Estate planning | Olivia K. Smith, Attorney at Law

Undue Influence and Estate Planning

April 12, 2021Filed Under: Elder Law

The elderly have, unfortunately, always been more susceptible to manipulation from those who will defraud or steal from them. Targeted attacks on vulnerable older people to exert what attorneys deem “undue influence” constitutes elder abuse. It disrupts the older persons’ impulse to provide for loved ones and instead leaves assets to the manipulator. Often, family members do not find out about a change in estate plan until after their loved one has died. Most often, a manipulator will seek to keep last-minute changes of inheritance quiet.

If you believe undue influence was at play regarding the will of your deceased love one, you can take your suspicions to probate court. Proving undue influence can prompt the probate judge to rule that the will and other estate planning documents are invalid. Contesting undue influence is allowable even if there is no regular probate court proceeding to probate the will and distribute estate assets.

A probate judge will look for a claimant to prove that the will either

Leaves property in an unexpected manner, cutting out close family members in favor of others without an obvious explanation before their death
The will-maker may have been particularly trusting of, or dependent on, the influencer, sometimes referred to as a confidential relationship
Frailty, illness, or fear of abandonment make the will-maker susceptible to undue influence
The confidential relationship influencer took outright advantage of the will-maker and directly benefited by substituting a will of their choosing and not the will-makers.

Undue influence is not the same as meddling or offering unsolicited advice or opinions to an aging family member. As long as a will-maker is mentally and physically independent, they can follow or disregard opinion and advice as they choose. The situation changes when physical frailty or cognitive decline can leave a will-maker susceptible to undue influence. As an example, out of need, an older person might welcome a cousin into their home to provide them care. That older person’s children may have suspicions about the cousin’s motivation or begin to experience estrangement from their loved parent. In this event, direct conversations with the will-maker and their permission to confirm through their attorney that the will and estate documents have not changed may be necessary.

Proving undue influence in probate court will require testimony from people who knew the will-maker well, such as medical doctors and health care providers, caregivers, lawyers, and other advisers, as well as family members. These individuals then testify about what they know regarding the relationship between the deceased individual and the person being accused of exerting undue influence.

Because probate courts try to adhere to the last “voice” of the decedent, the best and least expensive way to prevent undue influence is to have an open discussion with your loved one or aging parent. Discuss their estate planning and its impact on all generations in the family well in advance of them becoming vulnerable. According to a survey by Caring.com, only 45 percent of adult children discuss what their parents’ plans are for when they need care. And only 30 percent discuss who will pay for and manage their care. Even during the COVID-19 pandemic, only a small percentage of Americans have the proper estate planning documentation. Acting now to prevent potential abuse is vastly preferable to introducing allegations of undue influence in probate court.

If your loved one is already having difficulty making rational decisions, including estate planning options, for their well-being, seek a guardianship or conservatorship through the courts. Appointing a trusted person will ensure the respect of a loved one’s wishes and prevent undue influence. If they are capable, review existing estate plans and share feelings openly. If no plan exists, encourage your parents to contact an elder law attorney and discuss the need for a will, trust, or both. Understanding and helping loved ones with aging preparations should be a family priority, and open discussion can prevent undue influence.

If you believe a loved one may have been the victim of undue influence (or is currently being influenced) please give us a call. We would be happy to discuss your situation confidentially. Please don’t hesitate to contact us at 513-771-2444.

What to Put in Your Letter of Instruction

March 8, 2021Filed Under: Estate Planning

A letter of instruction is a beneficial piece in estate planning. It is an informal document that will give your loved ones important information about personal and financial matters after your death. Letters of instruction are not legally binding and do not replace your need for a will or a living trust, however it can be a nice complement to those documents. The informal nature allows you to create the letter on your own and change it whenever necessary. It is important to keep the letter up to date, as life circumstances change over time. Let’s look at some of the information that may be included in a letter of instruction.

