Where should you keep your estate planning documents?

Clients always ask where they should keep their will and important estate documents. As attorneys habitually do, I usually respond: “It depends.” Is your family emotionally supportive and close, or is there contention? Are you ill? Are you healthy; or under hospice care? There are many variables, and the best method of storage is almost completely based upon common sense. However, here are some general guidelines:
In a Safe Deposit Box: These are good places for wills and trust documents– as long as your family knows about the box and has access to it. If the box is jointly held, your joint holder should be told that the will is in it. However, if only you have a key, then the executor of your will should be informed (1) that the will is in the box, and (2) is told where the key is. An executor may be able to force access to the box after being appointed by the court, but it will require additional effort and expense. When it is possible, planning ahead is better.

With Your Important Papers: Placing the will and trust documents with your important papers is a good option – unless you are concerned about fire, theft or destruction. If you have a contentious family situation (or suspect there may be one), this is probably not a good idea if the person who may contest your estate plan has initial access to these documents. Again, use common sense in making this decision.

In California, if estate planning documents cannot be located, it is presumed that they were destroyed with the intent to revoke. They may be revoked through numerous means – including outright destruction – at any time before death. The assumption that the “lost” will was revoked can be overcome through litigation, but advance planning can avoid the problem. But this should give you no comfort – think about it: You are dead. Yet, the court must decide your actions. How can it be proved that you did not destroy the will with the intent to revoke? This is a difficult, avoidable issue.

This also emphasizes the importance of taking a cold, hard, and honest look at your family situation. You would be amazed at what people are capable of when money is involved. But I believe that most people really, truly know the character of their family members. You really do know what those close to you (or not so close to you, as the case may be) are capable of. Act on your “gut” instincts in deciding how to maintain these records.

With your Attorney: I generally do not retain the originals of estate planning documents (even though I do not discount the possibility that I might make arrangements, in an appropriate, emergency circumstance). If appropriate, this is another possibility – as long as your executor knows where to find the document. As always, the important element is that the important person has knowledge and access to these records.

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Advance Healthcare Directives — like a free toy?

Recently I have completed a great number of advance healthcare directives (also called “Living Wills” in some states) for clients. I once read an article which suggested that a Directive was something on the periphery of an estate plan — it even indicated that a directive should be just given by the attorney “for free” — as if it were incidental to the “real” estate plan. I guess a “real” estate plan to this author would only be the money left behind to a client’s heirs, and that the client’s own health and comfort is of less importance.

Now, I am certainly not advocating overcharging clients, but I object to the idea that an end-of-life Healthcare Directive is something like a free toy in a cereal box. A Directive is simply not an inconsequential part of an estate plan. Sometimes, its the only and the most important part.

Very recently I prepared an estate plan for a middle age client who had little money, and no family. She only had a small handful of concerned friends. Her only remaining asset, her health, had been taken by cancer. In that case, the directive was the only aspect of her personal “estate.”

When we think of an “estate,” we understandably think of money. However, our “estate” is in fact everything — and the most important part involves our health, and our dignity.

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A happy and sad and heroic blog post

Planning and estates is not just about the money (even though, unfortunately, to many it might seem that it comes down to just that). Planning, actually, is something that has to do with life: How we live; what is important; making sure that our loved ones are provided for.

I came across a blog post written by Chicago Sun-Times writer Lacy Banks, entitled “I’m Not Afraid to Die. What About You?”

I will not even summarize it. It speaks for itself.

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Pet Trusts for the Non-Rich

It’s true that my Depression-era grandparents would not have thought much of a pet trust (“Such a waste,” they would almost certainly have said). Yet, pets have become important to the well-being of young and old. As such, it is only natural that owners want to ensure that their furry loved ones are cared for once they pass away.

There has been a lot of media attention over Leona Helmsley’s $12 million pet trust for her dog, Trouble. In a circular argument, one legal writer recently suggested that the $12 million gift was worth “the Trouble” (sorry…I couldn’t resist) because all of the press attention has created a bevy of death and dog-napping threats. Frances Carlisle wrote:

After the publicity, it was reported that more than 40 death and dognapping threats were received, and that the dog was in such danger that she was taken out of her Connecticut home and flown under an assumed name to a secret location. Round-the-clock security is needed for the dog, which costs between $100,000 and $200,000 a year, and that amount is much more than any other expense for the care of the dog. Since security costs are so high, $2 million is a reasonable amount to fund the trust for Trouble.

Maybe I am overthinking this, but he seems to be arguing in a circle: That a pet trust for $2 million is justified, because Leona Helmsley made a $12 million trust?

Well, there are pet trusts for Trouble – and there are pet trusts for the rest of us. Most of us don’t have $2 million (let alone $12 million) to put into a pet trust. Still, we worry about our little friends when we are gone. Here are some things to think about if you are considering such a trust:

Make it worth the “Trouble” for the trustee (sorry again): If you go to the expense of a pet trust, don’t “go cheap” on your trustee. You obviously want the trustee to take care of your pet, so give the trustee enough of a trustee fee – but not too much or too little. If you give your trustee too little, he or she would have an incentive to get rid of the pet; too much, and the pet might be kept alive longer is good for the pet’s comfort and well being.

Consider a trust protector. Pets are obviously very helpless. Generally, they will not have the wherewithal to file a petition in court to replace the trustee in case of abuse. Have a family member oversee the trustee. Under the new pet trust statute in California, (under Probate Code Section 15212) any person having an interest in the animal, or a charitable organization having as its principal activity the care of animals may enforce the trust.

Don’t give the trustee a large remainder interest in the trust. Again, you don’t want the trustee to have an incentive to “off” your pet to collect what is left in the trust. Giving a small gift after your pet dies is fine, but give the rest to the local ASPCA, or someone else not associated with your trustee.

Actually place the pet in the trust as a part of trust property. Animals are considered property. By placing the pet in the trust as part of the trust’s property, you are requiring the trustee to use his or her fiduciary obligation of care, in caring for your pet. Of course, there are no guarantees. However, you should line up your legal “ducks in order.”

These are just a few rules to consider. If you have an interest in a pet trust, you should contact your local estate planning attorney for assistance.

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