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Estate Planning — We Dread It, But We Gotta Do It

Estate Planning — We Dread It, But We Gotta Do It

Published: Jun. 14, 2022Updated: Mar. 7, 2024

Does the thought of estate planning give you heart palpitations? You’re not alone. No one wants to think about what happens when we’re gone, especially when it comes to who will take care of our kids (and how). Former estate attorney and current Assistant Attorney General Brianna Davidson Jarrett gently shows us why estate planning doesn’t need to feel impossible to tackle, and why we absolutely have to do it. She covers the most important steps to take and what questions to ask your attorney so you can walk out knowing exactly what you need to do and feel in control.

For further reading on the basics of estate planning, see this article.

Full transcript of our live event with Brianna Davidson Jarrett

Hey everybody, welcome to Undivided Live. Today, we are talking about estate planning, something I'm guessing might be last on your mental list of “I can't wait to do this” tasks. Believe me, I hear you. Yet you are here during summer break, which I know makes Brianna and I very happy because we can do this together.

A lot of parents hear about special needs trusts but don't realize that full estate planning is equally as important. So what does estate planning even mean? You might be wondering if this applies to you because you don't own an estate. But trust us: if you're breathing, this applies to you. So today you're going to leave knowing how to prepare for your meeting with an estate planner. You're going to have a list of questions to ask about medical and financial decisions if you're unable to make those decisions yourself. And we'll talk about appointing someone or several someone's to be charged with distributing and handling your assets. This is your crash course and estate planning. Brianna perfectly summed up the importance of planning for your and your children's future. You need to ensure if you're not here, the wheels of your family keep on turning. So these are things we don't want to think about. But it's one of the most important things you can do for your family. So let's get organized and hope we don't need any of this until we are 120 years old.

I'm Lindsay Crain and I head the content and community teams at Undivided, and like you I plan to be the most organized 120-year-old alive. I have a long way to go, at least for the organization part, and to help me and you do that, today we are thrilled to welcome Brianna Davidson Jarrett. Brianna is a former estate attorney and currently serves in the Maryland Office of Attorney General as Assistant Attorney General representing the Maryland Insurance Association. She comes to this not only from professional experience but also personal. She’s mom to three children, one of whom was born with disabilities. And because of her position in the Attorney General's Office, you can't hire her for estate planning, and I think that makes her even more valuable. She's also not giving legal advice today. This does not take the place of sitting down with someone and talking through all of your legal options. She's here only to guide you because this is what she's trained for before she was even living it out in real time. So welcome Brianna, we are so grateful for you sharing your time today.

Yeah, absolutely. I'm so grateful to be here.

Lindsay 02:38
And also with you in the chat, we have our community manager Donna and one of our Undivided navigators, Iris. They're going to be passing along your questions to us. We're gonna get to as many as we can. And stick around to the end, we're going to tell you how you can attend our virtual Undivided office hours with Brianna and then you can ask her questions yourself. But for now I get first dibs. So let's dive in. All right, Brianna. So let's start with the documents that we need to set up that activate while we're living. We are the caregivers for our children. So if we're alive and unable to do everything that we currently do, we need to ensure that things are in place so our children's needs are still met. So what are the essential medical documents that every parent should complete, that would communicate medical decisions if we're not able to speak for ourselves?

Yeah, so in different states, the title of the document may vary. But basically, you want either one document or two documents. Like in Maryland, we have one document that serves two different purposes, like you'll find in some states that kind of break them into two, mainly, you want the document to appoint someone to talk to your doctor for you if you could not talk to the doctor on your own. And in addition to that, you want to communicate what kind of care you would want and an end of life situation. So like I said, in some states, you'll find that both roles are kind of consolidated into one and in other states, they're separated into two separate documents. Some in some states are called a living will, you'll hear them called Advanced Medical Directive, or healthcare power of attorney. But they all accomplish the same thing. It's the document that places authority into the hands of someone that you've selected, if you could not talk to the doctor on your own.

Lindsay 04:25
Right. And so once we've, you know, talked through the living will documents, with whatever name that is appropriate for your state, but once we've talked through those living documents with our attorney, what are three things that we need to do once we receive those drafts?

So one of the things that you'll want to do is to actually read the document. It sounds silly, but when you sit down with an estate planner, and you explain to them what you're looking for, what you want the document to say, and your situation may vary. I've seen folks who come from a particular religious background. And so because of that, there are certainly medical procedures that they're very against or that they're very pro for, right. So you'll actually want to read the document after you get it and make sure it says what you want it to say. If you ask for certain provisions you put into the document, read it and make sure they're in there. But I think we've mentioned in the article that these documents aren't written from scratch, usually it's a form that's been adapted to your situation. So you might find, as a result of human error, something that you want to be in the document isn't in there. A lot of times I'll sit down, I have in the past, sat down with a person and read their document. And it turns out, it says something that they had no idea those provisions were there. So actually read it.

