Seminar this Wednesday: Estate Planning for Blended Families

I’ll be presenting a seminar at the Orem Public Library on Estate Planning for Blended Families.
When                 Wed, April 5, 7pm – 8pm
Where                Orem Public Library, Media Auditorium (map)
Description       Couples with blended families face special challenges when it comes to making sure that stocks, bonds, real estate, and other property and family heirlooms go to the right persons at the right time when a spouse dies. This seminar will address such issues and discuss ways to solve them, using wills, trusts, and other estate planning documents.
Hope to see you there.

Kanban Boards, Focus, and Productivity

One of my many weaknesses is maintaining focus. Often it seems squirrels are everywhere. And that’s frustrating because when I am focused, my head down, I move forward quickly and accomplish a lot.

So it was that I got excited when I heard John Grant describe so-called Kanban Boards on a Legal Talk Network podcast. (Warning, the podcast starts out slowly and Grant can be a bit jargony–so much so that I almost turned the podcast off–but it gets better and when he began talking about Kanban Boards, I was hooked.)

I rushed home, watched his video on the the subject and created my own  board. I’d show you my board, but I have client names on some of the Post-it Notes–did I mention that a Kanban Board is essentially a white board divided into columns and covered with Post-It Notes? Since I began using my board three weeks ago, I’ve been multiple times more focused and productive. Can’t recommend the tool highly enough.

By the way, Kanban Boards are not just for attorneys. They’ll improve anybody’s life.

Here’s the video:


Where’s There’s a Will, There’s a Will.

At the link is an interesting piece at that compares the reasons people gave in 1927 for not making a will with the reasons people give now. It’s worth a read if for no other reason than the photographs from those bygone days are great.

That said, here are the reasons people gave in 1927:

  1. A superstitious fear that making a will inevitably ushers in death faster.
  2. Mental laziness—putting off the process of working out the details of distribution and apportionment with a fair regard to what’s equitable and just.
  3. A sense of inadequacy to plan for the future.
  4. The expectation that a little later, the mind will be “better made up.”
  5. The dread of expense in paying for competent legal advice.
  6. Sheer hesitation and procrastination.

And here’s what people say today:

  1. I am too young.
  2. I don’t want to think about dying.
  3. The belief that assets will automatically pass to the proper individuals.
  4. Drafting a will is expensive.
  5. The belief that only wealthy people need wills.
  6. Not ready to make important decisions.
  7. Avoid dealing with family issues.
  8. Reluctant to discuss personal details with an attorney.
  9. Unaware of the consequences of not having a will.

There is no real good reason to not make a will–a very basic estate planning document that anyone who owns anything or who has minor children should have. And the two reasons I’ve bolded above have no merit. You can buy a do-it-yourself will online for as low as $30.00. A good attorney can draft a simple will for as little as $250.00. (Other estate planning documents–trusts, powers of attorney, and the like–are an additional cost.)

So go get that will. Tell the world who gets what when you die and who you want to be the guardian of your minor children. Just do it.

Or let your state’s law of intestacy do it all for you.

Trusts: You Can Avoid Probate, but You Can’t Avoid (All) the Costs

Onassis_NYTThere’s a misconception out there that if you use a revocable living trust in your estate planning, you avoid probate and save on all those costs associated with probate. Well, maybe and maybe not.

First, in order to avoid probate, virtually everything you own has to be owned in a way that will do just that–avoid probate. Sounds circular, I know. What I mean is that if you own property

  1. As joint tenants with rights of survivorship–it will avoid probate.
  2. In so-called POD or Payable on Death accounts–it will avoid probate.
  3. That allows for you to name beneficiaries–a life insurance policy, for example–it will avoid probate.
  4. In a revocable trust–it will avoid probate.
  5. That doesn’t amount to much–you may avoid probate, or at least be eligible for some sort of simplified probate.

Put all that together, and you may avoid probate. But if you have a will, it will need to be proved valid in court–usually a routine process. If you own property that doesn’t fall in one of the categories I just listed, it will probably have to go through probate.

Bottom line, you may be able to avoid probate if you do everything right, own all of your property correctly, dot all your “i’s” and cross all your “t’s.” But if you don’t . . .

That said, to the extent that you do own your property as described above, you reap the big benefit of probate: You keep things private. For example, if your will says who gets the Picasso that hangs over the fireplace and who gets the cabin in the mountains when you die, anybody with the time to go down to the court and check can find that out. If, however, you say who gets what in your revocable trust, nobody has to know except for the people receiving the property. Maintaining your family’s privacy and saving time are the main benefits of avoiding probate to the degree possible. Don’t believe me? Ask Jackie Onassis’s family.

