If you are a person who plans, you have likely spent a lot of time, effort and money to make sure your estate plan is exactly like you want.   If you are fortunate enough to live to be quite elderly, it’s likely you will need a caretaker to help with household chores and errand running.   Choosing the wrong caretaker can kill your estate plan.

Why choosing the wrong caretaker can kill your estate plan

A sure way to kill your estate plan, to put it bluntly, is to live to be really old and choose the wrong caretaker.   The wrong caretaker is one who is basically untrustworthy and who may have an agenda from the get go to steal from you.  I’ve had this happen to some of my elderly clients and the aftermath was very bad.  The correct wording for this problem in our society is financial abuse of the elderly and the problem is growing.  It happens to all types of people in all sorts of situations.

Could this type of theft happen to you?

This could happen to you once you get to an advanced age and decide you need to get some help in your house.  Someone who will work for a fairly low hourly rate (or even work for free) is a huge red flag.

Once hired and in the home on a regular basis, the wrong caretaker will work to endear herself to you.  She may go out of her way to help with things not specifically on the job list.  She does things for you on her own time, or brings you small bouquets of flowers or sends cards.  The caretaker remembers to call on birthdays and may invite you to her house for major holidays.  She will also cook for you and, once she learns your likes and dislikes, brings you favorite items from the grocery store.

How does this escalate into an estate killer?

Here is how your situation could get out of control with the wrong caretaker:

1) you begin to consider the caretaker a friend (or worse, a daughter).  This goes on for some time and gains momentum the longer the caretaker is around.

2) the caretaker steals banking information and pads of checks while you are napping or watching TV.

3)  the caretaker takes your car for convenience, since you aren’t driving any more.   She may get you to sign over your car title.

4)  the caretaker admires your silver flatware (or other items).  She mentions how she would love to have it, since it isn’t being used anymore.  You feel pressured to give the item to her since she’s spent money out of pocket on you.

5)  you feel dependent on her and begin to fear losing her.  As an incentive you pay her a  lump sum to guarantee she will stay on.

6)  you begin to think that she “deserves” payment for all she does for you, and you are persuaded that she deserves a part of your estate more than your ungrateful (and distant) relatives.  You name her as beneficiary on your life insurance policy.   [I’ve seen an insurance agent even help with this one]

7)  the caretaker claims to have done tasks for you and accepts payment for those jobs.

Unfortunately, I’ve seen all of the above happen to clients.  These clients were good investors and money managers all of their lives.  But once confidence and access was given to the wrong caretaker, money and property flew out the door, which killed the client’s estate plan.  Clients were scammed out of cars, money, life insurance policies and even groceries.  Yes, some caretakers may actually steal groceries from you.

What factors make you an easy target?

There are a few factors that make you an easy target for caretakers to steal from you as you age:  1) you are living alone at home; 2) you have no close family members to watch over everything; 3) the caretaker is not from an agency; 4) you come to rely on the caretaker to the exclusion of everyone else.

There is a 5th factor at work as well:  You live to be 90 and you lose your ability to judge how much money is in your bank account.  It sounds crazy, since bank statements are issued every month, but something deteriorates in an older brain that may cause you to lose the ability to make sense of the numbers.  I had a client who had about $65,000 in a checking account.  His basic expenses were minimal, and he had no debt.  He still worried whether he could afford an $8 meal at the senior center each week.  I’ve seen this with other clients as well and they are typically in the upper 80s.  Some are afraid of running out of money even when shown on paper that they have enough to last for years.

How can you avoid choosing the wrong caretaker?

Make sure you have trustworthy people are around you, especially as you age.  They should monitor your bank accounts often, especially if you have a caretaker coming into your home.   If you are unsure about appointing any one person, appoint two people to act together to oversee your accounts.   If you are lucky enough to know you have an absolutely trustworthy person, turn over all banking and bill paying duties to that person.  How will you know this?  This should be someone you have known for years and who has a long history with you, not someone you just met.

Store all financial, banking and estate planning documents away from prying eyes.

Thoroughly check out anyone you are considering hiring.

Consider someone from an agency.  Their employees are bonded and they rotate people in and out of homes.

Taking precautions doesn’t guarantee that you can avoid choosing the wrong caretaker, but it can help avoid killing your estate plan before you die.  After all, once the wrong caretaker takes it all, what is left?  For additional information about financial abuse, click here for more information from the State of Texas.