Lindsay 05:57
Sort of like when you're reading your child's IEP, and it's another child's name, right?

Yeah, I've done that. Well, sometimes I've sat down with someone and they'll tell me, No. You know, in my former life as an estate planner, one of the first questions I'd say is, Hey, did you read it? I sent you drafts to read them. I read them because your name is spelled wrong. So you found that just because sometimes I've had people tell me, you know, if you feel very strongly about a feeding tube, for example, that you don't want to be kept alive with a feeding tube, medical document, that's one of the hot button issues across the states and different states deal with that it that, you know, in specific ways, there are different laws governing feeding tubes, and when a person can have one when they can't. So if you feel very strongly about that, make sure what you want the document to say is actually what it says. Chances are, if you don't see that it says that, it probably doesn't say. So ask those hard questions. Don't think to yourself, oh, this is legalese. It's boilerplate. You know, I'm going to trust what the attorney tells me, not to say your attorney is making a mistake. But just make sure you understand what it says, definitely, the more questions you ask the better, honestly. The second thing is to give a complete copy to your doctor. In an emergency, you don't want your healthcare agent, which is the person that you've selected to do this job for you, you don't want that person to have to be scrambling trying to find where it is. Like, we all have kind of a paper collection probably on our desk, I have one it's behind the screen that I'm talking to you from. But you don't want that person to go scrambling for it. Usually, if you need an Advanced Directive or healthcare power of attorney, usually it's an emergency, right. So if your doctor already has a copy of it, they can easily fax it to an emergency room. In most states, I'll say a copy is just as good as the original. So those, I find to be very helpful. If the doctor already has a copy, then you can cut out that piece of it. And the third thing is to just connect.

Lindsay 08:18
This is probably a ridiculous question. So when you say doctor, does that mean like your primary care physician, even if you see them, like once a year for a flu shot or a physical? They still should be sort of a keeper of something like that? Because that's the call that you know, which I know, we'll talk about whoever it may be, that's who they're going to contact? You know?

Yeah, I usually say give it to your primary care. I mean, with exceptions to every rule, if you have a condition for which you see a specialist, and you see that person pretty often, give them a copy, you know, but if it's your primary care, and you're a pretty well person, you only see them once a year. So give them a copy, you can always tell them, hey, this year, I signed an advance directive or health care power of attorney. I brought it along with me, can you just do me a solid and make a copy and keep it in my chart? You know, they're not going to say absolutely not. We will not be doing that.

Yeah, um, the third thing is just to actually talk to the person that you've selected to make your decisions and make sure they know what your wishes are. I know that that can be a tough conversation. I don't know of anyone who would really look forward to that kind of conversation, but it's necessary because after having that conversation, what you're doing is not placing a burden on that person to make these decisions for you. If they know what your wishes are, all their job is is to communicate to your doctor what you've already decided. They already know how you feel about this stuff. So they're just communicating it to your doctor if you put it. So that's why the conversation is important. Right?

Lindsay 10:04
And so we have copies with our doctor, copies with the person making our medical decisions, anybody else, you know, anywhere else that we should have that I use?

Personally, I usually say keep one in the glove compartment of your vehicle, just human life being what it is, honestly. If you don't want to know what's in my glove box.

Lindsay 10:34
I think there's a whole roll of toilet paper in there, honestly.

Do you keep a copy in your glove box? If there was an accident, a lot of times people check there to see, you know, who's your emergency contact. I will say there is sometimes confusion about whether you're assigning a DNR, a DNR is something totally separate. And that's something you should absolutely talk to your estate planner about. A DNR is a medical document, it's signed by a doctor, this is not a DNR. So this is not the document that would stop a paramedic from coming and getting your heart pumping. Again, that's not this document. And most people in most states, and at least in Maryland, you can't get a DNR unless you have a condition that your doctor says. This is totally separate from that if there's any.

Lindsay 11:33
Right. So don't be don't be scared. It's a great point that the paramedic is going to find that.

Okay, one more thing to add to my glove compartment, of which I have no idea what's in there. If we switch gears a little to financial decisions and power of attorney, so if you can first define just in case, you know, people might have lots of ideas in their head, what does Power of Attorney mean?

