Writing Your Tulsa Estate Planning Blog

When most people think of trusts, they think of living trusts. That is something that a person creates while they are alive and that has a written trust agreement. There is another type of trust.

Revocable living trusts are now so common that many people assume all trusts are just that – revocable living trusts. However, there are many different types of trusts.

Trusts can also be irrevocable. In addition, not all trusts are living trusts.

A living trust merely refers to any trust agreement that a person makes during his or her lifetime. Another type of trust exists that people can make after death. It is called a testamentary trust. Many people have documents that create one, even if they are not aware of it, as NWI Times discusses in “Wills can create trusts.”

It is very common for a will to create a testamentary trust, when the person making the will has minor children. The language of the will leaves assets to the child as held in trust by a third party. That third party becomes the trustee and assumes all of the normal responsibilities of a trustee.

You might even have these provisions in your will and not know about it, if you have not reviewed your will closely enough.

Whether your estate plan creates a trust for minor children under a revocable living trust or a will, make sure that you understand what it will do (and not do) to protect and manage the inheritance. A qualified estate planning attorney can help you, and even make adjustments as may be needed.

Reference: NWI Times (Feb. 19, 2017) “Wills can create trusts.”

Estate planning attorneys repeatedly warn clients to review and update beneficiary designations on a regular basis. A recent case illustrates why.

Hopefully you have heard from your estate planning attorney about the need to update your estate plan, anytime that you have a significant change in your life circumstances. This includes going over your retirement accounts and life insurance policies to make sure beneficiary designations are up to date.

If you think that this is just a way for attorneys to get you back into their offices for more fees, then a recent story reported by the Wills, Trusts & Estates Prof Blog “Ex-Spouse Receives Bulk of Insurance Death Benefit” should change your mind.

A man named his wife as an 83% beneficiary on the group life insurance policy he received through his employer. His children were the other beneficiaries.

After he got divorced, he never updated the policy and the policy was not mentioned in his divorce proceedings.

When he passed away, his ex-wife refused to waive her status as a beneficiary. Under federal law, the ex-wife could only be removed from the policy, if a divorce decree mandated it.

State law was no more helpful in this case and the ex-wife received her share of the insurance money.

When an estate planning attorney warns you to review and update your estate plan, make sure that you listen and do so.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 15, 2017) “Ex-Spouse Receives Bulk of Insurance Death Benefit.”

How to pay for future nursing home care concerns many Americans as they get older. Many consider purchasing long-term care insurance, but it might not be the best option for everyone.

The costs of staying in a nursing home are already very expensive and they are expected to rise. Individual Americans have to figure out a way to afford a nursing home, if it is ever needed.

While it is true that Medicaid will pay for nursing home care, the government will not pay if you have plenty of your own assets. That means if you were planning on leaving a sizable estate to your children, you will likely be unable to do so, if Medicaid pays for your nursing home care.

Another option to consider, is to purchase long-term care insurance.

Recently, the Wills, Trusts & Estates Prof Blog discussed it in “Should You Buy Long-Term Care Insurance?”
One of the key questions to consider, is when you might need the insurance coverage. If you are unlikely to need nursing home care for a long time, then it is often a better idea to save enough money so you can self-insure against the possibility of needing long-term care.

On the other hand, some long-term care policies have waiting periods that need to be considered. If you are likely to require nursing home care before the end of the waiting period, then an insurance policy will not help you.

One thing is certain. Long-term care insurance policies are complex.

You should seek the advice of an elder law attorney before signing a policy.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 16, 2017) “Should You Buy Long-Term Care Insurance?”

President Trump’s nominee to the Supreme Court could play an important role in shaping elder law in the U.S. He has written a book on one current controversial elder law issue.

When President Trump announced that he was nominating Neil Gorsuch to be the next justice of the Supreme Court, attention immediately turned to two subjects.

The first was Gorsuch’s previous decisions as a federal appellate judge and how those decisions might point to what he would do as a justice at the nation’s highest court. The second issue concerned his chances of being confirmed by the Senate, especially considering Democratic anger over the lack of a vote on President Obama’s nominee for the open Supreme Court seat.

Gorsuch’s opinion on elder law issues have received very little attention by comparison. However, he does have an opinion on an important and very controversial elder law issue.