For more information on how to appoint someone to handle your accounts, go to this page or contact Carla.

 

If you have wondered who gets your property if you don’t have a will, the answer is that your assets will be distributed according to Texas law.

It can be tricky to figure out “who gets what” because the answer depends on several factors. Here are the basic high points.

Single persons

For single persons who die with surviving children, all of your property will go to your children.  If you have no surviving children (or never had any children to begin with), but your parents are living, each parent will get an equal share of your property. If your parents are already gone, everything will go to your brothers and sisters.

Married persons

The law is different if you’re married and your spouse survives you.  It also depends on whether you have both separate and community property.

Separate property

Separate property of a married person is any property you owned before you got married. It also includes property that you receive by gift or inheritance after you are married. When you die, if you have children that are living, your spouse will get one-third of your personal property and a life estate in one-third of your real estate. Your children will receive two-thirds of your personal property, two-thirds of your real estate, and the final one-third of the real estate after your spouse dies.

Community property

Community property is treated differently.  A community asset is any property that is purchased after the date of marriage. One-half of the community property asset is owned by the husband and the other half is owned by the wife. Upon your death, your spouse already owns 1/2 of the community assets.  The only question is “who gets your half?”

If your spouse survives you, he or she will get your half of the community property if either of the following conditions are met: (1) you have no surviving children, or (2) you have surviving children and your spouse is also a parent of those children. If you have children that survive you, but they are not also your spouse’s children, your children get your half of the community property.

Does this seem complicated to you?  Remember, I’ve only touched on the high points—it can get even more complicated!

It can be very important it is to create your own estate plan.  The answer to who gets your property if you don’t have a will depends on your family circumstances at the time of your death.  You may not want to rely on the law to make the choices for you.

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I have helped lots of people with estate plans over the years.  In talking with all types of people in all kinds of situations, I have learned a few lessons from my clients that I will share.

 

Lesson 1: Never buy a walk-in bathtub

 

A walk-in bathtub can be good for those who can no longer safely get in and out of a regular bathtub.  There are other things to consider, however, that are not mentioned by salespeople who really want to sell you a walk-in bathtub.  Unless you already have a gigantic water heater (at least 75-80 gallons), you probably won’t have enough hot water to actually use the walk-in bathtub.  Your existing water heater will have to be replaced, or you will have to install an additional large capacity water heater just for the walk-in bathtub.   Walk-in bathtubs are really expensive to install.  Plus you will have the costs of the additional water heater installation and the increase in your utilities if you plan to use it very often.

 

Lesson 2: Don’t let a title company put your spouse’s name on your house

 

If you bought a house while single, then married later on, this lesson is for you.  Refinancing has been a popular way to lower mortgage payments for several years.  When refinancing, the title company will prepare new documents for your signature as part of the process.  The new deed should show you as still being the sole owner.  If, however, they prepare a deed from you to you and your spouse and you sign it, you have given away ½ of your house to your spouse.   This becomes a real problem later if you divorce or your spouse dies.   Before signing any refinance documents, be sure you understand what you are signing.

 

Lesson 3: Check your accounts for beneficiaries

 

Last year Texas adopted a new law that allows people to transfer their house on death by deed.  This idea is similar to naming a beneficiary on a bank account. With this new option, people have attempted to avoid probate by naming beneficiaries on all accounts.  They generally know to sign a form for the car and to have a proper deed for the house transfer.  However, for this to work,  everything has to be looked at.  If anything is overlooked, a probate may have to be opened in order to get access to the property.  What do people overlook?  Small retirement accounts from years ago, mineral rights, bank accounts that were never closed and small life insurance policies.

 

Lesson 4: Avoid conditional gifts

 

Can someone give another person an inheritance with instructions for them to “share” the gift with someone else?  No.  Attempting to do this is really a bad idea.   An example:  Sally wants to leave all of her property to Betty with the understanding that Betty will “share” with her brother Claude.  Sally intends for Betty to give Claude 1/2 of everything.  Sally believes that by talking with Betty ahead of time, or by leaving her a note stating what she wants, Betty is obligated to share.  That is not the rule.  If Sally leaves all to Betty, the property is Betty’s to do with as she wishes.  She has no obligation to “share” with anyone.  If Sally really wanted Claude to have something, she should’ve given it to him directly.