Now, about those costs. Yes, there are costs to probate. Attorney’s fees. Executor’s fees. Court costs. They all add up and can be expensive. But you know what, it costs money to administer a trust when you die: Attorney’s fees, again. Trustee’s fees, again. But typically no court costs. So yes, your estate will probably save money by avoiding probate, but your estate will still spend some money.

One more thing, a thing about revocable living trusts as an estate planning tool: They are predictable. You set them up. You outline all your plans, appoint trustees you trust, and tell them what you want them to do–in writing–and it’s all so predictable and happens almost seamlessly.

You turn that all over to the court in a probate proceeding, and predictability goes out the window.

Revocable living trusts are the way to go–for most people.

Funding: The Second Step of the Living Trust Two-Step

Just because you have a will and a living trust doesn’t mean you’re finished with the estate planning process. There is another, essential step, a step called funding your trust.

Slide1Remember, among the reasons you have (or hope to have) a will and living trust are to avoid probate to the extent possible and to make sure your property goes to whom you want it to go, when you want it to, and with as little income and estate tax taken out on the the way. It stands to reason that for that to happen, your trustee–probably you–has to have some control over your property.

To make that happen, you must fund your trust; that is, you must transfer property you and your spouse (if married) personally own to the trustee of your trust–again, probably you. My purpose here is not to go into depth on the subject. (For an extensive Q&A on the subject of funding, I suggest you visit Rather, I thought it would be interesting to give you an idea of what funding meaning in the practical sense.

Essentially, there are three basic ways to transfer property into your living trust: 1. a general assignment–a short document referring to miscellaneous personal property such as books and jewelry and signed by you, 2. transferring or changing title–title to real estate for example, and 3. changing beneficiary designations–on a life insurance policy for instance.deed-framed

What follows are lists of property that you must transfer by changes in title or beneficiary designations:

Property Requiring a Change in Title

  • Checking, Money Market, and Saving accounts
  • Section 529 educations plans
  • Certificates of Deposit
  • Safe deposit boxes
  • Stocks, bonds, mutual funds, and brokerage accounts
  • Real estate
  • Vehicles
  • Business interests

Property Requiring a Change in Beneficiary Designations

  • Life insurance policies
  • IRAs
  • Annuities
  • 401(k)s
  • 403(b)
  • Keogh Accounts
  • Pension Plans
  • Profit Sharing Plans

Sometimes the attorney will take care of all of this, generally for an additional fee. Often the attorney and client share the responsibility, the attorney taking care of, say, the deed and business interests, and the client talking with her broker and bank. And then there are the clients who prefer to do it all themselves.

The critical thing is that until the funding is complete, so that the estate plan works the way it was intended to work.


When Something is Better Than Nothing: The Case for the Holographic Will

Slide1Let’s be clear on this one point: If you don’t have a will, the state has one for you. That is, if you die without a will, your state’s law of intestacy will step in and make sure your assets go to someone. If you’re lucky, your desires will coincide with the state’s. If you’re lucky.

If you live in Wyoming, your assets will be distributed as follows, if there’s anything left after the payment of debts:

  1. If the deceased leaves a spouse and children, then 1/2 to the surviving spouse and 1/2 to children or their descendants.
  2. If the deceased leaves a spouse and no children or descendants of children, 100% to the spouse.
  3. Likewise if the deceased leaves only children or descendants of children, i.e., 100%
  4. No spouse or children? Then to father, mother, brother, and sisters or descendants.
  5. Finally, to grandparents, uncles, and aunts. (Wyo. Stat. § 2-4-101)

If you live in Utah, well, it’s quite different:

  1. The entire intestate estate goes to the surviving spouse if the deceased leaves no descendants or if all of the surviving descendants are also descendants of the surviving spouse.
  2. If some of the deceased’s surviving descendants are not also descendants of the surviving spouse, the the spouse gets the first $75,000 and 1/2 of the remainder. (Utah Code §75-2-102)
  3. What’s left, goes first to the descendants of the deceased per capita–i.e., three children? Each gets 1/3rd.
  4. If no descendants, then to the deceased’s parents, then to descendants of the parents (i.e., bothers and sisters), then to the grandparents, etc. etc. (§75-2-103)

It’s a little more complicated than what I’ve just described, but the broad outline is there. What isn’t there is the ability to disinherit or direct more money to one child than to the other. Nor is there the ability to prevent a spouse from whom you are separated but not divorced from receiving the surviving spouse’s share. Have a charitable bone in your body? Out of luck.

