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Estate Planning for Parents of Minor Children

8/29/2014

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Making the decision to have a child is momentous. 
 It is to decide forever to have your heart go walking around outside your body.
Elizabeth Stone

Estate planning is the process of deciding and documenting what should happen if you or your partner becomes disabled or dies. Everyone can benefit from proper estate planning regardless of their assets or family situation but it is perhaps most important for people with minor children. 

For those who do not engage in any advance planning or who fail to document their plan into binding legal documents, the State of Washington has developed a default system for determining who can make health care choices if they become disabled and who would receive your assets if they die. While this default system may not match your actual desires and may lead to areas of uncertainty that can cause conflict and/or waste resources, these default rules do exist and work for most people.

However, there is no default rules regarding the care of minor children if both their parents die or become disabled. Instead, the children can be placed into foster care until one or more willing adults volunteer to become their legal guardian. The court then engages in a lengthy and often expensive investigation of these individuals before appointing one. If no qualified adult comes forward, the child remains in state care until they reach 18. If more than one adult comes forward, the custody battle can make the process even more expensive and delayed. Once the court has appointed an individual, any assets for the child’s care are controlled by the court and court reserves the right to second guess and control all decisions about investments and expenditures. This court oversight can be very expensive and may result in insufficient assets being left over to provide for the child’s care and higher education.

Because of the importance of estate planning for parents, our firm dedicates at least 25% of its practice to pro bono service for low income families with terminal illnesses and free community education for families.   

Want to learn more?  Be sure to contact us for a free 1/2 hour consultation.  You can email us at info@phinneyestatelaw.com or call 206.459.1908.



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Living Wills & Advanced Health Care Directives

8/8/2012

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In previous posts we have discussed how to select and document your choice of who should serve as your Health Care Agent if you should loose the ability to provided informed consent for your own health care choices.  That is without a doubt the most important single step you can take in make a plan for your future possible medical disability but there are other steps that can and should be taken as well and one of the most important is drafting an Advanced Health Care Directive.

An Advanced Health Care Directive, as the name suggested, provides guidance to your Health Care Agent and Doctors about what kind of health care choices you would want made for you in difference circumstances.  These documents are often referred to as "living wills."   In Washington the statute that allows for the creation of Advance Health Care Directives is RCW 70.122.  The statute requires that the directive be executed while the agent is still capable of make their own health care choices and be witnessed by two witnesses who are not close family members or health care providers.  The statute also places restrictions on the application of Advanced Health Care Directives when patients are pregnant.

Many hospitals have free Advanced Health Care Directives that address a few limited forms of life support but much more detailed directives can be done with an attorney and the more detailed guidance is usually much more helpful to families.  An attorney can also make sure that the witness rules are followed as forms provided in hospitals are often witnessed by inappropriate witnesses that can render them invalid. An attorney can also ensure that added language is put in the directive to make it effective in other states that have different execution requirements.

If you would like to schedule an appointment to develop an advanced health care directive contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

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FAQ: Does my Heath Care Agent need to be local?

8/1/2012

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FAQ: Does my Health Care Agent need to be local?

There is no legal requirement that you health care agent be someone who lives near you.  However, filling that role long distance can be a challenge so finding someone who lives nearby is always a plus.   But location is just one factor among many.  

When considering distance it is important to remember that the real issue with distance is how quickly they could be at the health care facility interacting directly with the doctors providing your care and giving meaningful directions.  Factors for that could include travel time but might also include how much notice they would need to leave their job and family responsibilities in a crisis.  A single sister with a flexible job in San Francsico might be a better bet on that front that a single mom with young children in Pasco who can't get off work without several weeks notice. 

It is also important that you don't let this factor alone trump all the rest.  It should be the best person serving in this role not only the closest.  If in doubt, it is possible if working with an attorney to have an interim agent appointed who can serve until the best agent can be at the care center.  That might be a local friend or family member who could be in communication with the permanent agent and be gathering information and making imminent decisions until the agent can really assess the situation on their own. 

If you have questions about how to select and assign the best health care agent for your unique situation, please contact us for a free 1/2 hour consultation at (206) 459-1908 or info@phinneyestatelaw.com.