If you need help with your estate planning, email me using the contact box.

Federal Estate Tax

Federal estate tax, also called the “death tax”, is a tax on the total value of a person’s estate after they die.  Everything counts, including life insurance.  Since people often times inherit real estate or minerals or have large life insurance policies, this is often viewed as an unfair tax.  After all, haven’t they paid income tax on this already?

What is the purpose of the tax?

Obviously in years past, the goal was to raise revenue from the dead.  However, more recently the feds don’t want to include everyone (for political reasons), and they want to encourage certain behavior.  To achieve these two goals, the tax code allows every person an exemption amount against the tax.  Currently, the amount is $5.49 million dollars.  No tax is owed unless you have more than that amount.  Married couples get double, meaning they can exempt almost $11 million dollars from federal estate tax.  The tax code also allows deductions against any tax owed over the exemption amount.  That encourages people to gift to charities rather than pay the death tax.  Really wealthy people often give the majority of their assets to charity on their death.  Elizabeth Taylor’s jewelry was sold after her death and the proceeds given to AIDS research, one of her favorite causes to support.

Who pays this tax?

When federal estate tax is owed, who pays it?  The estate of the deceased person pays the tax before any distributions are made to the heirs.  Persons fortunate enough to be in the over $5.49 million tax bracket can do a few things to limit the amount of tax owed.  For one example, gifts to charities are a deduction against the death tax.  There are other ways to limit the amount of tax owed for those in high tax brackets.

What will the future hold for the federal estate tax?

There will be fewer families affected by the tax since the exemption amount goes up slightly each year.  Considering that, and the option of eliminating any death tax owed by giving charitably, the number of people actually paying the tax is quite small.  Considering the current political climate in Washington, it may go away all together.

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Lottery winners are facing increased safety concerns when they win the lottery jackpot.  Winners are often targeted by all sorts of individuals who simply want some of the proceeds.  For safety’s sake, steps should be taken by the state to protect the winners from the release of their names to the public.  So far, the legislature has failed to allow winners to remain private.  Two ideas were floated in the 2015 Texas legislative session that addressed this.  One idea was to tax winners 5% of their jackpot to remain anonymous.  On a minimum Texas Lotto jackpot of $4.0 million, 5% = $200,000.   Luckily for lottery winners, that idea didn’t go anywhere.  Unfortunately, neither did the bill that would have allowed winners to remain anonymous for free.

 

So, is it possible to remain anonymous if you win the lottery jackpot? 

 

Here are some of the rules regarding the information that must be revealed and information that might be revealed by the Lottery Commission.

 

Since the Texas Lottery Commission is part of state government, the Commission falls under the rules of the government code, including the Public Access to Information rules, referred to as “open records.”   Under these regulations, the public can request information from an agency about information they have on hand.  A request can be made by anyone, but is typically used by reporters who want documents for a story.   Unless there is an exception, the government agency must supply the requested documents.   Although not particularly listed as an exception, the Texas Attorney General has ruled that social security numbers in government documents are confidential.  So a jackpot winner’s SSN would not be released.

 

Currently, the Lottery Commission is required to release the names of lottery winners.  The Commission will also release the address and phone numbers of a lottery winners unless the winners opt out.   The Commission releases the name and location of the store where the winning ticket was sold.   So, this is what is released about the winner:   the name of the winner or the person who has a beneficial interest in a legal entity that is a winner.

How to remain anonymous if you are not concerned about an open records request

 

You can block your name and other identifying information from being released to the public by the Lottery Commission  by setting up a revocable trust prior to claiming the jackpot prize.   Your revocable trust would have a separate name but use your social security number for tax purposes.  All documents, including trusts, are reviewed by the Lottery Commission before they process a payout that includes a trust.  For some information about revocable trusts, go here.

 

What are the key points in setting up a revocable trust to receive a lottery jackpot?