A power of attorney is like a cousin to the medical document, it's similar in that it's only effective while person’s living. So it has literally no effect after you pass away. But it's for financial and legal matters. So the purpose of that document is to put authority into the hands of an agent who can sign your name for you on a legal document who can pay your bills for you. The purpose of that document in different states is handled differently. At least in Maryland, I can tell you that if you don't have a power of attorney, and a lot of married people kind of assume they can sign for each other, which is sometimes true, but sometimes not. So the power of attorney, and especially if you're in a nontraditional relationship, or you have a partner that you live with but you're not married, those kinds of situations, especially, you need a power of attorney, but I usually say look, if you're 18, you need a power of attorney. You're an adult, if you're an adult, and you're not a minor child, nobody has authority but you to sign your name to a legal document, pay your bills, and do all that stuff unless you have a power of attorney. So that's why that document is so important. Without it, if there's an emergency and you are unconscious, God forbid, a lot of times, you can't do anything unless a guardian has been appointed. And the term guardian varies by state. But a court would need to get involved to get somebody you know who has legal authority to act for you.

Lindsay 13:39
Right. And I think something that you had mentioned to me before, which you just touched on, is that I think a lot of people assume if they if they do have a spouse or a partner, and they're on all of their accounts, that okay, there's no reason for I don't need financial power of attorney because I'm on all of their accounts, so everything's good. So why should people rethink that?

Well, because a lot of times married people own real property together. And you can't just sign for your spouse in connection with real property, right? Like, what if you were in the middle of refinancing or what if you're in the middle of selling your house or purchasing a house? I've seen people use a power of attorney, you know, there have been days of settlement and something happened to one of the person, one of the people who needed to sign on, but luckily there was power of attorney so it allowed, you know, the one person to be able to sign for both. We've, I've seen that happen many times, but also with regard to IRAs and retirement plan accounts. You can't have two owners on a retirement plan account. And a lot of people will say, Well, my name is on my spouse's Retirement Plan account. Well, you're probably a beneficiary on the account. You're not a joint owner. It's an individual retirement plan. The key word being individual, so only one person owns it. Right. Well, lots of other examples like life insurance. But like, you know, lots of reasons why you would need to use one, if you own a car and just your name and something needs to be done with a vehicle, a power of attorney. Most of the time cars aren't for liability. But that's why you would need a power of attorney for that as well.

Lindsay 15:20
Well, and another question, and we got this a lot, even beforehand, people are like, well, I don't own a lot of assets. So is a power of attorney really necessary? Again, I think people are thinking, you know, many people might think, well, if we don't have this great net worth, do I really need that? Or that's maybe for somebody else?

Yeah. So the answer to that is, I think you'd have to own literally nothing. Because you know, there are young people who think, oh, I don't own anything. Or even parents of young kids who are kind of just starting out. But you probably do have a bank account that has your name on it, you probably do, you might have a group or life insurance policy through your employer, right, like, without a power of attorney, if something happens to you, no one can access that. Without it, no one has authority to do any of that for you, or even to sign your name to a contract. If you needed to get care, like in a facility that was not a hospital who's going to sign the contract, nobody has authority to do that without a power of attorney. So for those reasons, also, you want to make sure that document is in place. It's usually, not always, but it's usually one of the less expensive documents. Sometimes in certain states there are what we call statutory forms like a fill in the blank form power of attorney that the legislature of that state has put together. There's no cost to the document. And if you if you don't have a huge estate, but you know that you need that legal authority in place, not a bad idea to ask the estate planner, is there a statutory form that I can use for a power of attorney, or honestly, sometimes they also exist for the medical decisions as well, you can ask them if that would be appropriate for your situation, find out why and take advantage if there because this most a lot of states recognize why that document is so important. So they try to make it available to as many people as possible.

Lindsay 17:34
Absolutely. That's a great idea. I'm going to Google that as I’m rewatching this taking all my own notes. I know you said that once we have that power of attorney set up, what are three essential things that we need to do with it?

Okay, so one is to select a backup agent. I have seen powers of attorney where only one person was selected to serve as the agent. And if, let's say it's my power of attorney, and something has happened to me, I'm still living but not conscious, I can't make any decisions for myself. And I've named my spouse to be my agent. And then he passes away. Now it’s as if I have no power of attorney, so you want to make sure you have at least one backup. And usually it's not a ton of drafting to just add one more person, you can't amend the document. If I'm not well, I can't amend it right and add more people to the document. Somebody else that's close to me, if I have a grown child, that person could but would have to go in front of a judge and ask a judge for permission to ask for me, you know, so you can avoid all that just by naming a backup to your first agent. I like to see, when I was drafting these documents, I would like to see two or three backups on my own personal document. I have a pretty complex list of who's allowed to act and and what. So you can definitely do that. But at least one backup and even the statutory forms, I think in most states will allow you to select at least one and secondly, it's very important to ask the person who's preparing your document when the document is going to be legally effective. I know a lot of people who have some concerns about making the document effective right away. Oh, so as soon as I sign this, my agent is allowed to just go right into my bank account and can take all my assets away, you know? Well, the person you've named to be your agent is usually a spouse.

