Videotaping your will signing may not produce the desired outcome

Some people make video recordings of their will signings in an effort to create evidence that they possess the requisite testamentary capacity. For some, this strategy may help stave off a will contest. But in most cases, the risk that the recording will provide ammunition to someone who wishes to challenge the will outweighs the potential benefits.

Assessing the downsides

Unless the person signing the will delivers a flawless, natural performance, a challenger will pounce on the slightest hesitation, apparent discomfort or momentary confusion as “proof” that the person lacked testamentary capacity. Even the sharpest among us occasionally forgets facts or mixes up our children’s or grandchildren’s names. And discomfort or nervousness with the recording process can easily be mistaken for confusion or duress.

You’re probably thinking, “Why can’t we just re-record portions of the video that don’t look good?” The problem with this approach is that a challenger’s attorney will likely ask how much editing was done and how many “takes” were used in the video and cite that as further evidence of lack of testamentary capacity.

Video recording of the signing should be carefully considered with your estate planning attorney so that all possible downsides can be assessed and thoroughly discussed.

Implementing alternative strategies

For most people, other strategies for avoiding a will contest are preferable to recording the will signing. These include having a medical practitioner examine you and attest to your capacity immediately before the signing. It can also involve choosing reliable witnesses (including the drafting attorney and his or her staff), including a “no contest clause” in your will, and using a funded revocable trust, which avoids probate and, therefore, is more difficult and expensive to challenge.  In Georgia, there are other techniques that can be used based upon estate planning doctrines that can make a challenge significantly more difficult using the so-called “doctrine of dependent relative revocation,” which should be considered when there exists a significant risk of challenge to the estate plan due to family dynamics.

If you’d like more information on estate planning strategies, please contact us.

© 2017

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Prepaid funeral plans may not provide peace of mind

The cost of a funeral has increased steadily during the past two decades. In fact, once all funeral-related costs are factored in, the typical traditional funeral service will cost an average family $8,000 to $10,000.

To relieve their families of the burden of planning a funeral, many people plan their own and pay for them in advance. Unfortunately, prepaid funeral plans are fraught with potential traps.

Avoiding the pitfalls of prepaid plans

Some plans end up costing more than the benefits they pay out. And there may be a risk that you’ll lose your investment if the funeral provider goes out of business or you want to change your plans. Some states offer protection — such as requiring a funeral home or cemetery to place funds in a trust or to purchase a life insurance policy to fund funeral costs — but many do not.

If you’re considering a prepaid plan, find out exactly what you’re paying for. Does the plan cover merchandise only (casket, vault, etc.) or are services included? Is the price locked in or is there a possibility that your family will have to pay additional amounts?

In addition, the Federal Trade Commission recommends that you ask the following questions:

  • What happens to the money you’ve prepaid?
  • What happens to the interest income on prepayments placed in a trust account?
  • Are you protected if the funeral provider goes out of business?
  • Can you cancel the contract and get a full refund if you change your mind?
  • What happens if you move or die while away from home? Can the plan be transferred? Is there an additional cost?

Another option

One alternative that avoids the pitfalls of prepaid plans is to let your family know your desired arrangements and set aside funds in a payable-on-death/transfer-on-death (POD/TOD) bank account. Simply name the person who will handle your funeral arrangements as beneficiary. When you die, he or she will gain immediate access to the funds without the need for probate.

If you have questions on the best way to fund your funeral expenses, we’d be happy to be of assistance.

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What happens to your facebook page if you die? Who has access to your LinkedIn account? How is online bill-pay affected, and how can your loved ones get into your email account (or would you want them to)?  Did you know that your airline miles can be transferred at death?

Colleague Eric Burkard, an insurance advisor Certified in Long Term Care, sent me this article yesterday: Protect Digital Assets After Your Death. Eric noted that most planners probably don’t touch these issues.  Not surprisingly, and as the article points out,  the law still lags behind such modern questions.

So what can you do?