 

In order to remain an anonymous winner, the trust name would not include the owner’s name.  The trustee would be someone other than the owner, at least in the beginning.  The first trustee’s job would be to claim the lottery jackpot on behalf of the trust and set up the bank account to receive the money.   Here is an example where the lottery winner is Joe Schmooze:

 

Name of Trust:                                  XYZ Revocable Trust

Grantor:                                             Joe Schmooze

Trustee:                                             Gertrude Smithy, Attorney at Law

Successor Trustee:                           Joe Schmooze

Beneficiary:                                       Joe Schmooze

Contingent Beneficiaries:               Sally Schmooze & Johnny Schmooze

 

The winner’s name released to the public would be the XYZ Revocable Trust and the winnings would be to Gertrude Smithy as Trustee XYZ Trust.  After the intial set up of the bank account, Gertrude Smithy would resign as trustee and Joe Schmooze would take over.

 

How to remain totally anonymous

 

Having one trust to accept the lottery jackpot (as above) is fine, but it does not shield the fact that the owner/winner owns the “beneficial interest” of the trust.  The winner’s name could be revealed through an open records request by someone who really wanted to know.

 

If the lottery jackpot winner wants to remain totally anonymous, he could opt to set up two revocable trusts instead of one.   The first would act as a claiming trust and would stay in effect for a fairly short period of time, certainly less than a year.  The second trust would be a long term trust.

 

Here is the revised example:

 

The Claiming Trust would look like this:

 

Name of Trust:                                  XYZ Revocable Trust

Grantor:                                             Joe Schmooze

Trustee:                                              Gertrude Smithy, Attorney at Law

Successor Trustee:                            Joe Schmooze

Beneficiary:                                       ABC Revocable Trust, Gertrude Smithy as Trustee

 

The Long Term Trust would look like this:

 

Name of Trust:                                 ABC Revocable Trust

Grantor:                                             Joe Schmooze

Trustee:                                             Gertrude Smithy, Attorney at Law

Successor Trustee:                           Joe Schmooze

Beneficiary:                                       Joe Schmooze

Contingent Beneficiaries:                Sally Schmooze & Johnny Schmooze

 

What are the practical problems in doing two trusts?

 

The Trustee would have to open bank accounts for each trust.  The lottery jackpot money would go first into the claiming trust account, then rolled to the long term trust account.  The first account could then be closed and the the claiming trust could be revoked.   The trustee could serve on the long term trust for a certain period of time.   Then the grantor (winner) or another long term trustee (such as a financial person or institution) would take over management of the trust assets.  This two step approach means the “person” claiming the lottery jackpot is the claiming trust (the first trust), and the entity with the beneficial interest is the long term trust (the second trust).

 

Some have set up a limited liability company as either the claiming entity or as the second, long term entity.  Using an LLC would work in much the same way as a revocable trust with a few exceptions.  LLCs are registered with the Texas Secretary of State.   LLCs should have an operating agreement that sets out the roles and duties of those involved with the LLC.   An LLC is dissolved by filing paperwork with the Secretary of State.   An LLC (like a revocable trust) is a pass through for income tax filing.

 

Is doing all of this worth it?  

 

It depends on a couple of factors.  Generally speaking, a $6 million dollar jackpot prize doesn’t generate as much interest with the public as a $100 million dollar jackpot prize.  In a rural area, your $6 million dollars could be big news, especially if you bought the ticket at the local store.

Whether or not you should shield your name depends entirely on how comfortable you are with people knowing that you now have a lot of money. Many winners simply claim the lottery jackpot in their own name.  They are not concerned about everyone knowing about their good fortune.  Later, I imagine a large percent of those winners wish they had been more secretive when claiming their prize.  My advice is to at least do a revocable trust with the elements set out in the first example.  That way the snoopers will have to request the information about any beneficiary of a trust named as a winner.

Until the Texas legislature actually passes a bill that allows privacy for lottery jackpot winners, these are the steps winners must go through to protect themselves and their families.

Good luck to all of you who are playing.

Should you plan with a will or a trust?  Here are a dozen questions and answers to help you choose between a will or a trust.  (This assumes that both are properly drafted and the trust is properly funded)

 

Question:  What does a will or trust do?

Will–Used to put your estate through probate; states your choice for who gets your property and who manages your estate after your death

Trust–Holds title to the property you place in the trust both while you are living and after your death

Question:   When is a will or trust effective?

Will— After your death and after it is admitted into probate

Trust— Immediately after signing

Question:   What if I need planning for a disabled child?

Will— Can have a trust established through the will after it goes through probate

Trust— Typically included

Question:   What if I need planning for minor children?