Not to get into attorney war stories or anything. But I have had couples who've been married for 50 plus years to sit down and say, you mean as soon as I sign this, my spouse can go on their merry way? You can't be married and not put them, you know, as a power of attorney as well. So, a lot of times, you'll just bring it up like right in front of the kids, if it's grown kids. Well, it's a revocable document, usually, okay, you can ask your estate planner about that. But when I did this work, I used to say to people, if your agent does something you don't like, guess what? You can rip up the document and say, forget it. You're not my agent anymore.

Lindsay 20:49
And I'm putting this up on screen because that's perfect. Does it remain the same until you change it or terminate it?

Yeah. And it's easy. I mean, in Maryland, at least, it's easy to terminate, I say easy, but you would if you provided it. If you provided it to your bank, and they've got it on file, you'd have to then call them right and say, I've revoked my power of attorney. I don't want this person involved in finances anything tricky, especially if you're going through a divorce, right? That would be a tough thing. You'd have to go and kind of backtrack and get all that squared away. So that's annoying. But yeah, you're selecting someone normally that you trust is going to do a good job. And if they do misbehave, I mean, in Maryland, at least an agent is a fiduciary. So if they're held to a pretty high standard under the law, so you can always call them in front of a judge and say this person behaved pretty badly when they were acting as my agent. But before you would even get to that point, you can just rip it up and say, I'm revoking this, I don't want this problem. Right.

Lindsay 22:01
Yeah. And number three, I think you said kind of in the answer to that question. But that's giving a copy to your bank?

Yes. Yeah, exactly. Because most banks don't have an attorney on site, right? Use these things. And you'll find, I think you'll find that a lot of times, I had to do this. For someone just out of my own personal experience, I was named as the agent under a power of attorney. But because I've had the background of estate planning, I knew what was involved in getting a bank to have separate attorney, what is the bank worried about? The bank's worried about fraud, right? Like, they don't want anyone to come and sue them and say, let someone access my account, who wasn't me, and I didn't give you permission to do that. So they're not just gonna let you walk in and hand them a power of attorney and say, now I need to access my spouse's accounts, and they didn't put my name on it. So they're gonna review the document and their attorney’s probably located hours away, if you cannot call them and find out the process, like how long it will take. Meanwhile, you need those funds, because you've got a hospital bill that needs to be paid. Okay, so to avoid all that, and when you sign your document, I would go ahead and give a copy to your bank, they'll probably want to see the original, and make their own copy, then they'll send it to their legal team, and their legal team will say here's all the problems we have with it. And then you can deal with that, while you're able to communicate with the bank. So much more difficult, right, if you're not well and if you're unconscious, God forbid. So yeah, go ahead and give it to the bank for that reason.

Lindsay 23:41
Yeah. Again, I have not dug as deep as I need to into our estate planning. And maybe I don't know if that's something that everyone talks about, but I, you know, wouldn't have thought about the medical power of attorney, right, the medical decisions to my doctor or to the bank. So yes, we're going to have a nice little checklist after this fun stuff to do. These are some of the essentials, obviously, some of the biggest essentials with medical and financial decisions that, you know, that can be effective when we're alive. And so now to the stuff that we really don't want to think about, you know, who handles all of the details of our lives when we're gone. And so, you know, this will tiptoe a little bit into trust, but that will be a separate event and a separate article in which you know, we can dive much deeper. So we're going to first focus on the assets within estate planning. And so you, Brianna, you've outlined five decisions that we need to consider about the distribution of our assets. So can you review those for us?

Yes. So I know that this can be really difficult, and it can seem really overwhelming to start thinking about how things would be divided up. I think a good way to think about it is you don't know what you're going to own at the time that you pass away, right? Like none of us knows. So it's best not to focus on what specific things are going to each person, but just kind of in broader terms. If you pass away, and your spouse or your partner survives you, is everything going to go to that person? Sometimes no. Right? Like, if you each have kids that you've brought into the relationship, you might not be doing that, nothing might be going to your surviving partner. And I've definitely seen that happen if each person who comes into the relationship because independently they have their own, they've kept things financially separate, and there's kids on both sides, that might not be the way that you want to go, I'd say probably more often than not, the answer is yes, we are going to be giving everything to the surviving spouse or partner first. But that's definitely one decision because that will kind of simplify the direction that this goes based on that answer for that question.

And then the second more difficult decision would be if both of you have passed, then how are things divided? If you have more than one child especially, or is everything going to them equally? Are there different percentages for each child? I think it's different if you have grown kids. And we see a lot of times, like one child is struggling financially. So you want to get a greater percentage, but then especially for people that have kids who have disabilities or special needs. I mean, in my own estate plan, I have everything going equal shares, but I have three kids, so you can't do it exactly equally. So the extra goes to my son with special needs. And I've been very clear about that, everyone knows. There's reasons why. Right? Like, you wouldn't want to give a greater percentage on one child, especially if you have a child with special needs or a child with disabilities, it makes a lot of sense, you know that that child is going to have a greater financial need, probably for the rest of their life. So that's one thing to think about when you're thinking through where things go after both of you have passed.

