Tag Archives: will

Never, Ever Unstaple a Will (And Did I Mention Never, Ever?)

Who would have thought that a small and simple object that (can draw blood if squeezed into a finger but otherwise) appears relatively harmless could blow your entire estate plan?

The common staple remover. An enemy of well-drafted last will and testaments and well-made estate plans nationwide.

photo-19

Here’s what I tell my clients:

Never, ever unstaple a will. Never, ever, ever. And did I mention never, ever? Don’t do it!

To drive home the point with a memorable comparison, I even have joked with some clients on occasion that unstapling a will is like having an affair. (I only say this when I am pretty well assured the joke will be properly received.) You can try to put it – i.e., the marriage or the will – back together again, but it will never go back exactly the same as it was before. There are always some holes that cannot be filled and some room for distrust that it is difficult to overcome.

There are always some holes that cannot be filled and
some room for distrust that it is difficult to overcome.

Unstapling a will can call the entire document into question. Was a page added or removed? Is it a complete and properly ordered copy? Even if the pages are numbered and initialed, how can we (sometimes many years later) be sure that no one did an artful yet fraudulent switch of parts of the document he/she did not like?

It is such a serious issue that, if a will is to be proven in probate court as the correct, complete and valid original last will and testament, there is a process of submitting an affidavit by the person who unstapled the will, discussing the reason for the unstapling, when and how it happened, and by whom. The court is understandably concerned that there was no foul play involved, and wills with multiple staple holes are regarded with suspicion.

So what should you do instead, if you need a copy of your will?

If you need a copy of your will, you should make a copy of a copy, not of the original. Or you can make a copy of the original without unstapling it, making sure that you do not damage any of the pages in the process. It’s not a good idea to have too many copies of your will floating around in any case, since you may wish to change it later and do not want someone with an older copy trying to challenge the later will. If you have any doubts, contact your local estate planning attorney before taking action that can have serious legal consequences to one of the most important documents in your legal life.

So let’s not forget. I repeat:  Never, ever unstaple your will! Never, ever!

Law Office of Anne Marie Segal is located in Stamford, Connecticut provides legal counsel to businesses and individuals in Fairfield and Westchester Counties, New York City and beyond. Ms. Segal’s practice areas include estate planning, business law, trademarks and related areas. Please visit www.amscounsel.com for more information.

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship, and there may be facts not discussed here that are relevant to your situation. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Tagged , , , , , , , , , , , , ,

Happy New Year: Five Essential Legal Documents for 2013

Happy New Year!

If you don’t have them already, and unfortunately many of us don’t, here are five essential legal documents to prepare you for 2013 and beyond. Do your family a favor and get these in place before they are ever needed.

1) Will. A “Last Will and Testament” is the central estate planning document that allows you to direct how your assets will be distributed upon your death and who will serve as your executor. If you have minor children, you can also designate guardians in a will. If you die without a will, the laws of your state determine how all of your property – from stocks to shoes – will be distributed. This may or may not accord with your intentions.

2) Advance Directives. A “living will” and a “health care proxy” are the two essential elements of an advance directive. The first gives your wishes for medical care in case of, for example, emergency and terminal illness. The second appoints an agent to make medical decisions if you are unable to do so. In some circumstances, a DNR is also appropriate.

3) Durable Power of Attorney. You will want to appoint someone you trust implicitly to be in charge of your finances in the event you are not able to do so (such as a prolonged recovery from an accident that leaves you mentally impaired). If not, valuable time will be wasted while your agent attempts access your assets, which may be needed for your or your family’s care. Depending on your personal circumstances, you may determine that a “springing” attorney is more appropriate, which is valid only if it is demonstrated that you are incapacitated.

4) Records of Passwords. Since bank statements and other important elements of our lives are often dependent on online passwords, you should have a secure system or file so that your personal representative can access these records if needed. The last thing you want is for assets to be left unclaimed (and escheated to the state) because no one knows where your accounts were held.

5) Temporary Guardianship Paperwork. If you have minor children, in addition to appointing a long-term guardian in your will, you want to have temporary guardians available to step in for emergencies and other situations where you may not be able to serve as guardian for your children, or upon your death in the first hours and days while the long-term guardian arrangements are put into place.

Just as you are jumping on the treadmill or passing up that second piece of chocolate cake to stay healthy for years to come, also take some time to prepare your estate plan. If you would like to watch my video 6 for 5: Six Minutes for Five Essential Legal Documents for 2013, see below.

