DGVE law Blawg

Busy Since Birth - Having It All Project

2013-04-22T10:10:00.003-04:00

I am grateful for the opportunity Cheryl Stober recently gave me, via Twitter, to contribute my 2 cents to her Having It all Project on her blog, Busy Since Birth. My interview question answers appeared here, and I am sharing them here.

Briefly describe your life and what you think makes it unique.

I am a full time mom and a full time lawyer with a busy little law firm I started a few years back and situated conveniently right in the family home I share with my husband, our three daughters (ages 3, 6, 8, and their little sister on the way), and a few pets.

I think it’s having a law office in our home that makes our lives a little less common. After the birth of my first child I quickly realized that full time work outside the home in my nonprofit legal career wouldn’t have covered the cost of childcare for my newborn. It took me 4 years of soul-searching and floundering a bit, while working part time from home for former colleagues, to figure out how to fulfill both my career ambitions, be the type of mother I wanted to be, and figure out how to be able to afford to do both. There was a lot of risk involved but the reward is mostly very sweet.

What are some of your favorite tips and strategies for coping with the chaos?

I am obsessed with organization in every area of my life, personal and professional. I’m certain it is the only thing that keeps me sane. Like so many other modern busy moms of a few kids, I rely on technology, specifically syncing all the carefully-color-coded calendars with multiple reminders, to help keep track of all our schedules and appointments.

I was very late to discovering yoga about a year ago (after about 15 years’ worth of friends telling me that I of all people really should at least try it). I have not been consistent with my practice the way I aspire to be, but when I do attend to my yoga practice I feel calmer, more at peace, more patient, more in touch with my own body and mind, and physically healthier. Yoga should absolutely be covered as preventative medicine!

I also highly recommend chocolate and peanut butter to help power through some of the more grueling work projects, combined with coffee when energy is fading.

Please share a moment where it all broke down, and how you got through it.

How to choose just one moment!?! There has to be at least one of those per day! Image this scene for a little taste of a moment when it all broke down and what I did to ensure it wouldn’t happen again.

It’s about 8:30am on a weekday. I’m fully dressed for work in a suit, in preparation for a 9:30am meeting with new clients, packing my three daughters’ lunchboxes, serving and cleaning up breakfast, and inquiring about homework in backpacks etc. I tell the big girls to get their coats and shoes on and I head into my office, adjacent to our kitchen, to make sure the desk is cleared off and everything is ready for when I get back from dropping them all off at their three different schools. Shuffling papers around and setting up, I somehow missed the then five-year-old giving her then two-year-old sister a breakfast snack bar. The little one walked all around the kitchen, then into the hallway, into the entry office, bathroom, and finally my office leaving a trail of crumbs it would seem impossible for one little snack bar to make!

So now I’m on my knees cleaning it all up off the floor, watching the clock, starting to panic about everyone being late to school and getting back late for my new client meeting. I’m mentally beating myself up for our chronic tardiness, starting to bark at the girls, and then spiraling into full mommy tantrum mode, circling back to more mental self-abuse. I get the little one’s coat and shoes on, get everyone strapped into booster and car seats, and as I’m driving them to school apologizing for my tantrum, whining about how hard this is and expressing doubts about whether I can do it anymore, clearly setting a fabulous example leading to a final piling on of mental self-abuse, before kissing them all goodbye and telling them to have a great day and I’d see them at pickup in a few hours.

I make it back in the nick of time, manage to pull it together for a two hour meeting with a lovely couple who have three boys the exact same ages as my girls. After the meeting, I decided that for the sake of my sanity and in the best interests of my family and our clients, 10am would be the new earliest available appointment time.

Do you have any balance role models? Anything you try to avoid because it wouldn't work for you?

Balance? I’ll let you know when I achieve it outside the yoga studio. As for role models, ideally, I would combine the best of all my friends and family into one superwoman. I would borrow what I envy from all my differently-situated friends, using the falsely limiting yet lazily convenient labels we apply to describe their basic situations: the “full time stay-at-home moms,” “full time work-outside-the-home moms,” “career women” who do not (yet) have children, and the dads who are navigating these same waters their own ways.

But myopically viewing the best of everyone’s situations without accepting the less than glamorous aspects and tradeoffs everyone makes is what gets us into trouble. Despite (or perhaps because of) my thoroughly ‘80s upbringing, since my first child was born in 2004 I’ve been disillusioned to learn that the mythical superwoman is just that, totally unrealistic. Trying to be her is not only an unattainable goal but also a really unhealthy starting point. I think the more we all tell it like it really is and pat each other, all of us, on the back for our own efforts and contributions, the happier we’d all be.

Think back to your 18th birthday. How is your life different from how you expected it to be then?

This question actually makes me laugh. I’m pretty sure that back then I still maintained this (in retrospect) totally ridiculous, romanticized vision of myself as a super-stylish, well-rested, city-dwelling, very successful attorney-mama with a happy little baby on one hip (no spit-up anywhere on my clothes) and a briefcase in the other hand (that had inside plane tickets and an itinerary for a fabulous, exotic vacation with my equal-parenting near perfect partner).

And then there’s reality! I’m a minivan-driving, suburban-dwelling, mother of three (soon four), working my tail off to continue to build, grow, and nurture™ my business, and crashing at the end of every day with my equally tired husband. Sadly, the last true vacation we had (read: without children for more than a one night getaway) was on our honeymoon, over ten years ago. If only I could spin in circles like Wonder Woman to go instantly from makeup-less fleecy lounge pants at school drop-off to dark-circles-covered polished professional, instead of “wasting” the precious time it really takes to accomplish that total transformation.

I recognize and appreciate how very privileged we are to have all that we do, especially this of all weeks. I do my best to teach my children to recognize how lucky we all are too and to be empathetic and eager to help others whenever they can. Even on our hardest days, I wouldn’t change any of it. I never get the best of all worlds on any one given day, but I do get the best of all them some days and for me, that’s the kind of “balance” I guess I need.

None Of Your (Family) Business or Kumbaya?

2013-04-03T11:36:00.004-04:00

What happens when one member of a family-owned and operated business keeps other members in the dark? What do you do when some members of a family are highly personally and emotionally invested in the long term success of the family business while others want nothing more from it than an income stream or a watershed liquidation event? What happens when one family member tries to create and grasp at a golden parachute while watching another family member flying with tail flames? What happens when lifelong promises of financial security through the business and assurances that following one’s passion is practically safe, give way to the threat of financial downfall and insecurity? What does the older generation do when they start to see stirrings of discontent amongst the younger generation? Family relationships or the family business – which comes first?

As Charles Gallagher, director of the Family Business Forum at Virginia Commonwealth University’s School of Business in Richmond, Virginia noted in aMarch 14, 2013 piece by Ken Otterbourg regarding the Luray Caverns familybusiness dispute, “Family businesses can be quite successful, he said, but the managing and intermingling of blood and commerce, insiders and outsiders, requires a deft hand, planning and enormous amounts of trust.”

It’s true that when the litigation starts, it’s game over for everyone. But what if there were a way to put the brakes on before things even started spinning out of control? What if the family members created a solid, insured, legal and financial foundation beneath the business from the outset complete with answers to as many of the possible foreseeable problems they could? What if they had established a longstanding pattern of holding facilitated family meetings, involving the business’ accountant, lawyer, and managers and shareholders to ensure that everyone involved understood all the reasons behind the business decisions?

What if, instead of litigators, instead of slash and burn tactics and posturing for stronger contractual agreements, there were a neutral facilitator brought into to help the various family members arrive at mutually comfortably agreeable solutions? What if all the family members’ concerns were actually voiced, heard, reflected back, and addressed respectfully? There is a better way and it does not need to involve holding hands and singing kumbaya (although that’s really not such a bad thing).

The necessary first step towards avoiding these family feuds down the line is spending the time, energy, and money to lay the necessary and proper solid legal and financial foundation, insure it from the ground up, and plan for best and worst case scenarios before anything pops up to test the strength and stability of the family ties and the family business. That means that even though it’s much more exciting to think about build-outs, wall colors, furniture, and a grand opening, there is critical foundational work that should happen first. The time to bring in the lawyer is at the outset, when you are just starting to think about starting a business, not once there are problems threatening the business.

If you’re starting a new or running an existing small business on Boston’s South Shore, DGVE law® can help you build,nurture, and grow your business™ while preserving personal relationships and protecting family interests. We take a very holistic (or “kumbaya” if you prefer) approach to caring about your business just as much as you do. But we’ll wear the traditional, lawyerly buzzkill goggles to help temper your necessary entrepreneurial enthusiasm when necessary and bolster your efforts and offer encouragement whenever appropriate. We want your small business to succeed because if your business succeeds, your family succeeds and our community succeeds. We’re a local small business trying to do the same. We get it and we’re here to help when you’re ready. Just call us at 781-740-04848 x.2 or email to astrid@dgvelaw.com.

