Discretion & Your Estate Plan

estate planning

What is discretion and why is it important for your estate plan?

Discretion – 1: the quality of being discreet, circumspect, and cautious in one’s speech, 2: the ability to make responsible decisions, 3 a: individual choice or judgment, b: power of free decision or latitude of choice within certain legal bounds.

The concept of discretion is extremely important in the areas of estate planning and probate.You should expect your attorney to both know the rules for keeping a confidences and practice discretion in all aspects of his life. Others are often disappointed when attorneys refuse to share privileged information. But a client’s business is only someone else’s business if the client chooses to share it with them. Your attorney should guard your correspondence, conversations, and confidences with vigilance. This may seem extreme to others, especially in a world where people readily invite others into every aspect of their lives, but professional legal standards demand discretion.

Another important aspect of discretion is that found in part 3(b) of the definition: the “power of free decision or latitude of choice within certain legal bounds.” We cannot accurately predict the future. When we try to predict the future and attempt to control assets and people from the grave, we are asking for trouble. The best course for blessing our beneficiaries is to leave wise fiduciaries who can make informed decisions in real time. Change is the only constant, and it is impossible to anticipate the status of the economy, higher education, or government, or the personal health, habits, gifts, family relationships, or even survival of loved ones. When naming executors and other fiduciaries, select people and institutions who can be trusted and grant them the discretion needed to maximize the value of your estate plan.

Contact our Attorneys About Your Estate Plan

Call us at 844-402-2992 or visit our office today.

DISCOURAGING DISENGAGEMENT IV: Domestic Partners, Disasters, Distance, and Doing It Yourself

senior signing contract

Estate Planning Attorneys – Discouraging Disengagement

In previous articles, I shared insights from James Brill’s excellent article, “Discouraging Disengagement.” Estate planning is fluid because time and circumstances alter plans. In the first article, I examined how Death, Disability, and Decline greatly impact our estate plan. In the second, I looked at Disaffection, Disappearance, and Domestication as events triggering changes to your estate plan. In part III, I discussed Death Taxes, Designations, and Distrust.

Today, in Part IV, I look at four topics that may impact your plan: Domestic Partners, Disasters, Distance, and Doing it Yourself. As I approach “Old Lawyer” status, I become more and more convinced that couples should either be married or not married. While I will not discuss the moral, ethical, religious, or psychological aspects of marriage, the legal challenges of domestic “arrangements” are numerous. Suffice to say, when the intention to be married, or the intention not to be married, is undocumented, it creates a mess, not only with respect to the expectations and understandings of the couple, but also in terms of financial and government entities being able to address estate matters.

Disasters and Distance can both ruin a plan. A photocopy of your original documents is not the same as the originals. Fires, floods, tornadoes, and hurricanes can all destroy your estate plan. (See references in ancient texts to treasures and their vulnerability to rust, dust, and thieves.)

Additionally, if you have left specific bequests and thought you were being equitable, the destruction of certain assets will likely render your disposition of assets inequitable. Wise counsel will steer you away from such a vulnerable plan. Distance can hinder a fiduciary from serving in that capacity. The son that was such a sound choice as agent for your power of attorney when he lived down the street is a less wise choice now that he lives and works in New Zealand.

Contact Bailey & Galyen’s Estate Planning Attorneys

Lastly, DON’T DO IT YOURSELF! Doing it yourself may be the best way to ruin your estate plan and burden your loved ones with added complexity after you’re gone. Contact our committed estate planning attorneys via email or call us direct at 844-402-2992 to schedule your free consultation.

Disengagement – Threats to your Estate Plan

Tax LawAs in parts one and two of this Estate Planning series, I want to credit James E. Brill and his excellent article, “Discouraging Disengagement.” In Part One, we discussed Death, Disability, and Decline. In Part Two, we looked at Disaffection, Disappearance, and Domestication. In Part Three, we take a brief look at additional threats to your estate plan: Death Taxes, Designations, and Distrust.

