2019 cofpa elj poorly drafted estate planning documents.ppt€¦ · microsoft powerpoint - 2019...

2019

AMBLER | KEENAN | MITCHELL | JOHNSON

• B.S. in Broadcasting Management, Northern Arizona University

• Juris Doctorate, University of Denver

• Member, Colorado Women’s Estate Planning Council

• Member, American Academy of Estate Planning Attorneys

• Member, Trusts and Estates Section, Colorado Bar

Association

• Member, Colorado Women’s Bar Association


2019


� Wills and Trusts◦ Statement of Family◦ Disinheriting Heirs◦ Actual Documents◦ Other issues

� Problems During Incapacity◦ Document Access◦ Powers of Attorney◦ Plan not Complete

� Problems After Death◦ Storage/Access◦ Making plan Obsolete◦ Last Remains


2019

� Name changes - spouse’s legal name

� Kid’s names listed incorrectly- Middle initials

- Wrong spelling

- Wrong birthdate

� Disinheriting certain heirs

- Who are they?

- Include his/her descendants?

- Leaving $1.00?


�Reasonable Cause?

�Undue Influence/Lack of Capacity


2019

�Only one listed?

�What if all are unable or unwilling to act

�PR statutory priority is provided

�No Successor Trustee – need a process in the document to name successor


1. I give my residuary estate to my ‘beneficiariesbeneficiariesbeneficiariesbeneficiaries’ if they survive me

2. Upon the death of the grantor, the property listed on Schedule A shall be distributed to the beneficiaries named in this section.

� John Smith, Jamie Johnson and Carol Jones, shall be given, see schedule A.


2019

Schedule A is blank

Or Schedule A lists only a few assets he/she owned

Even if Schedule A is completed, how is it split?


I have 4 living children

My deceased husband ‘had’ 2 living children

“Any reference in my Will to my children are to the above listed children”


2019

I give, devise and bequeath my property one-half to my children and one-half to the children of my deceased spouse.


� No statement of successor to receive gift if original recipient is deceased

� Colorado Anti-Lapse Clause

- If a recipient does not survive, to his/her descendants

� UCD if no descendants – if no UCD, intestacy

� Is this what the client wanted?


2019

Revocable Living Trust

“The trust shall terminate upon the survivor’s death, and the trustee shall thereupon distribute the trust estate to the personal representative of the surviving Grantor’s estate”


Revocable Living Trust 2008

Trust amended 2010 – kind of

Nothing funded to the trust, so should have pour-over will as safety net

BUT….Non-Pour-over Will governs, trust is useless


2019

November 2013 – typed up new will

�Revokes all previous wills

See the beauty that was created



2019

� Allow X and Y to reside in the house as long as they are able to keep up on the expenses of the house

� If any of the expenses are not paid for within 3 consecutive months the house is to be sold

� The house can be sold if X and Y and Z all agree

� If the house is sold, A and B each get $2,000

� “At time the house is sold then the proceeds are to be split into three ways’

� Pay the expenses and then the proceeds ‘can’ be split three ways between X, Y and Z.

� Can? What percentages? Equally?

� My broken ‘seicko’ watch to X and Y to do with as they decide

� Central Crude Oil funds should be split per beneficiary documents

wit


�Must be referenced in a valid Will or Trust

�Tangible?

�$10,000 to my niece

�My car to Bob Jane


2019

� I give all of my articles of tangible personal property to my siblings equally (or 1/3 each)

� If they do not survive me, I give such property in accordance with a memorandum signed by me or in my handwriting

� In the event that either of the above named beneficiaries is not then living, distribute to the surviving beneficiary



2019

� Trustee?

� Terms of the trust – how is income and principal paid?

� Irrevocable – get tax ID number

� Can house be sold?

� Trustee powers?

� What happens when she dies?

� Most likely a judge has to decide things –expensive


� $20,000 to Val

� $20,000 to Karla

� $5,000 to my church

� $5,000 to my niece

� Remainder to Cat Care Society

� Nothing governed by the Will due to the manner in which all assets owned –beneficiary designations, POD, TOD, joint ownership


2019

� Joint A/B Trust

� Supposed to leave all to spouse, in trust

� Written so it leaves all to son

� Spouse gets nothing

� Son now has to gift to mom?

� Keep?

� All or some?


� Colorado real estate titled incorrectly

� Do NOT want ownership to vest in Trustees – not Erica Johnson as Trustee of the Erica Johnson Trust

� Colorado – vest in Erica Johnson trust dated November 5, 2004

� Probate if done wrong


2019

� Two Grantees in Colorado real estate

� Silent as to joint tenants, JTWROS or in Joint Tenancy

� Default in Colorado is tenancy in common for two + grantees

� One dies, no right of survivorship to other

� Probate required


�Probate will distribute pursuant to decedent’s Will if there is one

�Who does the Will distribute his/her half of the house to?


2019

� Access to the documents

� Medical emergency?Medical emergency?Medical emergency?Medical emergency?

-locked in the safe, no idea of the combination

-out of town and no access

� DocubankDocubankDocubankDocubank

� Flashdrive doesn’t do it, healthcare providers need to be told where it is- card

� Names and contact info. for all agents updated annually


� Access to the documents

� Financial POA?Financial POA?Financial POA?Financial POA?

-locked in the safe, no idea of the combination

-safety deposit box issues

� Location ListsLocation ListsLocation ListsLocation Lists

� Flashdrive doesn’t do it, copies usually not honored – can require original

� Passwords, etc.


2019

� Springing Power of Attorney with no definition of incapacity

� Or a team of people to decide incapacity

� No HIPAA Release with a springing Power of Attorney

� No originals – and they can require it be an original

-Conservatorship could be required


�Spouse only agent with no successor�Agent and successor are married and both unable to act – no back-up

�Not durable �Four kids as co-agents who must all act together


2019

Colorado Statutory Power of Attorney completed incorrectly – no powers granted

2010 - Agent who is not a parent, ancestor or descendant is limited under Colorado law in what they can do, no self dealing


�No back-ups and all agents not able to act

�Doesn’t specify right to visit in hospital for non-family member

�Doesn’t Nominate Guardian


2019

�Multiple agents who must agree? - what if they don’t

�Guardianship - Court


�No witnesses�Witnesses - Not doctor, employee of facility or person who has a claim against the estate


2019

� Immediate access to wishes?

� Last Remains Declaration –Docubank will store

� No family feuds –legally binding

� Organ Donor wishes

- Driver’s license

- Our Medical POA


� Document appoints all kids to decide what is done – three kids don’t agree

� Funeral homes and last remains declarations

� Pre-planning and pre-paying is the safest

� Spread my ashes over a live Bronco’s game


2019

� Immediate Access to Advance Directives – Living Will, HIPAA Release, Medical Durable Power of Attorney, Last Remains Declaration

� Emergency Access Card� Documents Viewable Via Fax or Internet

� Stickers for License


� Other Medical Information on the Card: Allergies, Medical Conditions, etc.

� Critical Emergency Contacts

� Updated Annually Via Letter from Docubank


2019

�For College Students�Parent Contact Information�Medical Conditions�HIPAA Release �Other Directives�Notification to Parent by DocuBank If Records are Accessed



2019

… and we look forward

to seeing you soon

“Helping People

Preserve Their Wealth”

