Tag: estate planning

Law Posts

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

by Anne Marie Segal2 Comments on 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.

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[Note: This post was written while I was a practicing attorney running a solo law practice. When published, it was one of my most popular posts. Since April 2015, I have been working with attorney, executive and entrepreneur clients as a career coach and writer, and I am not currently available for legal engagements.]

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!

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship.

Law Posts

Safe Deposit Box: Best Place to Keep a Will?

by Anne Marie Segal

A safe deposit box seems like the perfectly logical place to store a will and other estate planning documents. They are probably the most important documents we will ever have, so shouldn’t they be kept in the safest place?

But is it a safety deposit box the best place? Or should you keep it in a fireproof safe in your home? With your lawyer? The court? Or somewhere else altogether?

[Note: This post was written while I was a practicing attorney running a solo law practice. When published, it was one of my most popular posts. Since April 2015, I have been working with attorney, executive and entrepreneur clients as a career coach and writer, and I am not currently available for legal engagements.]

Although I mention it again below, this bears stating here at the outset and repeating: Whatever option you choose, make sure your executor knows what you did!

Safe Deposit Box

Although clients often instinctively want to put wills in a safe deposit box, many estate planning lawyers suggest not to keep a will or other important estate planning paperwork there.

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The problem arises with the fact that many states seal a safe deposit box when informed of the death of the owner, and a court order must be issued to request that the box be opened to search for the will. Although probate courts will generally issue this order “immediately”, in practice there is still a delay until the request is made to the court (or the court acts on its own) and the order is actually granted.

Documents that are generally allowed to be released include the will, any deed to a cemetery or burial plot and any life insurance policy for the named beneficiary. I mention below (by way of example) some basic information about two states, Connecticut and New York, although more complete and updated information may be applicable if and when it is needed by your heirs. Following this information is a discussion of other options for keeping your estate planning documents, such as with an attorney, with the court or in a fireproof safe in your home.

Connecticut

In Connecticut, there is a standard form to request that a safe deposit box be opened after the death of an individual (click here), which should be submitted to the decedent’s corresponding court of probate. The form may be submitted by a next of kin, spouse, or any person showing a sufficient interest in the presence of a will to obtain any will or cemetery deed in the safe deposit box. The court may also issue an order ex parte. In all cases, an officer of the bank must oversee the process and report back to the court.

New York

Surrogate Courts in New York have different forms depending on which court is issuing the order. (New York tends to be more complicated in many legal matters, unfortunately.) Here’s the form for Queens County, for example (click here). To its credit, New York has made it easier with a do-it-yourself program, called the Surrogate’s Court Safe Deposit Box Petition Program, to walk people through how to make the request (attached here). Among other documents, you will need to obtain a copy of the death certificate before making the request.

Bank Procedures

In addition to the above, a bank may have its own procedures, such as requiring Letters of Appointment, Letters Testamentary or Letters of Administration (each being a letter allowing an executor or administrator to act on behalf of the decedent’s estate) before allowing access to the safe deposit box.

As you can see, there administrative hassles involved (those discussed here and others) with storing a will or other estate planning documents in a safe deposit box. That said, for individuals who do not have another safe place to store a will or prefer the safety of a safety deposit box, it may be the best choice.

Lawyer’s Office

Another option is to keep a will with the attorney who drafted it. Again, this may or may not prove as easy as it sounds. For example, we had wills drafted by an attorney shortly after the birth of my first child. After five years the lawyer wrote to us stating that the originals would be sent back to us if we did not inform her that we wanted her to keep them. (But I thought she was going to keep them until we died?)

In addition, offices may move or close, and if you do not keep careful records, it may be difficult for your heirs to locate an original will when the time comes.

The Internet does help in this regard, but it is not foolproof. I represented a client recently who had drafted her first will many years earlier and wanted to update it, changing her executor and adding grandchildren as beneficiaries. We attempted to locate the attorney who had drafted the original will, even contacting a lawyer who had previously shared office space with him and sending out email blasts to estate planning attorneys who might have known him. The man was nowhere to be found. He had either retired or passed away himself. Needless to say, if my client had died without updating her will, her heirs would have only had a copy to submit to the court (that is more open to being contested and requires additional proof to be probated), not the original.

Finally, if the lawyer is not responsive for whatever reason, executors or others seeking to obtain estate planning documents from the attorney may also need to obtain a court order to compel production.

Again, a lawyer’s office may be the best place to store a will, depending on your circumstances. However, you should weigh all factors for and against before making a decision.

The Court

You can file your will with the court in many states, which is also a safe option, but this means that your will becomes an official document, not a private one. If you decide to change the terms of your will, you cannot get it back, so beneficiaries and former beneficiaries can see how their respective inheritances have changed (or been removed) during successive revisions. On the contrary, if a will is a private document, you can destroy the original and all copies, and would-be heirs who have fallen out of favor are none the wiser.

In addition, if you move out of the jurisdiction of the court, out of state or even out of the country, your court-filed will does not come with you. There should only be one original of your will (an inviolate rule, barring very specific cases of different wills covering different assets, such as an international circumstance). That means if you drafted a will while living in Westchester County, New York, and filed it with the Surrogate’s Court in White Plains, your executor and beneficiaries would need to obtain it from that court, even if you or they have since moved to Phoenix, Paris or beyond.