A Better Plan for Your Child or Grandchild with Special Needs

2013-04-02T11:15:00.004-04:00

You love all your children or grandchildren equally and want to treat them that way, but leaving money for your child or grandchild with special needs in the same way as for your other children or grandchildren can be a recipe for disaster. You want to treat them fairly, but doing so in the most generic way can actually cause unintended consequences that could hurt rather than help them. In honor of World Autism Day today, please consider the following and see how it might apply to your family situation.

How extensive are your child or grandchild's special needs? Can he or she reasonably be expected to managed his or her own financial affairs someday? Is he or she currently or likely to be receiving any forms of financial assistance at some point in the future to help provide for his or her medical and/or mental health care, education, or basic living expenses? Receiving an inheritance or sudden influx of cash over which he or she has control can disqualify him or her from receiving such financial assistance. Depending on the extent of extra expenses related to the child's health, education, or living expenses, a family's resources, an inheritance, or court judgment award in his or her favor can be depleted fairly quickly.

Even if your family is fortunate enough to have sufficient assets such that you think government benefits would never be necessary, there are still other reasons why leaving assets directly to your child or grandchild with special needs is less than desirable. For example, if your child or grandchild were ever sued as the result of an accident in which he or she were involved, any of his or her assets could be within easy reach and subject to a court judgment award against him or her.

There are other, better ways to treat your children and grandchildren lovingly, fairly without causing such unintended consequences. The best way to provide for a loved one with special needs is through a special needs trust, also called a supplemental needs trust. A supplemental needs trust can provide for the supplemental needs, those over and above the very bare bones basics that basic financial assistance will provide for after a family's own resources are depleted or, ideally, before the rest of the family has had to suffer financially to provide for the basics for the child or grandchild with special needs. The purpose of a supplemental needs trust is ultimately to enrich the life of the beneficiary by providing for quality of life enhancements not just basic necessities.

Another really important consideration, and area where the professional guidance of an attorney and counselor at law who understands this complex and ever-changing area of the law can help provide invaluable guidance, is who will serve in the distinct roles of trustee, care manager, and legal guardian for your child or grandchild with special needs. A kneejerk first choice to succeed you may be one of the child’s siblings, but consider the strain that may place on the relationship and whether the sibling wants to or would practically be able to accept that responsibility. There may be a better choice to respect and provide for each sibling’s needs without causing other unintended consequences. Your estate planning lawyer should also help you draft a letter of intent to provide your invaluable insight and guidance on how to best care and provide for your child with special needs.

I know personally from close family experiences that as the parent of a child with special needs, your daily lived experience of caring for your child may feel like it requires more time, more energy, more patience, more persistence, more money, more everything. It can feel like one thing too many to begin the process of this planning now. However, you will experience a huge mental and emotional burden lifted once you take the time to create the right kind of estate plan to specify who will help manage and care for your child’s assets and provide for his or her better quality of life for the long run should anything happen to you in the short run and when the time comes that you are no longer able to do so for your child.

If you are the parent of a child or grandchild with special needs living here in Massachusetts, please contact my office today at (781-740-0848 x.2) or email (astrid@dgvelaw.com) to start to learn more about your options and choices. We promise to be respectful of your time, your energy, your patience, and your resources as we help you provide for your loved one in the best possible way with the least amount of additional stress possible.

Doing Your Will Using Your Whole...

2013-03-28T13:21:00.003-04:00

So I saw this post today, via Get Your Shit Together, entitled "One Day, You're Going to Die. Here's How To Prepare for It" - of course it caught my attention!

I strongly disagree with the DIY approach to estate planning and the idea that lawyers are optional for most people. It is nothing new or novel for people to inherently distrust lawyers (hello, Shakespeare!?!) and there are plenty of examples of why the public has that unfortunately over broad perspective. That's why I often feel compelled to use the qualifier "a good one" when I do tell people I'm a lawyer.

I also understand that it is difficult to fully appreciate the value of something it's hard to test oneself without the same training, expertise, and experience evaluating. But if you think it's just pure self-interest on the part of lawyers who practice in the distinct area of estate planning that caution you not to try to create your own legal documents, even with the "help" of pre-made, online or boxed forms, you are doing yourself a disservice.

I would be bored silly if all I did all day every day was plug my clients' names into the same standard forms over and over with nothing more to it! When I review my clients' family and financial information and discuss the specifics of their situations with them we dig deep into what their areas of concern are and how we can best address those to accomplish the clients' unique goals. I have actually been quite surprised to learn how widely those goals vary and to learn that what might look at first like very similar circumstances calling for a particular type of plan are not necessarily what my clients prioritize themselves and want to create. That's why the counseling piece is so crucial to really putting the right parts together to create a complete estate plan to fit the individual client's needs.

The other invaluable role of legal counseling in the process is being able to share with my clients my experience and expertise to offer insight into possible unintended consequences of their first choices and alternatives they might never have otherwise considered. I also routinely facilitate productive conversations between spouses to help them arrive at mutually agreeable decisions about such critically important pieces of their plan as who, and in what order, will serve as guardian for their minor children, one of many "hot button" topics in estate planning.

Lawyers who practice in this specific, complex, constantly evolving area of the law know about the most recent changes to probate, guardianship, and tax codes that affect proper planning. We know what red flags to spot, what life milestones and markers suggest review and changes may be necessary, and how to deal with tricky family and complex financial situations. Every family has its own complexities, though every client seems to think it's only in their family! Everyone has at least something, tangible or otherwise, that's really valuable and meaningful to someone else. People routinely forget about certain assets, most people aren't completely sure of which assets count as part of their probate estate or their estate-taxable estate, or what that even means and what the difference is between the two. People are often unsure of their assets' current values or who is set to receive them. I can't even count the number of times I've seen married couples with minor children who have ex-spouses or boyrfriends/girlfriends or their parents or siblings as current beneficiaries of their retirement plans because they set those plans up and forgot to update that piece of it. And in almost every couple I've had the privilege to work with to date, there is one family CFO if you will, while the other is more or less "in the dark" about the specifics, details, and location of records and contacts for the family's financial information.

The truth is, at least amongst the vast majority of my peers, friends, and clients, almost all of us start out thinking we don't have much and just need a simple Will, but almost all of us are dead wrong about that. The trouble is we we only find out when we take the time to really learn, and that takes time and money we feel short on to start, or our loved ones find out the hard way when it's already too late for us. Clients come in and roll their eyes (or wipe tears) while sharing the horror shows of their experiences dealing with loved ones who didn't take the time or spend the money to plan their own affairs. Those clients who've seen it up close and personal don't want to burden their surviving loved ones that way.

The other piece of the advice in that article I take exception to is the idea of shopping around for a lawyer via free consultations. I think free consultations are a waste of everyone's time. Either the lawyer is giving away free legal advice without getting fairly compensated for it (and will come to regret it) or the client's time is being wasted by having what amounts to little more than a meet and greet with the lawyer who hopes to convert the prospective client into a paying client. Instead, I believe the lawyer should have processes and information readily available up front to help the prospective client evaluate whether that particular lawyer will be a good fit for that particular client. Prospective clients in Massachusetts looking for a lawyer for Wills, Living Wills, Health Care Proxies, Trusts, Guardians for Minor Children and other pieces of an overall estate plan can read up on my blog, check out the DGVE law website, Facebook page, read this blog, and then call DGVE law's Client Liaison, Astrid at 781-740-0848 x.2 for more information to help decide whether it makes sense to schedule an appointment to meet with me. If it does, she'll help schedule it and then when we sit down it can be a productive meeting leading closer to actually having all your ducks in a row instead of just finding out whether you might want to get started working with me.

And forget the idea that this is all something you can do in just a couple hours total! If you want to do it right and make it yours, don't wait until the week before you leave for a vacation and are thinking about that plane ride or just as you're preparing for an elective surgery to call. Please don't wait until you are already diagnosed with a serious illness or your loved one is starting to lose some mental capacity. Doing so just makes it what we in the profession refer to as "crisis planning" and there are consequences (and may be premiums for the rush) at that point. Instead prepare to invest some time and valuable financial resources while you are healthy, well, and there is time to do it right. Choose the right attorney for you and your family then trust her to use her extensive educational training and her professional and personal experience and continuing professional education as well as to call on her professional colleagues as resources when necessary to do all the heavy mental and physical lifting for you so you can go about living your life and enjoying your family now worry free. You and your family are worth it.

Post-Fiscal Cliff – The Song Remains (Mostly) The Same

2013-01-07T22:03:00.000-05:00

While Congress wasn’t able to come to terms and avoid the dreaded “fiscal cliff” before the ball dropped, at least they did finally hammer out something. Regardless of where your politics lie and whether you agree with the deal or not—it’s important to know what the new American Taxpayer Relief Act (“ATRA”) says and how it affects your current estate plan.

What’s the Same:

Estate taxes, gift taxes, and generation-skipping transfer (GST) taxes remain 3 peas in a pod with the same basic exclusion amount, just adjusted for inflation, for 2013 now reaching $5.25 million.