And then I'll move on to the third decision if that's okay. So most of the time, when you have young kids, and particularly if you have a child with disabilities, you're not going to want them to inherit anything from you outright, we're not going to be writing a check directly to them, hopefully. So, more often than not, you're going to be talking to an estate planner about setting up a trust for the benefit of your children after you pass away. And there's lots of different types of trust. And my goal is not to get into the nitty gritties, of what type of trusts, that's the job of an estate planner to walk you through what type of trust is most appropriate for your situation. But I will tell you the basic concept is to take an inheritance and put it into the hands of somebody else, which is a trustee, and to say in a document how you want the money to be used. A trust allows you to kind of control what happens to those funds after you pass away. So that's what we want, right, for minor children because we don't know what could come down the road for them if there's a bad marriage, if they themselves have a child with special needs, one day they need it for tuition, you know, medical expenses of their own, that's the purpose of the trust, that it's there for them for as long as they need it. So you'd be deciding what you want the trust to pay for, who would be the one in charge of the trust, that person we refer to as the trustee. There's a whole separate topic of special needs trusts or supplemental needs trust, which we're not going to get into today. But we definitely will be talking about. But I think the important thing in a basic estate planning conversation is to know that when you have young kids and when you have a child with disabilities or special needs, you're going to be setting up the plan to prevent them from inheriting outright. And the way to do that is using a trust who's outlined the trust that you want the money to be used, and you select a person to be in charge of.

Lindsay 29:34
And so for trustee, I know you said this, but just to make sure that everyone is speaking the same language, this person would make the financial decisions for the trust and, therefore, your child. Is that correct?

Actually, so the trustee, their job is to carry out the terms of the trust. So it's different from a guardian or conservator. That's different. It could be the same person who fills two different roles in the legal world, you could select the same person to fill a hole, you could select two different people, right, you could also select two people to serve as trustees together, you might pick a corporate trustee, there are banks that have trust departments, right, who can serve in that role. And there's lots of reasons why that might be a good choice for you. But no, they wouldn't be making any decisions about the person of your child. So it's a different role, their job is to carry out the terms of the trust. So if your trust says, this money is here, for as long as my child needs it up until age, whatever, you could select an age or right like, where the money goes to them outright. I've seen a lot of people do that. If your kids are really, really young, then you might not put an agent near you. And the trustee, their job is to just manage the money for the child for as long as they live. Eventually, as your kids get older, and you see what direction your life is headed, I change the trust and say, they seem like they got it together, I'm gonna let them have it at age 35. Right. had people tell me like, in the past, I've had people tell me, I want them to get everything at age 25. And I'm always like, I'm such a pessimist, because I'm gonna be the person like, what if they get divorce? Oh, we don't believe in divorce? Well, you should. It's a real thing, you might feel differently.

But the point is to know, this is the document where you make those types of decisions, so when you sit down with your estate planner, you want to ask them, look, when I feel very strongly about not using this trust for, you know, whatever, I don't want my kids to use it on an expensive car, or I only want them to use it on tuition. But talk through that with your estate planner, that's the point of this document. And then who would serve as trustee is your decision, something your state kind of should give you advice about as well, why you would want to choose one person over another or why a corporate trustee is appropriate. Those are all decisions.

Lindsay 32:25
And then decision for another really important role, obviously, which is I think it has to do with guardian, right?

Yes. Who is going to be the legal guardian for minor children? Oh, man, this is where a lot of people get hung up, right? Because how can you make this decision? How do you do it? Really?

And even thinking about it is worth thinking about? Because of course, like, I have to say, right, on most days, you're thinking, well, many parents are thinking yeah, I mess this up. Right? Like not doing great, but then when you're really thinking about that, it's like no one's gonna be able to do this. Like I can do this right? I mean, you are the parent and it's obviously lots of emotions with that. Yeah, and a lot of our kids are not nothing, any child is easy, or you know, comes with some manual, but my kids are terrible.

Lindsay 33:28
Your kids are terrible.

They're awful if you want these children. Oh my gosh. Look, I tell people all the time, do not have kids. Don't do it. My life is rewarding to my kids, know that I love them. And I tell them this all the time. And when I tell them they just laugh.

Lindsay 33:58
But anyway, it's a dark parent humor. We all get it. We're all there.

Totally. Totally. Yeah. And also, you already know my husband's been traveling so it just wasn't in them for a lot of this spring summer. It's so they don't take me seriously at all. I yell at them all the time.

