2019 COFPA ELJ Poorly Drafted Estate Planning Documents.ppt€¦ · Microsoft PowerPoint - 2019...
Transcript of 2019 COFPA ELJ Poorly Drafted Estate Planning Documents.ppt€¦ · Microsoft PowerPoint - 2019...
2019
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AMBLER | KEENAN | MITCHELL | JOHNSON
• B.S. in Broadcasting Management, Northern Arizona University
• Juris Doctorate, University of Denver
• Member, Colorado Women’s Estate Planning Council
• Member, American Academy of Estate Planning Attorneys
• Member, Trusts and Estates Section, Colorado Bar
Association
• Member, Colorado Women’s Bar Association
AMBLER | KEENAN | MITCHELL | JOHNSON
2019
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AMBLER | KEENAN | MITCHELL | JOHNSON
� Wills and Trusts◦ Statement of Family◦ Disinheriting Heirs◦ Actual Documents◦ Other issues
� Problems During Incapacity◦ Document Access◦ Powers of Attorney◦ Plan not Complete
� Problems After Death◦ Storage/Access◦ Making plan Obsolete◦ Last Remains
AMBLER | KEENAN | MITCHELL | JOHNSON
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� Name changes - spouse’s legal name
� Kid’s names listed incorrectly- Middle initials
- Wrong spelling
- Wrong birthdate
� Disinheriting certain heirs
- Who are they?
- Include his/her descendants?
- Leaving $1.00?
AMBLER | KEENAN | MITCHELL | JOHNSON
�Reasonable Cause?
�Undue Influence/Lack of Capacity
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�Only one listed?
�What if all are unable or unwilling to act
�PR statutory priority is provided
�No Successor Trustee – need a process in the document to name successor
AMBLER | KEENAN | MITCHELL | JOHNSON
1. I give my residuary estate to my ‘beneficiariesbeneficiariesbeneficiariesbeneficiaries’ if they survive me
2. Upon the death of the grantor, the property listed on Schedule A shall be distributed to the beneficiaries named in this section.
� John Smith, Jamie Johnson and Carol Jones, shall be given, see schedule A.
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Schedule A is blank
Or Schedule A lists only a few assets he/she owned
Even if Schedule A is completed, how is it split?
AMBLER | KEENAN | MITCHELL | JOHNSON
I have 4 living children
My deceased husband ‘had’ 2 living children
“Any reference in my Will to my children are to the above listed children”
AMBLER | KEENAN | MITCHELL | JOHNSON
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I give, devise and bequeath my property one-half to my children and one-half to the children of my deceased spouse.
AMBLER | KEENAN | MITCHELL | JOHNSON
� No statement of successor to receive gift if original recipient is deceased
� Colorado Anti-Lapse Clause
- If a recipient does not survive, to his/her descendants
� UCD if no descendants – if no UCD, intestacy
� Is this what the client wanted?
AMBLER | KEENAN | MITCHELL | JOHNSON
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Revocable Living Trust
“The trust shall terminate upon the survivor’s death, and the trustee shall thereupon distribute the trust estate to the personal representative of the surviving Grantor’s estate”
AMBLER | KEENAN | MITCHELL | JOHNSON
Revocable Living Trust 2008
Trust amended 2010 – kind of
Nothing funded to the trust, so should have pour-over will as safety net
BUT….Non-Pour-over Will governs, trust is useless
AMBLER | KEENAN | MITCHELL | JOHNSON
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November 2013 – typed up new will
�Revokes all previous wills
See the beauty that was created
AMBLER | KEENAN | MITCHELL | JOHNSON
AMBLER | KEENAN | MITCHELL | JOHNSON
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� Allow X and Y to reside in the house as long as they are able to keep up on the expenses of the house
� If any of the expenses are not paid for within 3 consecutive months the house is to be sold
� The house can be sold if X and Y and Z all agree
� If the house is sold, A and B each get $2,000
� “At time the house is sold then the proceeds are to be split into three ways’
� Pay the expenses and then the proceeds ‘can’ be split three ways between X, Y and Z.
� Can? What percentages? Equally?
� My broken ‘seicko’ watch to X and Y to do with as they decide
� Central Crude Oil funds should be split per beneficiary documents
wit
AMBLER | KEENAN | MITCHELL | JOHNSON
�Must be referenced in a valid Will or Trust
�Tangible?
�$10,000 to my niece
�My car to Bob Jane
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� I give all of my articles of tangible personal property to my siblings equally (or 1/3 each)
� If they do not survive me, I give such property in accordance with a memorandum signed by me or in my handwriting
� In the event that either of the above named beneficiaries is not then living, distribute to the surviving beneficiary
AMBLER | KEENAN | MITCHELL | JOHNSON
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� Trustee?