The marital deduction also remains the same and the tax on a decedent spouse’s estate is still delayed until after the surviving spouse’s death. ATRA also made “portability” of the marital deduction permanent allowing a surviving spouse to use any of the decedent spouse’s own exclusion amount. This means spouses can now transfer up to $10.24 million to their loved ones free and clear of estate taxes and most Americans won’t owe any federal estate tax upon their deaths.

ATRA did not reinstate the former pick up tax for state estate taxes and Massachusetts estate tax law remains the same with a $1 million dollar threshold for filing an estate tax return and a tax between .8 & 16% on the full amount for those with estates over $1M. Hint: life insurance and retirement count toward your total “taxable estate.”

What Changed:

After you’ve transferred up to the unified exclusion amount for gift, estate, and GST taxes, the top marginal tax rate is now 40 percent, up from 35 percent, still 10 percentage points shy of its 1986 rate of 50%. For a more comprehensive review of the history of the estate tax by the IRS, see: http://www.irs.gov/pub/irs-soi/ninetyestate.pdf

Will Your Plan Still Work?

While ATRA bought some time, the debt ceiling debates in Washington continue and more change could result from a possible default, including adjustments to the gift and estate taxes.

If it’s been more than a year since you created your estate plan, now’s the time to review it for current effectiveness. If you’re considering making gifts, talk with your financial advisor, CPA, and attorney first.

If you don’t yet have an estate plan and think you don’t need one because you don’t have an “estate”, think again! There are many other reasons why everyone should have at least a very basic estate plan with a health care proxy and other medical directives including a living will, a financial power of attorney, and a Last Will and Testament in place. Read more about 12 Reasons You Need An Adequate Estate Plan here.

adoption - luck, love, and living together as a family

2012-11-16T14:26:00.004-05:00

Today is National Adoption Day.

Congratulations to all the loving families sewn together through adoption.

"Luck" ( from The Cat Walked Through the Casserole )

I didn't come out of my mother,

I don't have my father's green eyes,

No one in my family looks like me,

People are always surprised.

I think we're a happier family,

Than if we were all kings and queens,

We're so lucky we all found each other,

That's what being adopted means.

- Pamela Espeland and Marilyn Nelson (Waniek)

This year our extended family grew, through adoption, by two tiny feet, making me a first time Auntie!

If your family also had the good fortune to grow through adoption, you're probably tired of all the paperwork and formalities by now, but please make sure you prioritize creating or amending your estate plan to ensure that your child or children will be legally and practically well protected and cared for no matter what life holds in store next.

How to Control the Controllables for Your Babies

2012-10-25T14:20:00.000-04:00

As the parent of a baby, toddler, preschooler, and/or elementary school child you know full well there is plenty that is out of your control. You pack everyone in the car for school and the baby has a blow-out diaper, the teacher calls you at work saying your daughter just threw up all over daycare, or your son pitches a fit in the dollar section at Target.

It can be overwhelming, but the saying “control the controllables” can help stem the feeling of powerlessness that so many parents feel. You can’t control when and where a tantrum will hit but you can make sure your toddler isn’t hungry or tired before you head to the store. In the same vein, you can’t control whether or not something will happen to you and your spouse, but you do have control over who will care for your children and who will control your assets if something does.

Most parents know they should have a Will, but they don’t know that’s only one small piece of even the most basic estate plan. Every parent has “an estate;” your estate is simply “all your stuff.” Whether all your stuff, is worth $1,000 or $1,000,000, that’s your estate.

It’s up to you to decide what to do with your stuff – to whom, when, and how it goes is the plan you make for your estate. If you don’t make that plan, state law has a generic plan to put in place for you if anything ever happens to you and your children.

Making a very basic estate plan with a Will and all the other legal documents you need is an easy way to control your family’s well being in case of your disability during your lifetime and after your death, but just the concept can feel daunting on several levels.

First, thinking about serious accidents, illnesses, and death is obviously discomforting, especially when you’re so busy with young children who are bursting with life. However, spelling out in legal documents who will make your medical decisions, manage your finances and your children’s, and serve as a guardian for your children is crucial. Otherwise, a judge will make these decisions for you without the benefit of knowing about any special circumstances or wishes you may have as parents.

Second, the fear of finding the right lawyer and wondering what it’s going to cost can stop some people in their tracks, especially if they’ve had a bad previous experience with another attorney. For some advice about finding the right lawyer to help with estate planning, click here and sign up to receive a checklist of 20 Questions to Ask Before You Hire a Lawyer.

Through basic estate planning parents can ensure their children are cared for by someone who reflects their values and that everything they’ve worked so hard to earn will be properly used for their children’s care and upbringing, providing a measure of control in the somewhat chaotic (but fun) life of a young family.

Should I Designate My Children's Guardian As Beneficiary of My Life Insurance Policy?

2012-07-19T11:33:00.002-04:00

Back, back & I'm glad I'm back! [Sorry, I've had that sung to the tune of the Mighty Mighty Bosstones "He's Back" in my head for days now.] I've badly neglected my blog the past couple months while I've been busy with myriad other things competing for my attention. And while I've drafted several great posts in my head and even started several drafts here, I haven't finished any - my bad. But my good friend, Texas Attorney Rania Combs, has graciously allowed me to poach and share a wonderful post she wrote the other day that I thought my readers would find helpful. Enjoy!

I spoke to a young mother several weeks ago who wanted information on how to legally name a guardian for her minor children.

She explained that she and her husband had already designated her parents as the beneficiary of their life insurance and retirement plans, but they wanted to make sure her parents also got custody of the children.

These parents obviously knew that leaving all their assets to their children outright was a bad idea. It would likely require a judge to appoint a guardian to manage the children’s assets, and the children would get control of their inheritance at 18 years of age, when the may not have the wisdom or foresight to manage it wisely.

But rather than creating a will and establishing a trust for their children’s benefit, they decided to engage in some Do-It-Yourself planning. Unfortunately, by naming their children’s guardians as the beneficiaries of their non-probate assets, rather than leaving those assets to their children in trust, they risk leaving their children with nothing.

Below are a few of the risks associated with naming your children’s guardians as the beneficiary of your insurance and retirement accounts rather than providing for them in a trust:

Giving your assets to someone else gives them legal ownership of those assets. They may decide they’d rather not honor their commitment to provide for your children, or perhaps not to the extent you had hoped.
Even if you trust them to honor their commitments, life sometimes gets in the way. Because those assets legally belong to them, they can be exposed to their personal liabilities. For example, suppose they get in a terrible accident and seriously injure someone else. The assets earmarked for your children could be exposed to a judgment for those claims.
What happens if the people to whom you left the assets die before your children. Since they have legal ownership of those assets you left them, those assets will be part of their estate and will pass to their heirs, who may not have made a commitment to you to care for your children.
Not all your assets pass by beneficiary designation. If you have a home or financial accounts that don’t have a pay on death beneficiary, those assets will pass through your probate estate and will be exposed to guardianship. There is no such thing as an independent guardian of the estate in Texas. Rather, they are subject to the supervision of the court and must get court approval before taking most actions on behalf of the estate. As a result guardianships are very expensive and time-consuming.

Creating a trust will avoid these problems. Trusts are not just for the wealthy. They can be created in a will and funded when you die. If you have minor children, they should be an essential part of your estate plan.

Rania Combs is an attorney with a completely web-based law firm that helps Texans prepare their wills, trusts and estate plans online, without the usual overhead. For more information, visit Texas Wills and Trusts Online.

That Would Never Happen In Our Family (Business)

2012-05-09T10:00:00.000-04:00

No one likes to admit his family is anything shy of rational, cooperative, generous, and kind. No matter the boatloads of evidence frequently to the contrary as it happens, people still like to assume that their surviving loved ones will straighten everything out in a reasonable and fair way when that someday comes.

People frequently get caught up in emotional storms around major life events, even when they're happy (for examples: seating arrangements at weddings, races to see newborn grandbabies first). Sad and traumatic life events can bring out the worst sides of our surviving loved ones and tear remaining families apart just when they need each other most. It's awful, but true.

Throw some money and power in to boot, as with control of and profit from a family business, and it can go from cartoonish to downright ugly. Just look at this recent example of an embattled brother and sister-in-law.

And to think, with a little business succession planning, this could have been avoided. If your business is one of your babies, make sure you talk with your estate planning lawyer about it for advice on how to avoid common mistakes like these 4.

Create a clear plan for who will care for your business, whether that means wrapping it up or carrying it on, when you no longer can. The odds are stacked against you if you're not careful, but here are some ways to boost your odds.

How to Keep a Bad Mommy Day from Becoming a Nightmare

2012-04-30T22:55:00.000-04:00

We've all had bad mommy days (and anyone who says she hasn't is a lying liar, there, I said it). The key is not to let a momentary lapse of judgment (or three?) become a long term nightmare, a la Britney Spears.

OK, I confess I'm not much for the Hollywood and celebrity gossip so I don't know half the details, but I have followed along enough to know that a Court of law hasn't allowed Britney Spears to manage her own finances in quite some time. Instead, that job has fallen to the man, now men, in her life - first her father, and now her fiance.