Yeah, so no, you should select a guardian, right. Like, and I know that's hard to think about on most days. Like for me personally, I'm just like, I think more than happy. But no, I mean, in an emergency. You know, something happened to you and to the other parent, then you have to have somebody selected to serve that role that it's your responsibility. Okay, as a parent, you have little ones who are depending on you. And if you're the only one with authority to handle things for them, you owe it to them, right? Like, it's not a decision we can kind of skirt around. If the kids are depending on you and your mom, your dad, or whatever, you have to select somebody to be your backup. And it's not an easy thing, and no one is going to be as good as you at it. You know, except for I have a few babysitters where when I leave, you're in better hands, honestly. I'm leaving you in better hands.

But nobody's gonna be as good as you, we already know that you're the best person for the job, you're selecting the next best person, okay? And you want to talk to that person and make sure they're willing, obviously, when you have a child with special needs or disabilities, so much more goes into that. It's not just a conversation, I mean, my husband, and I have dear friends of ours, and also my brother and his wife, who are in the process of learning the ropes of how to take care of my son, because I can't be the only keeper of that information. I'm a human being, I could get sick, something that happened to me, and I need somebody else to step into my shoes and keep on doing what I'm doing. I don't ever want to see a parent let this decision be the reason why they don't do their estate plan. Okay? I mean, you select somebody, it's not easy, you have to do it. But it allows you to lay your head on your pillow at night, right? Like, if you know, you're not the only one if something happens to you, this thing will keep on going. Is it gonna be perfect? Probably not. I mean, are you doing it perfect?

Lindsay 36:45
Now we're all scarring our children.

Somebody has to have authority to step in if something happens to you. So don't let this hold up the whole process for you. I've seen that happen. I feel badly that people can't get past that hurdle. I know, it's not pleasant, but it's something you’ve got to do. And let's see the fifth decision, which is an easier one.

Lindsay 37:16
Paper pusher, right?

The paper? Yeah, yeah.

A lot of times, like an easy way to deal with this one who's going to be the one to handle the paperwork involved in your estate. A lot of times, make it the same person who's your agent and your power of attorney because they might already be familiar with your finances. So it makes sense to name the same person, but it might not necessarily be the one who's serving as trustee. It might not be the one who is serving in any other role in your estate. But you do want somebody who's organized. If the person has experience in handling estates, even better, I've had lots of people ask me to do it. I always get a text all the time, like from family. Hey, um, what type of attorney are you?

I recently, actually, I was put into a friend's estate planning trust, like care of their child. And, you know, they had all of the people involved with their estate planning and trust, we all went over there for dinner, we had great wine, and, you know, just really meeting each other. But it really struck me because, you know, I think a lot of people think of one or two people, right? They're thinking, okay, somebody that's going to watch the kids, somebody that's going to oversee the trust or the finances, right? That's sort of how it was put into my head when my daughter was young. And that it really can be like, different people that you trust or have different strengths and you know, really kind of your village coming together in different ways to make sure that, you know, your child's needs are going to continue being met.

And I have in my own estate plan different people serving in different roles because I think it provides some checks and balances too because as the child gets older, I don't want my kids to think well, I mean, you know how teenagers are right, like I'm always thinking what if I wasn't around and what if, you know, as my kids reach teenager age, and they want to use money for something that the trustee says no about, like I want to have enough people involved. So it's not so much authority in the hands of one person that's just me. You might have a totally different situation and you're not worried about that and that's totally fine. One important thing is to know what kind of decisions you have to make and to make them. Because if you don't make them and there's an emergency, somebody else is going to be making them for you. And they're probably not going to be your first choice. Right? You won't be around to have any say in it. But I'm a big proponent of if you have a chance to do it, do it, you know, for the good of the people that are counting.

Lindsay 40:23
Right? Absolutely. And from the first time that we talked, that's what keeps playing in my head, right? I mean, you know, avoiding anything because of our own discomfort doesn't help the people, obviously, all of those around that are going to need that help.

Definitely. And I mean, thinking of all the difficult things that we do as parents, I'm here to tell you, it is not worse than that. For the last few days, we have a nighttime nurse here who helps us with my son, she's usually here in the evenings, over the last few days, so a scheduling issue, we have a daytime nurse and a nighttime nurse. But I was in charge of all the bags, and like getting my son into bed and hooking up the pulse ox and his braces and the feeding tube and all that, I was like, Okay, I don't walk out. I did not sign up for this, I'm just telling you. But no, I mean, of all the things that we're doing as parents, especially if you're the parent of children with disabilities, like all the meetings, right? The IEP, I mean, therapy, medication, all that stuff, this is not more difficult than that, you're already doing complicated stuff, you can 100% handle this. Iit should not be something that is intimidating, it shouldn't be over your head, if you're meeting with somebody that's talking at you and not with you, that's probably the wrong person. And you want somebody who's going to make you feel like the pieces of this are in place. And as my family grows and changes, and if my situation changes, if there is a divorce, or, you know, a lot of people have children that have special needs that worsen over time. So when you first have young kids, you might not need a lot of complexity in your plan. But as your child gets older, you may need it. And you'd want to have the type of plan in place that you feel like I can get my arms around it, and I know that this piece needs to be changed, right? Or that piece needs to be changed. So I really want people to feel that they're in control of the process. If that helps.

