As members of a melting-pot nation, Americans place a high value on family stories and history.  We love to know when and why our ancestors came to this country from “the home land”; but we also enjoy the simple stories about how mom and dad met, or how grandpa served in the military.  These stories help us define who we are and where we came from—they give us a sense of belonging.

But the sad fact is that most of us don’t think about asking our parents or grandparents about their stories and histories until it’s too late. All too often it’s after grandma passes away and you’re going through her belongings that you find old books, photos or letters and wish you could ask about them.

This is part of the reason why writing memoirs, or a family history, has become so popular in recent years. Although the thought of “writing your memoirs” may seem daunting, it doesn’t have to be difficult.  In fact, it has become so popular that there are quite a few books and tools out there to help guide you through either writing your own history or interviewing older relatives to record theirs.

Nothing seems more natural than including your memoirs as part of your estate plan. When you create an Estate Plan you plan to pass on your estate (property, assets, and wealth) to your loved ones; but that is only part of what you’ll want to pass along.  An Estate Plan can also include your history and experience as part of that wonderful inheritance.  Our firm can help take care of your assets, but only you can preserve the wisdom and experience that makes your history so unique. Don’t wait until it’s too late.

It’s easy to see, when creating an estate plan, how important it is to protect and pass on your assets, but a good estate planner knows that a will or a trust is not all about assets.  In fact, for all of the technical and financial language you may find in your will or trust, the most important part of the document is if—and how—it reflects your values.

You may think that values are something you’re more likely to discuss with your spiritual advisor than your estate planner, but we know you’ve worked hard to give your children and grandchildren a foundation of knowledge and belief to serve them when you’re not there.  We want to help you create a thoughtful and comprehensive Estate Plan can help you continue doing just that.

There are a few ways in which you can use your estate plan to pass on your values:

• You can impress upon your grandchildren the importance of education by leaving an inheritance to them in an Educational trust.
• Help your kids learn to follow their dreams by earmarking part of the trust principal to be distributed should they want to start their own business.
• Pass on your belief in the value of family by creating a special trust to support stay-at-home parents.
• Teach fiscal responsibility by choosing to have distributions made gradually, helping your beneficiaries learn how to handle their finances responsibly and with maturity.

With the help of a caring and attentive attorney, you can leave a deeper legacy than mere money; you can impart your closely held values for generations to come.

It goes without saying that nobody wants to give up control of their finances and put themselves at the mercy of someone else’s decisions; which is why most people spend hours and hours considering who to name as their agent when they sign a power of attorney.  But what happens if you pick the wrong person? This article about an elderly mother and the daughter who stole from her is a sad example of just how important it is not only to choose your agents wisely, but also to relinquish control wisely as well.

It is commonly believed that simply adding your “agent” as a joint owner on your bank accounts is the easiest (or cheapest) way to gradually “hand over the reins”; but giving someone else unfettered access to your bank accounts is a dangerous risk in the best of circumstances—all too often it leads to the tragic exploitation and abuse mentioned in the article above.

he good news is that there are safer ways to give your agents the powers and access they need without completely handing over the keys to your kingdom:

• A Durable Power of Attorney that goes into effect when two doctors have declared you incapacitated
• Naming more than one person as your agent (This can lead to a slower decision-making process, but it does provide you with checks and balances and oversight.  If you’re worried about disagreements between agents, name a third party to serve as a mediator or tie-breaker.)
• Naming a financial institution as your financial agent
• Choose a professional advisor or overseer through whom all decisions must be approved. This has the added benefit of giving your agents someone to whom they can go for advice in a tough situation.

Any of these options may be safer than joint ownership of your bank accounts, but every family and financial situation is unique, so ask your trusted attorney about which options may be best for you.

According to the New York Times, “an estimated 38 million Americans provide care to an aging relative.” With numbers like this you would think this would be a frequent topic of conversation within families, but this is rarely the case.  Unfortunately, because we tend to avoid the uncomfortable subject of our parents aging, most families are unprepared when mom or dad begins to need help (either physical or financial). But denial can’t stop the inevitable from happening; it only means that you and your siblings will be unprepared when the time does come to care for mom or dad.

