains the object of speculation to this day. What struck me most was the fact that there were some 5,000 objects, one more magnificent than the next, stuffed into a 1200 square space. Today, this could be called hoarding except for the fact that each object was meant to serve this young king (he died at age 18-19) in what was construed to be an elaborate afterlife. And they were all exquisite.

Unfortunately, none of us are King Tut even though all of us might like to be. Many of my clients labor over the distribution of personal property (eg. like art works); others leave it to the children to argue over. Many of us are faced with the question of “what to do with the stuff?” that we would like to leave, or that we receive. And the value of most peoples’ belongings does not approach the value of the solid gold “stuff” left to enable King Tut to “enjoy his afterlife.”

Sometimes we over value what we have and by placing an artificial value on our things, we burden our kids with the expectation that our items are worth fighting over!

How do we resolve this problem? First: If you have items you believe are of value, get them appraised by a legitimate appraiser. Second: Whether these items are of value, YOU decide how you would like to divide these items. Third: Try to be fair and equitable in the division. Fourth: Discuss your decision with your loved ones, and be flexible. Maybe one person is attached to a special item and trades can be initiated. Fifth: Make a provision in your will or your trust for the sale of items if there is a dispute or if no one wants them. Finally, and maybe this has been overlooked more than once, provide for practical distribution of the items prior to your death, or immediately after.

In the case of King Tut, grave robbers did get there first, but his grave was largely left intact. Unlike the rest of us the magnificence of his objects has given him the everlasting “life” the Egyptians sought! Your everlasting life can be the peace you’ve left your heirs by sensitive preparation.

Susana