Creating an End of Life Checklist

Creating an end of life checklist including assets, personal information and locations of important documents will help your family act on your behalf.

Spend the energy, effort, and time now to consider your wishes, collect information and, most importantly, get everything down on paper, says In Maricopa’s recent article entitled “Make an end-of-life checklist.”

The article says that a list of all your assets and critical personal information in an end of life checklist is a guarantee that nothing is forgotten, missed, or lost. Estate planning attorneys can assist you and guide you through the process.  Our firm prepares Estate Planning Binders which include schedules to hold that exact information.  As described here https://galligan-law.com/not-a-little-black-book-but-a-big-blue-estate-planning-binder/  Especially in the age of computers, it’s critical to leave this information for fiduciaries in a way they can find it.  They’ll be glad you did.

Admittedly, it’s an unpleasant subject and a topic that you don’t want to discuss, and it can be a final gift to your family and loved ones.

When you work with an experienced estate planning attorney, you can add any specific instructions you want to make that are not already a part of your will or other estate planning documentation. Make certain that you appoint an executor, one you trust, who will carry out your wishes.

This isn’t a complete list, but consider including the following personal information in your end of life checklist: your name, birthday, and Social Security number, as well as the location of key documents and items, birth certificate, Social Security card, military discharge paperwork (if applicable), medical directives, ID cards, medical insurance cards, house and car keys and details about your burial plot.  Your attorney will give you copies of your estate planning documents, such as your will, trust, documents relating to trust funding, powers of attorney, medical powers of attorney and so on.

In addition, you need to let your family know about the sources of your income. This type of information should include specifics about pensions, retirement accounts, 401(k), or you 403(b) plan.  Be sure to include company and contact, as well as the account number, date of payment, document location, and when/how received.

You also need to include all medicine and medical equipment used and the location of these items.

And then double check the locations of the following items: bank documents, titles and deeds, credit cards, tax returns, trust and power of attorney, mortgage and loan, personal documents, types of insurance – life, health, auto, home, etc. It’s wise to add account numbers and contact information.

Another area you may want to consider is creating a list of online passwords, in printed form, in a secure place for your family or loved ones to use to access and monitor accounts.

Be sure to keep your End of Life Checklist in a secure place, such as a safe or safety deposit box because it has sensitive and private information. Having it in one place will help your family when the time comes to act on your behalf.

Reference: In Maricopa (Feb. 14, 2020) “Make an end-of-life checklist”

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Do I have to Pay the Estate’s Debt?

People often have debts when they pass away such as credit cards and medical bills, but family shouldn’t pay those debts themselves outside of the estate.

When a family is grieving after the death of a loved one, the last thing any of them wants to deal with is unpaid debts and debt collectors.  But, sooner or later creditors must be dealt with, and one of the first questions clients ask is whether they have to pay the estate’s debt.

nj.com’s recent article asks “Is mom liable for my dead father’s credit card debt?” The answer: generally, any unpaid debts are paid from the deceased person’s estate, which means from the estate’s assets only.  In fact, fair collection laws require debt collectors to let you know that you aren’t responsible for that debt.

In many states, family members, including the surviving spouse, typically aren’t required to pay the debts from their own assets, unless they co-signed on the account or loan.  In other words, if they would have been liable for the debt themselves, they are still responsible.  If the debt belongs to the decedent, such as a creditor card they used, then only the estate is responsible to pay the debt.  There are a few potential exceptions, such as the IRS collecting estate income from anyone who benefits from the estate, but not many.

All the stuff that a person owns at the time of death, including everything from money in the bank to their possessions to debts they owe, is called an estate. When the deceased person has debt, the executor of the estate will go through the probate process.  There is a lot more to this process, see here for a fuller description.  https://galligan-law.com/probate-dissolving-the-mystery/

During the probate process, all the deceased’s debts are paid off from the estate’s assets. Some assets—like retirement accounts, IRAs and life insurance proceeds—may pass outside of probate and aren’t included in the probate process. As a result, these assets may not be available to pay creditors. Other estate assets can be sold to pay off outstanding debts.

Now, this portion is very state specific sometimes with very specific requirements, so you should do it at the advice of an attorney.  A relative or the estate executor will typically notify any creditors, like credit card companies, when that person passes away. The creditor will then contact the executor about any balances due. Note: the creditor can’t add any additional fees, while the estate is being settled.  At this point, assuming there is enough money, the executor will pay the estate’s debt from estate assets.

If there’s not enough money in the estate to pay the estate’s debts, then the executor has a very important task.  Every state has an order of priority to satisfy debts such as administrative debts (attorney’s fees, accountant’s fees, court costs), priority debts and then general creditors.  Different states also have different rules about whether you have to satisfy one creditor to the exclusion of the other.  The executor, with the assistance of an attorney, should pay the estate’s debt according to that order of priority.  The executor and the heirs aren’t responsible for these debts and shouldn’t pay them. Unlike some debts, like a mortgage or a car loan, most debts aren’t secured. Therefore, the credit card company may need to write off that debt as a loss.  As an aside, there might be an opportunity to settle or negotiate debts on this basis, though there are tax implications to the estate for writing off the debt.

If your loved one passes away with debt, don’t pay it.  Talk with an attorney about opening an estate for that deceased loved one and discuss how or whether to pay the estate’s debts.

Reference: nj.com (Jan. 15, 2020) “Is mom liable for my dead father’s credit card debt?”

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Making End of Life Decisions Part of your Estate Plan

End of life decisions are an important part of your estate plan.

If your end of life decisions are important to you, there are a handful of documents that are typically created during the process of developing an estate plan that can be used to achieve this goal, says the article “Choosing a natural end” from The Dallas Morning News.

The four documents are the Medical Power of Attorney, the Directive to Physicians, the Out-of-Hospital Do-Not-Resuscitate, and the In-Hospital Do-Not-Resuscitate. Note that every state has slightly different estate planning laws. Therefore, you will want to speak with an experienced estate planning attorney in your state. If you spend a lot of time in another state, you may need to have a duplicate set of documents created. Your estate planning attorney will be able to help.  In Texas, attorneys often prepare the Medical Power of Attorney and Directive to Physicians, and Do-Not-Resuscitate Orders are prepared by medical systems.  See Mary’s excellent blog for further background https://galligan-law.com/living-wills-and-medical-powers-of-attorney-why-they-are-important/.

For the Medical Power of Attorney, you are appointing an agent to make health care decisions if you cannot. This may include turning off any life-support systems, refusing life-sustaining treatment and other end of life decisions. Talk with the person you want to take on this role and make sure they understand your wishes and are willing and able to carry them out.  You have the right to change your agent at any time.

The Directive to Physicians, which is basically the Living Will of Texas, is a way for you to let physicians know what you want for comfort care and any life-sustaining treatment in the event you receive a diagnosis of a terminal or irreversible health condition. You aren’t required to have this, but it is a good way to convey your wishes. The directive does not always have to be the one created by the facility where you are being treated, and it may be customized to your wishes, as long as they are within the bounds of law. Many people will execute a basic directive with their estate planning documents, and then have a more detailed directive created when they have a health crisis.  It and the Medical Power of Attorney serve to nominate and provide guidance to your healthcare decision-maker on end of life decisions.

The Do-Not-Resuscitate (DNR) forms come in two different forms in most states. Unlike the Directive to Physicians, the DNR must be signed by your attending physician. The Out-of-Hospital DNR is a legally binding order that documents your wishes to health care professionals acting outside of a hospital setting not to initiate or continue CPR, advanced airway management, artificial ventilation, defibrillation or transcutaneous cardiac pacing. You need to sign this form, but if you are not competent to do so, a proxy or health care agent can sign it.

The In-Hospital DNR instructs a health care professional not to attempt CPR, if your breathing or heart stops. It is issued in a health care facility or hospital and does not require your signature. However, the physician does have to inform you or make a good faith effort to inform a proxy or agent of the order.

If you have specific wishes for your end of life decisions, especially if you want a natural end, speak with your estate planning attorney about how to legally prepare to protect your wishes.

Reference: The Dallas Morning News (Jan. 12, 2020) “Choosing a natural end”

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