This was reported by the Wills, Trusts & Estates Prof Blog in “Neil Gorsuch May Help “Death with Dignity” Legislation.”

In 2006, Gorsuch published a book on physician assisted suicide. He is opposed to the idea and would outlaw it. He does, however, believe that a patient has the right to refuse life-sustaining treatment. He would just stop short of allowing a terminally ill person to choose to end his or her own life with the help of a doctor.

With more and more states adopting or considering adopting laws allowing physician assisted suicide, Gorsuch’s opinion on the issue could be important, if he is confirmed as the next justice of the Supreme Court.

Reference: Wills, Trusts & Estates Prof Blog (Feb. 2, 2017) “Neil Gorsuch May Help “Death with Dignity” Legislation.”

A bizarre case in Arkansas highlights how money can give people the incentive to create fake wills and that they can be caught.

Matthew Seth Jacobs was on an oil rig when the Deepwater Horizon disaster struck. He was caught in an explosion and suffered extensive injuries. After filing a lawsuit, he eventually reached a multimillion dollar settlement with the company.

The story did not end there.

Jacobs used some of that money to purchase a home with the help of Arkansas real estate agent Donna Herring. Herring had plans for the rest of money. She pushed her teenage stepdaughter on Jacobs and eventually the two became engaged. However, the extent of their actual relationship is unknown.

Jacobs was later driving to the home of a different girlfriend, when he was in an accident. He did not recover from his injuries. Herring then produced a will that left all of Jacobs’ assets to her stepdaughter, even though she never actually married Jacobs.

At first the scheme worked, but new evidence was later found that showed Herring may have fraudulently created the will. She now faces multiple charges.

Arkansas Business has more on this case in “Fake Will Scheme Puts Camden Real Estate Agent in Hot Water.”

This case illustrates the lengths that some people will go to when large sums of money are involved. It is particularly tragic in this case, since the victim had previously been the victim of a horrific tragedy and the fraudster involved her teenage stepdaughter.

Reference: Arkansas Business (Jan. 30, 2017) “Fake Will Scheme Puts Camden Real Estate Agent in Hot Water.”

An important age discrimination case has been declared a mistrial, after the jury could not reach a decision. That leaves an important question for older job seekers unanswered.

Several years ago, an employee of the Equal Employment Opportunity Commission went out to eat at a Texas Roadhouse restaurant. The employee began asking questions of staff about the restaurants hiring practices. This led to an investigation from which the EEOC concluded that the chain restaurant company had a practice of not hiring older applicants to protect its image.

In 2011, the agency filed suit.

The case was unusual. No complaint had actually been made to the agency.

Normally, the EEOC does not bring lawsuits without receiving a complaint from a member of the public.

The case finally made its way to trial recently, but is now on hold because the jury failed to return with a verdict three times.

ProPublica reported on this case in “Federal Court May Decide If Employers Can Reject Older Job Seekers to Protect ‘Image’.”

This case is important for a couple of reasons.

The first is that older Americans often have a more difficult time finding employment than younger people. For this reason, the law protects them from some forms of discrimination, but it has never been decided if that includes protection from discrimination to protect a company’s image. Another reason this is important, is that it is not known how President Trump’s administration will deal with age discrimination cases and whether it will be as aggressive as the Obama administration.

Elder law advocates will continue to monitor this case closely for clues about how the administration will handle age discrimination issues.

Reference: ProPublica (Jan. 31, 2017) “Federal Court May Decide If Employers Can Reject Older Job Seekers to Protect ‘Image’.”

Family battles over an estate are not uncommon. While there can be several different reasons for these fights, there are a few reasons that are the most common.

Most of the time, litigation over an estate pits family members against family members. If there is a large sum of money involved, people have many reasons to possibly fight over what they consider to be their fair share. Sometimes these family battles just happen because family members do not get along with each other.

On the other hand, there are some common reasons for these fights as Wealth Management recently listed in “Five Reasons Families Fight over Estates,” including:

•When one sibling lives close to their parents and another lives a great distance away, leaving the sibling who lives closest more assets can lead to disputes.

•If a wealthy person gets remarried later in life and leaves a large portion of the estate to the new spouse, fights between that spouse and children from previous relationships are common.

•Any blended family situation can lead to family battles over estates, if proper plans have not been made.

