What exactly does an Executor do? (Checklist)

What exactly does an Executor do? (Checklist)

If named the executor in a Will, you’ll be the final administrator of a deceased person’s estate and have many details to manage. Below is an estate executor checklist that can help you navigate the process while making sure none of your duties slip through the cracks:

Obtain copies of the death certificate. You’ll need them for a number of tasks:

  • Filing life insurance claims
  • Filing tax returns
  • Accessing financial accounts
  • Notifying organizations like the Social Security Administration

Ensure that the funeral arrangements are carried out according to the deceased wishes.

File a copy of the Will in probate court. Here’s how to go about it:

  • Ask the court to confirm you as a personal representative. Probate court clerks will commonly answer basic questions about court procedures but won’t provide legal advice particular to your case.
  • In some courts, staff lawyers will look over probate documents, pointing out errors in your papers and advising you on how to fix them.
  • Send notice of the probate proceeding to the beneficiaries named in the will and to close relatives as a surviving spouse and children who would have been entitled to property had there been no valid will.

Locate and secure all assets and manage them during the probate process. This commonly takes about a year and could involve deciding whether to sell property or securities owned by the deceased, depending on the contents of the will as well as the financial condition of the estate.

Close out day-to-day finances:

  • Terminate leases and other outstanding contracts
  • Notify any government agencies, like the post office, the Social Security Administration, and the Department of Veterans Affairs, of the death
  • Notify the bank and credit card company

Establish an estate bank account to hold any money owed, such as paychecks and stock dividends.

Pay any debts that are legally required to pay.

  • Notify creditors of the probate proceeding
  • Creditors then have a certain amount of time to file a claim for payment of any bills or other obligations you haven’t voluntarily paid
  • As executor, it’s your job to decide whether a claim is valid

Supervise the distribution of property to those named in the Will. This includes any cash, personal belongings, and real estate.

An executor will then ask the probate court to formally close the estate when debts and taxes have been paid and all property distributed to beneficiaries. It is advised that you have support from an estate attorney, accountant, investment adviser, insurance agent, and others to file the necessary paperwork.

Some items to note:

  • Continue to pay mortgage payments, utility bills, homeowners insurance premiums, and income taxes for the year the person died.
  • You may even need to file an income tax return for the full year.

While possibly a bit overwhelming at times, you’ll find that being an executor is a labor of love and is about honoring the deceased and serving the heirs.

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Will Contest: Undue Influence and What You Need to Know

Will Contest: Undue Influence and What You Need to Know

I’ve seen it time and time again, someone dies and divides up their assets among family and beneficiaries in a way they believe is fair, only to ultimately have one of the beneficiaries contest their inheritance. Some of these reasons include fraud, suspected forgery, lack of capacity, or even undue influence.

What is Undue Influence?

Undue influence is defined as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.”

More simply put, it’s when someone uses manipulative actions or tactics to convince the victim to change financial documents in their favor. Unfortunately, the mentally disabled and elderly are at risk for this type of manipulation.

Oftentimes, this occurs when a family member, caregiver, or close friend unduly influences an elderly person during a time of mental or physical distress to change their estate plans. This is usually not discovered until after their passing and beneficiaries are surprised to find they have inherited less than anticipated or written out of the will completely.

Who can Claim Undue Influence?

Only an “interested party” may bring a claim of undue influence. An interested party is someone who suffers some kind of financial damage from this exertion of undue influence.

For example, there could be a case where a child influences their elderly mother to leave a piece of property to them. Whereas previously it would have been split between all of her children. In this example, only the children left out of this specific inheritance would be considered “interested parties.”

While other family members may be aware of the undue influence and be angered by it, only the damaged parties may file a claim.

How to prove undue influence

The burden of proof in an undue influence case lies with the challenger. It is their responsibility to prove that the will or trust is invalid by supplying proper evidence.

There may not be one single piece of evidence that proves manipulation or influence, but several small pieces that align together.

This evidence may include

  • Witness or expert testimonies from family members, caregivers, or healthcare providers.
  • Physical evidence such as documents, written or recorded conversations, and previous statements of intent.
Representation for Undue Influence

While knowing the signs of undue influence is the first step to identifying if you have a case, it’s important that you seek the help of a qualified attorney as soon as possible. There is a statute of limitations for when claims can be made and gathering proper evidence before it’s lost or destroyed is essential.

I have years of experience in defending and representing claimants in will contest undue influence cases. Schedule a consultation today to begin discussing your case.

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What happens to your digital assets after you die?

What happens to your digital assets after you die?

In this time of technology, privacy is more important than ever before, and protecting important digital documents and assets is imperative.

