Contributed by:  Renee A. Bouchard-Kaiser

Can a will be kept too safe?  Surprisingly, the answer is yes!  We were recently engaged by family members to probate and administer a person’s Will and Estate.  During the initial estate settlement meeting with family members, we explained that in order to probate the Will and have the Personal Representative named in the Will duly appointed by the Court, we were required to file the original Will with the Register of Wills.  Unfortunately, family members had only a copy of the Will. We advised family members to search through the person’s personal papers, safe deposit box, dressers, night stands, home safes, etc. 

After a couple of weeks of searching, family members called saying the Will could not be found.  We advised them once again to continue searching through the home and look through the refrigerator, freezer, other appliances and unlikely hiding places.  Unfortunately, their search continued to turn up nothing.  Understandably, this worried and caused them great distress. They were concerned that their loved one’s last wishes would not be fulfilled and assets would have to be distributed according to the State of Maryland’s intestacy laws.

Without the original Will, we had to prepare and file a Petition to Accept a Copy of the Will in Lieu of the Original (as well as file the requisite notices to interested parties) with the Orphans’ Court.  Once the paperwork was filed, the Orphans’ Court placed the matter on its docket and our firm was required to appear before the Court to argue the matter.  Fortunately, the Petition was granted, the copy of the Will admitted to Probate, the Personal Representative officially appointed to act for the Estate and Letters of Administration were issued to the Personal Representative to confirm her appointment.

We gave the Personal Representative the Letters of Administration and advised that she was now able to gather the assets of the deceased family member and begin to administer the Estate.  Furthermore, we instructed that she now had the authority to prepare the decedent’s house for sale, re-title the decedent’s vehicles and have the decedent’s house and personal property appraised.

A month or two later, while in the midst of moving furniture out of the decedent’s home, one of the movers dropped a small sofa and a secret compartment in the sofa fell onto the floor.  Low and behold the missing Will was found inside!   The personal representative called immediately to explain what happened and we obtained the Will so we could file it with the Estate’s file located at the Register of Wills.

This happens often.  Many years ago, after searching for days for a deceased client’s Will, her nephew (the executor) found it in a file called obsolete papers.  Apparently, she was concerned that her brother would find her Will and destroy it, but she figured out her brother would not bother to look in this file, but her nephew, a former lieutenant in the Army, was determined enough to look everywhere.   

What Should You Do?

In our estate planning practice, once the ink has dried on our clients’ Will, his or her signature has been witnessed and notarized, we instruct them to make certain the Will is kept safe and briefly explain what could happen.

That said, we are often asked, “How do you keep a Will safe?”  There are several ways to do this:

1. Place the Will in a safe deposit box and be sure to let a family member know where the key and your box are located (or, better yet, make a trusted family member as an authorized person on the safe deposit box).
   
2. File the original Will with the Register of Wills in your County (though some Counties will not do this anymore AND what happens if you move, will someone remember to go look at the Register of Wills where you had once lived?).
   
3. Let us retain the original Will in our fire proof Will safe (but note that some law firms will not do this) or
   
4. Keep the Will located in a safe place in your home such as a wall or fire proof safe and tell someone you trust where it is located.

The bottom line is that, in the event you pass away, someone needs to be able to find your original Will, locate your assets, and have access to your accounts, passwords, PIN numbers, emails and log-in names.  So, if you keep your original Will at home (which we do not recommend), do not keep the original in a secret compartment that no one would ever find, unless you tell your Personal Representative where it is.  We also advise against wrapping a Will in tin foil and keeping it in your refrigerator or freezer!

Finally, doing complete and comprehensive estate planning can also protect against the chance that your wishes will not be fulfilled.  In previous posts, we have discussed revocable living trusts and how to use them as your main estate planning document.  We will blog more about this in the future.

Great food, family get-togethers, holiday cheer…estate planning?!?  While it may seem like a less than ideal topic for a fireside chat, estate planning is critically important and the holidays can present a golden opportunity to get things in motion.

Here are few things to consider:

The More, The Merrier – With siblings scattered across the country and grandkids away at college, it’s rare that families members are the in the same place at the same time.  Odds are that holiday get-togethers are the only exception.  Take advantage of having more of your loved ones under one roof so you can have the conversations you need to have with individuals or a group.

Don’t Be Left Out in the Cold - A common misconception is that estate plans are only important for the ultra wealthy - the Gates, Buffets and Rockfellers of the world.  Nothing could be further from the truth. Yet, more than 60% of all Americans die without one, leaving their estates to be divided and taxed according to predetermined federal and state laws, perhaps in ways they didn’t intend.  If this is the case, then unfortunately, no one will care about the best interests of your family, your heirs and your legacy. 

