No R-E-S-P-E-C-T For ArethaSubmitted by WWA Planning & Investments on November 13th, 2019
Music fans of a certain age were saddened to learn of the recent passing of Aretha Franklin, long known as the Queen of Soul. Financial planners of all ages were saddened to learn of yet another person dying without a complete estate plan, including a will. Unfortunately, she’s just the latest in a long line of famous people who should have known better. Abraham Lincoln was an attorney and the first US president to be assassinated in office but wasn’t prepared for the unexpected – he didn’t have a will either. Martin Luther King lived with the constant threat of assassination, yet he didn’t have one and, forty years later, his heirs are still arguing about his assets.
Most people aren’t household names yet the issues are very much the same for us all. Chances are good that your state has already prepared a will for you, legislating what will happen if you die without one. Indiana certainly has and I doubt if you’ll be happy with it. For example, absent a will, Indiana will include any living parents as beneficiaries, probably not a choice many people would make. If you have specific beneficiaries in mind, church, charity or non-immediate family, you must prepare your own will stating your desires.
According to the senior-focused website caring.com, 76% of Americans believe in the necessity of a will, yet only 40% have one. Why the disconnect? The most common answer is that people simply haven’t gotten around to it. As professional planners, this is a significant concern to us. It’s a topic of conversation with every client, every year. Basically, we insist that our clients have estate plans in place, making them members of that minority who do have wills. Still, we discuss the topic regularly because situations change over time. Indiana law doesn’t allow planners to draft estate planning documents but we know our clients very well so are able to introduce them to attorneys we think will be the best fit to prepare the necessary paperwork.
We sometimes meet people who are just starting out and truly can’t afford the $500 or so a will costs, so we refer them to the Bartholomew County Public Library. Its website includes links to various Indiana-specific legal documents including simple wills. We absolutely believe that a lawyer-prepared will is the best option but also that having something is better than nothing.
While the caring.com survey addressed wills, there is more to estate planning than that single document. Perhaps you’ve heard of Five Wishes, an organization that exists to help people document their end of life ‘care and comfort choices’. It endorses a hospice-like approach, suggesting that freedom from pain and anxiety are reasonable goals as death becomes imminent. Its program requires state-by-state opt-in and, unfortunately, Indiana has chosen not to do so. However, the same thing can be accomplished using specific documents prepared by the attorney who writes your will. Most attorneys include an Advanced Directive (an improved version of a Living Will) as part of an estate planning package. It allows you to provide specific directions about the provision or withholding of nutrition and/or hydration. Because you may not be able to make decisions for yourself toward the end of life, it’s also important to name a Health Care Representative. Obviously someone you know well and have discussed the issues with, this person provides a single source for health-related decisions when they must be made. Over the years, medical professionals have become more accustomed to the concept of a peaceful death and avoiding the introduction of heroic measures. Still, without someone specifically named, there’s potential for confusion at the bedside. A physician with conflicting directions is likely to err on the side of prolonging a life that the patient might have preferred to end simply and peacefully.
As part of a complete estate planning package, most attorneys also include a Durable Power of Attorney, a document which allows a designated person to make business decisions when you become unable to do so. Perhaps money is needed for medical care and you’re no longer able to decide what asset to sell. Your PoA can make the decision and take care of the details for you. Of course, this too is an arrangement that must be discussed in advance. These powers come into effect only when you are unable to handle such decisions yourself. They can be revoked at any time, so if the idea of loss of control bothers you, please remember these documents are easily nullified.
One document that attorney’s don’t always include is a Personal Property Memorandum, sometimes called a Letter of Intention. Because a will takes some time and effort to prepare and execute, mentioning this additional document within the will allows for small adjustments to be made over time. It’s often used to give specific items to specific people and may be the best place to add any reasoning involved in a specific bequest. I’m familiar with a case in which the PPM was described in the will as a ‘yellow legal pad’ and it was updated regularly as the childless couple learned that one person or another had always loved that (fill in the blank). Over the years, it grew to several pages but no update to the will was required since the PPM allowed for many small bequests to be made one at a time.
Once these documents are prepared, they must be accessible at the time of need. Having all the proper documents locked up in a safe deposit box will do no one any good. We provide clients with access to digital vaults where they can store estate planning and other important documents. We also supply business card-size CDs containing the same information and we’ll be happy to prepare one for anyone who asks.
One of the newest topics in the estate planning world is digital assets. Might it be important for someone to be able to access your emails and photos if you’re unable to do so? How about your rewards points or frequent flyer miles? Or your PayPal balance, perhaps even your Bitcoin or other crypto-currency assets? In general, your PoA or Executor will be allowed to deal with these assets the same way they do physical ones. But, some of the website ‘terms of service’ that we all so blithely agree to involve important restrictions. This is a topic worth dealing with in greater depth but for now, here’s a link to a digital story about your digital afterlife from NPR.
Eccentric billionaire Howard Hughes died in 1976. Several wills surfaced, all eventually deemed fraudulent by the courts. In the end, twenty-two relatives, some close and some distant, inherited his estate. Regardless of what assets we may accumulate, none of us will live forever. All of us need to make plans to prepare ourselves and our heirs for that eventuality.