The thing is, it's so easy to avoid having a Judge decide who will manage all the personal financial details of your life if you're ever temporarily unwell, more likely due to a car accident or surgery for most of us, though there are those days when acting out and rebelling wildly against everything you're otherwise expected to do can seem momentarily appealing, no?

Just as you seek out a hairdresser you trust with your own locks, find a lawyer with whom you can let down your guard and trust to talk with openly about shaping the right estate plan to fit you and your family.

Make your own well-informed decisions then walk back out into the world confidently, with that safety net underneath you, you know, just in case.

Legacy Building Through Estate & Income Tax Planning

2011-11-29T12:17:00.001-05:00

First and foremost let us observe that there are legally permissible strategies that enable us all, if we so choose, to reduce the amount of taxes we owe to our state and/or federal government. As with all other laws, the tax code is a highly politically-charged creation and subject to frequent and widespread changes. Depending on the particular political administration and congressional makeup of any given time, the way the taxes collected will be used also vary widely. If we choose to have more of a say in how and where our dollars are used, then we can choose to direct our efforts in those directions purposefully and meaningfully to us rather than leave it up to the shifting political winds to scatter our money where they may.

While it may be true that the only two certainties in life are death and taxes, paying the full amount of taxes without using lawful means to redirect our money where we might prefer is completely voluntary and made possible through a total lack of inaction on our part. With a minimum expenditure of time and energy and legal fees totaling but a small fraction of the amount we can save in taxes and redirect, it is possible to provide as fully as possible for our loved ones, create living legacies we can observe and appreciate during our lifetimes, and leave lasting legacies that respect our individual and highly personal values and beliefs.

As I like to explain to my clients who come to me with no estate plan in place yet, what they essentially have is a nice empty lot on which to build. The first step then is of course creating a solid foundation. That solid foundation may be a will-based plan for those especially without minor children, very limited assets and no estate tax liability, non-blended families, and no other complicating or special factors to consider. For those with minor children, blended families, and/or estate taxable estates (in Massachusetts this means having assets, including life insurance, retirement, and home equity, that totals over $1 million dollars), the solid foundational plan may be a fully-funded revocable living trust-based plan instead of a will-based plan. With either of those in place you'll have a nice home in which to comfortably and securely live.

The next step may be to build an addition, put in a pool, add a guest house or barn or garage (you get the idea!). Depending on your needs and preferences, there are various additional estate planning techniques available. Many of those are able to reduce estate taxes payable to both the Commonweakth of Massachusetts as well as to the federal government. Some techniques, including gifts to charities through certain trusts, can also affect your income taxes. Your estate planning attorney can work together with your accountant to help identify and propose the best possible options to take advantage of the existing rules to reduce income taxes, reduce estate taxes, and accomplish your overall estate planning goals and help you leave the legacy you want.

Zombie Apocalypse Estate Planning - Final Wishes

2011-11-17T00:27:00.001-05:00

The Walking Dead has made me realize yet another question I may be missing on my estate planning intake worksheet: What are your final wishes in the event of a zombie apocalypse?

If you too are watching this series you know it's fairly terrifying and psychologically devastating as well. So watching it recently with my husband, who happens to be a bit of a zombie expert, we delved into this conversation.

Here are some possible end of life scenarios you may wish to discuss with your better half:

1. Would you like a Reliving Will™ by my clever cousin to express your personal preferences regarding your end of life care in the event you are bitten by a walker? If so, whom would you like to name to express those wishes for you in the event you are not able to express them yourself? Whom would you like to name as backup in case that first choice has already become one of the living dead? And as a backup to that backup? And just to be safe, how about one more?

2. In the event you are bitten, infected, and have become unconscious how long should your loved ones wait before destroying your brain: until you die initially or until they are sure that you have come back from the dead with an insatiable and indiscriminate hunger for human flesh?

3. Just to be clear, in the event your life functions cease and you reanimate as one of the living dead, would you want your surviving loved ones to keep you contained in a barn like cattle or would you prefer a quick execution? Keep in mind, scientists (if they are not all zombies by then) may be trying to formulate a cure.

Please let me know what else I'm missing from this line of questioning!

2 Roots - 1 Strong Tree

2011-11-07T12:12:00.002-05:00

November is National Adoption Month.

If you have recently adopted a child, congratulations! Adoption is a beautiful gift all around.

I love this image by Olive Tree Alliance showing the two roots leading up to one strong family tree.

Please remember after your adoption is complete to make sure you incorporate your wishes for your whole family into a comprehensive estate plan that reflects the shape of your family. Honor your child by helping to ensure continuity of care and predictability for your child in the event anything should ever happen to you.

Wishing you and your family the very best, always.

Sincerely,

Danielle

Real Estate: Estate Sales & Probate

2011-10-17T19:28:00.001-04:00

My colleague, real estate expert Rich Vetstein, recently posted a good primer on his Massachusetts Real Estate Law Blog about sales of real estate after people have passed away. I am reposting it here for you in its entirety, with Rich's permission. I especially like the last part he added! {Smile}

After every Closing, I conduct a "Post Closing Asset Review" to advise all my Real Estate Buyer and Seller clients about the changes their real estate sale and/or purchase made to their current asset structure and what that means for them in terms of their estate planning legal needs. Sometimes the real estate transactions necessitate tweaking existing plans a little, other times the changes call for a brand new (or first) estate plan, Wills and/or Trusts and all, and sometimes everything is in great shape and no changes are needed at that time at all!

If you have questions about how your recent Massachusetts real estate purchase or sale affected your estate plan or you're wondering if you really need one just yet, give my office a call at (781) 740-0848 x.2 and my Client Liaison & Paralegal, Astrid, will be happy to answer some initial questions to see if you'd like to schedule a meeting with me to review your situation and/or current estate plan and analyze your present needs.

Death and Taxes: Estate Sales, & Probate Issues in Massachusetts Real Estate Practice
by Rich Vetstein October 13, 2011

Benjamin Franklin once said famously that “the only certainties in life are death and taxes.” That’s certainly true in real estate practice. Today, I will go over how real estate passes when the owner dies – with a will or without a will – and how the probate process affects the real estate process.

Tenancy by the Entirety
Married couples in Massachusetts are recommended to hold real estate as “tenants by the entirety.” It’s a special form of joint tenancy for married couples. If one spouse dies, the surviving spouse succeeds to full ownership of the property, by-passing probate. By law, tenants by the entirety share equally in the control, management and rights to receive income from the property. Property cannot be “partitioned” or split in a tenancy by the entirety. A tenancy by the entirety also provides some creditor protection in case one spouse gets into financial distress as creditors cannot lien the non-debtor spouse’s interest in the property.

Death Without A Will—Intestacy Laws

Clients were often surprised to learn that when one spouse dies without a will, the law of intestacy in Massachusetts leaves a portion of the estate to the surviving spouse and a portion to the decedent’s children. This is changing as of January 2012 with Massachusetts’ adoption of the Uniform Probate Code. Under the “UPC,” if a spouse with children of the marriage dies, the surviving spouse gets the entire estate, including the marital home. If there’s no surviving “descendant,” or child, of the deceased, but a surviving parent of the deceased, the surviving spouse gets the first $200,000 of the estate, plus 75% of the balance of the estate. The laws of inheritance remains rather complicated to explain fully here. A good guide to the new Uniform Probate Code can be found here.

Death With A Will — Testate
The basic rule is that if the owner dies with a will, which includes a power to sell real estate, the executor or administrator of the estate is generally authorized to convey title without further authority from the probate court. If the will does not provide for a power of sale, the executor will have to obtain a license to sell from the probate court. If a final account has been filed and allowed, the heirs (in the case of an intestacy) or devisees (in the case of a will) are able to convey title.

Missing Probates
If the title examination turns up an interest that is not accounted for by a probate, and the death of the interested party occurred less than 25 years ago, a probate may need to be opened to convey the property. Deaths over 25 years old where a special affidavit has been filed, may pass without probate.

Federal & Massachusetts Estate Tax Liens
A federal and state estate tax lien arises immediately upon death and attaches at the time of death to the gross estate of the decedent. The gross estate includes all property, wherever situated, that the decedent owned or in which the decedent had an interest at the time of death. The threshold for federal gross estates for 2011 and 2012 is $5 Million for an individual and $10 Million for a couple. The Massachusetts estate threshold remains at $1 Million. For estates below those amounts, the executor must merely file a simple Affidavit of No Estate Tax Due. Estates over the thresholds must file the more complicated release of lien from the Department of Revenue which requires the filing of a full estate tax return.

Bought A House? Get A Will!
After every closing, I always have a chat with my new buyers about setting up a will and other estate planning vehicles. It’s very important on all fronts. For those in the MetroWest area, I recommend Julie McQuade Ladimer, Esq. of Framingham (email: jml@michaelgatlinlaw.com; Tel: (508) 788-0028. For those on the South Shore, I recommend Danielle G. Van Ess, Esq. in Hingham (email: info@dgvelaw.com; Tel: 781.740.0848. Both are very good and well regarded estate planning attorneys.