Will— Can have a trust established through the will after it goes through probate

Trust— Typically included

Question:   How easy is it to put a will or trust into place?

Will— Once the document is prepared and signed you are finished

Trust— Requires “funding” your property into the trust after signing

Question:   After death, how long does it take to settle everything with a will or trust?

Will— No one will have authority for at least a month (maybe several months) until an executor is appointed

Trust— Can be settled as soon as the death certificate is issued; successor trustee has immediate authority

Question:   What about long term care or medicaid planning?

Will— None for single persons, can have language for a spouse applying for medicaid

Trust— None

Question:   Does a will or trust avoid guardianship?

Will–No

Trust— Can avoid guardianship of the estate

Question:   Is a will or trust visible by others/the public?

Will— Yes through the County Clerk’s office/website once filed for probate

Trust–No

Question:   How much does a will or trust cost?

Will— Very affordable for the will, the cost of probate depends

Trust— Can cost 3 times the cost of a will; no probate cost

Question:   How difficult is it to make changes to a will or trust?

Will--You will need new documents

Trust— Can be amended

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Does a will have to be changed if there is a new addition to the family?

Young couples growing their families often realize they need to do estate planning.  At minimum, wills after the birth of their first child.   This is an important step in making sure they have 1) their choice for who the child’s guardian will be in case of an accident, and 2) they have a trust provision in place so their chosen person can handle the child’s money until he/she is of age.

Then they have a a second child after they have signed their documents.  Do they need to get new documents?  Is child 2 just left out because he/she came along later?

The short answer is no, child 2 is not left out.  Texas law provides for this scenario.

The term for child 2 born after the signing of the will is pretermitted heir.  This  assumes that if child 2 had been here at the time of the will signing he would’ve been included.  In other words, it is assumed the parents did not intend to leave anyone out.  So if new wills were never signed, child 2 would inherit an equal share with child 1.

Should parents have new wills prepared?  Of course people can always update wills to reflect new circumstances.  So long as a person is mentally competent  he/she can have new documents prepared.  I had someone argue recently that a well person can be blocked from changing his will.   That person was wrong and it is clearly stated in the statutes that anyone can change any provision of his/her will so long as they have mental capacity to do so.

For my clients, I typically tell them to review their documents every 5 years or so, which is a good idea especially when children are young and a changes are made to the family.

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Transferring property at death can be a confusing issue for families.  It’s not clearly understood by people who are doing their planning or by their family members who will be doing the transferring.   Here are 3 categories of property that transfer at death.

 

There are basically three types of property that transfer at death.

 

Type 1: Property that passes by contract.

If you have insurance policies, IRAs, retirement and brokerage accounts, and bank accounts you can name a beneficiary for each of those accounts.  You do this by completing a Pay On Death form for each bank and brokerage account.  On your death, the company is notified, and they send a check to your named beneficiary.  If a beneficiary has not been named by you, or the beneficiary is deceased, then the account will fall into category 2.   If your named beneficiary is the trustee of your trust, the property will remain in this category.  Funds will be paid into the trust and the trustee will then distribute the funds as part of the trust estate.

 

Type 2: Property that needs a change of title.

If you have real estate, vehicles, mobile homes, recreational vehicles, boats and airplanes the process to transfer these after your death is similar to a sale.  Your executor is authorized to sign the title or deed to transfer the property after being appointed by the court to act for the estate.   Many people believe the person has that authority just by being named in the will, but this is not true.  Your will has to be probated and the executor appointed by the court for the executor to be able to transfer your property.  If you have a trust, and the property was transferred into the trust, your trustee has the authority to sign the deed or title.

 

Type 3: Property with no title and no contract

This type of property includes your personal property and pets.  Although many people value their personal items, most of those items are really worthless.  If your estate only has typical personal and household items outside of your Type 1 property, and your family agrees on what to do, there is no need for a probate.

This is a short summary of the types of property that most people have in their estate when they pass.  The ease or difficulty of transferring different types of property at death depends on how your planning works with.   Assets can be moved from one category to another depending on what you want in your estate plan.

For more information, contact Carla.

