Durable Power of Attorney Documents: Why They Are IMPORTANT

PaperworkPaperworkWhat Should I keep? Sorting through the paperwork of a deceased loved one is a daunting task. It is important to know what to keep and what to discard. Here are some helpful tips.  Deeds, Titles and Vehicle RegistrationsDeeds and titles to property may not be obvious on the face of the document so it is important to read everything carefully. Keep anything that has a legal description (Lots and Blocks or Metes and Bounds), a vehicle identification number (VIN), contains the word title, deed of trust or warranty deed.  ReceiptsSome property does not have a title such as a tractor, farm equipment or certain recreational equipment. In such cases, keep the purchase receipts for this type of property. It will be useful if there is a question about ownership, the value of the property or the date it was purchased.  Bank RecordsSave all bank records and statements. These will be valuable if a dispute arises about ownership of an account, payments or distributions made from the account and to whom. Shred unused checks.  Retirement AccountsSave all statements and records pertaining to the decedents individual retirement accounts (IRAs), 401(k) plans or pension plans.  Life Insurance PoliciesSave all life insurance policies.  Social Security Paperwork and Earning StatementsSave information about the decedents Social Security account or earning statements.  Cancel the Decedents Credit Card Accounts Nowadays, identity theft is a huge issue. Contact Experian, Equifax and TransUnion to report the death of your loved one. Request the credit report be flagged as Deceased. Being proactive prevents a lot of hassle later on.  Cancel all credit cards in the deceased persons name. Also, there may be questions about the credit card purchase of certain items or property. Save credit card statements until probate of the decedents estate is complete.  Documents that contain the decedents Social Security NumberIf you find any documents with the decedents Social Security Number and you make a determination that the documents are not going to be saved, make sure it all gets shredded.  Tax RecordsKeep the decedents tax records. There may be a question about real property valuation, exemption or other issues that can be resolved by information in a tax return.   Loan PaperworkKeep all loan paperwork including loans on property or a loan the decedent made to a relative, friend, individual or organization. This may show that there is outstanding debt or money owed to the decedents estate.  Business AgreementsSometimes people have business agreements that have been documented in writing. Such agreements may contain a succession plan, what should happen with business equipment or property, or what should happen upon the death of a business partner.  Military RecordsSave all military records just in case there are benefits owed to a survivor such as a spouse, dependent child or disabled child. Some benefits are dependent upon verification of military service during war time which occurred prior to the advent of computer records. This includes photographs taken during wartime.  Birth and Marriage CertificatesSave all birth and marriage certificates. Again, for certain benefits for survivors, such certificates may be needed.  Timeframe for Keeping PaperworkIt is advisable to keep these potentially important documents until the estate of the decedent is settled, at a minimum. Otherwise keep them at least seven years and longer if possible, especially if real estate is involved.  Contact Your AttorneyYour attorney will ask you pertinent questions and give you advice about what records to keep.  You should also review your own estate plan documents to make sure they are up to date and reflect your current wishes.  This article was written by Donna A. Schuyler, Attorney, who practices in the areas of estate planning, elder law, guardianship, and probate. Donna Schuyler Law, PLLC; elderlawboise.com. Phone 208-344-1947

A  Will or Trust: Which is Best for You?When it comes to deciding whether a will or trust is best for you, it is important to understand your options and which one is most appropriate for your situation.WillA testamentary will (simply referred to as a will) is a legal document used to transfer an estate to beneficiaries after the death of the testator (a male person making the will) or testatrix (a female person making the will). Within the will, the testator or testatrix usually names a personal representative (same as an executor) for the estate. For a will to be valid in Idaho, it must meet specific requirements under Idaho law. Revocable Living TrustsA person, during his or her lifetime, may create a revocable living trust whereby the grantor (the person making the trust), trustee (the person who has legal authority to manage the trust assets) and beneficiary (the person who makes use of the trust assets) are all the same person.  After the grantor dies, depending on the trust instructions, the trust assets may be distributed outright or held within the trust and distributed over time or upon the happening of a designated event. Revocable living trusts may be appropriate for persons who own real property in more than one state or have a blended family where spouses have children from prior relationships.Testamentary Trusts A testamentary trust is a trust within a will. A testamentary trust is created upon the death of a person as specified in his or her will. The testamentary trust holds assets within the trust instead of outright distribution to a beneficiary. A common scenario is when parents create a testamentary trust to hold assets for the support of minor children or for college education for children until they reach a specified age. A testamentary trust can also hold assets for the special needs of a disabled child who receives government benefits. Does Having a Revocable Living Trust Eliminate Probate?To avoid the probate process, all assets must be transferred into the name of the revocable living trust. A common misconception is that a list of assets attached to the trust document accomplishes a transfer to the trust. However, the correct way to transfer assets requires an actual change to the title of assets including a home, certificate of deposits, bank accounts and brokerage accounts. Upon death, any assets titled in the name of an individual, not the trust, will be subject to the probate process. For this reason, when a person creates a revocable living trust, it is best to also create a will, called a pour-over-will, as a safety net to assure that upon death any assets titled in the name of an individual are transferred to the trust and distributed accordingly. In Idaho, generally speaking, the probate process can be quite simple and relatively inexpensive.A New or Updated Estate PlanWhether a will or trust is appropriate for you depends on your circumstances. If you already have a will or trust, it should be reviewed periodically to make sure it reflects your current wishes and needs or upon any significant change in your life such as divorce or death of a spouse or beneficiary. Other important estate planning documents include a general durable power of attorney, living will and durable power of attorney for health care. This article was written by Donna A. Schuyler, Attorney, who practices in the areas of estate planning, probate, trust administration, elder law, and guardianship. Donna Schuyler Law, PLLC; www.elderlawboise.com; Phone 208-344-1947

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.