Julie Ladimer, Esq.

Danielle Van Ess

____________________________________
Richard D. Vetstein, Esq. is an experienced real estate attorney who’s handled over 1,000 closings. Please contact him if you need legal assistance purchasing residential or commercial real estate.

Why Jointly Held Accounts Are Not The Best Plan for Families

2011-10-11T12:38:00.003-04:00

In trying to seek help from one's adult children or help out one's aging parent, joint ownership may seem an attractive and inexpensive option, yet it is another case of best intentions with some serious possible unintended consequences. My friend and colleague, Mike Lichterman, of Lichterman Law in Michigan recently posted here in response to a Forbes.com article on the perils of joint account ownership between parents and adult children. Mike nicely summarized the high points of the article and with his permission I've reposted his post below, though I too suggest you read the entire Forbes article yourself.

Why NOT To Use Joint Accounts As Your Estate Plan
October 2, 2011

You may remember that I wrote about some of the downsides to jointly owning assets in this previous blog post. Well, as with all good stories, that wasn’t the end of it and the topic continues to come up. Forbes.com had a recent article entitled “Top 5 Reasons to Beware of Joint Ownership Between Generations.”

Rather than reproducing the article, I will touch on the high points . . . please read the entire article. Unlike my previous post covering a wide view of why not to use joint asset ownership as an estate plan, this article focuses on the top reasons related to joint ownership among different family generations. I’ve heard more than one parent who shared with me that they were told to “just add your child to your bank accounts, financial accounts, and home to assist with financial issues and plan your estate.”

Here are the reasons the Forbes article gives for why that is a no substitute for proper estate planning:

The assets are subject to the child’s creditors;
The assets are subject to the child’s ex-spouse in cases of divorce;
The assets are subject to “borrowing” by the child. Borrowing is in quotes to signify that this is a case where the child, because he or she is equal owner on the account with mom or dad, uses the account for their own purposes - promising (or not promising) to pay it back.
The child who is on the accounts with mom or dad gets all of those assets when the parents pass away. That’s right . . . all of it! Much to the chagrin of their siblings, other family members, and maybe even charities that mom or dad supported.
Many times #4 can lead to family infighting.

Another critical factor making this a big “no no” in many situations is that by owning the assets jointly with their children, the parents are giving up control and risking complications that many would never think of happening.

As the article points out – it is better to have a comprehensive estate plan in place and to work with a Michigan attorney who focuses on estate planning. A good estate plan allows you to keep control of your “stuff,” receive assistance when needed, avoid probate court after death, and eliminate questions about your true intentions.

The Bigger The Children, The Bigger The Problems

2011-09-29T10:35:00.000-04:00

In my last post I wrote about the mama and papa bear urge we parents of young children feel to protect our young children from all the possible harms that could befall them. It is an exhausting part of the rewarding parenting job! But since my firstborn was a baby I've been told, "the bigger the children, the bigger the problems." I remember well how hard it was just to get a shower and get out the door to anywhere back then, but now that she's a toothless, almost 7 year-old little person, I reluctantly agree with that foreboding advice as I pine for the days when my "baby" was still a totally portable, adorable little newborn.

The more experienced parents tell me all the time that this instinctive urge to protect and provide for our children doesn't mysteriously vanish once our babies turn 18! We might not worry so much about keeping their fingers out of electrical sockets and preventing them from accidentally falling down stairs anymore, but we may just worry a lot that they could be involved in a car accident that injures another person. We think we'll sleep when our little ones are older but apparently we'll lie awake waiting for them to come driving home on their own (this terrifies me). We might worry about the people they choose to marry. We might worry that they'll develop bad habits that could hurt them or others.

When those are the kinds of things worrying us, we might want to ensure that everything we've worked so hard to provide for them isn't gone in the blink of a lawsuit, divorce, or gambling spree. There is an easy solution to that though. It's a kind of babyproofing for our grown babies. Rather than leave whatever assets we may have for them outright, directly into their individual bank accounts, we can set our children up for the best possible start to their adult lives by protecting those assets and leaving them in trust for our children's benefit. And no, having a trust is not just for the very wealthy.

Having a trust won't make our children spoiled, rotten "trust fund babies" of the reality show, tabloid news ilk, especially if we provide clear guidance about how the money we leave our children should be used. Of course our first job is to teach our children directly the financial lessons that will help them in life. We have to demonstrate the positive lessons things we were taught or explain how we learned the hard way.

But if we're not around when our children are old enough to really understand? What if we're not here when our kids are most receptive to learning those lessons in their own early adulthood? Well then it's our job to leave those lessons for them, in our own words, to help provide security for them while they're figuring it all out for themselves. Setting up a continuing trust for our children is just another selfless act of love that we parents can do now to help ensure our babies' futures are as bright as can be.

Protect Your Child From Sugary Beverages And...

2011-09-14T13:00:00.000-04:00

So I'm in the waiting room at the radiologist's office the other day, waiting for an x-ray of my 2-year-old's adenoids (for the second time, because asking a toddler to hold perfectly still for an x-ray is not exactly the easiest thing, folks!), when I see this new commercial on the waiting room TV.

Like most other fortunate parents, we too have managed to accumulate quite the collection of child-proofing and safety devices. We watch what they eat carefully, apply sunscreen and bug spray. We make our children wear helmets to ride their bikes and ensure their car seats and booster seats are safe and secure. I'm sure you do all of that and more to protect your children too! We hope they'll go to college someday and started college savings accounts for them at birth to plan ahead. (OK, they're small and nowhere near enough to pay for college, but the good intention was there! See this post on Forbes.com by Kelly Phillips Erb, a Philadelphia tax lawyer on this that made me laugh with empathy.)

But in all this planning ahead for your children and protecting them (quite often from themselves!), there's just one thing you may have been forgetting that is worthy of a similar ad campaign: you need to protect your children from the risk of compounded trauma if their parents are ever injured or ill and incapacitated for awhile and also protect them from the risk of losing their parents forever. It's easy to push these thoughts out of your head or dismiss them as unlikely to happen and therefore not worthy of your scarce time or fierce competition for your attention, but you shouldn't and here's why.

While it is true that it is unlikely for you and your child's other parent to both die prematurely while your children are still minors, stuff does happen; it's not impossible. I read about and see it all the time in my line of work. As my colleague, George Constant, recently put it in his own blog post, that's precisely why we don't think twice about buying life insurance as a precaution. It's not likely to happen, but it would be so bad if it did. And it's so sad when it happens and that's what leads their surviving friends and family to my office to plan for their own families to ensure that the same never happens to them. Why wouldn't you want to be the one to decide who should raise your children in the unlikely but possible event of your deaths?

What is far more likely to happen is that at some point you and your child's other parent may be temporarily unable to return home due to accident, injury, or circumstances out of your control. You need a clear plan for who is to take care of your child in your absence until you are well enough to return home and do so yourself. You may need someone to manage your financial affairs for a short time. You might need someone to express your medical wishes. These aren't pleasant thoughts, but wouldn't you prefer to think about these things and make a clear plan while you are healthy and well and not in crisis? Wouldn't it be better to choose the people you want to make your medical decisions and speak on your behalf if you can't than to have your loved ones possibly disagreeing about what you might have wanted? Wouldn't it be better to find and establish a relationship with a lawyer you trust before you need legal intervention in a crisis situation or during a period of mourning?

And then there's this. From what I hear (all the time!), the urge to protect and provide for your children doesn't mysteriously vanish once those children turn 18! More on that in the next post....

For now, please do yourself and your family a huge favor and have your existing estate plan (your Will, Health Care Proxy, Power of Attorney, etc.) reviewed to make sure that you understand it completely and it is structured to do what you want it to do when the time comes for it work in practice. And remember, it's your estate plan so you can make it what you want it to be. You don't have to settle or squeeze into a plan that doesn't fit your family. If you don't have a plan in place yet, the time is now, while you can.

How to Convince Your Spouse to Get Started with Estate Planning

2011-09-05T22:06:00.002-04:00

The following is a friendly kick in the pants written with love by my friend and colleague, Candice N. Aiston, a fellow Estate Planning Attorney for families in the Portland, Oregon area. Candice and I share a common focus in our practices, which is how we first connected. Candice helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance. If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

This was a fun read for me and I hope you'll receive it in the same vein it was intended. You can read along substituting Danielle G. Van Ess and DGVE law, LLC throughout as it all applies equally here!

How to Convince Your Spouse to Get Started with Estate Planning

Sometimes the biggest hurdle to getting your estate plan in place is that you're not the only decision-maker in your household, and your spouse is not on board with getting started, for one (insaaane!) reason or another. It's very important that both partners understand WHY they need an estate plan and WHAT the important elements of that plan are. To help you convince your spouse that it's time to call and make that appointment, I have put together a fun and friendly guide to some of the common objections by reluctant spouses, and what you can say to let them know that you hear them...but that you have a LOT to lose and that it's time to move forward already.