Funeral and Burial Arrangements

The first thing you may want to include in your letter of intent is information about your funeral and burial arrangements. Be sure to include any plans you’ve already made, or what your wishes are as this can be very beneficial to grieving family members. Information about the type of funeral service you’d like, including who should officiate the service and special things to be included like music selections, can be a part of your letter of instruction. If you prefer to be cremated rather than buried, be sure to include that in your letter.

Another helpful inclusion would be a list of people you want to be contacted when you pass, and contact information if available. You may also include your wishes for donations to specific charities in your memory.

Financial Information

Information about your bank accounts, assets you hold title to, and other accounts can greatly help family members when trying to carry out the provisions of your estate plan. Be sure to include names and phone numbers of professionals who can help locate your accounts or who helped you plan. The location of other important documents should also be included with the letter of intent. These could include but are not limited to birth certificates, social security account information or statements, marriage license, divorce documents, and military paperwork. In addition, be sure to leave behind information related to mortgages and other debts.

Digital Information

These days, many of our accounts have transitioned to the digital world. Therefore, leaving behind information about your digital assets in your letter of intent becomes more important. This should include usernames and passwords for digital accounts, social media accounts, and the devices themselves. It is important not to leave family members guessing on this information.

Personal Items

Personal items can be a source of contention among family members when a loved one dies. A letter of intent can provide details about who will receive personal effects, including collections, important personal items, and other things that may not have monetary value, but do have sentimental value. In this section you can also include information about the care of the pets you may leave behind. This section of your letter may include personal statements about your wishes and hopes for the future and can address specific family members.

A letter of intent can be a very real source of peace and comfort to your family members in their time of grief. It can be difficult to think about getting started on a letter of this nature, as none of us like to think about our own death. However, if you consider the items to include and create a plan, a letter of intent can often write itself. Taking this step can alleviate much stress and many family squabbles about what you leave behind.

A letter of intent is an important piece of your overall estate plan and should be written with the help of an attorney to make sure the letter compliments and does not contradict your estate plan. If you would like help creating your estate plan or a letter of intent, please feel free to contact us. Please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

Financial Issues That Are Unique To Caring For Loved Ones With Special Needs

February 8, 2021Filed Under: Estate Planning

If you have a friend or a family member that has special needs, you already know that there are often day-to-day challenges that exist alongside the love and care they require. What some families don’t know is that there is a greater urgency to craft a solid financial and estate plan when your family has a loved one with special needs, especially a child. And often, even the most diligent parents or guardians quickly realize there are numerous planning issues they aren’t aware of.

Disabilities and special needs requirements are often viewed as statistics. For example, one out of nine children under the age of 18 receives special education services, and nearly 21 million families have a member with special needs. One of the major challenges of raising a child with special needs is the strain it puts on family finances. Some equate it with tuition — but tuition for life. While government aid helps, it often covers just the necessities. Many parents want more than that for their children, and for those who want more, financial planning — specifically special needs financial planning — provides the structure and guidance they need to successfully navigate the financial challenges of raising a child with special needs. Nearly one-third of parents with special needs children commit more than 40 hours a week to care. Further, they spend an average of $326 per month on out-of-pocket medical expenses. It is surprising that they’re not planning long-term for the financial needs of their child.

Here are four things parents of special needs children can do to create a more financially secure future for their special needs child:

Prepare for age 18 – When a child becomes 18 years of age, he or she is legally presumed competent to make their own medical, financial, and educational decisions. For parents of special needs children, there are two options they can pursue to maintain influence in their child’s care: power of attorney (POA) or legal guardianship/conservatorship. This would be applicable if the child is mentally competent to sign the document. When turning 18, a child may become eligible for public benefits. It is important that parents understand the procedures and plan to ensure their child continues to receive the support and care he or she needs in their adult years. If a POA is not an option, then the parent will need to consider guardianship/conservatorship over their child.