Anne Marie Segal is admitted to practice law in Connecticut and New York and provides estate planning and other legal counsel to businesses and individuals. This information is provided for your convenience and does not comprise a complete estate plan or give legal advice for your situation. Other documents, such as a living trust, may be appropriate for your circumstances, depending on your state’s probate procedures, your asset base and other factors.

 None of the interactions on this site form an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Tagged , , , , , , , , ,

Seven Top Reasons All Single Parents Need Estate Plans

With every time crunch and other obstacle a single parent must face, estate planning may seem like a far-flung concern or something only needed by the wealthiest of parents. Nothing could be further from the truth. As a single parent with moderate income and assets, your child(ren) need to keep every penny possible that you worked so hard to earn! Here are seven top reasons – aside from taxes and special needs – that even a basic estate plan will save your family headache and heartache down the road.

1) You can name a physical guardian. In your will, you can designate who your minor child’s guardian will be in the event there is no longer a living, available and appropriate parent. If your former spouse passed away, your child’s other parent is no longer involved with the child or there is a history of abuse or other reason to designate a non-parent guardian, this is especially important. (And in cases of abandonment or abuse, you should leave additional information and evidence separate from your will, if possible, to support your election of a non-parent guardian over the living parent.) Without your designation of a guardian, a probate judge will make his or her best guess on who is the best person for the job, which may or may not accord with your wishes or the actual best interests of your child.

In the case where your former spouse would ordinarily be guardian of your child in the case of your death, it is still advantageous to appoint a guardian. For example, there could be situations where he or she is unwilling or unable to serve as a guardian (including if he/she predeceases you).

2) You can name a property guardian.  In addition to naming someone as a physical guardian to care for minor children, you can also designate who will take care of your child’s financial affairs. This person may or may not be the same individual who serves as the physical guardian. For example, your son or daughter’s other parent may be his or her physical guardian after you pass away, but you may designate your sister or brother to be a property guardian for the assets you have left behind. Without designation of a property guardian, the child’s custodial parent would have control of your estate assets.

3) You can set up a trust or custodial account. You may choose, after considering the options, to set up a trust or custodial account to manage the assets on behalf of your child and designate ages and conditions for which your child will receive the principal in the trust or account. A typical age is 25, for example. You may also wish for the child to receive equal shares at different ages so that if he or she does not properly manage the first influx of cash, there is another opportunity. Without a trust or account, your child will have unfettered access to any estate assets at age 18, which is probably not the most opportune time to make the wisest financial decisions.

4) Your estate will not need to pay to bond the administrator. If you die without a will (or if you do not waive the requirement in your will), your estate’s administrator (or executor) will need to be bonded for each year that your estate is in probate. This surety bond could drain hundreds of dollars in probate costs from your estate.

5) You can plan for incapacity or other health emergencies. None of us likes to imagine that we won’t be available for our children whenever they need us, but every day things do happen. As part of your estate plan, you can determine who will take care of your medical and financial decisions if you cannot do so yourself due to incapacity or another disability. Significant funds can be depleted on delay and wasted efforts if you do not plan ahead for this possibility, however remote.

6) You or your attorney will review your beneficiary designations. Have you checked that your former spouse, for example, is no longer listed as the beneficiary of your 401(k)? If you have more than one child, are they listed as co-beneficiaries (assuming this is your intent)? Are you sure? In the course of reviewing your documentation, you may be surprised what you find (and want to change).

7) The very act of estate planning will get your financial paperwork in order. As a single parent, you (usually) do not have another partner who knows the financial details of your life. Where is the information to claim life insurance? Where are the stock certificates and 401(k) account statements? Where is the safety deposit box key? As you work through the questions posed by your estate planner, you will have an opportunity to consider what information you need to document and where to best keep it available yet confidential in case your estate executor needs to find it.

Single parents, if you have read this post to the end, pat yourself on the back! You probably already know that life can throw a few curve balls your way. By educating yourself about estate planning, you have taken an important step to assure your children’s future. I wish you all the best.

Law Office of Anne Marie Segal provides estate planning advice and other legal counsel to businesses and individuals. Please visit www.amscounsel.com or MyStarterWill.com for more information. None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. This is a public forum. Please do not post confidential or fact-specific information regarding your legal questions on this site.

Tagged , , , , , , ,
Follow

Get every new post delivered to your Inbox.

Join 236 other followers

%d bloggers like this: