When an Elderly Parent Refuses to Make a Will

An elderly parent may need your encouragement to get an estate plan.
An elderly parent may need your encouragement to get an estate plan.

This is a tough scenario. It happens more often than you’d think. Your elderly parent or other family member owns a home, investment accounts and a retirement account, but doesn’t want to have an estate plan. They know they need to do something, but keep putting it off—until they die, and the family is left with an expensive and stressful mess. A recent article titled “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late” from Kiplinger, suggests ways to talk to a family member about the need for an estate plan.

Most people put off seeing an estate planning attorney, because they are afraid of death. They may also be overwhelmed by the thought of how much work is involved. They are also worried about what it all might cost. However, if there is no estate plan, the costs will be far higher for the family.

How do you get your elderly parent or other family member to understand that they need to move forward?

Talk with the financial professionals your elderly parent or family member already uses and trusts, like a CPA or financial advisor. Ask them for a referral to an estate planning attorney they think would be a good fit with your family member who doesn’t have an estate plan. It may be easier to hear this message from a CPA, than from an adult child.

Work with that professional to help your older family member get comfortable with the idea of talking about their wishes and values with the estate planning attorney. Offer to attend the meeting, or to facilitate the video conference, to make your loved one feel more comfortable.

An experienced estate planning attorney will have worked with reluctant people before. They’ll know how to put the older person at ease and explore their concerns. When the conversation is pleasant and productive, the person may understand that the process will not be as challenging as they had thought and that there will be a lot of help along the way.

If there is no trusted team of professionals, then offer to be a part of any conversations with the estate planning attorney to make the introductory discussion easier. Share your own experience in estate planning with your older family member and mention the reasons that prompted you to create an estate plan. Those reasons could include the peace of mind knowing that your family will not be faced with the time consuming and expensive task of trying to straighten out your affairs after you are gone.

Sometimes the best way to initiate a conversation with your elderly parents about estate planning is to mention that you are planning to do your own estate plan and ask their advice on what issues your should be considering. That may make it easier to ask your family member what they have done regarding their own estate plan.

Trying to force a person to engage in estate planning with a heavy hand, almost always ends up in a stubborn refusal. A gentle approach will always be more successful. Explaining how an estate plan includes not only distributing assets at death, but planning for medical decisions while the person is living, may motivate an otherwise reluctant family member to take that first step.

Describing what the family members will need to go through if there is no will, may or may not have an impact. Some people don’t care, and may simply shrug and say, “It’ll be their problem, not mine.” Consider what or who matters to the person. What if they could leave a gift to a favorite charity or create a fund for their grandchildren to go to college? That might be more motivating.

Another thing to consider: what if your elderly parent or family member has an estate plan and it is out of date? That may be just as bad as not having an estate plan at all, especially if tax laws have changed since the estate plan was made. Also, what if, instead of naming their children as agents to make medical decisions for them, an old health care directive names an undesirable person, such as a former brother-in-law to make medical decisions?

Most people really want to have an estate plan in place, but just never get around to doing it. You could provide a great service to your elderly parent or other family member by giving them the encouragement and assistance to move forward so they can cross this task off their list of things they need to take care of.

You may also be interested in https://galligan-law.com/caring-for-an-elderly-parent-without-ruining-your-relationship/.

Reference: Kiplinger (May 11, 2020) “How to Get a Loved One to Visit an Estate Planning Attorney Before It’s Too Late”

 

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Funeral Planning: Not a Festive Thought, But A Kind One

Funeral planning as part of your estate plan provides clear, final wishes, names a person to execute them and helps your family cope at a difficult time.

No one wants to do funeral planning, but leaving instructions for your funeral and burial wishes relieves loved ones of the burden of making decisions and hoping they are following your wishes. In addition, says the article “Important to provide instructions for preferred funeral, burial wishes” from The Leader, it also prevents arguments between relatives and friends who have their own opinions about what they think you may have wanted.

What often happens is that people make their funeral plan and final wishes part of their estate plan.  In some states, burial wishes are found in a will.  However, this often presents a problem as the will is usually not looked at until after the funeral. If your loved ones don’t know where your will is, then they certainly won’t know what your wishes were for the funeral.  Without clear written directions, spiritual practices or cultural traditions that are important to you, may not be followed.

An estate planning attorney can help you create a document that outlines your wishes and will have suggestions for how to discuss this with your family and where it should be located.  In Texas, much like in New York as referenced in the article, there is a form that allows you to name an agent who will be in charge of your remains.  In Texas it is called the Appointment for Disposition of Remains.  You can give your instructions to that person in the document which takes the mystery and a lot of the difficulty out of the process.

In Texas, if you don’t name a person to control the disposition of remains, there is an order of priority for decision makers, including spouses, a child, a parent and so on.  If you wouldn’t want those individuals making these decisions, an Appointment for Disposition of Remains is essential.

For funeral planning, one option is to go to the funeral home and arrange to pay for the funeral and go to the cemetery and purchase a plot. In Texas, a pre-need, pre-paid irrevocable burial plan may also be excluded from Medicaid for long-term care purposes.  See here for more on that topic.  https://galligan-law.com/elder-law-questions/

Some people wish to donate their organs, which can be done on a driver’s license or in another statement. This should also be authorized on you Medical Power of Attorney so that your agent has the authority to do so.  Donating your body for medical research or education will require researching medical schools or other institutions and may require an application and other paperwork that confirms your intent to donate your body. When you pass, your family member or whoever is in charge will need to contact the organization and arrange for transport of your remains.

A comprehensive estate plan does more than distribute assets at death. It also includes what a person’s wishes are for their funeral and burial wishes. Think of it as a gift to loved ones.

Reference: The Leader (December 7, 2019) “Important to provide instructions for preferred funeral, burial wishes”

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A Will is the Way to Have Your Wishes Followed

Individuals often do not make or appropriately update wills because they wrongly believe they aren’t necessary, but the will is the place for your wishes.

A will, also known as a last will and testament, is one of three documents that make up the foundation of an estate plan, according to The News Enterprises’ article “To ensure your wishes are followed, prepare a will.”  Two other very important documents are the Power of Attorney and a Health Care Power of Attorney. These three documents all serve different purposes, and work together to protect an individual and their family.  Today I’ll focus on the will and its important for conveying your wishes for your assets.

In our practice, we often encounter situations where a person passes away either without a will or without updating their existing will, both of which can lead to tragic results.  Assets will often go to unintended beneficiaries with far greater cost, difficulty and time.

There are a few situations where people may think they don’t need a will, but not having a will or updating it properly can create complications for the survivors.  Here are a few instances where people mistakenly believe they do not need a will.

First, when spouses with jointly owned property don’t have a will, it is because they believe that when the first spouse dies, the surviving spouse will continue to own the property. However, with no will, the spouse might not be the first person to receive any property that is jointly held, and it is especially true that the spouse may not be the first person to receive individually jointly owned property, like a car.  Even when all property is jointly owned—that means the title or deed to all and any property is in both person’s names –upon the death of the second spouse, an intestate (meaning no will) proceeding may have to be brought to court through probate to transfer property to heirs.

We frequently encounter situations where an executor will say that the decedent told them what they want, and that it does not match the will.  Or even worse, a decedent will have an old will that no longer reflects their wishes, such as not updating a will after getting married. In these situations, the will controls the property, even though the wishes are now wrong. It is critical to update your will with changes to make sure that the will conveys your estate to the beneficiaries you want.

Secondly, any individuals with beneficiary designations on accounts transfer those accounts to the beneficiaries on the owner’s death, with no court involvement. The same may apply for POD, or payable on death accounts.  In Texas you can even go so far as to name a beneficiary specifically on your deed or car title.  If the beneficiary named on any accounts has passed, however, their share will go into your estate, forcing distribution through probate.  Beneficiary designations also don’t adequately plan for successors, incapacity of beneficiaries and sometimes don’t allow many beneficiaries.   Clients often try to avoid probate on their own by the use of beneficiary designations, but we often have to open estate administrations where they are incomplete or ineffective for the above reasons.

Third, people who do not have a large amount of assets often believe they don’t need to have a will because there isn’t much to transfer. Here’s a problem: with no will, nothing can be transferred without court involvement. Let’s say your estate brings a wrongful death lawsuit and wins several hundred thousand dollars in a settlement. The settlement goes to your estate, which now has to go through probate.

Fourth, there is a belief that having a power of attorney means that they can continue to pay the expenses of property and distribute property after the grantor dies. This is not so. A power of attorney expires on the death of the grantor. An agent under a power of attorney has no power, after the person dies.

Fifth, if a trust is created to transfer ownership of property outside of the estate, a will is necessary to funnel unfunded property into the trust upon the death of the grantor. Trusts are created individually for any number of purposes. They don’t all hold the same type of assets. Property that is never properly retitled, for instance, is not in the trust. This is a common error in estate planning. A will provides a way for property to get into the trust, upon the death of the grantor.  This is called a pour over will.  See here for more details.  https://galligan-law.com/i-have-a-trust-so-why-do-i-need-a-pour-over-will/

With no will and no estate plan, property may pass unintentionally to someone you never intended to give your life’s work to. Or, having an out of date will that doesn’t reflect your wishes may direct property to someone you no longer wanted to benefit.  Having an up to date will lets the Executor know who should receive your property. The laws of your state will be used to determine who gets what in the absence of a will, and most are based on the laws of heirship. Speak with an estate planning attorney to create a will that reflects your wishes, and don’t wait to do so. Leaving yourself and your loved ones unprotected by an up to date will, is not a welcome legacy for anyone.

Reference: The News Enterprise (September 22, 2019) “To ensure your wishes are followed, prepare a will.”

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