Draft a last will and testament – A special needs individual who has more than $2,000 in their name may become ineligible to receive certain public benefits. Therefore, it is important for parents of special needs children to declare how their estate is distributed upon their death. An estate planning attorney can work with you to prevent automatic asset distributions to your special needs child.

Create a special needs trust – The special needs trust is a means to provide stability and security for special needs children should something happen to their parents or guardian. It can be a supplement to public benefits, which can greatly improve the beneficiary’s quality of life.

Choose an appropriate trustee – There are typically two choices when it comes to selecting a trustee: a professional trustee or a family member. The appeal of a family member is that that person doesn’t charge fees and usually has intimate knowledge of the beneficiary’s needs. However, administering a trust is a complex and important responsibility. A professional trustee has experience in the financial management – investments, tax planning, and record-keeping – required by the execution of a trust.

Make sure your family is prepared not only for today, but for the future. The quality of life of the parent as well as the quality of life of the special needs individual could depend on how you plan today.

If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 with any

Setting Your Kids Up For Success With Their Inheritance

February 1, 2021Filed Under: Uncategorized

Many parents find talking to their children about their finances uncomfortable. Talking about how much money or property you have is usually viewed as taboo. Asking someone else about what they have is often considered impolite. But failing to talk to kids about how much they may inherit could leave them unprepared to handle even a modest amount and often results in the money being squandered quickly.

Baby boomers are considered the wealthiest generation and are set to pass that wealth on to their children. It’s estimated that $68 trillion will be passed down from boomers within the next few decades. By 2030, millennials will hold five times as much wealth as they do today.

Many who have substantial wealth are concerned that if their children know the extent of their wealth, this will take away any motivation for the children to be productive and involved citizens. Parents with substantial wealth often want their children to learn how to live in the world as “normal” people and to be productive and successful in their own right. Some may go so far as to hide their wealth to encourage their children to work and build their own wealth.

But the degree of wealth is relative. Even those who are not as wealthy may not want their children to know how much they have. With the rising costs of health care, they are concerned that all of their savings will be needed for retirement, medical expenses, and long term care. If this becomes a reality, their kids would not receive an inheritance they may have been counting on.

Failing to prepare children for what they may inherit can hinder their ability to handle money wisely. Many find they suddenly feel separated from their friends, isolated, even confused about how to handle relationships. Others will be wasteful and spend their new found money irresponsibly. Those who inherit even a modest amount are likely to be just as irresponsible; stories of inheritances being squandered on an expensive sports car, lavish vacations, and fast living are all too common.

Experts agree it is important to talk to children about money and wealth during their adult years to help them learn how to be better stewards of wealth. This doesn’t mean parents have to take a show their children all of their bank accounts, business interests, and other evidence of wealth. Instead, experts suggest talking to children about their values, the opportunities money can provide, and what you as parents want to accomplish with the money you have. Most parents want their children to think about helping others, and many want to encourage entrepreneurship. It can be helpful to give children a small amount of money at a young age to teach them how to save and invest, spend wisely, and to show them the importance of supporting charities.

One of the most effective ways to teach children about values and spending and investing money is to be an example. Parents need to let their children see them using their money in ways that reinforce their values. Some parents show how they value family relationships by spending their money on family vacations or buying a second home where the entire family can gather for summers and holidays. Others involve their children in choosing charities to support and provide children their own money to donate. If your children see you living your values, chances are they will adopt similar values as well.

We help families determine how to leave money to children in a beneficial way, how to plan for unexpected health care issues, and how to make sure appropriate people are named to step in and help if needed. We welcome the opportunity to talk to you about your planning needs. If you’d like to discuss ways we can help, please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

Undue Influence and Estate Planning

What to Put in Your Letter of Instruction

Financial Issues That Are Unique To Caring For Loved Ones With Special Needs

Setting Your Kids Up For Success With Their Inheritance

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