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Case Law Update: Witt v. Estate of Young

5/15/2012

34 Comments

 
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On May 8, 2012 the Washington State Court of Appeals, Division II issued a new published opinion, Witt v. Estate of Young, which held that claims for quasi-community property by partners of the deceased who were in intimate and committed relationship are not subject to the creditor claims time limits and can be brought, most properly as a challenge to the inventory anytime until the probate is closed. 

In the Witt case, the deceased's long time partner filed a creditor's claim in her late partner's probate holding that all the property was quasi-community property and therefore should go to her.  The Personal Representative of the Estate denied the claim with a notice that any challenge to the denial must be made in 30 days.  More than 30 days late, Witt filed a complaint against the Estate in Superior Court for Partition of real and personal property.  The Estate moved for Summary Judgment to have the complaint dismissed on the basis that she had missed the thirty day window for making a challenge to the denial of her creditors' claim. The trial court declined to dismiss the action and the Estate appealed.

The Court of Appeals made on factual determination of whether the property in question would be covered by the quasi-community property rules that allow a court to treat property earned by either party during an intimate and committed relationship as analogous to community property earned during a marriage.  It left that question to the trial court.  But it did find that such a claim is really a challenge to the inventory of the Estate and not a claim for debt owed by the decedent and so isn't a creditor's claim and isn't subject to the creditor's claim time limits.  The court acknowledged that Witt had initially brought a creditors claim but found that her having done so did not preclude from bringing a more proper claim at a later date.  The court also went out of its way to make it clear that such a claim would need to be brought before the probate was closed or it would be barred.

The case provides some helpful guidance to both non-married partners who fail to do proper estate plans and personal representatives of their partner's estates about how these claims should be brought and the timelines that govern them.  This was important because while the court has been consistent and often generous in awarding these claims on an equitable basis they have come before the court in a variety of manners leaving practitioner frequently perplexed about how to properly introduce such a claim and proper way to accept or reject such claims.   As a practical matter, by channeling these claims in to the TEDRA process for challenging inventories the court has also created more generous timelines and enhanced incentives for resolving these disputes through alternative dispute resolution presumably with the hope of having more of these heavily fact intensive cases settled by the parties rather than litigated through the courts.  It is also an important reminder to personal representative who are administering estates were such a claim is possible not to let estates linger open longer than necessary as it will increase the time that these challenges can be brought and to be very careful about making any preliminary distributions before closing the estate where any possible claim could be made by an unmarried partner. 

Perhaps its best warning is that couples who are in long term, committed relationships are really best served and best taken care by careful planning before death, ideally including powers of attorney, co-habitation agreements, and wills that spell out what the plan is with regard to the creation of quasi-community property, who should be in charge of crucial life choices, and where assets should flow at death.

If you have lost a partner and want to better understand your possible rights to quasi-community property, or managing an estate that might be subject to such a claim, or are in an non-married committed relationship and want to plan to avoid this kind of potentially ugly and expensive mess at your death, please contact us to schedule a free half hour consultation at info@phinneyestatelaw.com or (206)459-1908.

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Time to Visit Your Estate Plan? Forbes thinks so....

3/30/2012

7 Comments

 
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Forbes Magazine has an interesting article this week on reasons why Boomers should revisit their estate plan.  Inspired?  Contact us to set up a free 1/2 hour consultation to review your estate plan and see if it is time to make some changes to better match who you and your family are now. Email us at  info@phinneyestatelaw.com or call us at 206-459-1908.

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Science Alert: Blueberries May Help Ward Off Dementia

7/19/2011

53 Comments

 
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Did you know that there is actual credible scientific evidence that consuming blueberries regularly can improve memory and ward off dementia?  Recent studies show that older adults with early memory decline who drank two cups of blueberry juice every day for two months showed improvement in learning and memory over a control group.   These results confirm the findings of previous animal studies, which showed that blueberry consumption can reverse age-related deficits of both brain and behavioral function.  Animal studies also show improvement in balance and coordination. Similar results have been seen with diets that include strawberries and cranberries but those have not been replicated yet in human studies. 