Digital assets include:

  • All digital communications (emails, social media, LinkedIn, etc)
  • Online Rewards Programs (Capital One shopping, Rakuten, Airlines, etc)
  • Financial Accounts (banks, investment advisors, lenders, insurance, etc)
  • Digital Assets (cloud-based documents, passwords, music files, photographs and videos, etc.)
  • Business Accounts (your personal info stored in external client databases)
  • Digital Copyrights or Trademarks (intellectual ownership of content that you created)
  • Cryptocurrencies

To make things more confusing, the rights to access these assets are scattered in a seemingly endless web of user agreements and federal and state laws that protect both a fiduciary’s right to access and the decedent’s privacy.

If you’ve ever created a digital asset, you’re probably familiar with a lengthy legal document called the “terms of service”. There’s usually a checkbox to acknowledge that you have read and understood it. Let’s be honest, most people scroll to the bottom of these agreements without as much as a glance at the text.

However, usually somewhere within that text, there is a clause that prohibits third-party access to digital assets after we die or are incapacitated. This could create a problem when your heirs try to account for all your belongings.

These laws were drafted to protect privacy and to combat hacking. Even if your trustee has your username and password, they may not have the legal authority to access your account.

Here are some steps you can take to dispose of your digital assets.

  1. Create an inventory of your digital assets including what accounts you currently hold and how you want them to be managed. It’s important to be as specific as possible when outlining how you want your digital assets to be handled. Remember to provide legal protection for your loved ones, since state and federal laws make accessing private data without permission a crime.
  2. Decide what you want your estate’s executor or loved ones to do with your digital assets after you pass away, like what will happen to any credit card rewards you’ve accumulated or whether an online business you own will continue to operate.
  3. State law may specify what can or can’t be included in your digital estate plan, the format your digital estate plan must take and how a digital estate plan must be witnessed or recorded, so it’s important to determine the law pertaining to your digital assets in your particular state. This is where your estate planning lawyer can help.
  4. Find out what planning options, including instructions within a will, trust or power of attorney that allow a trustee to access or destroy certain digital assets. Be sure to name a digital executor, and spell out what they may or may not manage as part of your online estate plan.

This is a complex topic and the information above is merely scratching the surface, which is why it’s crucial to consult an estate planning attorney about your particular situation.

Attorney Charles Bendig has over 40 years of experience and can guide you in the right direction to ensure your digital assets are fully protected. Get a free video consult today.

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What You Don’t Know About Estate Planning

What You Don’t Know About Estate Planning

Estate planning is the process of arranging for the management and disposal of your estate in the event you become incapacitated and after your death.

Simply put, estate planning is about defining your legacy during your lifetime and leaving an impact on the people and organizations you support after you’re gone.

Myth #1: Estate planning is only for the rich.
If you have anyone that relies on you for care, if you have pets, money (no matter how small), investments, life insurance, house, furniture, a car, or anything of financial or sentimental value, have a plan.

If you are single, married, have blended families, or have a partner that you would like to gift after you’re gone, if you have children, grandchildren that you look after, a solid estate plan can make sure that the distribution of your things goes smoothly and there is less stress while they are grieving your loss.

Myth #2: Estate planning is only about distributing your assets after you are gone.
Your legacy includes so much more than deciding who will inherit your fancy china.
 – Authorize someone to make critical financial and healthcare decisions if you are unable.
 – Specify a church or charity that you want to receive your gifts.
 – Specify a guardian(s) for your children, dependents, and pets.

Myth #3: A Will oversees the distribution of your assets.
Some assets, such as life insurance policies, 401K, and IRAs, may be exempted because a Will does not override all your beneficiary designations (e.g., items left to an ex-spouse may still go to them no matter what your Will says).

Use a Healthcare Directive to designate someone(s) to make legal or financial decisions on your behalf. A Trust can accomplish a lot of things more efficiently than a Will can, even for those with modest estates, so don’t rule it out.

Myth #4: You only need to make an estate plan once.
Your preferences and goals change over time. Laws and tax rates change. Think about it, if you made an estate plan 10 years ago, chances are your decisions would look a little different than if you made one today. Maybe you’ve gotten remarried. Maybe your minor children aren’t so minor anymore. Maybe you have stepchildren now that mean the world to you. Whatever the circumstance, it’s important to revisit your estate plan often.

Myth #5: Taxes eat up the largest part of any estate.
Although it’s true that estate taxes are real and the rates are high, only people with estates worth millions of dollars are affected by federal estate taxes. Although there may be future changes, the general trend has been the federal estate tax affects only the very wealthy. Your estate planning attorney will keep abreast of any state laws that may change and impose a separate estate or inheritance tax.