1. "We can't afford it."
Honeybabe, we can't afford NOT to do this! This is one of those things in life that we have to FIND a way to afford, because we have too much to lose if we neglect this important planning. Taking care of our family is our highest value, and if we don't plan for the care of our kids and assets if something happens to us, the kids could end up with the wrong people, and they could lose several thousand to several hundred thousand dollars in lawyer fees and taxes! Besides, Aiston Law LLC offers payment plans, so there's no reason not to call and make an appointment!

2. "I don't have time."
Sweetcakes, this is a priority for our family. We need to MAKE time to do this. Just like you would take off work for a doctor's appointment, you need to find a way to get to these lawyer appointments. It's going to take a heck of a lot more time for our family to sort out the mess if we don't get something in place. Besides, all we have to do is show up, hear about what our situation looks like, decide on a plan that works for our family, and let the lawyer do the rest! We'd come in once more to sign the documents, and then once more for a final appointment. Then we're set until our three-year review!

3. "We don’t have a lot, so we don’t need this level of complicated planning."
Darlingface, when did you go to law school and then spend years afterward learning about the intricacies estate planning? Never? Then you don't really know what our estate looks like, what dangers our family faces, or what kind of planning would be best for our situation. From what I have already learned, each family is quite unique, and the only way to know what we need is to see an estate planning attorney who can help families like ours.

4. "I can get a will done through my work/ Pre-Paid Legal/ LegalZoom/ on the internet."
Lovelydearest, from what I understand, these employer programs like Pre-Paid Legal force lawyers to agree to a ridiculously low fee, which makes me think, "What could I possibly be getting for this amount of money?" I hear that most reputable estate planners won't sign up for these programs, and so most of the attorneys are general practitioners. How are they going to tell us about changes in the law and how specific aspects of estate planning affect our family? And how much will we have to pay if we call the lawyer later on down the road or need followup work done? As far as Legal Zoom and the internet go, Legal Zoom is actually being sued by several people's estates, who claim that the documents didn't even work! I don't want to take the risk that my plan doesn't work and let my kids suffer for it.

5. "My uncle/ brother/ college buddy is a criminal defense/ bankruptcy/ personal injury/ corporate attorney, and he said he could do our wills."
Cupcake, Uncle Bob is the first guy I'll call if I'm ever accused of a crime, but he's not an estate planning attorney. Ask Uncle Bob if he thinks Candice Aiston should take on a criminal defense client! Estate Planning attorneys live, eat, and breathe this stuff. They work all day long on solving estate planning puzzles and problems, and when they're not officially working, they're socializing with other estate geeks and reading estates materials and attending estates seminars. Uncle Bob doesn't do all that stuff, so how will he know when there's a change in the law that affects our family, or if we have some sort of complicated family or financial situation?

6. "This is just going to be a big giant pitch that I don’t need."
Sugarbuns, there IS going to be a pitch. That's what people who believe in their business do. They ask you to go forward with their services. But it will be a pitch we need, otherwise there will be no pitch. If Candice doesn't think she can help us, she'll let us know. She'll first show us what we stand to lose, and then show us the various ways we can avoid those dangerous scenarios. The good thing is that we get to choose our level of planning and we'll know exactly how much we'll be spending. No hourly fees. It even includes a free plan review every three years.

7. "Who is this Candice Aiston person, anyway?"
Angelheart, if you don't know Candice Aiston, you'd better take a look at her website, read her free report, or check out her awesome blog. Candice puts together the most useful information about estate planning for families like ours, and she frequently writes and speaks about these issues. She has a workshop that she gives at preschools and moms groups all over Portland called "Getting Your Ducks in a Row," and she's even writing a book for parents! She's the best choice for parents who want the very best in life for their kids. Let's call right now to make that appointment!

[As you can tell, I had a bit of fun with this post. Hope you enjoyed it.]

To your family's health & prosperity,

Where There's a Will

2011-08-09T13:19:00.004-04:00

The following is a great post by another attorney-mama who blogs regularly over at "Don't Mind the Mess where this originally appeared." Here Jess wears both her lawyering and parenting hats and shares her recent experience of seeking and obtaining priceless peace of mind by completing her family's estate plan. Feel free to congratulate her here or there! We'd also love to hear your experience with setting up the what-if (when) plan for your own family. Where are you in the process and why? What questions do you have about it? But first, here's Jess...

It took us 746 days, but we did it.

We finally have our wills.

Honestly, as a lawyer, this was one of those things that would wake me up at night. As a parent it was something I thought about constantly.

We really should’ve done it before Graham was born. Because if you have kids, a will is no longer something you do if you have lots of cash. It’s now a necessity.

First let me put on my lawyer hat. (I do it every now and then.) You can’t just tell people what you would want. In most states, you can’t just write it down. You definitely don’t want to type it up. (In states that do recognize handwritten wills, it MUST be in your own handwriting. Plus, this sucks and will throw everyone into court to prove it’s your handwriting, etc.)

(Also, a little morbid lawyer will humor: Perhaps the strangest will ever written was done on a tractor fender, by a guy pinned under the aforementioned tractor. You really don’t want to resort to those measures. Or writing it on your nurse’s petticoat. This is the kind of stuff I remember from Wills & Estates class. Lots of funny stories about dead people.)

Ahem. Anyway. Don’t just get a form off the internet. There’s no guarantee that will work. Get yourself a lawyer. Tell them what you want. Ask for their advice. That person will be there to store your documents safely, to make changes, to file them with the court when the time comes, and to serve as a contact for your family members should anything happen. The last thing you want is to leave your family scrambling with court hearings and craziness. Cuz if you do it wrong or you don’t do it at all, that’s what’s going to happen.

Now let me switch back to my parenting hat. Imagine something happens to you, your spouse, your partner, etc. Who is with your kid? Who is going to watch your kid? Who are the authorities going to give your kids to? This, to me, is the nightmare scenario. Something has happened to me, I’m dead or incapacitated, and my kid is taken to Child Services because that’s what they do. They won’t just drop them off at the neighbor’s house. They won’t call your best girlfriend. Even if your parents live a few miles away, they may not have their contact information.

Whereas, if you have a little card in your wallet with your lawyer’s info, and a note on the fridge with the contact information of your Temporary Emergency Guardians (you want more than 1, just in case) and have made sure already that your Temporary Guardians know who to call and your family knows what to expect, it will go a lot better. Not great, but better.

There are other things you want besides just a will. You want Power of Attorney, you want to leave instructions for your medical care (including HIPAA authorizations and medical proxies), you want instructions for your funeral arrangements, you need to decide how best to leave your assets to your loved ones.

As a special needs parent this is a big challenge. I’m getting ready to write up what I expect to be an extensive document with information about all the Bug’s therapy providers, giving my wishes for transitioning, and passing along as much information as I can about the kind of care he needs. And I expect to update that document every few months.

I also feel extra pressure because leaving guardianship of a special needs child is an even bigger burden to pass along. We expect that as the years pass it’s likely that we’ll shift our guardianship plans from one family to another as everyone’s needs change and as Graham’s needs become more clear.

I know this isn’t the kind of thing we talk about much as parents. It’s depressing. We don’t like to think about it. But things can happen when you don’t expect, and the last people you want to leave reeling anymore than necessary are your closest friends and family.

So do them a favor and get your will made. Update it regularly. Get a lawyer you trust. (If you live in the Boston area, I know a great one.) Ask friends for a recommendation or check with your local bar association.

This is that stuff they call Peace of Mind.

I don’t necessarily know what’s going to happen to me in the future. But I know I won’t wake up in the night worrying anymore.

Legal Docs You Need Before Leaving Your Little Ones

2011-08-03T14:48:00.000-04:00

The Stork Fund was kind enough to link to this blog for helpful tips for parents everywhere preparing to leave their little ones then hurry right back home again (to quote from one of our favorite books around here, Mama Always Comes Home).

The Stork Fund's article had me laughing out loud, nodding in agreement, and checking my calendar again to see when on earth my husband and I might actually be able to try to escape our little brood for a grown-ups only vacation.

One piece of sage advice the Stork Fund offers in that post on how to Be a Better, Happy, Healthier Parent is to prepare for your getaway with a legal document called a Power of Attorney. That's a pretty generic term as there are many types of powers of attorney that serve many varying purposes. Different states have different laws and names for different legal documents so what it was called in your last state of residence or what your friends or family members in other states call it may not be the same as here in Massachusetts.

In fact, if your estate planning legal documents are from another state or are more than a couple years old, you should have them reviewed by an attorney who regularly practices in the complex field of "estate planning" (a "family lawyer" generally means one who practices in the areas of divorce, child custody, and support) in the state where you currently reside to ensure that they are current and adequate to accomplish your goals, your way, for you and your family.

Please be cautioned as well that the simple form documents readily available for very low fees online are likely not sufficient to do this. When you hire an attorney for your family's legal documents, you should not be hiring a glorified form-filler. Rather you should be consulting and engaging with someone trained to spot nuances and raise issues, advise you on unique areas of concern to you, and guide you in the process of making the best, most informed choices possible for yourself and your family.

