FAQ

1. I am in a second marriage and we both have children from a previous marriage. What should I be thinking about and doing for my estate planning.

A good start would be to read "Money and Marriage Two", by Jon Fitzpatrick which is listed in the "This and That" section and to read my article, "Making a Second Marriage Work." Think about researching the topic of "Second Marriage" on the internet. After educating yourself meet with an attorney who emphasizes estate planning for second marriage and blended families to develop an estate plan.

2. I own real estate in Arizona what should I do?

Have a lawyer to help you draft and sign a revocable living trust and to help you deed the real estate into the trust. This will avoid having to do a probate administration in Arizona.

5. Do I need burial plans

Yes, it is important to let your family know your funeral service and burial directions. If you don't know what you want give your family permission to make arrangement satisfactory to them.

6. Do I need to update my health care power of attorney if it doesn't have a HIPAA waiver in it?

Yes, in April, 2004 the Federal Government passes a bill making all our medical information confidential, even from our loved ones. If you are not able to give verbal consent for your doctor or hospital personnel to talk to your spouse or other related loved one, they will not talk to them about your condition unless you have a health care power of attorney with a HIPAA waiver. Read "Another HIPAA Morning".

7. Should I talk to my children about my finances and other important matters?

Yes, it is important for you to let your children know you are organized and you have the proper estate planning documents if you expect them to be able to assist you. You don't have to tell them everything, but let them know where to look and what to do if you become physically or mentally disabled.

8. Should I put my daughter's name on all of my bank accounts as joint tenant to avoid probate? She is trustworthy and has agreed to split up the assets with her two siblings.

No! What if she doesn't follow your directions? You have created the possibility of a family fight. Further, her creditor's can reach your assets even while you are still alive.

9. I have a Down syndrome child who is 45 years old. I am 78 years old. She had lived with us all her life until two years ago when my husband died. I just couldn't take care of her at the house without my husband's help so I moved her to a group home. I am her guardian and there are several things I still manage for her. I also visit her several times a week. I don't have any children or family members to take my place. What do I do?

This is a very difficult and heart wrenching family problem. However, there are excellent professional guardianship services such as Capital Guardianship Services and Advocacy Plus along with individual professional guardians who could be named as stand by guardian. We often help our clients find a standby guardian in this kind of a situation. It helps us put our client's mind at ease.

10. If my husband and I cannot agree on how to draft our wills can the same lawyer work with both of us?

No, drafting a will is the right of each person to name the person you want to take care of your affairs after your demise and to name your heirs. If you have a different need than your spouse you have a conflict and you will need to have your own lawyer.

11. What happens if I do not have a will?

Contrary to popular belief, your estate does not go to the State of Washington. Rather, the laws of the State of Washington will determine which of your relatives gets your estate and how it will be administered. The method of distribution is set by statute and often the results are unexpected or unsatisfactory.

12. Are there special probate proceedings for small estates in the State of Washington?

Yes, if the value of the decedent's personal property does not exceed $100,000 and other conditions are met the personal property can be claimed and distributed using an affidavit of no probate.

13. My wife and I have minor children and if we both die while they are young we want their assets managed for them until the age of 30. Is this possible?

Yes, by putting a "contingent trust" provision in your will a child's share will be held and managed for her or his health, support, maintenance and education until each child reaches a certain age (which you determine). Contingent trusts are often funded by life insurance and it is important that you change the secondary beneficiary on your life insurance to the contingent trust named in your will.

14. I have a daughter with special needs who will never be able to care for herself. She receives a Social Security Benefit each month. Should I leave her share of the estate directly to her?

No, you need to see an estate planning lawyer and discuss and to discuss setting up a special needs trust in your will for your daughter. The trust will allow her share to be held and managed for her benefit in a discretionary way by her trustee so that she will benefit from her inheritance without being disqualified from Social Security.

15. My youngest child has never learned to manage money. He gets it and he spends it. He dropped out of college and he isn't working. My wife and I are getting older and we want all three of our children to get their equal share, but we are concerning about giving money outright to our youngest unless he changes. What can we do?

Talk to an estate planning attorney about putting an "incentive trust" into your will to manage the youngest child's share. He will have to meet certain incentives or goals in order to receive money from his trust. Some incentives are goal based and some are dollar based. If they are well planned your son will be encouraged to develop independence and self-sufficiency.

16. I keep hearing about a POLST order. What is it and does it apply to me?

The Physician Order for Life-Sustaining Treatment (POLST) form represents a way of summarizing wishes of an individual regarding life-sustaining treatment. The form is intended for any individual with an advance life limiting illness.

17. How does a person finance the cost of long term care?

There are basically three ways to finance long term care. The first is self finance using your own assets. The second is funding with long term care insurance and your own assets. The third, when you assets are depleted, is governmental assistance through Social Security Medicaid.