What this article in the New York Times stresses is the importance of planning as a family. Parents may think that by keeping their troubles to themselves they’re saving their children stress and heartache, but evidence shows that sons and daughters do end up shouldering part of the burden—financially, physically and emotionally.  It stands to reason that if they’re going to share responsibility, these responsible children should have some part in the planning process as well.

The Times article offers some suggestions on how to discuss the issue of aging with your parents and your siblings, and how to prepare for the future together, including how to:

• Open the conversation with your parents and siblings.
• Assess financial conditions and options—including Medicare.
• Learn about care options and their costs.

Don’t wait to have this conversation.  As financial gerontologist Rosanne Roge is quoted as saying, “The most important thing is to recognize that it’s likely that elders who live a long time are going to need some help… and you have to pay for it some of the time.”  The best time to prepare is now.

One of the things estate planning attorneys have to deal with in their line of work (most often with elderly clients) is the question of whether or not a client is competent to sign their legal documents. Every principal (or person executing the documents) must be competent, and most attorneys—most people—can make this assessment based on observation, experience and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.

How can you tell if a person is competent? In her book Senior Moments author Jacqueline D. Byrd quotes law professor Peter Margulies’ six factors to determine capacity:

1. Ability to articulate reasoning behind a decision
2. Variability of the client’s state of mind
3. Appreciation of the consequences of a decision
4. Irreversibility of a decision
5. Substantive fairness of a transaction
6. Consistency with lifetime commitments

Byrd goes on to say that for the purposes of determining whether or not a person is competent to sign a will or trust, however, the requirements may be slightly different; more focused on whether or not the principal has a clear knowledge of his or her assets, has a full knowledge of the persons to whom the estate is being left, and is able to reasonably formulate and express a plan for the disposition of the estate.

The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or Dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to have mental examination performed by a doctor, and even perhaps include a video will. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.

Do you have an e-mail account?

Do you participate in Facebook or other Social Networking sites?

Do you do any of your banking, bill paying or investing online?

If you answered yes to any of these questions then you might want to think about this next question… what will happen to all of your online assets and accounts when you die?

As we move further into the 21^st century more and more of our lives are moving into the digital realm.  This includes friendships, networking, business and banking.  The beauty of this is that it gives us unprecedented freedom and global access; the downside is that huge portions of our lives are locked away behind password protected accounts, many of which our friends and relatives aren’t even aware of. Online accounts are incredibly convenient, but they can create huge problems if your executor or agent has no way to retrieve your online passwords, assets or contacts after you die.

Some large online service providers are developing policies to deal with the transfer of accounts upon the death of the user, as noted in this article by Alejandro Martínez-Cabrera, “but the process is rarely a simple one.” Some companies require a death certificate before they will agree to shut down an account or turn over the contents, but rarely will an online company transfer actual ownership. It could take months or years of headaches and frustration before your heirs have access to any assets or information locked behind these online protections.

What this means for estate planning is that when you talk to your attorney about your will or your trust it’s not just about physical assets anymore; digital and online accounts and assets must be part of the conversation.

Everybody seems to know (from popular TV shows, if nothing else) that DNR means “Do Not Resuscitate”, but do you know what “Do Not Resuscitate” means in your own personal healthcare directive or living will? Too often, when talking with clients about the healthcare documents in their estate plans, they don’t know the extent of their own (or their parent’s or grandparent’s) instructions.

“Do Not Resuscitate” can cover a wide array of options, which is why it is so important to define what “life-saving procedures” means to you, and exactly when you would like your DNR to go into effect.  Here are some examples of “life-saving procedures” that you (or your elderly relatives) should talk about with family, medical staff, and your estate planning attorney:

Artificial Nutrition and Hydration When grandma decides to stop drinking fluids orally and begins to dehydrate, does the nursing staff have permission to keep her hydrated via IV fluids? What about if you are in a non-reversible coma and unable to drink liquids on your own?

Antibiotics or Other Medicines Do you include antibiotics in your definition of “life-saving procedures?” Do you still if you have been declared irreversibly brain-dead by two independent physicians? When you are 102 and confined to a bed in a nursing home, do you want to be given medicines to combat pneumonia or other illnesses?

Chemotherapy A point similar to the paragraph above; if you are 102, afflicted with dementia and confined to a bed, do you want to receive expensive and painful chemotherapy treatments if the doctors discover cancer?