Eating a lot of blueberries isn't a substitute for doing a good estate plan that will make sure you get the care you need while maximizing your independence and dignity if you become incapacitated. But it might mean that you don't need to use the plan as soon. At Phinney Estate Law, we loves having our clients' plans go unused for as long as possible. So eat up!

If you have questions about how to plan for your possible future incapacity or how to take care of a loved one with dementia, contact us at info@phinneyestatelaw.com or (206) 459-1908.   We can talk to you about good planning using tools like Powers of Attorney and Health Care Directives. If planning wasn't done in time we can talk about options for guardianship and other less restrictive alternatives.

To learn more about the latest blueberry studies see this article on Web MD.  Want to add some blueberries to your diet, check out these tasty recipes:     
  • Blueberry Zucchini Bread   
  • Deliciously Sweet Salad with Maple, Nuts, Seeds, Blueberries, and Goat Cheese
  • Blueberry Cupcakes
Got your own blueberry recipe to share? send us one before the end of August 2011 and we will post it here and you can earn a 10% discount on estate planning services. (Note: This offer only applies to Washington State Residents and cannot be combined with other discounts.  Past customers are welcome to transfer their discount to a designated friend or family member.)

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New Case Law: re Estate of Haviland

7/14/2011

59 Comments

 
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On July 11, 2011, Division One of The Washington State Court of Appeals issued a new published opinion about Will Contests Based on "undue influence."  Because will contests are disfavored in Washington and relatively rare, published appellate decisions are likewise rare and always useful in understanding how courts view these decisions. 

Re Estate of Haviland -- Wash.App --, 2011 Wash.App Lexis 1564 (2011) dealt with a will executed by a prominent man later in life that left most of his property to his wife. In most cases that would appear to be a strange scenario for a will contest.  However, in this case this was a second marriage and the testator had gone to great lengths with his first wife to set up an estate plan that primarily benefitted their children and grandchildren for life and then charities to which they were long time donors.  When Mr. Haviland first remarried he made a modification to his estate plan that left a substantial gift to his new wife.  That change was not contested.  However, over the next 10 years more than $3 million dollars of his estate was transferred to his wife's separate property or her children from a former relationship while his health declined into what was eventually diagnosed as advanced dementia.  The last change to his will occurred when his wife contacted his attorney and provided him with Mr. Haviland's former will with changes in her handwriting that increased substantially the gift to her, left nothing to his children or grandchildren, and reduced the amount going to charity.  The attorney made the changes and had Mr. Haviland execute it at his office after just a short meeting in which Mr. Haviland answered only "yes" or "no" questions. 

The trial court found that the challengers of the will had met the burden of proving undue influence that "controlled the volition of the testator, interfered with his free will, and prevented an exercise of his judgement and choice." The court affirmed that the burden of proof for such cases is "clear, cogent, and convincing" but found that in this case the challengers had met that burden by raising a rebuttable presumption by establishing the factors laid out in Dean v. Jordon 194 Wn. 661 (1938).  Specifically, the trial court found that the three mandatory factors had been met - (1) the beneficiary was a fiduciary of the testator (2) the beneficiary participated in the procurement of the will and (3) the distribution of the will was unnatural based on past estate planning.  It also found that a needed fourth element was present.  In this case that was met by the testator's poor health, his dependence on his wife as his sole caregiver, and her self-serving transfers of his assets which the court found to be exploitative.  The court further found that once this presumption was raise, the wife did not produce evidence to balance the scales or overcome the presumption.

On appeal, the wife argued that the Dean test should not apply to married couples because they are so frequently each others fiduciaries and participate in the procurement of each others wills.  The court disagreed finding that while it was true that was frequently the case the Dean test requires all three mandatory factors and at least one additional factor making the frequently of any one factor in isolation irrelevant. 