Lindsay 42:51
Yeah, that's a really great point. And you're completely right, that we're we're doing the hard stuff every day, this is making sure that that will continue to be more difficult than what you're doing.

Yeah, exactly. Yeah.

Lindsay 43:07
So all right. These are five decisions about assets. After we've determined these five decisions, you said that there are three things that we need to remember about distributing our assets. And the number one was make sure that your beneficiary designations and titling of your accounts work with your documents. What does that mean?

So that means that once you have all these fancy documents in place, and you probably are like, Oh, my God, like I had no idea that was going to cost that much. Once that's all done, you're not done, okay? You do need to sit down and make sure that if you've said that everything is going into a trust for the benefit of your kids, you want to make sure that your bank accounts, your life insurance policy, your retirement plan account, your brokerage account, if you have stock certificates, like that you inherited from a grandparent or whatever, you want to make sure that everything, the titling of all that is set up to work with your documents. So if you have a life insurance policy, for example, that you've had since before you were married, and you have your brother on as the beneficiary, well guess where that that's going to go, it's not going to go to the trust for your kids, it's going to your brother. Right? Like this is the stuff we kind of have to think through. If you're recently divorced, it’s important to go through and make sure that you've taken your spouse's name off of your accounts as a beneficiary, that the kids are the trustees of their trusts. And your estate planner should be holding your hand and getting you through that whole process. It's not enough just to have a binder full of documents, and they hand it to you and then they send you on your way. You do want to make sure that this piece of it gets done. Okay, because things get lost, right? I wouldn't trust the bank to make sure that all this is done correctly. For me. I definitely would.

So you have a financial planner, which I recommend. But as an aside, if you have a financial planner, you want to call that person and say, here's the name of my estate planning attorney, talk directly to them, and make sure that the titling of my accounts works with my new documents. That's the easiest way to do it.

Lindsay 45:25
Yeah, one one thing that you said, when we were discussing this before, that I think is really important to kind of hit home is that beneficiary trumps the will?

Yeah, in Maryland, that's the case in a lot of states, that's the case. Because think about it, the life insurance company is probably not based in the state where you live, right? And if you've had that policy before you did your estate planning or even after your estate planning, and, gosh, I've heard people say, if I had a nickel for every time I've heard someone say this, I'm just gonna leave it to my, my brother, or you know, and he'll know what to do with it after I pass away. That is so risky, you have no idea what the situation could be after you die, right? Like you have no control over what that person does with the funds, you've paid a lot of money and gone through all the pain of getting these decisions put into place, make sure that your account titling the beneficiaries, joint owners, all of that funnels everything through your estate plan, don't leave it in the hands of somebody else. And if the bank has made an error on a beneficiary designation, it's your job to find it and get it corrected, right. Like, while you're valid, you can do that stuff. I've seen banks make mistakes just in my own accounts, you know, oh, I updated the kids’ trust. So I had to change the beneficiary designation. And they still had the previous date on there. Right? So that kind of thing happens. You have to be on top of it.

And that I guess that's the underlying thing, right? We can't rust that anyone else is going to always get it right. So like everything in our lives, like our eyes have to be on everything. So it's one more hat that we're gonna put on, right. All the different hats we wear? And then and this one is, well, maybe the most important?

Yes. And so number two was you say that we need to review the will or trust every year?

Yes. Why? Because there might be provisions in there that you no longer need. Or you might need to add provisions to it, I would say once a year, or sooner if there's a major life event, there's a marriage or death, you know, or a diagnosis, right like that causes you to start thinking, Oh, do I need to change this trust? You know, did your child start getting benefits, like government benefits this year? Do we need to make some adjustments, so the way that they're going to inherit from you so we don't interfere with that at all, that's down the road of special needs trusts, which we aren’t going to talk about today, but we will be talking about it. So yeah, once a year because, you know, birth, death, marriage, divorce, you might have named somebody to serve as guardian, you've had a falling out with that person. Now you don't want them involved anymore. Review those things. Like, I've had people sit down and look at the documents saved, I had no idea that I totally forgot that this person was going to be serving as trustee. I haven't talked to them in 10 years. So it's for that reason you forget, okay. I mean, I'm not a person that would remember everything in my document. So it's a good idea to sit down and review your plan. If any changes need to be made, make them while there's no emergency. It's not easy to get a hold of an estate planner and say, I need you to change this, and I need it done immediately and also in the hospital.

