HCCI Board of Director and Topeka Attorney, Kathleen Urbom, authored this article for the upcoming Realty Executives, Preferred Advisors, Inc. Spring 2016 publication.
I focus on end of life planning in my law practice: business succession planning, wills, trusts and probate. “End of life” is just one of many time our lives change! In the course of helping people check these important tasks off their “to do” list, I’ve heard a lot of questions and a lot of stories.
Nobody has more interest in how well your life works than you! Do not be afraid to enlist the aid of professionals like accountants, financial planners, insurance agents, lawyers, realtors and bankers to get the information that allows you to make good decisions. These professionals are also an excellent resource for recognizing issues you may not even know are there and to make referrals to others to address specific issues you are facing.
I enjoy and like most lawyers! Typically, lawyers are knowledgeable, competent, and genuinely interested in assuring their clients’ legal needs are met, at a price they can afford, or to provide general information at no charge. Taking the time to find a lawyer you trust and paying the fees to be fully advised is often an excellent investment. You do not have to be “big business” or “wealthy” to be well served by consulting a lawyer when it comes time to make decisions, address life’s issues, or set up the documents you need.
In the legal world, there are “three big D’s” that can really change how your world works: Divorce/Remarriage, Disability and Death.
DIVORCE/REMARRIAGE:
This is a time of great change and the changes all have legal impacts! It is critical you have good information and advice before, during and after a divorce regarding property, beneficiary designations, your children and your long term retirement planning.
Are you married or contemplating being married? Have you been married before? Do you have children (legitimate, adopted or “illegitimate”)? Do you have children from a prior relationship or marriage? Are your children still minors or are they all grown and on their own? Do you have a child or grandchild with special needs for whom you wish to provide? Do you want property and assets from a prior marriage to ultimately go to the children of that prior marriage? Do you know marital rights are effective the minute you are married, and affect title to real property, claims on investments, and claims at death?
Each of these facts influence how you should hold title to property, whether you would be well served to have a trust, buy sell agreement or premarital agreement, and what happens to your property when you die. All persons who are divorced or just married should make a new will. In Kansas you cannot “disinherit” a spouse without their written consent. You can “disinherit” children but only if you write a valid will!
If you are a parent of minor children, what happens to your minor children if something happens to you? If you do not designate your preferences, a court must determine who would be best to care for your child or children if you are not there. If you have not addressed this, you may have very thoughtful family members who are reluctant to come forward and appear pushy in claiming their own suitability to care for your children!
If you have a complicated family situation, it is even more critical to address this important issue to assure a competent and caring person or persons cares for your child in your absence. Each natural or adoptive parent is considered the “natural” guardian of their children and you cannot direct a third party to be guardian so long as one of the natural or adoptive parents is alive. These facts, plus lifestyle, relationships with extended family and other issues should be considered in your planning.
DISABILITY:
Do you have someone you trust and is competent (meaning they are knowledgeable and experienced) to handle your affairs if you are not able to make decisions for yourself? If so, have you prepared a Power of Attorney that includes all the powers you want them to have which are authorized by the laws of Kansas?
When a person becomes disabled (temporarily or permanently), there are two areas the law focuses to address their needs: issues relating to the person themselves (e.g., medical treatment, housing, providing for food, shelter, clothing and transportation, rehabilitation) and financial issues.
Issues relating to the person are typically met by someone who can exercise the powers of a “guardian”. There are some situations where the right document or documents (e.g., a durable power of attorney for health care decisions), may be sufficient to allow someone else to take on those decisions on your behalf. In other situations, it may be required that a person be appointed by a court to be a legal guardian and to provide annual reports to the court, and to request authority from the court to make certain decisions.
A person who is authorized to manage your financial affairs, or, to “conserve” your assets for your benefit, is typically a “conservator”. If you have a trust that holds your assets, and the trustee is authorized to have access to your bank accounts and all your financial assets, that trustee is able to serve as the effective “conservator”. If you have a durable power of attorney, that agent holding that power is also typically able to do whatever you can do for yourself, with few limitations. That fact is why we counsel the greatest caution in handing over a durable power of attorney!
If you have no one designated to handle your affairs, then it may be required that a person or company be appointed by a court to be a legal conservator and provide an annual accounting to the court and seek permission of the court to take certain actions.
In all instances where court proceedings are required, there are attendant costs and attorney fees to be paid to accomplish the outcomes.
DEATH:
Death has been called the “great equalizer”, but that is only for the deceased! No other event can have such “unequal” consequences to the survivors, depending on how property is titled, beneficiary designations, the existence of a trust and whether that trust is funded or unfunded, the by-laws or operating agreement for a going business concern, a buy sell agreement, being married or divorced at death, having children or grandchildren (minors or adults, natural or adopted), use of borrowed funds from a pension, insurance policy, or other asset during the lifetime of the decedent, debt and in whose name it is held, taxes and tax liens, and whether there is a will,
Real estate is one of the areas that requires great diligence to assure there is someone who acquires legal title in order to be able to deal with the real estate or a legal proceeding will be required. Many married couples own real property in “joint title with right of survivorship”, which means title automatically passes to the survivor upon the death of the “first to die”.
A single person, whether single by virtue of never having married, being divorced, or being widowed, does not have a similar device in effect at their death. Sometimes a single person, especially when they have children, is tempted to put one or more children’s names on the title. Since assets are subject to being attached by creditors or other third party claimants, whoever has their name on an asset opens that asset to potential claims from their own creditors. Further, if their children are married, the marital rights of their spouse also attach to the asset.
Small businesses are another asset that needs careful planning. Most businesses lose almost 80% of their value within the first year after the death of the founder or leader of that business if there is no plan to continue the ownership and management of that business.
Each of the areas impacted by a person’s death can be successfully addressed with timely planning! The “Three Bid D’s” are worth double-checking!
Kathleen R. Urbom, J.D.