� Terms of the trust – how is income and principal paid?
� Irrevocable – get tax ID number
� Can house be sold?
� Trustee powers?
� What happens when she dies?
� Most likely a judge has to decide things –expensive
AMBLER | KEENAN | MITCHELL | JOHNSON
� $20,000 to Val
� $20,000 to Karla
� $5,000 to my church
� $5,000 to my niece
� Remainder to Cat Care Society
� Nothing governed by the Will due to the manner in which all assets owned –beneficiary designations, POD, TOD, joint ownership
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� Joint A/B Trust
� Supposed to leave all to spouse, in trust
� Written so it leaves all to son
� Spouse gets nothing
� Son now has to gift to mom?
� Keep?
� All or some?
AMBLER | KEENAN | MITCHELL | JOHNSON
� Colorado real estate titled incorrectly
� Do NOT want ownership to vest in Trustees – not Erica Johnson as Trustee of the Erica Johnson Trust
� Colorado – vest in Erica Johnson trust dated November 5, 2004
� Probate if done wrong
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� Two Grantees in Colorado real estate
� Silent as to joint tenants, JTWROS or in Joint Tenancy
� Default in Colorado is tenancy in common for two + grantees
� One dies, no right of survivorship to other
� Probate required
AMBLER | KEENAN | MITCHELL | JOHNSON
�Probate will distribute pursuant to decedent’s Will if there is one
�Who does the Will distribute his/her half of the house to?
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� Access to the documents
� Medical emergency?Medical emergency?Medical emergency?Medical emergency?
-locked in the safe, no idea of the combination
-out of town and no access
� DocubankDocubankDocubankDocubank
� Flashdrive doesn’t do it, healthcare providers need to be told where it is- card
� Names and contact info. for all agents updated annually
AMBLER | KEENAN | MITCHELL | JOHNSON
� Access to the documents
� Financial POA?Financial POA?Financial POA?Financial POA?
-locked in the safe, no idea of the combination
-safety deposit box issues
� Location ListsLocation ListsLocation ListsLocation Lists
� Flashdrive doesn’t do it, copies usually not honored – can require original
� Passwords, etc.
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� Springing Power of Attorney with no definition of incapacity
� Or a team of people to decide incapacity
� No HIPAA Release with a springing Power of Attorney
� No originals – and they can require it be an original
-Conservatorship could be required
AMBLER | KEENAN | MITCHELL | JOHNSON
�Spouse only agent with no successor�Agent and successor are married and both unable to act – no back-up
�Not durable �Four kids as co-agents who must all act together
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Colorado Statutory Power of Attorney completed incorrectly – no powers granted
2010 - Agent who is not a parent, ancestor or descendant is limited under Colorado law in what they can do, no self dealing
AMBLER | KEENAN | MITCHELL | JOHNSON
�No back-ups and all agents not able to act
�Doesn’t specify right to visit in hospital for non-family member
�Doesn’t Nominate Guardian
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�Multiple agents who must agree? - what if they don’t
�Guardianship - Court
AMBLER | KEENAN | MITCHELL | JOHNSON
�No witnesses�Witnesses - Not doctor, employee of facility or person who has a claim against the estate
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� Immediate access to wishes?
� Last Remains Declaration –Docubank will store
� No family feuds –legally binding
� Organ Donor wishes
- Driver’s license
- Our Medical POA
AMBLER | KEENAN | MITCHELL | JOHNSON
� Document appoints all kids to decide what is done – three kids don’t agree
� Funeral homes and last remains declarations
� Pre-planning and pre-paying is the safest
� Spread my ashes over a live Bronco’s game
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� Immediate Access to Advance Directives – Living Will, HIPAA Release, Medical Durable Power of Attorney, Last Remains Declaration
� Emergency Access Card� Documents Viewable Via Fax or Internet
� Stickers for License
AMBLER | KEENAN | MITCHELL | JOHNSON
� Other Medical Information on the Card: Allergies, Medical Conditions, etc.
� Critical Emergency Contacts
� Updated Annually Via Letter from Docubank
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�For College Students�Parent Contact Information�Medical Conditions�HIPAA Release �Other Directives�Notification to Parent by DocuBank If Records are Accessed
AMBLER | KEENAN | MITCHELL | JOHNSON
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… and we look forward
to seeing you soon
“Helping People
Preserve Their Wealth”
AMBLER | KEENAN | MITCHELL | JOHNSON
AMBLER | KEENAN | MITCHELL | JOHNSON