•When wealthy people leave large sums to a trusted caregiver, then it is likely the family will fight with the caregiver over those assets.

•If the wealthy person has not adequately prepared and drawn up proper estate planning documents, then family fights over the estate are very likely.

Reference: Wealth Management (Jan. 30, 2017) “Five Reasons Families Fight over Estates.”

A high-profile case involving the estate of a wealthy Atlanta businesswoman is currently stalled, as other legal battles play out around it.

Diane McIver was a well-known and wealthy businesswoman from Atlanta. In the fall of 2016, she was sitting in the front passenger seat of a vehicle being driven by her friend. What happened next is disputed and has been the subject of considerable media speculation in Georgia.

Her husband Claude McIver was sitting in the vehicle directly behind her. He claims that he had a gun in his lap, because they were driving in a bad neighborhood. According to him, the car hit a bump in the road, which startled him and caused him to accidentally discharge the weapon killing his wife. The driver of the vehicle says the car was stopped, when she heard the gun go off.

Claude McIver has been charged with involuntary manslaughter.

If that was not enough to make administering the estate difficult, one of Diane McIver’s companies is suing her estate. The company claims that it loaned $1 million to one of her other companies that she personally guaranteed.

This story is reported by Private Wealth in “Estate in Limbo after Atlanta Man Is Charged with Killing His Rich Wife.”

The exact details of Diane McIver’s will are not known.

Ordinarily, her husband would be entitled to some portion of her estate. However, people who kill someone are not typically allowed to inherit from their victims. That would mean that another heir would need to be found.

Of course, depending on the results of the lawsuit filed against the estate by the company, there might be nothing left for anyone to inherit. This is especially true, if more debts are found to exist.

Regardless, this case will give the media in Georgia something to talk about for a long time.

Reference: Private Wealth (Feb. 2, 2017) “Estate in Limbo after Atlanta Man Is Charged with Killing His Rich Wife.”

Improperly doing the little things in estate planning, often end up costing families the most money.

Talk about estate planning mistakes often focuses on the big picture things that people get wrong. Thousands of articles are written, whenever a celebrity or wealthy person makes a big estate planning mistake, such as failing to update an estate plan or not having one at all.

You can find article after article about complex trust provisions that are improperly drafted.

All of those things are important. We can and should learn from them.

However, it is important to understand, that for most people, small errors are the biggest problems in their estate plans, as the Pauls Valley Daily Democrat points out in “Oversights can cost your heirs money.”

For most people, minor mistakes like not having enough witness signatures on a will or not having the magic legal words in a trust document are what makes estate planning go awry. The law can be extremely formal at times and minding all of the little details matters.

If things are not done precisely right, then all the proper planning in the world can be undone with the stroke of a judge’s pen.

Fortunately, there do not have to be any minor oversights in your estate plan.

You can go to an experienced estate planning attorney who will make sure that every little, formal detail is taken care of.

Reference: Pauls Valley Daily Democrat (Jan. 25, 2017) “Oversights can cost your heirs money.”

It does not matter how young you are and how close you think you might be to death. If you are an adult, then you need to have financial plans for what happens after you pass away.

When you are young and healthy, it is not common to think a lot about your own death. You would be correct to assume that you will not die anytime soon. However, you would not be safe to do so.

Illnesses and accidents can strike anyone at any time. They do not spare the young and healthy. Because of this, you should plan for what happens after you pass away.

It does not have to be too difficult.

Recently MarketWatch offered some tips in “Prepare financially for your death, no matter how young you are,” including:

•Get medical and financial powers of attorney. These documents will enable someone you designate to handle things and make important decisions, if you are incapacitated and unable to do so.

•Get a will. If your finances are not complicated, you might not need a complicated estate plan, but you should at least have a will.

•Get life insurance, if anyone is financially dependent on you so they will be taken care of, if you pass away.
Put some money aside for a funeral, so your family does not have to pay for it.

•Keep your financial records organized so someone else can figure things out in an emergency. Let someone know where to find everything as well.

•As things change in your life and your finances get more complicated and bank accounts get larger, review and update your estate plan to reflect your current situation.

Reference: MarketWatch (Jan. 31, 2017) “Prepare financially for your death, no matter how young you are.”