Ties that Bond – We all love the timeless gift-giving traditions of the holiday season – but that new tie, while nice, certainly isn’t legacy-building.  What do you want to be remembered for?  What do you want to pass on to the next generation?  Estate planning can go well beyond simply who/what will get your assets.  Other considerations include values, taxes, medical care, charitable gifts, educational trusts, pets and more.

Say “No” to Online Shopping – Buying a sweater online is one thing, but drafting a will online is another.  Think of drafting a Will online like trying to tackle your own electrical or plumbing problems.  It’s risky business.  Why chance your family’s future to an online estate planning service instead of hiring an experience professional to assist you?  If you draft a Will by yourself, and it has a problem, by the time it is discovered, it could be too late.  The stakes are too high.

Making a List, Checking It Twice - Even if you already have an estate plan, it needs to be reviewed at least every four years.  That said, if any of the following events occur, you should have your estate plan reviewed immediately: 

• A change in marital status
• The birth of a child
• A change in your state of residence
• A significant change in the value or character of your assets
• A change in intended beneficiaries
• The death of a beneficiary
• The death of a guardian, trustee, or personal representative named in your will
• A change in tax laws affecting federal (and your local state) estate tax deductions and calculations
• A change in privacy laws or other laws that affect the access to medical and financial information

The bottom line:  An outdated or inadequate plan is often worse than no plan at all.

Take time this holiday to discuss estate planning with your loved ones.  You’ll be glad that you did.

It is always tragic when someone dies.  In the past couple of months, well known individuals and celebrities have unexpectedly died - Farrah Fawcett, Michael Jackson, Billy Mays and Steve McNair.  It has now become known that Steve McNair did not have a Will or any sort of estate plan.  Besides his current wife and two children, he had two children from a previous relationship.  It is now up to the laws of Tennessee to determine who receives his assets and how and when they are distributed.   Given the probable size of his estate, the IRS may actually be the biggest beneficiary as a result of his death, receiving upwards of 45% of his assets.
 
Most of us do not think we are going to die tomorrow.  This is especially true of athletes.  The lesson that should be learned by these unfortunate deaths is that the future is unknown.  And, while there is a media circus surrounding the death of Michael Jackson, in the end, it will be determined that he created a conservative, private estate plan that will allow for the future wellbeing of his children, mother and others and or charitable causes close to him.
 
The bottom line is no matter how young or healthy you are, no matter your wealth or family situation, estate planning allows you to control who receives  your assets, allows you to determine who makes decisions for you and your young children, allows you to determine how and when your assets are distributed and finally, may prevent the IRS from receiving the lion’s share of your estate.

A client came to me recently with a very unfortunate story.  Her Great Uncle, Bud, from NY, a single man with no children, had passed away a few months prior and, as is too often the case, he hadn’t properly updated his will before he died.  Like many, he procrastinated.  This unfortunate mistake resulted in everything being left to an ex-fiancée whom the man hadn’t seen in nearly a decade – his home, his investments, the entire estate – that which ultimately included, a 529 Plan which he’d set up for my client’s 6 year old son when the child was a baby.  You see, his Will was over 10 years old, had never been changed, even though he moved states, never married, and started to make gifts to his nieces, nephews and their children.  Moreover, not only did he leave everything to his ex-fiancée, he named her as his executor, and therefore totally in charge of all of his affairs and assets at his death.

You see, when Uncle Bud set up the 529 college education savings plan as a gift to his Great Grand-nephew, he named the great-grandnephew as the beneficiary.  However, what he didn’t do was to add one or both of the child’s parents’ names as the “participant” or “owner”.  You see, the “owner” or the “participant” actually controls the 529 account, even to the extent of changing who the beneficiary is.  Yes, the gift to the great-grandnephew could be changed and given to someone else.  So, when the uncle passed and my client called the provider of the 529 plan (Fidelity) to make sure it was protected, she was told that the 529 account was now considered a part of the deceased’s estate (now belonging to the ex-fiancée) and that because her name wasn’t listed as a owner or participant and because the 529 account was owned by a custodian (i.e., uniform gift or transfer to minor) or a trust, she would need the executor of the estate (also the ex-fiancée) to essentially “turn it over to her” in writing.

How could this be that a gift, so undeniably intended for the great-grandnephew, be taken away?  This is where 529s can be tricky in that they are gifts, but also not gifts.  The law allows for the owner of a 529 Plan to change or remove a beneficiary at any time.  As the executor of my great uncle’s estate, rather than do the honorable thing, the ex fiancée opted instead to remove the child’s name from the 529 plan and transfer it to someone else and/or cash it out. 

My client might have gone to court to contest the ex-fiancée’s decision, but, in this case, the cost of doing so would have surpassed the value of the 529 account itself.  It’s really a shame, but this story underscores the importance of having your financial and estate planning documents thoroughly reviewed and cross-referenced.  Also, the beneficiaries and owners of your accounts must also be reviewed to make sure they are coordinated with your estate planning documents and your goals and objectives.