So what do you do if you don’t like the state’s plan for you? Make your own plan: draw up a will, using an estate planning attorney, I hope.

But if money or time is really short; if you’re in a pickle and need a will right now, this very minute, an attorney might not be an option. A holographic will might solve your problem. According to, a document is holographic if it is “written wholly in the handwriting of the person whose signature it bears.” A holographic will is just that, with minor tweaks, depending on where you live.Holographic Will

If you live in Wyoming, a holographic will, to be valid, must be “written entirely in the handwriting of the testator and sign by the hand of the testator himself” (Wyo. Stat. §2-6-113).

If you live in Utah, such a will is valid if the “signature and material portions are in Testator’s handwriting” (§75-2-502(2)).

In neither case are witnesses necessary.

Thus, if you’re in a pinch, pick up pen and paper and write out your will. Tell the world how you want your property distributed should you die suddenly. Then sign it and put it where someone will find it. Tell someone about it. Then, once the emergency passes and you have more time and money, give an attorney a call and get it done right.


Practicing Law without a License: What Could Go Wrong?

Slide1So a relative just gave me a blank copy of her parents’s will and trust, documents prepared for them by a financial planner, a guy not licensed to practice law. I have no idea what this guy knows about financial planning. I know that he knows very little about wills and trusts. Here’s a short list of problems with the documents:

1. Both documents are simple, fill-in-the-blank forms. How do I know that? The blanks. I have no idea whether the financial planner guy discussed with his clients the who, what, where, and why of filling in those blanks. For example, both the will and the trust provide spaces for appointing executors, guardians, and trustees. Was any discussion had about who should occupy those positions and why–maybe–they should not?

2. And about that guardian. The article in the will providing for the appointment of a guardian speaks only of acting on behalf of “a minor child.” The clients are both in their 80s. Obviously, the will was prepared especially for them–not!IMG_2720

3. The will gives the impression that the executor has the power to administer the clients’s estate with little or no court supervision when, in fact, state law grants that power, but only if the size of the estate does not exceed certain maximums. In Utah, that maximum is $100,000. The provision is misleading and, frankly, unnecessary, especially given that the clients’ home is worth at least $400,000, well in excess of the $100,000 maximum for informal probate in Utah or $200,000 in Wyoming. In such cases, the law already allows a simplified probate variously called informal probate, unsupervised probate, distribution by affidavit and summary procedure, and the like. My impression is that the will in question makes a big to-do about this “power” so as to appear like it’s actually accomplishing something beyond wasting paper.

4. In Utah a will is valid if it is in writing, is signed by the testator (the husband), and is witnessed by two competent persons.  In Wyoming, the requirements are virtually the same, though the witnesses must also be disinterested. This will has that, plus an affidavit that the testator is also supposed to sign and which, apparently, needs to be witnessed by three witnesses–and all these signatures are supposed to be acknowledged before a notary public. This is overkill masquerading as thoroughness and an indication that this is a one-size-fits-all-states document. Worse, the affidavit is poorly written. To wit, it says.

I sign and execute this instrument as my Will . . . (emphasis supplied)

Which instrument would that be? Arguably the affidavit. Since the affidavit is a separate document and because it refers to just any “Will” and not to the “Last Will and Testament of Joe Blow,” the word “instrument” is ambiguous and virtually worthless.

5. By the way, I see no “Last Will and Testament” for the wife. She is referred to in the title of the trust, but only by first name! The same goes for the signature line at the end of the trust.

6. The will is a so-called pour over will, a document that essentially directs that all property the testator owns at the time of his death goes into a trust, either a testamentary trust (one created by the will and which comes into existence at his death) or an existing living trust (a trust he created during his lifetime and which he’s been using while he’s alive). In this case, the trust is a living will. So far, so good. But here’s the problem: it is not apparent that anything has been done to ensure that the testator’s property has been transferred to the living trust. If that’s the case, then there will be formal probate and the living trust is of no value until the testator dies. NO VALUE.

7. And when he dies? Well, the trust has some value at that point, but just some. I’ll be brief:

a. The lifetime dispositive provisions–the directions on income and property while both grantors are alive–are minimal and leave a lot to the imagination.

b. The directions on what happens upon the death of the first-to-die are even more unclear and attempt to do a few things that I’m not sure you can do. Can a trust become irrevocable at the death of the first-to-die, but only as to certain property? I don’t think so. What should happen–and what often happens under a well-drafted trust–is that at death a separate trust is created for that property and that trust is irrevocable. The provision in the trust in this case is a mishmash of gobbledygook.

c. The provisions regarding specific distributions of personal property or financial assets is likewise poorly drafted and confusing. To boot, the provisions introduces new terminology that is not defined elsewhere in the trust. As trustee, I could guess, but could I be sure that I’m doing the grantors’ bidding when such ambiguity exists?

d. There is no discussion of marital deduction, applicable exclusion amount, portability, basis or other potentially estate and income tax saving concepts.