Myth #6: I’m too young to need a Will.
This is one of the biggest myths of all, and honestly one of the most upsetting. Right now, you should specify how your possessions will be distributed after you are gone. If your situation changes later, you’ll already have a template in place which makes it so much easier to make changes to any beneficiaries. It is inexpensive and a thoughtful gift for those that you leave behind.

As an estate planning attorney with 40+ years of experience, I can help you create an estate plan that’s right for you. Give me a call.

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How to Choose Your Power of Attorney

How to Choose Your Power of Attorney

One of the most important healthcare decisions you will make is choosing your healthcare power of attorney. Your healthcare power of attorney is someone you choose to make health and medical decisions for you in the event you become incapacitated and are unable to make them for yourself.

Having this legal designation brings peace of mind. However, the decision of who to designate as your healthcare power of attorney is not so simple. We provide detail in this article to help guide your decision.

Healthcare Power of Attorney vs. Legal Power of Attorney

Let’s say that you enter a hospital and learn that you need immediate surgery, and surgery always has risks. Under many U.S. jurisdictions, you may designate a “Healthcare Power of Attorney (POA)” to make medical decisions on your behalf when you are unable to do so. Unlike an attorney-drafted “Legal Power of Attorney”, your delegate’s legal authority is limited to medical decision-making (not finances, administration of the will, etc.). Assigning a Healthcare POA may be done in a hospital setting and just needs two witnesses to complete it. You do not need a lawyer.

However, a Legal Power of Attorney is a more formal document that will have medical as well as legal and financial complexity. This requires a lawyer.

Who Should I Pick as my Power of Attorney?

Most people immediately jump to selecting their spouse, a relative, or a close friend to be their power of attorney, but you can choose anyone you want. Remember, selecting a legal power of attorney is not about choosing the person closest to you, but rather the one who can represent your wishes the best, with a clear mind, when it really matters. You should trust this person completely and feel comfortable discussing your long-term wishes with them.

Your power of attorney has to be willing to follow through even if they disagree. If you feel pressured to change your opinions, then that is a sign that this person would not make a good representative for you. The last thing you need is to deal with family peer pressure or to worry that your wishes may not be carried out. Remember, legal power of attorney can be revoked at any time by serving written notice on the POA.

Characteristics to Look For in a Legal Power of Attorney

Your legal power of attorney will be handling your legal affairs. So, you’ll want to choose someone who either has some experience in that area or has the needed skills to handle those types of decisions. Look for the following characteristics before making your selection.

1.Choose someone who will respond to a call.
Consider where your potential healthcare power of attorney currently lives. Are they in a home they intend to be in the long term or do they move around a lot? For Healthcare POAs, how close are they to you or your preferred hospital? This is important because a power of attorney might need to get to the hospital quickly in an emergency. Therefore, choosing someone who lives out of state may not be the best choice. With modern cell phones, a better question might be ‘Do they pick up and respond to calls from an unknown number?’

2. They should be trustworthy.
It is important to consider the person’s character and values. Ask yourself if this person can be trusted with such a big responsibility. Will they follow your wishes? After all, you’re trusting this person to speak on your behalf and to make decisions that will impact your life.

3. Can they be assertive?
Being a power of attorney is not an easy task, especially when under stress and emotions are running high. Think about their communication style. Are they assertive or passive? Are they able to stand up to other people and hold their ground when needed? You’ll want someone who will not back down when it comes to supporting your wishes, no matter how much pressure they may get from family or friends. This person should be able to communicate clearly without wavering or second-guessing.

4. They should understand the medical process
Your healthcare power of attorney is charged with making healthcare decisions on your behalf. So you’ll want someone who has some form of understanding of how medical processes work. This doesn’t mean that you have to select a doctor or a nurse in the family, just that you’ll need someone who knows how to ask the right questions, especially about medical tests, prognosis, and the overall value of medical intervention. Ideally, you want someone who is willing to research your condition and learn as much as they can about it.

5. They should be articulate
Is your potential power of attorney naturally a calm person who is able to communicate clearly and effectively, even under pressure, or does this person become easily flustered when things get heated or emotional? Would they be able to communicate your wishes clearly and effectively, not only to your family members but to your medical team as well? Pick someone who has strong communication skills. Does it take them a while to get to the point? If this is the case, you may want to reconsider selecting them. In challenging medical situations, your power of attorney needs to be a decisive and strong communicator.

6. Above all else, choose someone that WANTS this role.
Being a power of attorney can be stressful and demanding, and not everyone is cut out to perform the tasks required. When choosing, talk to the person you are considering. Be sure they feel they could serve in this capacity and encourage them to be honest. The last thing you want is for someone to say yes when in reality the role would end up being too overwhelming.

This is your decision and only your decision. When you’re ready to assign a power of attorney or to begin your estate planning process, give us a call and we’ll start the process for you.

Call Chuck Bendig (614) 878-7777

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