Insights | Blog | Stacey Romberg

You Backup Your Data. What About Your Fiduciaries?

09.03.2019 by Stacey Romberg //

My office is full of backups. My headset used for making VoIP telephone calls could fizzle out, so I keep a backup headset just in case. Suppose I spill coffee on the keyboard of my desktop computer? (And, admittedly, this has happened.) My backup keyboard is in the office closet and ready to plug in, just in case, so I won’t miss a beat when it comes to work. I would never be caught dead without a backup printer cartridge. And, the data for my firm? Our firm’s IT vendor backs up our data in three or four different ways to ensure that, if an emergency occurs, we will be able to recover.

Most of you likely have backups for the key things in life – the things that create pure chaos if they are lost or broken. For example, what about that extra set of house keys that you hide under the rock in your backyard in case you accidentally lock yourself out of the house? But what about a backup for your fiduciaries named in your estate planning documents? By “fiduciaries,” I’m referring to your nominated Personal Representatives in your Will, your Attorney-in-Facts named in your General Durable Power of Attorney and Durable Power of Attorney for Health Care Decisions, and your Trustees named in either your Revocable Living Trust or your Testamentary Trust contained in your Will. When picking who will be in charge, often it’s easy to name the first choice. It could be your spouse, partner, the sibling you are closest to, or your best friend. But, keep in mind that the reason your first choice is often the easiest choice is because it’s a person you like and spend time with. When you spend time with someone, accidents can occur that result in multiple deaths. That’s why it’s important to have at least one, if not more, backups in mind for each fiduciary role in your estate planning documents. Estate planning is all about planning for the unexpected. And, just like the chaos that ensues when your keyboard doesn’t work after the coffee spill, or you are outside of the house frantically making phone calls once you realize that you are accidentally locked out, that chaos happens on a considerably magnified level when there’s no backup fiduciary named in an estate planning document so no one can easily take charge of a needed task.

And the same principle applies in relation to your beneficiaries. For example, suppose Tom names his wife Suzy as his primary beneficiary in his Will, and his children Jamie and Leo as secondary beneficiaries? But sadly, the family’s annual rock climbing vacation goes south in a major way, and all the family members perish. If Tom failed to name any contingent beneficiaries in his Will, then his estate will be distributed by intestate succession which may not be a desirable result.

So be sure to backup your life and backup your estate plan! If you need assistance, we’d be happy to help.

Who Makes Your Health Care Choices?

08.27.2019 by Stacey Romberg //

legal-healthcare-planning Have you planned for who will make healthcare decisions on your behalf if you are unable to do so yourself? On April 30, 2019, Washington Governor Jay Inslee signed into law a bill that includes two significant changes to Washington law. First, it expands the hierarchy of who has authority to make health care decisions for patients unable to make decisions on their own behalf. Second, it revises the execution requirements for Health Care Directives. The law, EHB 1175 “An Act Relating to Authorization of Health Care Decisions by an Individual or Designated Persons,” became effective on July 28, 2019.

First, suppose a patient is unable to make health care choices due to incapacity, and that patient neither executed a Durable Power of Attorney for Health Care Decisions nor had a guardian appointed on their behalf? The new law expands the list of people who can make healthcare decisions for a patient under these circumstances. These decision makers, in the order of their priority, are:

A spouse or state-registered domestic partner;
Children age 18 and older:
Parents;
Adult siblings;
Adult grandchildren “who are familiar with the patient;”
Adult nieces and nephews “who are familiar with the patient;”
Adult aunts and uncles “who are familiar with the patient” or, finally;
An adult who “has exhibited special care and concern for the patient, is familiar with the patient’s personal values, is reasonably available to make health care decisions,” and is not “[a] physician to the patient or an employee of the physician, the owner, administrator, or employee of a healthcare facility, nursing home, or long-term care facility where the patient resides or receives care, or a person who receives compensation to provide care to the patient.” Such an adult must sign a declaration sworn under penalty of perjury, but a health care provider is not required to accept it.

In addition, the new law clarifies that, even though a decisionmaker has the authority to make certain health care decisions for the patient, the decision maker may not request or obtain medication to end the patient’s life. Rather than forcing your family to go down this road of determining who can make decisions for you, consider making the decision for yourself while you are able by executing a Durable Power of Attorney for Health Care Decisions.

Second, the new law allows for a Health Care Directive to be signed in the presence of a notary as an alternative to the prior requirement of that a Health Care Directive must be signed in the presence of two qualified witnesses.

Do you have any questions regarding who will make your health care choices if you are unable to make them for yourself? Please let us know, we’d be happy to help.

R-E-S-P-E-C-T and other reasons to tell your family about your estate plan

08.20.2019 by Sherry Lueders //

estate planning will in safe When the legendary Aretha Franklin died in August 2018, her family – and lawyers – believed she never had a will. When the family opened a probate of her estate in Michigan last fall, Franklin’s four sons each expected to receive an equal share of her estate under Michigan’s laws of intestacy (i.e., the laws governing the distribution of property of people who die without a will). Months later, these expectations were upended – along with the harmony among her children – when a series of handwritten wills were discovered both in a locked cabinet and between the couch cushions in her home.

Now, Franklin’s children are embroiled in a dispute over the distribution of her estate, and a judge is being asked to determine the validity of the found wills, which do not leave the estate to her kids in equal shares. What went wrong, and what can we learn from yet another very public estate dispute among a celebrity’s family members?

Let your family know you have a will. Franklin’s children appear to have had no idea that she’d ever written a will – much less several. Her family opened a probate for her estate under the assumption that no will existed. When a will was discovered, and its terms directed a different distribution of her assets than the default under state law, this new development understandably created conflict among her children. A simple way to avoid the conflict that resulted would have been for Franklin to have communicated to her family at the very least that she had a will.

Let your family know where you keep your original will. Telling your family that you have a will is just the first step; they also need to know where to find it. A will is effective in directing the distribution of your assets after you die only if it is found and admitted to probate.

Store your will in a secure but logical location. It appears to have taken Franklin’s family months to discover that she had stashed her handwritten wills between her couch cushions and in a locked cabinet. The greatest surprise in discovering the will in the couch cushions is that it was discovered at all.

If you store your will in a lockbox, safe deposit box, or home safe, make sure that someone other than you can access it. While it is no surprise to find a will among valuables in a locked cabinet, after Franklin’s death it may well have taken her family months to get around to opening the cabinet. It may not have been a priority if nobody knew what was inside it. It is also possible that nobody knew where to find the key and a locksmith was required to gain access. Accessing a bank safe deposit box when the only person authorized to access it is deceased can be an expensive and frustrating process that often requires a court order. This scenario can easily be avoided by storing your will somewhere that someone else can access. This can be accomplished by sharing the key or combination to a lockbox or safe, by adding another person on to the bank’s records governing the safe deposit box, or simply by storing your will someplace that does not require a key, combination, or identification to access.

Letting your family know that you have created a will and where you plan to store it, storing your will in a logical place, and making sure you are not the only person who can access it demonstrates respect for your loved ones. Questions about storing a will? We can help.