Blood Transfusions Blood Transfusions are fairly universally considered “life-saving procedures”, and they should be addressed in your healthcare documents.  Do you have religious reasons for refusing a blood transfusion?  Do you still want one if you are severely and irreversibly disabled?

Organ Donation Though obviously not considered a “life-saving procedure”, organ donation is a topic you should discuss with your family, medical providers, and estate planning attorney to prevent any misunderstandings or delays in treatment if and when the situation arises.

A healthcare directive is one of the most important documents in your estate plan.  State-specific healthcare directives or living wills can often be found for free online or at your doctor’s office, and in a pinch these will work; but they cannot take the place of a conversation with a knowledgeable estate planning attorney who will ensure that all aspects of your decision-making process are addressed and put down in writing.

Many parents spend a lot of time and money ensuring that their estate will go to their children exactly when and how they want it to; they work with the best advisors to create a plan that will transfer their assets as smoothly as possible to their children and grandchildren when the time comes. Ninety-nine percent of the time these parents have in mind that the inherited estate will be used responsibly to help their children and grandchildren pay for schooling, make it possible for one parent to stay home with young children, be put away for retirement, etc. But according to Pamela Black at financial-planning.com, “while estate planners are 98% effective at preparing these assets to be passed on, that preparation goes to waste in 70% of the cases… [because] no one is preparing the heirs for assets.”

When considering how to pass your estate on to your heirs, it is important to take the time to consider how your heirs are likely to handle the new responsibility.  While many parents have numerous discussions with their advisors about how they would like their money to be handled, they neglect to have these important conversations with their children because they assume (often erroneously) that they and their children share the same financial values.

Death and money are two of the most uncomfortable subjects for discussion between parents and children, and many families will simply avoid these conversations.  But financial advisors and estate planners have seen too many cases of families and carefully crafted estate plans falling apart in the wake of the death of a parent; we know how important it is to have these difficult discussions.

Do you need to spend more time preparing your children for their eventual inheritance?  Pamela Black has included in her article a preliminary “Wealth Transition Checklist” to give you an idea of how well prepared your family is for the transition.  Bring your kids in with you to your next appointment and let them share in the process of planning for their future.  The more they know the better prepared they will be.

Do you have a will or a trust?

Has your will or trust been reviewed or updated in the past 3-5 years?

If you answered yes to these questions then you are two steps ahead of 2/3 of the rest of Americans.  But the next question is the big one:

Does your family or executor know where your legal documents are stored, and are they able to access them?

Having a will or a trust is essential, but it doesn’t do any good if nobody can find it after you’re gone.  Olympic medalist Florence Griffith Joyner (“Flo-Jo”) supposedly had a will when she tragically passed away at the age of 38, but because her husband was never able to locate the original document, a neutral administrator had to be appointed by the court to execute the estate; and whether her estate was executed according to her wishes is anybody’s guess.

A will or a trust often contains sensitive and emotional information, and for that reason many people (understandably) want to keep these documents private; but spending any amount of time or money on your estate planning documents won’t help your family if they can’t locate—or don’t have access to—those documents after your death.

We suggest having an earnest conversation with your family (or one or two select members at the very least) about the existence and location of your personal documents.  Although they don’t have to know what is in your will or trust, knowing where those documents are can ensure that the time and money you spent creating them isn’t wasted.

The recent repeal of the estate tax is having unintended consequences for responsible husbands and wives who already had a will or trust in place to protect their spouse and family—instead of protecting them, that existing will could now end up leaving surviving spouses with nothing.  Jonnelle Marte at the Wall Street Journal has this to say:

“It’s a common practice for people to use formulas in their wills designed to send the maximum amount of assets not subject to the estate tax into a trust, often for their children. The remaining assets are usually left to the surviving spouse. But this year, there’s no limit on the assets people can pass to their heirs without being subject to federal estate tax. So all of the assets could go into a trust and the surviving spouse would get zero.”

Does this mean you’ll have to get your will or trust updated every year?  No. But it does mean that you’ll want to get your will or trust reviewed by an estate planning attorney this year. A review of your estate planning documents is a quick and easy process, especially if you don’t have any other significant changes to make.  One thing is for sure, the small amount of time you spend making sure your documents are current is well worth the protection and benefit your spouse and family will receive from it.