Under current law, most of us who live in Texas are not concerned with estate taxes. While there has been concern in the past in other jurisdictions, and probably will be in the future, estate taxes currently do not impact the average Texan. The “Death Tax” we confront on a daily basis is the failure to prepare, safeguard, or adequately maintain documents. Death cuts off the opportunity to prepare and ends our ability to provide guidance to those we trust regarding our wishes for what happens after we are gone. Neither the federal nor state government can cost your estate as much as you can, by failing to prepare for your death and/or disability.

Designations must be updated periodically. The passage of time and the vagaries of life will ruin your plans unless you maintain them. Trusted individuals may die, become disabled, move away, or become so busy with their own responsibilities, that they are no longer good choices to serve as fiduciaries. For example, if I told you the Dallas Cowboys had the same backup quarterback that they had 20 years ago, you wouldn’t believe me. There is a shelf-life for quarterbacks and for executors, trustees, and agents under powers of attorney.

Distrust is also a reason to update your plan. It may be that the person you chose as a beneficiary or fiduciary has made some bad choices. Perhaps they are involved with people or habits that cause you concern as to their reliability. It doesn’t have to be sinister to be of concern. A beneficiary who has become disabled could forfeit some forms of assistance without careful planning. Perhaps new relationships and responsibilities have altered a fiduciary’s suitability to serve?

You don’t have to know all the answers for your estate plan, but you do need to prepare. Schedule a consultation with Bailey & Galyen’s Estate Planning attorney, Jay Bailey, who has been helping people for more than 30 years and is available to help you!

Imperfection – The Art of Drafting an Estate Plan

Businessman Signing An Official DocumentOften when I speak to a group about our practice, I claim that we draft imperfect estate plans. This may not sound like a good marketing plan, but it is the truth. We don’t set out to be imperfect or incomplete. It is not that our analysis or protocol is lacking. Our imperfect plans are not the result of a lack of experience or inadequate communication skills, but perfection eludes us. What we produce are excellent estate plans, but never perfect.

Drafting a perfect plan would likely require that we be omniscient, that we know everything. While we do occasionally have clients who are sure they know everything, we do not. Pride goes before a fall, and the vagaries of life and human imperfection always play a role. We do not know the future, but we do know how to best plan for various versions of it.

It has been said that no battle plan survives first contact with the enemy. An excellent plan may be flexible enough to survive first, second, and even third contact with death, disability, and disaster, but a plan that is never reviewed or updated will eventually succumb to time and human frailty.

So what’s the take away? Experience not only informs us, but takes the edge off our pride and our misplaced confidence that we control people and circumstances. When the client and attorney communicate with the knowledge and humility appropriate to the task, they produce a well-thought-out, flexible, and carefully-worded plan. When documents are periodically reviewed and revised, the plan retains its strength and defies the dual assaults of passing time and changing circumstances. If you want perfection, perhaps you should take up bowling. If you want an excellent estate plan, call Jay Bailey at Bailey & Galyen.

Disengagement – Part Two

couple going over estate planningAs we discussed in a previous article, several years ago, James Brill authored a piece entitled, “Discouraging Disengagement” for the Texas Bar Journal and shared some important reminders for all of us who plan for the future. Disaffection, disappearance and domestication are all threats to your current estate plan and the fulfillment of your wishes.

Disaffection occurs in most relationships over time. In a long-term relationship, affection can ebb and flow. Ups and downs don’t require any change in the estate plan, but if you no longer want to provide benefits to someone or trust that person to serve as a fiduciary or agent under a power of attorney, you better make a change.

Brill says disappearance is, “Disaffection on steroids.” If you lose touch with someone or they can’t be located, they need to be replaced. The frustration of trying to find people who have gone missing is immense. Even your most trusted fiduciaries may have to abandon the project of administering your estate if key players can’t be located.