Fireproof Safe in Your Home

It may be, after considering other options, that you decide to keep your last will and testament in a fireproof safe in your home. This is often a good option, especially if you have a safe that cannot be remove from the premises by anyone seeking to tote off valuables. In that case, I would recommend keeping a copy of the will in a safe deposit box (clearly marked COPY, with instructions on where to find the original), in the unfortunate circumstance that the original is lost. Be careful not to create too many copies, since you may later revise important provisions of your will and do not want multiple prior copies floating around that a beneficiary with a reduced share tries to “prove” is your correct and valid last will and testament. This can happen even among otherwise friendly parties, such as children and grandchildren. Do your heirs a favor, and keep everything clean to mitigate potential conflicts.

The Freezer

According to the rumor mill, there may still be a few folks who actually store important documents in the freezer. I have never met anyone who did – maybe it’s a poor man’s safe? – but I certainly don’t suggest having a last will and testament shoved behind the frozen peas. Not only does it sound a bit too Sopranos to me (and James Gandolfini himself left a mess for his heirs), but the bag it’s stored in better be really, super waterproof in the event of a power failure.

Let Them Know What You Did

Regardless of the option you choose for storing your will, make sure that your executor(s) know what you did. The best estate plans only work if the right people know how to follow them and where to locate essential documents when the time comes.

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. 

Law Posts

Protect Them from More than Rain: The Importance of Choosing a Guardian

by Anne Marie Segal

We try to protect our children from potential dangers – rain, sleet and snow to more ominous worries. What if the worst actually happened, and you were not there to care for your child? Who would do it? It’s a decision you want to plan calmly in advance, not leave to the courts – the judge won’t know that your charming sister-in-law is crazy – or even your own wits during or following a crisis situation.

Protect from Rain

Choosing a guardian can be difficult and filled with emotional and other nuances. In addition, differing opinions between spouses about who should serve as a guardian, in the unlikely event that both parents die while any of their children are under the age of 18, stops many an estate plan in its tracks. While no guardian will ever replace a child’s own parents, a thoughtful choice will help a child cope with his/her loss and readjust to a new life and home.

[Note: This post was written while I was a practicing attorney running a solo law practice. Since April 2015, I have been working with attorney, executive and entrepreneur clients as a career coach and writer, and I am not currently available for legal engagements.]

Factors in Choosing a Guardian

There are a number of factors that affect guardianship decisions, and the weight given to each depends on your personal situation and possible choices. Here are some common points to consider:

Other Parent. If the child’s other parent is still living, there is a “rebuttable presumption” that the parent will be the child’s guardian, absent extenuating circumstances such as abuse.

Willingness to Serve. Of upmost importance is the guardian’s willingness to take on such responsibility. Has or would the guardian agree to serve? Willingly or grudgingly?

Parenting Philosophy. Your choice of guardian should share your parenting philosophy. With what value set do you want your child raised? Can and will your potential guardian take your wishes into account?

Home Life. What type of home life does the potential guardian have right now and is it compatible with your children?

Geography. Where does the guardian live and (if applicable) will your children be able to adapt to a new geographical location? (Special issues, including immigration, are presented with international guardianship.)

Child’s Preferences. What are your child’s preferences, if any? Be aware that Connecticut courts give children a role in the process at age 12. In New York, that age is 14.

Religion and Spirituality. Choice of religion, religious observance or spirituality may be an important factor.

Special Needs. If a child has special needs (or severe allergies), will the guardian be able to address them in a loving way?

Health.  Are there health issues to consider, either of your children, the guardian or the guardian’s own family?

Money Matters.  Can the guardian manage the child’s inheritance or can you choose another individual or institution for money matters (e.g., a financial guardian or trustee)? If the latter, will the guardian be able to interact well your choice for financial management, and vice versa?

None of the information posted on this site constitutes legal advice or forms an attorney-client relationship. 

Law Posts

Formula and Disclaimer Bypass Trusts Explained

by Anne Marie Segal2 Comments on Formula and Disclaimer Bypass Trusts Explained

As you may know, unless Congress acts, as of January 1, 2013 the federal estate tax exemption amount is scheduled to drop from $5.12 million to $1 million, and the maximum tax rate will increase from 35% to 55%. In addition, New York and Connecticut each levy state estate taxes on estates over $1 million and $2 million, respectively.

[Note: This post was written while I was a practicing attorney running a solo law practice. Since April 2015, I have been working with attorney, executive and entrepreneur clients as a career coach and writer, and I am not currently available for legal engagements.]

Formula and disclaimer bypass trusts are irrevocable trusts used by married couples to minimize estate taxes on their combined estates. These credit shelter trusts work by channeling the assets into a trust for beneficiaries, such as the couple’s children or other family members.

Either type of trust may be a useful component of your estate plan, depending on your needs and goals. As with any planning, there are advantages and disadvantages to consider, as discussed below.

For the full memorandum, click on the link: Disclaimer and Bypass Trusts Explained

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. Any references to Law Office of Anne Marie Segal in the enclosed are references to my prior law office, now closed.

Law Posts

Seven Top Reasons All Single Parents Need Estate Plans

by Anne Marie Segal2 Comments on 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.

[Note: This post was written while I was a practicing attorney running a solo law practice. Since April 2015, I have been working with attorney, executive and entrepreneur clients as a career coach and writer, and I am not currently available for legal engagements.]

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.

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.