I could go on. Did he even talk about durable powers of attorney? About health care directives? The list of potential problems is endless, bu I’m going to stop here. The closer I read the documents, the madder I get. And that’s without contemplating the very likely fact that little or no counseling took place when the financial planner handed this garbage to his clients.

The grantors/testators paid good money for this mishmash of words, money they may never get back. As a person licensed to practice law in Utah and Wyoming, I have my differences with the whole idea of licensing, but what I’ve just described is a big argument in the other direction.

And so, dear reader, CAVEAT EMPTOR. Buyer beware. Better yet, simply don’t buy. You can do as well as this guy by yourself. But when it comes to wills and trusts, you can do a lot better by talking to a licensed attorney, particularly one who practices in the area of wills and trusts. Trust me.


Personal Property Memorandum: Where There’s a Will, There’s an Easier Way

Slide1So you have a will and maybe a revocable trust, documents you’ve paid your attorney good money for. And in your will–and probably in your trust as well–you’ve said you want this item of personal property to go to him and that item to go to her and some other item to go to someone else. And weeks, maybe months or years later, you’ve acquired some more personal property–tangible things like rings or paintings or bikes or books or even a new car. Is it time to return to your attorney and revise your will or trust? Maybe. Maybe not.

For many of you, it’s maybe not, at least for those of you in Utah or Wyoming. You see, both of these states as well as some 40 others, allow you to “add” those new items to your will with what is called a personal property memorandum. It’s a simple document that is essentially a place to list each item you want to dispose of at death. Simply jot the name or description of the item on the memo, then right next to it, write the name of the person or organization you want to receive it when you die.

Your attorney probably discussed personal property memorandums with you when you first met about your will. To find out if she did, simply read your will. If it refers to something like “a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money,” your will allows for this simple procedure. (Actually, it will probably use very similar words since they appear in both the Utah and Wyoming Probate Codes.)

If words like that do appear in your will and if your attorney hasn’t already provided you a personal property memorandum, then it’s a simple matter of typing one up, say something like this:

     Personal Property Memorandum for the Will of John Doe

My will referred to a list of tangible personal property. This is such a list.

 Property Description                 Person to Receive the Property

_____________________               ________________________

_____________________               ________________________

_____________________               ________________________

                    etc. etc. etc.

Dated _______________________

Signed by:_____________________

                              John Doe


To be even more clear, you might include serial numbers or other identifying characteristics of each piece of personal property. You might add the address, even phone numbers of the person or persons who will receive that property upon your death. But you get the idea: the personal property memorandum is a relatively simple document.

Now, if it were me, I’d probably still consult my attorney about something like this, just to make sure I get things rights. But the relevant statutes are pretty clear: If the will refers to a written statement or list of the sort described above and if that list exists at the time of your death, is dated, signed by you, and includes “a description of the items and [persons who are to receive those items] with reasonable certainty,” that personal property memorandum will do the job intended. See for yourself at Wyoming Statutes Annotated § 2-6-124 or at Utah Code § 75-2-213.

The Best Way to Take the Stress out of Estate Planning

Slide1Brian Vnak, over at MarketWatch, just penned a piece titled “How to Take the Stress Out of Estate Planning.” He gives four ideas to support his title, among them, number 3: “Gift assets while you’re still living — addition by subtraction.” That’s a good idea, by the way, if only to take the monkey off your back, put there by Andrew Carnegie, who famously said:

The man who dies rich, dies disgraced.

Yankee’s short piece could have been even shorter, had he talked to me first. The best way to take the stress out of estate planning is to get it done. To do it now. To be done with it.

Estate Planning: How to Get Going and Why You Shouldn’t to Do It Yourself

Slide1Courtesy of the ABA, here’s a link to an on-demand webinar that should answer a lot of your questions about estate planning. As the brief description of the webinar says, “The program is intended for the general public and does not require a background in the law of wills or trusts or tax.” Click on the link near the bottom of the page, enter your e-mail address and a few other details, and you’re set.

The webinar is 1 hour long and covers a lot of issues. If you have any questions, feel free to contact me.

By the way, access to the webinar ends in October 2015, so take advantage of access now.


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