We will include divorce in our brief discussion of domestication. Any change in marital status involves more than changing your status on social media. The law attempts to remedy some of the dangers involved in a change in marital status, but, in over thirty years of practice, I have seen the disastrous unintended consequences of an estate plan left in place following the marriage or divorce of the testator.

Contact Mr. Bailey for your initial planning or for a check up on what you have in place, and don’t disengage from this important aspect of planning for the future.

Disengagement – Part One

Senior woman meeting with estate planning agentSeveral years ago, James Brill wrote an excellent article for the Texas Bar Journal entitled, “Discouraging Disengagement.” It was billed as a helpful way to remind clients to maintain their estate plans. While we strive to build estate plans to last, various changes in the circumstances of clients’ lives means that amending the plans over the course of time will be necessary.

The first three reminders, all starting with the letter “D,” are death, disability and decline. You can’t change your plan after you die, but the death of a beneficiary, executor, trustee, guardian or agent under a power of attorney could greatly impact your plan. The longer you wait to address this loss, the more threatening it becomes to your plan.

Disability requires similar considerations to those presented by death. It may be that the disability of a loved one or trusted friend is even more devastating to your plan. If your sole beneficiary dies, your plan should provide for a secondary distribution. If your primary beneficiary becomes disabled, your plan may not work as intended. Often you name the primary beneficiary as your independent executor or as some other position of responsibility that they cannot fulfill because of their disability. You could also unintentionally disqualify them from other sources of assistance by leaving them some or all of your assets.

Decline in ourselves and in those we love and trust is so difficult. Objectivity as to our mental health is tough to come by, and most of us lack the training to measure cognitive decline in those we love. A regular visit to your family doctor and being honest with them about your concerns is important. Every few years you should have a checkup with your estate planning lawyer and try to avoid the dangers of disengagement.

Fresh Start!

New Year Fresh Start Coffee Mug Wills and Estate PlanningA new year is upon us and it reminds me of a fundamental need we all sense at one time or another; the need for a fresh start. I am not a huge fan of resolutions, but any prompt to move me into a better 2019 is a good prompt.

Start Spring cleaning early by donating or discarding stuff you don’t need as you tidy up after the holidays. This will free up more space for living life and may help you locate items or documents you need to secure. Read them to see if they are consistent with your wishes and circumstances in 2019. If you can’t find the originals of your Will, Powers of Attorney, Medical Directives, etc., neither will your loved ones in an emergency. Don’t settle for being “sure they’re around here somewhere” and don’t assume a copy is as good as an original.

Start talking with those you love and those you depend on about important things. Have the courage to discuss your mortality and your ideas about the future. Remind each other of your values, hopes, and dreams! Tell someone that you love them and appreciate them for who they are and who you see them becoming.

Start dispensing grace! For many of us it will begin with ourselves. We are our harshest critics and have the longest memories of our failings. Perhaps the New Year is an opportunity to let go of some stuff you carry around all the time. Perhaps your faith calls you to give grace to others, but you’ve found that forgiving yourself is much more difficult. You may view a relationship as so broken that it can’t be reconciled. Give a little grace and see what happens.

We have been blessed to help a record number of families and individuals in December. It would be an honor to help you with a fresh start in 2019!

Slow Down

estate planningHave you seen the signs in various neighborhoods that advise, “Drive like your kids live here?” These signs want you to slow down and be more attentive and careful. So much hardship and disappointment could be avoided if people followed that advice in every aspect of life. Every week attorneys meet with people who wish they had been more contemplative and consulted with advisors before choosing a course of action. Inaction is a choice people make assuming they don’t have to make a choice.

Slowing down allows you to avoid the emotions of the moment that can interfere with good decision making. Slowing down can frustrate the schemes of those who try to defraud you by pushing you to immediate action. Slowing down helps you gain perspective and avoid some dangerous blind spots that are not apparent in the heat of the moment. “Quick to listen, slow to speak, and slow to become angry,” has been good advice since it was written many centuries ago.