The facts of this case are not pleasant but they are in many ways no more shocking than the facts in Estate of Kessler, 95 Wn.App 358 (1999) where the court held the will to be valid.   Estate of Kessler has been cited in almost every published case regarding will contests in Washington since its own publication but was not cited or distinguished in this case.  There are some factors that would appear to distinguish the cases.  First, the beneficiary in Haviland clearly more fully participated in the procurement of the will.  While the beneficiary in Kessler found the attorney and set up the appointment, the testator in Kessler ultimately met alone with the attorney and had some substantive conversations about her wishes. Second, there was no an established history of financial exploitation outside the estate plan in Kessler and that was clearly a significant factor in Haviland even though it is the first time a Washington Court has identified financial exploitation as a Dean factor. 

I think it worth noting that many of the cases were wills have been found to have been the product of undue influence have been ones where there was a romantic relationship between the Testator and Beneficiary, a large difference in their ages, the relationship began late in life, and the Testator had a large estate.  See Estate of Lint, 135 Wn.2d 535 (1998).  We would speculate that if Mr. Haviland's wife had been 5 years younger rather than 50 years younger and if the total amount of the estate that had been transferred or would go to the wife was $350,000 rather than more than $3.5 million the court might have seen less exploitation and undue influence and more of an attempt of a spouse to provide for the care of a wife who had cared for him in his final years. 

It is also interesting to note that the court in Haviland specifically found it was unnatural for Mr. Haviland to make the distribution in the will, even though it would have been more in keeping with an intestate distribution than his old will because of his history of giving to his children, grandchildren and charities during his life and in past estate plans.  Many family members who do not inherit under wills assume that this fact alone gives them the basis for a will contest.  The court here makes it clear that it might not even get them a single Dean factor in their favor if past estate planning and lifetime behavior make such a disinheritance "natural" for them.

Practical Lessons for Estate Planning:

I think it can provide some useful guidance to people wishing to spare their families a will contest fight and to leave money to someone they think their family or friends may object to:
    (1) Try to imagine your situation in the least flattering light possible.  You may think your beneficiary is beyond suspicion and reproach but you won't be there to give your perspective. Try to imagine how it might look from the outside and act accordingly.
    (2) Insulate your beneficiaries from your estate planning if necessary.  While it is common and even recommended that spouses plan together, if there is already family drama, a big age difference between spouses, and a lot of money at stake, independent counsel may be wise.  If you take that route, make the appointment yourself and don't have the beneficiary come with you.  Even if there is not drama, a small difference in ages, and only a moderate estate it may still be wise to make sure that you speak alone with your joint attorney and at some length so that they can later testify about your capacity, reasoning, and independence.
    (3) Write a letter in your own words and ideally your own handwriting that explains your decisions in terms that are honest but loving.  Either share it with your family now or put it with your will to be shared at your death.  I have found such letters let people feel much more at peace with your choices.  They feel that they can hear your voice and reasons and choose to honor you by honoring them. 

Practical Lessons for Probate Litigation:

Will contests are unpredictable, expensive, and destructive to families.  They also require challenging party to paint the testator as weak and manipulated in a public fashion.  Mr. Haviland had built a legacy of medical research, community leadership, and philanthropy.  I strongly doubt that he would be happy to know that 50 years from now he will be most likely remembered as the victim of undue influence in a published decision that painted him as the frail dope of a gold digger.  If his will did really represent his wishes, it is a shame that he didn't take some of the steps above.  If it did not, an untarnished legacy is yet another thing his wife stole from him.  In any event, it would have been wonderful if these parties, as much as they may have disliked each other by the end, could have found a way to settle this matter privately through mediation or collaborative law.  It might not have worked but, if it had, when we "googled" James W. Haviland we would have gotten a very different result and the money spent on the legal fees to take this all the way to the court of appeals could have been used from some of the medical causes he dedicated his life to support.

If you would like to consult with a Phinney Estate Law attorney to help you plan your estate with an eye to preventing conflict or to resolve a conflict with an estate, contact us at (206) 459-1908 or at info@phinneyestatelaw.com. 

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    PEL Blog

    This Blog is written by Seattle Attorneys Jamie Clausen & Michael Ballnik.
    It is made available for educational purposes only. Its purpose is to give you general information and a general understanding of the law, not to provide specific legal advice. Reading this blog does not create an attorney client relationship between you and Phinney Estate Law. Because each individual and family is unique, the Blog should not be used as a substitute for legal advice from a licensed professional attorney in your state.

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