The value with an attorney is in that highly personalized counseling and advice, ideally combined with the benefit of a lasting professional relationship for ongoing advice regarding your family's legal needs and cannot fairly be compared to an even exchange for online form documents you complete without any counseling or advice yourself. Akin to selecting a long term primary care physician, desk-side manner matters in your choice of an estate planning attorney too - if it's to be a good, ongoing relationship, it has to be comfortable both ways.

And because most attorneys, unlike impersonal websites, are not open for business 24/7/365, you should not wait until just before you're packing to leave for your vacation to call! Take at least as much time considering and planning for the what ifs as you do selecting a vacation destination, planning your trip, and packing for it. The time to locate the right attorney for your family and call is now. If you are a parent of minor children with no, incomplete, outdated, or totally generic estate planning documents in place, there is probably no more important item for your to do list.

So Massachusetts parents looking for that brief escape to make the heart grow even fonder, be aware that there are a few different types of powers or appointments you need to fully protect your children in the event of an emergency. I like to think about it in practical terms and likelihood of needing and using these legal documents. Personally, I just did so I am speaking from recent, visceral, motherly, practical experience here.

First we have to plan for the immediate, practical aftermath of any type of emergency which makes it impossible for us as parents to pick up our children from camp, school, daycare, etc. or/and return home to care for them. Simple understandings and agreements amongst friends and neighbors, even close family nearby, might not be enough depending on the circumstances. There is a better, legal way to ensure your children will not be stranded or left in the care, even for a very short time, of strangers.

Next we need to plan for the longer term. In the too-awful-to-even-contemplate for more than a minute event that we should die on our way to or coming back from vacation (or the supermarket or work or date night or a business trip or....) and before our children are grown, it is up to us to plan not only for who would care for them daily, but also who would manage whatever financial resources (life insurance etc.) we may be leaving them.

Our unique family and financial circumstances combined with our priorities (as a team of parents if we're planning with our spouses or partners) are what help determine which type of plan to include which specific legal documents will best suit our needs. And to be clear, when combined this is what makes each estate plan a "snowflake" - we don't fit exactly into cookie cutters ourselves and our estate plans shouldn't either (to mix metaphors here!).

Now if you'll excuse me please, I'm going back to my calendar to see about that kiddie-free getaway with my husband....

My Disability Plans, Tested

2011-07-07T10:56:00.000-04:00

Last Friday my husband, our 6 year old daughter, and I went to Boston for what was to have been a fairly routine 12 week ultrasound. We expected to see a healthy baby, then go out to celebrate with lunch in town. Instead, we were shocked to learn the baby had died. There was no longer a heartbeat like I'd seen at the last ultrasound a couple weeks earlier when everything looked good.

The doctor explained that it there had been some horrible genetic accident that occurred at conception. The baby never had a chance and I required emergency surgery for my own health. My husband and I shifted into planning mode to coordinate logistics of who could come care for our three young children ages almost 2 to 6 while he took me in for surgery. My best friend, who is more like a sister, whom my children know as "Auntie", and who has clear legal authority to care for them in an emergency was on her way in a heartbeat.

Call it an occupational hazard, but part of my preparation that night was reviewing the DGVE law Firm Disability Plan with my lawyer-husband, reminding him how to access my work accounts and where everything is backed up, reminding him to coordinate with my Client Liaison and Paralegal, Astrid, and the rest of our DGVE law team if need be.

I also reminded my husband and my Legal Assistant, Elizabeth, where our own estate plan is physically located. As I always explain to my clients, it's important that the people we entrust to step into our shoes and manage our affairs and make critical choices for us in the event of an emergency in which we may be incapacitated or after our deaths know where and how to access the documents that provide them that legal authority.

After a sleepless night we arrived at Mass. General Hospital the next morning. The nurse (who was wonderful!) asked if I had a health care proxy. My husband handed her my emergency medical wallet card and she was able to instantly access my most recent health care proxy, HIPAA authorization, living will, and medical condition/allergy information.

My husband and I had reviewed my specific medical concerns and wishes the night before and on the drive in to the hospital. In the event I was unable to make my own medical decisions, I was confident he would express my wishes and advocate for me. This is precisely why I always advise my clients to allow for these difficult thoughts and conversations; we never know when they may become relevant and necessary.

It was a little worse than either they expected or perhaps than they wanted us to anticipate. Physically, I'm recovering well from all of it. Emotionally, I know this will be a long road. I am filled beyond words with gratitude for and fortified by the outpouring of love, empathy, and support we've been receiving from our friends and family.

I'm also comforted knowing I had undergone the unpleasant process of contemplating my own possible incapacity and death and made arrangements for myself and my family. I've found my workload tends to slow down in July and August each year as most of my clients would prefer to be out enjoying summer with their families. I understand! Trust me, I'd so much rather be out on the beach with my husband and our kids soaking up every last drop of summer, and I will be again very soon! But before you head back out to the playground or the beach again or take off for the Cape and islands this weekend, please make sure that you have done all you possibly can to prepare and legally protect yourself and your family. It will be one less thing for you to worry about if anything unexpected ever happens to you too.

If you're the parent or parent-to-be of young children here in the Boston area and you would like help legally protecting yourself and your family, call my office now at 781-740-0848 and talk with Astrid as your first step. I'll look forward to meeting you and providing you some truly priceless peace of mind. Call before August 1st and mention this post and we'll even make it easier by taking $250 off your flat fee. Don't delay another day; it's not worth the risk.

Wishing you and your family a very happy, healthy, fun-filled summer!
Sincerely,
Danielle

Even the Best-Laid Plans

2011-06-27T13:23:00.000-04:00

The following is a guest blog post written by friend of DGVE law, Hollee Schwartz Temple, Esq., an attorney and the co-author of Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood (Harlequin Nonfiction, Spring 2011). Hollee interviewed me for a piece in the American Bar Association Journal that appeared last Spring as well as for research for her new book in which I make a brief appearance or two.

No one wants to think about life’s horrible what-ifs – much less devote an entire book chapter to it – but that’s exactly what I did in my new book, Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood (Harlequin Nonfiction, Spring 2011).

In the book, I share what happened when my 36-year-old husband, John, endured a health crisis that none of us could have expected. Our best-laid plans were obliterated by bad luck.

John got the first inkling that something was going wrong with his heart on a flight from North Carolina. Right before he was supposed to board the plane, he got into a heated cell phone discussion with a work colleague, and then his vision got blurry. The way he described it, the frame got smaller and smaller until he was sure he was going to pass out.

It scared him enough to see a doctor, but given his otherwise healthy history and age, no one expected the worst to happen. They gave him some drugs, told him to try to manage his stress, and sent him on his way.

But the signs persisted. Right before my older son’s fourth birthday party, he was mowing the lawn when his teeth started to hurt and he curled into a ball on the lawn. He said his heart felt like it was racing, but I assured him he was fine. (The doctors had diagnosed atrial fibrillation and said that while it was annoying, it was not life threatening.)

The doctors were wrong. A few months later when he was racing around on a racquetball court with our sons, I peered through the glass doors to see him reaching out at me … and then he collapsed, his lips turning blue.

The rest was a nightmarish blur … three hospitals, two lifeflights, numerous surgeries. I’ll spare you the details, but tell you something that comforted me in the darkest hours: I had planned for this.

I had taken the time to create a set of estate planning documents before our first son was born; we had both been approved for hefty life insurance policies.

I thought about those papers a lot during John’s horrible hospital visits. If the worst happens, I would think, at least I don’t have to worry about rushing back to work. If the worst happens, the kids and I will be okay.

Happily for us, the doctors at the Cleveland Clinic were able to get John’s heart under control. He got stronger (eventually running a marathon), and when I look at him shoveling mulch in the yard or running the bases with our boys, it’s hard to remember that the nightmare was real.

It’s not pleasant to think about the worst, but I’m so glad we did.

Good Enough Is the New Perfect: Finding Happiness and Success in Modern Motherhood is available at bookstores nationwide or on Amazon at http://amzn.to/newperfect .

Hollee and her co-author, Becky Beaupre Gillespie, blog about parenting and work/life balance at http://TheNewPerfect.com.

Read This Before You Head Off On Vacation!

2011-06-07T13:12:00.001-04:00

The following is shared with permission by my friend and colleague, Rania Combs, Esq., a Texas estate planning attorney who serves clients in Texas through her completely virtual law practice based in North Carolina. It's a brave new world! Here are some thoughts and helpful, practical tips she shared in her recent e-newsletter about preparing to leave on vacation with her husband, without their three minor children:

Preparing for Aruba!
A few of weeks ago, my husband called with some exciting news. He earned an all-expense paid trip at work for himself and a guest to Aruba! We leave the middle of June for five days. I can’t wait!

Despite my excitement, my mommy brain has gone into overdrive as the trip approaches. As I’ve mentioned before, I get a bit anxious travelling away from my children, especially when both my husband and I are traveling together.