After 30 plus years of practice, I am convinced that slowing down is one of the best strategies a lawyer can employ. People listen better, ask better questions, and allow time for clarity when they take a deep breath. As the holiday season approaches with the inevitably frantic year-end activities, take some time to think before you act.

Procrastinators may take this message as an affirmation and suffer the consequences of their inactivity. On the other hand, if you seek wise counsel, Bailey & Galyen looks forward to helping you!

Winning the Lottery

Winning the LotteryThe possibility of winning “one billion dollars”, said in the voice of Dr. Evil from the Austin Powers movies, was heavily reported by the media last month, which brought up memories of some interesting clients and some unforgettable times. Over thirty plus years of practicing law, attorneys meet countless people who present interesting questions. While the details and identities must be held in confidence, representing lottery winners is rarely dull and entails more than most people ever think about.

Who owns the ticket? Does more than one person have a claim? Who has possession of the ticket? How should you secure the ticket? Should you write on the ticket? Who do you call, and who can you trust? How do you contact the Lottery, and how do you go about accepting payment? Should you disclose my identity or try to fly under the radar?

If you read this far for all those answers, sorry. The answer to these questions is similar to the answer to most legal and tax questions; it depends. The action plan is identical to any other legal question; hire a good lawyer. His or her experience as a trusted professional with a network of legal and accounting professionals will help you make the most of this opportunity. FYI; you already have assets and opportunities to make good decisions with the help of wise counsel. Bailey & Galyen would love to help you do just that.

No Maintenance?

Estate PlanningSome of us have watched the world go from high maintenance to at least lower maintenance in our lifetime. Automobiles that used to get 100 miles to the tire and seven miles to the gallon now allow us to put 50,000 miles on a tire and get 40 plus miles per gallon. If you’re lucky, you can put a couple hundred thousand miles on a car with routine maintenance, and sealed systems mean that greasing parts or adding water to a battery are foreign concepts to most people. Vinyl siding and brick have reduced the need to paint the exterior of houses, and better design and more durable materials extend the life of countless products, which results in minimal maintenance.

When an attorney puts together an estate plan, it is important to try to make it as low maintenance as possible. The plan should name alternate executors, trustees and agents so that the plan will survive the death, disability or unavailability of the first choice. It should also name alternate beneficiaries for similar reasons. Further, percentages are usually preferred over dollar amounts because estate values change over time along with the value of a dollar, and living trusts should not be used for people that aren’t interested in the original funding, titling or upkeep required for a good plan.

Low maintenance is what most people want and need. However, low maintenance should not be confused with “no maintenance.” Over time, and in the event of changes to the law, your key players or assets in your plan may need to be updated. A car with 300,000 miles on it does not have the original tires, battery or oil filter. Similarly, in order for your estate plan to continue to provide good service for you and your family, it needs periodic maintenance. Mr. Bailey has been providing low maintenance estate planning for 25 years. Whether you need your first plan or an update on your current plan, give Bailey & Galyen a call.

Five Times When A Will Isn’t What You Intended

Last Will and TestamentYou have a Last Will and Testament, or so you think. Here are 5 situations when your best intentions fall flat:

  1. When it is not the Last Will and Testament
  2. When it doesn’t distribute your assets
  3. When it is not executed with “testamentary formalities” in accordance with the law
  4. When it can’t be located
  5. When the statute of limitations runs

If you don’t have your estate planning documents properly drafted and executed, you can end up with fatal flaws in the documents. I recently assisted a family with their father’s estate and upon reviewing the will, I realized that he had copied an old will and skipped a paragraph. The paragraph he skipped was the one that distributed his assets. More common is the document that is improperly executed. The family thought that perhaps the notary public knew how to execute the documents and would catch any mistakes. This was a false assumption.