18. I keep hearing about "Ethical Wills". What are they?

An ethical will is a systematic writing down or communicating one's intangible legacy of values to children and family members.

19. If you are part of an unmarried couple, even if you have made long term extensive personal, emotional and financial commitments to one another, in most states your legal status of as two strangers. If you are committed to a life partner, do you think it would be a good idea to talk to a lawyer about signing documents creating legal rights between you?

I have counseled unmarried couples, both gay and lesbian and heterosexual for many years. We have solved problems the hard way through court ordered guardianships and the organized way with preparation and signing of sound estate planning documents.

20. Does the State of Washington have a Domestic Partners Registration Act?

Yes, the State of Washington has one of the more advanced Domestic Partners Registration Act in the nation. ESSSB 5688 which became effective December 3, 2009 provides that for all purposes under state law, state registered domestic partners shall be treated the same as married spouses and that provisions of the act shall be liberally construed to achieve equal treatment, to the extent not in conflict with federal law. However, the law is not a substitute for good estate planning to assure that each partner can provide care to the other in the event of physical or mental disability and to assure your assets go to your chosen heir upon your death.

21. Is using the services of a Financial Planner part of the estate planning process?

Yes, it is very important to establish a financial plan as early as possible. The younger you are when your money is invested the longer the money has to work. This is called the time value of money. You cannot attain your hopes, dreams and life goals for yourself and your family without financial discipline and planning. A financial planner can help you:

  1. Set realistic financial and personal goals.
  2. Assess your current financial health by examining your assets, liabilities, income, insurance, taxes, investments and estate plan.
  3. Develop a realistic, comprehensive plan to meet your financial goals.
  4. Put your plan in action and monitor its progress.
  5. Stay on track to meet changing goals, etc.

22. As we age are their fears that stand in the way of our participation in a wide range of activities?

Yes, as we age there are a number of predictable fears that limit our involvement in not only the activities of daily living but also physical activities that enhance the quality of our life and our social experiences. These are a few of the fears:

  1. Fear of injury and pain-Fear of injury and pain from exercising limits senior adults from exercise, outdoor activities such as gardening and walking.
  2. Fear of Falling-More than one in three adults over the age of 65 falls each year. These events are the number one cause of hospital admission due to trauma, nonfatal injuries and injury deaths. The fear is enhanced if a senior adult falls even if an injury doesn't occur. Often just falling will cause the individual to stop moving and stay isolated and immobile at home.
  3. Fear of Certain Activities-senior adults are often fearful of swimming or new, beneficial activities such as yoga or tai chi

When encouraging your senior adult parents or senior adult peers to participate in activities keep in mind there may be a fear to overcome and be patient and look for subtle way to introduce them into the activities.

23. My wife and I have struggled for several years trying to plan our estate. Our adult children do not get along. I have a business and my youngest son has worked with me for fifteen years. Our middle son who is 40 years old has not ever held a steady job and he is always asking for money or a temporary place to stay while he is in "transition". Our daughter's husband is overbearing and we don't get along very well with him. We have tried to have family meetings, but they always breakdown in screaming and misunderstanding. What can we do?

The use of mediation in estate planning can help a family work out the details of a difficult estate planning process. An independent mediator can help a family talk through the issues and look for resolution. I have recommended mediation to couples about to marry when they were having difficulty talking about assets, business matters, children and step children when they could discuss the issues independently without getting emotional.

24. We bought a revocable living trust from a salesman who had a lawyer in Seattle we didn't ever meet. We have never transferred any assets into the trust and when we call the company about it they tell us we have to do it ourselves. Should we have a local estate planning lawyer review the trust agreement for us?

Yes, you need to make sure it is funded. Sometimes the trust agreements sold by these companies are far more complicated than you need. Finally, do you even know what you signed?

25. Our family treasures the ski cabin at Snoqualmie Pass. I know that our children want to keep it in the family after we're gone. My wife and I want our kids to have it as well. How does a family plan to pass a vacation home to the children?

The best way to pass a cabin to the children is by placing it into a trust. But you must consider the four basic concerns in cabin ownership, division of equity, the expenses of maintaining the cabin, payment of taxes and scheduled use and then have a family meeting. You may be surprised to learn that only one of your children is really interest in the cabin or one child wants to own it to the exclusion of the others. There may be child who does not have the ability to pay his or her share of ownership. After the family meeting you can finish your estate plan using the information you gathered at the meeting.

26. My neighbor suffered from dementia for over four years. Toward the end of his life he was permanently unable to communicate, swallow food or water safely, care for himself or recognize his family or friends. Since he did not meet the definition of the State of Washington's Health Care Directive he was hooked up to a feeding tube and hydration tube. He was in this state of two months before he died. Was there some other directive he could have written into his health care directive which could have prevented hooking him up? Everyone knew he didn't want this medical procedure.

Your neighbor could have put a "Dementia Provision" into his Health Care Directive" stating his wishes not to be hooked under the circumstances you described.