First, you can consider making an inventory of your accounts, usernames, passwords and secret questions.  Digital inventories with a master username/password may be best, as they can be easily updated when log-in information changes. Of course, you must also be careful that the master list is secure, and that your loved ones will have access.

Bank accounts are generally frozen when the bank becomes aware of the owner’s death.  As this will affect automatic online bill-pay settings,  it is crucial that loved ones have access to utility, cell phone, and other regular ‘creditor accounts’, especially if you do not receive paper bills.

If you are concerned about social media access, you can research your social media account user agreements which may include after-death policies. For example, facebook pages can be memorialized. Strong feelings about the matter? Let your loved ones know.

The bottom line?  Estate planning is not just about signing legal documents.  It is about planning for the future to lessen the practical burdens your loved ones might someday face.

CAVEAT:  This web site and the information contained herein have been prepared for educational purposes only.  The information on this blog does not constitute legal advice, which would be dependent upon the specific circumstances of a particular case.  In addition, because the law can vary from state to state some information on this site may not be applicable to you.

Image © maxkabakov – Fotolia.com

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brain tag cloud pictogram

A large part of my elder law practice consists of advising family caregivers dealing with dementia.

When I saw that a free program was being offered today at the Dorothy Benson Senior Center in Sandy Springs, I signed up right away.  The more resources and information regarding dementia that I have in my toolbox, the more I can help my clients and their families.

Dementia expert Teepa Snow presented the program, and it was excellent.  In preparation for my next post, which involves planning for dementia and long-term care, I wanted to share some of the tidbits I learned from Teepa today:

On dementia in general:

The term “dementia” does not mean the same thing as “Alzheimer’s” and neither “dementia” nor “Alzheimer’s” mean the same thing as memory loss.

There are 85 – 90 types of dementia. Every type has these things in common:
1.     At least two parts of the brain are actively dying.
2.    Each dementia will destroy at least 2/3 of the brain.
3.    All types of dementia are progressive (i.e. they all get worse over time);  however, each is progressive in its own unique way.
4.   Nothing can slow, stop or turn around dementia.
5.   All forms of dementia are terminal.

Because dementia affects several parts of the brain, it causes more than memory problems. Dementia affects thought, language, behavior, personality, and feeling/affect, among other things.

“Dementia” itself is not a diagnosis. Instead, it describes a collection of symptoms. It is vital that patients receive a good evaluation from a qualified physician, so that the patient and caregivers know what kind of dementia they are dealing with.

Medical issues are often misdiagnosed as dementia because of the resulting cognitive issues. Medical problems causing cognitive impairment can include depression, thyroid imbalance, lack of Vitamin B12, long-term alcoholism, diabetes, hypertension, and infection, just to name a few.

A dementia “diagnosis” is very scary to patients.  There is a huge stigma surrounding dementia.

On dealing with dementia and patient resistance:

Patients often act illogically, and caregivers may respond with resistance.  This response is entirely natural, but counterproductive.

Resistance in the caregiver is often met with resistance in the patient, and caregivers’ efforts to explain or correct illogical or resistant behaviors are not helpful.  Instead, caregivers should try to discover the underlying cause (that is, the unmet need) of the behavior (which is often not what it initially seems).

Key: do not correct. Let it go.  Join the journey. If Mother said she saw Aunt Eunice last night, don’t correct her, even though Aunt Eunice has been dead for thirty years.  Tell her you think it’s nice Aunt Eunice visited, and ask her whether Aunt Eunice still has that terrible perm.

Be aware that sudden changes in behavior often have underlying medical causes, including lack of sleep, lack of nutrition, dehydration, lack of sunlight… Remember, investigate and try to find the underlying cause.

Most important: I asked Teepa to name some resources for family caregivers, and she provided the following:

1.   Alzheimer’s Foundation of America

2.   Alzheimer’s Association

3.   More resources listed on Teepa’s website, including free videos

Image © Lifeinapixel – Fotolia.com

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