 

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011 2 Do you have a beloved pet like I do?  This is a photo of Cookie, my papillon mix.  I can’t really remember when she wasn’t around, even though she only showed up in my life in 2009.  It’s amazing how they take root in your every day life and make themselves at home.  It’s important to have a plans for your pet’s care after your death.  Most people haven’t really thought about writing anything down.  But when asked, they have definite ideas about what should happen to their fur babies after they’re gone.

If you are in that boat, but you don’t really know your options, here is a short list for getting a plan in place.

1)  Include a clause in your will or trust.

Legally, pets are personal property, somewhat like your furniture.  The vast majority of pets have no value at all, yet they can be expensive.   Including a clause in your will or trust allows you to do two things:  1) Name the person who will “inherit” your pet, and 2) Provide a stipend for the care of the animal for the remainder of his/her life.

2)  Create a special pet trust.

A pet trust is a separate legal document.  It states how much money is set aside for the care of the pet and names the person who will be trustee.  Pet trusts can be a great tool if the person named is not well known to you.  A pet trust allows you to name a caretaker for your pet and name another person as trustee of the money.  This alleviates concerns that the caretaker would do away with your pet and keep the money.

3)  Informal agreement with friends or family members.

Many pet owners have children or grandchildren who have offered to take in your pet at their own expense if the pet outlives you.  If that’s the case, you may still consider leaving an extra sum of money to that person in your will or trust to offset future vet bills.

These are 3 plans for your pet’s care after your death.  To help the caretaker for your pet, you should leave him or her as much information as possible about your furry friend.  For those who are single, it’s wise to keep a card in your billfold or purse with some basic information about your pet at home, especially if your family members live some distance from you.

If you would like more information about planning for your pet’s care after your death, please contact Carla.

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Is a simple will right for your family?

I am often asked about preparing a simple will for people.  I have been doing estate planning for about twenty years and have literally prepared hundreds of documents for clients.  In all those families, I have come across very few truly simple situations, but I still find that most people think their situation is simple, even if it is fairly complicated.  Why is this? How do you know whether a simple will is right for your family?

Complicating factors

I think clients are unaware of complications mainly because they don’t know that some ideas are pretty difficult to put on paper.  For example, if the parents have “loaned” one child a significant amount of money over the years, they may want to even up things after they are both gone.  This can be done, but not simply.  The details have to be ironed out:  how much of a reduction is there for the debtor child?  What if he/she repays the loan?  Is interest to be added on the amount? If the debtor child dies before the parents and he/she has children, will they get the reduced share?

These types of ideas make it difficult to draft the wills and can’t really be done in a simple form.  Uneven shares (for various reasons) are one common thing clients ask for.  Others are paying out the shares over several years and giving large gifts to charities or grandchildren instead of the children.  These can also be done, but not in a simple will.

Some situations call for specific language in wills or trusts to meet the needs of the family.  An example was when a couple contacted me about planning.  They had 3 adult children and they wanted to leave everything to them equally.  After speaking with them, however, two of the children were disabled.  One was severely disabled, living in a facility and on Medicaid.  Another was somewhat disabled, but working.  She was not receiving Medicaid but, due to her medical condition would one day not be able to work.  At that point, she would likely be eligible for Social Security disability, based on her own work history.  The remaining child was married and living in San Antonio.  Needless to say, each child’s situation had to be addressed in the clients’ documents.

Situations that put you out of the simple will category

What is truly a simple situation that can be addressed by a simple will?  Generally, clients who can use a simple will to easily pass their estate do not have any of these situations:

Previous marriages (for a married couple) especially with children from a previous marriage

Uneven distribution among children or uneven timing of distributions (such as a payout to one child)

A child with a disability, especially if receiving government benefits

A child expected to “cause trouble” for any reason

A child still living at home (who may have to be evicted)

A married couple naming different alternate agents on all documents or wanting to name someone other than the spouse for executor

Clients where one spouse has been diagnosed with a disabling illness (such as Alzheimer’s)

Clients who want to give several specific gifts of property

If none of these apply, then the clients may be able to use a simple will.  Simple, however, does not mean writing something down on a sheet of paper yourself.  You should seek professional help getting the document right from the start.  If the situation is truly simple, it may be a one-time expense, meaning the will should still reflect your wishes for many years to come.

Adding any complicating family situations makes a simple will unworkable for clients.

If you have the desire to get going with your estate plan, simple or not, contact Carla to get started.

 

 

 

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