If a will can’t be located or a previous document is located and assumed to be the last one, we have failed to accomplish our task. A copy of a will is not a will, and a previous document rarely expresses the intentions of the deceased. The fifth item on our admittedly limited list is the statute of limitations. Four years after a person dies, his/her will dies. We encourage you, read that implore and beg, to schedule an appointment to discuss an estate within a few weeks after a death. There are strategies and advice that may differ from that offered by well-meaning friends, bank employees, bridge partners, people in other jurisdictions, people who have been on the internet, etc. Mr. Bailey has a well-earned reputation for giving wise counsel in challenging times. Give us a call.

That Was Easy

Estate PlanningDon’t you hate the unknown? The brutal reality is that you don’t know what you don’t know. You take on a project or try to fill out a form and start to second-guess yourself by the third step. The directions appear to have been written in an unknown language by someone unfamiliar with the task. It is easy to feel that way during a major life change. You get tons of unsolicited advice from well-intentioned people practicing a profession for which they have no training, and then you search the internet for more information to guide your decision-making. The result is that you are increasingly confused and often times overwhelmed.

In our estate planning, and especially in our probate practice, we work with people who find themselves frustrated by their circumstances and overwhelmed. As a matter of fact, the realization that they are out of their depth is often what prompts their call. We can ask questions and provide answers that clarify your options. We will not only respond to your inquiry, but we also won’t hurt you with speculation (unlike what your friends, relatives and co-workers may do).

One of the great rewards of this job is to hear a client say at the end of a consultation or hearing: “That was easy!” With appropriate planning and wise counsel, you can turn anxiety and frustration into confident action. We would love to help!

“But No One Told Me…”

Will, Estate PlanningWouldn’t it be nice if there was a guidebook, a pamphlet, or an online video for all of life’s challenges? You can find a YouTube video for almost anything, but, in some situations, there are so many different opinions that it’s hard to know who to trust. Discussions about marriage, parenting, medicine, and the law engender endless commentary that inevitably leads to confusion.

Every day, I speak to someone who expresses surprise that they were not adequately informed about some important aspect of the law. “BUT NO ONE TOLD ME” that deed records don’t change automatically when a person dies, or that a power of attorney dies with the person who gave it, or that there’s a statute of limitations on admitting a will to probate, or that the law can be vastly different in every state, or that a seemingly simple mistake on a document could cost so much time and money. Sometimes, not knowing the law turns a 400 meter sprint into a 400 meter hurdle. At other times, it disqualifies you from running the race at all.

Ask yourself two questions related to planning for your family and your stuff:

  • Are you asking the right questions?
  • Are you asking the right people?

You may not know the right questions to ask. That’s okay—If you seek advice from knowledgeable people who have your best interests in mind, you won’t have to know all the right questions–they’ll help you ask and answer them. We help lots of folks with their legal questions and we’d like to help you with yours.

Memorial Day

Estate PlanningMemorial Day means different things to different people. Some think of it as the beginning of summer, others as just a three day weekend. Some focus on the memory of those who died in military service and others expand it to First Responders and loved ones who have passed away. A day that started out with the decoration of soldiers’ graves after the Civil War has diminished or expanded over the years, depending on your perspective. Remembering is a powerful experience and important to the decisions we make in real time.

Almost every day I speak with someone who is trying to remember. They share what they remember with me or just as often, what they remember being told. Some struggle with their memory or try to cover up their loss of memory because they are embarrassed. Often siblings or cousins remember things differently when a key loved one has died. If the first casualty of war is the truth, the first casualty of death is communication among the survivors. Memorials can communicate powerfully, but just as often produce controversy as those in the future try to interpret their full meaning.

Would you like to be remembered well? Put what you want in writing with the help of a professional experienced in that practice. Prepare for disability and death with documents engineered for that purpose. Don’t leave a legacy of miscommunication and hurt feelings. Make your wishes known. While you’re at it, consider blessing a nonprofit, religious, charitable, or educational effort in your current giving and in your estate plan. Here’s to remembering rightly and being rightly remembered because we walk in gratitude and we prepare for the future.

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