Yes, I know that the odds of being involved in a car accident are astronomically larger than being involved in a plane crash, but I still get nervous. And with Osama Bin Laden now dead, my anxieties are heightened because there are a few mean people in the world who are really mad at us.

So I’m relieved that my husband and I will be taking separate flights. I will fly out of Houston after dropping my kids off at my mom’s house, and my husband will leave from the east coast. We also will be talking separate flights back. I’ll be flying back to Houston for a two week visit, and he will be travelling to North Carolina.

With flight plans out of the way, I took some other steps to ensure that my kids will be protected my absence. If you plan to leave your children in the custody of a friend and family member this summer, doing the following things may give you some peace of mind too.

Appointment of Guardian in Case of Death or Incapacity

I have previously appointed a guardian for my children in the case of my incapacity or death, but the original of the document is stored in my fireproof safe in my home, along with my other estate planning documents.

The guardian I selected knows where it is located, but she also lives in another city and the logistics accessing it in case of an emergency would be challenging. So I made a copy of the appointment to give her, along with a reminder of where the original is located. That way, she’ll at least have a copy in case of an emergency until she can get to the original.

Designation of Health Care Agent

It’s unpleasant to consider that any of my children will require medical care while I am away, but the chance does exist. So, I prepared a Designation of Health Care Agent giving my mom, and alternatively my sister, permission to make any and all health care decisions related to the welfare of my children at all times while the kids are in their care and custody.

If you will be leaving your children with a caregiver for a period of time, Designation of a Health Care Agent for them will ensure that the caregiver has the authority to seek medical care for them if the need arises.

Document Listing Pertinent Information

You know your children’s doctors, dentist, orthodontist, and any medical regimen they are on, but a caregiver may not. So it’s important to provide your caregiver this information, along with pertinent insurance information, so it is accessible if needed. Include things such as:

The name of your health insurance provider and member identification number
The name and phone number of your child’s physician
The name and number of your child’s dentist and/or orthodontist
Your name and address and a phone number where you can be reached
Any medication your child may be taking regularly, along with instructions on when the medications must be taken and the dosage.

In case of an emergency, your caregiver will have all this information in one place and will be relieved of the stress of having to find it.

And then go on your trip, relax and enjoy a much needed break!

Frequently Heard Statements About Your Wills & Trusts

2011-05-24T13:40:00.000-04:00

All I have to do is respond to a question about what type of law I practice and I am generally met with one of the reply statements that follow. If I had a dollar for each time I've heard one of these statements, I would close up shop here at DGVE law for a month each summer and take my family on holiday to the beach in the south of Spain. Someday. Meanwhile, I listen to these comments over and over and usually have to politely bite my tongue as they're friends and neighbors and lawyer-colleagues and my children's friends' parents who say them in passing. Here are a few of my favorites and what I wish I could politely say:

"We did our Wills when we had our first baby. We're all set!"
That's wonderful! How old is that baby now? If the answer is anything less than five years old, chances are good you're not quite as "all set" as you would like to believe you are. What is your attorney's name? When was the last time you heard from him/her? Does your family know where your plan is and what to do in the event of a medical emergency or after your death?

Do you have your boiler or fireplace cleaned and inspected every few years? The price you'll likely pay for a an estate plan check-up to ensure that your plan actually does what you want it to when the time comes will be very reasonable. If there are missing pieces, you can fill them in now, while you still can. If it's great just the way it is, you can rest assured and tuck it away again for a few years unless anything changes. You can use the closest holiday or birthday to the date you signed your estate planning documents into effect as the anniversary on which to take them out, dust them off, and give them a quick review.

"My [husband's brother's former roommate's cousin - this always reminds me of that scene in Spaceballs, but you can just choose any combination like this and insert it here] did our Wills for us."
That's great! Oh, he primarily does personal injury and criminal defense work? Really? You might want to have an estate planning lawyer take a look at that for you! There is a very big, qualitative difference between an attorney who has access to legal forms into which he can plug your basic information and one who actually understands nuances to the process to ask you the right questions, give you enough information to make a fully informed decision, and then custom fit the right plan for you and your family based on your unique set of needs and goals.

I have a checklist I use to evaluate the strength and condition of existing estate plans. It's nice when I can tell a prospective client, you're in pretty good shape here and show them where to fill in any missing pieces or how to tighten up loose ends. It's not as lovely when I have to be the bearer of bad news that a plan is really not going to hold up as intended and needs a total overhaul.

"I/my spouse work[s/ed] for one of the big law firms downtown, so they did our Wills for us and they're all fancy with trusts and everything so I'm sure we're all set!"

Fabulous! When was that? Is it time for a review? Do you understand your "fancy" plan and how it all works? Does it do what you want it to do? Are all your bases really covered? Are your trusts funded? With what? Why? Have you acquired new assets, purchased additional life insurance, or moved or refinanced in the past few years? Did you also leave behind some kind of record of your intangible assets, the bits and pieces of you that are most important and will be most cherished byyour surviving loved ones? It's time to dust off your plan and if you have any questions, ask your lawyer to explain it until you feel comfortable and are sure it's what you really wanted.

"We don't have anything and no one would fight about anything so we don't need to."
Most families get at least a little bit "emotional" when it comes to major life events like weddings, births, and deaths. And sometimes in all those excited emotional states, even otherwise totally rational, well-intentioned, loving people can make poor choices and relationships can be upset. In the event of a tragedy, like the premature death of two young parents in an accident, you can multiply that emotion. It's so much better to provide for eventualities than leave it to grieving surviving loved ones to decide amongst themselves!

"I talked with my sister when I had my baby and she said she would be honored to take care of my baby if something ever happened to me." or the related "My sister is my child's godmother and I know she'd raise my child as her own."
That's fantastic! Now, assuming the other parent of that baby agrees, there's nothing left to do but turn that loving conversation or nomination of godparent into the appropriate legal documentation of your your choice of guardian for your child. If you are no longer in a relationship with the child's other parent this can be a bit more complicated but it's still worth doing. Ask your lawyer how.

For more information about how to find the right lawyer for you, download my list of 20 questions to ask before you hire a lawyer, available here: http://www.dgvelaw.com/e-courses.html

3 Major Guidelines for Making Sure That Your Plan Works

2011-05-10T01:43:00.000-04:00

The following is a post by friend of DGVE law, Candice N. Aiston, an Estate Planning Attorney for families in the Portland, Oregon area. She helps loving parents to prepare their families for a lifetime of security, prosperity, and guidance. If you would like to receive her free report, "The 9 Common Planning Mistakes Parents Make," please visit http://candiceaistonlaw.com/.

Just about every day, I read a post on one of my estate planning listserves, in which an attorney is searching for the will of a deceased person. I want to make sure that no one ever has to search for your will and that your plan will always work for your family, so here are 3 major guidelines for making sure that your estate plan is going to work:

1) Think realistically about the price. Attorneys typically charge $200-400 per hour. We meet for 2 hours with our clients before we even get started drafting their plan. How could I charge $500? By filling your name in the blanks and hitting print. By asking, "What do you want me to do?" and then saying, "OK, sure!" when you say, "I just need a simple will." But that would not be lawyering. Lawyering would be getting the information that I need from you, then showing you what things would look like for you and your family if you died or were incapacitated with your current plan in place. Lawyering would be pointing out any areas of concern and offering alternative planning solutions to avoid any unpleasant scenarios. After you have that professional advice, you can have it your way.

2) Find out what will most likely happen if you are incapacitated and when you die. Find out what the process looks like, and if there are any scenarios that you would rather avoid. Through proper planning, you can avoid just about any unpleasant scenario, such as probate (a court process dealing with the deceased's assets) and conservatorship proceedings (a court process dealing with an incapacitated person's assets). The key is in starting from a place of getting an education about your situation, then making a decision from there.

3) Make sure you work with an attorney who has a plan for ongoing communication and follow-up with you and your family throughout the years. This is the main key to not having your name pop up on the listserve after you die. My office accomplishes this in three ways. First, we do not charge fees for ongoing communication. Clients can always call us and know they are not going to get a surprise bill in the mail. Second, we do a free plan review for our clients every three years. They always know what their family situation looks like. Last, we communicate with everyone involved in the client's plan, so they know how to contact us if something happens to our client.

If you follow those three guidelines, you will never end up on my listserve. Your family will be very, very grateful for that.

You might be thinking to yourself, "That's great, but I don't have $1500-2000 or $3000-6000. All I've got is $500." To that, I say ask your attorney to set up a payment plan for you. You can't afford not to do necessary planning. Estate Planning is something that every person needs to do, especially if you have kids, and especially if you own any assets at all (and yes, you own your house even if you have a mortgage on it).

I fear that people do not know what they are getting when they buy a $500 estate plan. What they are getting is papers - papers that may not work, may not be found, or may not be helpful if the client is incapacitated (which is far likelier to happen than a premature death). And these papers are supposed to protect your family. They are supposed to ensure that your family has easy access to what they need to take care of themselves. They are supposed to ensure that your family does not have to spends thousands of dollars and several months in court trying to get everything sorted out. What you stand to lose if your plan does not work is the security of your family.