Written by Christopher Heritage, Esq. on SDGLN.com
We have talked about powers of attorney, Wills and probate processes in the past couple of months. Possibly you nodded off while reading them, or skipped them entirely. I understand. We don’t like to think about incapacity or death. Also, estate planning is not really for you—it is for those you leave behind. It often takes an unexpected jolt or tragic occurrence to make us say “Oh no! I should have…” or “How awful! He forgot to…” But at that point, it is often too late.
Let’s look at two real life incidents that may make you take action:
Scene 1:
Dee and Joanne were registered domestic partners in California, and both had Wills. State law views them as “spouses” who can inherit community and separate property assets from each other, often without going through probate. When Dee passed away, Joanne discovered that their home was not titled in joint tenancy. It is solely in Dee’s name. To make matters much worse, Dee had handwritten some beneficiary changes on her Will. Although the Will provided that Joanne inherit the house and most of Dee’s assets, the Will is invalid because she wrote on it. Dee had passed away “intestate”—without a Will.
Joanne, in poor health herself, was heartbroken. She had to file a probate petition and retain an attorney to help sort things out, and only now, nearly a year and a half later, has the court determined that the house and other assets may be legally transferred into Joanne’s name.
Just two simple errors caused a huge heartache, a huge expense and a lot of wasted time. It is easy to title your assets correctly. It is easy to make legal changes to your Will. Find an attorney. The cost of correct titling or a simple codicil to a Will may be as little as a couple of hours of the attorney’s time. Compared to the frustration and enormous financial and psychological cost of intestacy or other errors, you owe that to your loved ones.
Scene 2:
Jeff was pleased with himself. Five years ago, at age 65, he had his attorney set up a living trust to pass on his house and savings; a durable power of attorney; and health and personal care directives. His assets were modest, but he felt secure. If he became incapacitated, his nephew Jay, who was named as his personal agent, would manage his assets and his medical care.
Jeff and his best friend, Two Cents, a Yorkshire terrier, lived comfortably until suddenly Jeff suffered a stroke and was rushed to the hospital. Like clockwork, the terms of the power of attorney and directives took effect, and that day, Jay assumed management of Jeff’s financial affairs and his medical care. It was clear that Jeff’s memory and speech were seriously affected and he would have a long period of incapacity.
Jay forgot about Two Cents until he entered Jeff’s home two days later. Two Cents was unfed, un-walked and frantic. Jay had no place to keep the dog, and knowing that Jeff might not be returning home for a long time, decided to take the dog to the pound. He wanted to be a good custodian of Jeff’s financial affairs. He shouldn’t be spending Jeff’s money on a dog.
Several weeks passed, and Jeff was recuperating. As his speech and memory began to improve, his first questions were about Two Cents. Was he all right? Was Jay feeding him the right food? Could Two Cents come to see him? When could he go home to be with Two Cents?
Well, you know the rest. If only Jeff’s attorney had added a simple statement to the durable power of attorney directing Jay to spend the money needed for the care of Two Cents, the pet would be here now to help Jeff on his long road to recovery.
None of us would consciously hurt our partners, spouses, families or pets. We are disturbed and angry when we hear about such things happening to others. But we still fail, time after time, to review our own plans and how they may affect our loved ones if something happens to us. It costs us so little to be sure they will not be harmed by something we forgot to do. Please, review your plans for their future today.
This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community. Previous articles can be viewed at heritagelegal.com. This information is intended for general information purposes only, and is not intended to provide legal advice. Christopher Heritage is an attorney in Palm Springs, who focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and consumer bankruptcy.
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