Lindsay 48:57
I think that's also the point that you keep coming back to, which is really important. Like, do it while you can. Because the one thing I think we can all count on no matter what is that life is unpredictable as we all live that very well. And there's so many details to remember everything that it's really important.

Do the exercise, right like this, design it. Every summer, I'm gonna sit down and pull up my documents of this and make sure they say what I want them to say. And maybe you feel differently about your medical decisions, for whatever reason, you know, might want to update things. So at least once a year, I would say get them out, look at everything, make sure they say what you want to say.

Lindsay 49:45
Definitely. And I mean, number three, I know again, we'll probably get more into this when we talk about special needs trust, but you know, you talk about trust versus will. So what do we need to know about that? Find out if you need a trust, a will, or some combination of both.

Well, I know that a lot of people are familiar with revocable living trust. That's kind of the trust that most people have heard about. And I'll tell you, it's not necessary in every state, one of the primary purposes of having a trust, besides just giving you control from beyond the grave, the trust is the vehicle that allows you to do that. So we talked about how it allows you to prevent your kids from inheriting outright and put some strings on there. It also can leapfrog over the probate process. And probate in some states is pretty terrible. Like, I know New York has a really awful probate proceeding. So what some people will do is establish a trust, and that exists while they're living. But we don't get into distributing assets or anything until after a person passes away. The purpose of that is to avoid all of probate and that type of trust. I think the easiest way to think about it is like an LLC, it exists as a separate entity, you kind of put everything you own into that entity, and that entity is separate totally from probate and has nothing to do with probate. Depending on the state that you live in, that might be the way you want to go.

Lindsay 51:32
I would imagine it's probably not fun in any state.

Maryland's not too bad, I will be totally honest with you. So a lot of times, I would be the type of attorney who's like, you don't really need a trust, you can honestly just handle this with a simple will because probate in Maryland is not super expensive. It's not super complicated. In Maryland, thankfully, we have a really good register for wills in each county, in my opinion, unless there's a really good reason why you need a complex trust. I usually tell people to just do a simple will, I don't practice in that area anymore. And everyone's situation is different. But I do think you want to make sure that you understand with an estate planner why they're recommending a trust to you. And it may be that your situation requires several trusts that could be, you know, for wealth management reasons, or to avoid probate, but the point is to make sure you understand why a trust is being used, what happens to the funds in the trust, after you pass away who's going to be a control of it, those are the important decisions, still the same decisions that you would need to run through, you know, and then when you're talking about trust, right now, that's different than special needs trust.

It could contain special needs trust provisions, it could. So the special needs trust has provisions, and I have them in my own personal estate plan for my son. So those provisions basically say this money is here not to interfere with government benefits. Whatever the government is paying for, this money in this trust is not going to pay for that stuff. It's much more complex than that, I've really oversimplified it, but you can take those provisions and put them into different types of trusts, right? Like you could put them in a trust that exists in your will, you could put them in a trust that exists totally separate from your will, may have a combination of both things in your estate, I've seen that happen when people will have large complex estates or different types of assets that require different trust. If you've got, I would say I hate to use the phrase run of the mill, but if you've got kind of a run of the mill estate that we're dealing with, like not a young parents with young kids, one of them has special needs, not a ton of assets. And if somebody's recommending what sounds like extremely complex trust, I think you want to understand why that's being recommended to you, what is the purpose of it? Why am I trying to avoid probate so badly? What are we accomplishing with the use of this trust? So just know that in different states or our state taxes or taxes and trust might come into play to kind of avoid or mitigate those issues. But yeah, you can use estate special needs trust provisions in those trusts as well. Right.

Lindsay 54:29
And like you said, obviously state to state can vary wildly. I know it's recommended in California, especially if you're a homeowner, to look at trusts. You know, it's just like you said to talk to your estate planner and individual and what everything that you're dealing with, with your family to come up with, you know what's best for you. Yeah. And you don't need to know all of it going in. Ask all the questions. We're giving you those questions. So if it feels a little overwhelming, don't worry, you don't need to understand all of it. Everything that we're talking about today, but you need to know the questions to ask. So you can talk through all of those things. So don't don't feel overwhelmed, even though it is a little overwhelming. But so for medical, financial and asset distribution planning, what are we talking about? We've mentioned a lot of different players. Are we talking to three different professionals to help plan each of these? Are we dealing with an estate planner, an estate attorney, a financial planner, anyone else that I'm missing? Are there different people for each of these decisions?

I would say you want an estate planning attorney. And for parents of children who have disabilities or special needs, I personally would ask the question, what kind of experience do you have? I'm doing estate plans for parents in my situation. Right? Like, I don't want to be the first special needs trust that you draft.

Lindsay 56:07
No, probably just like you don't want to be the first time somebody tattoos, right. But the list goes on.

Yeah, you don't want that, you know. So you do want to find a person that is best suited for your situation, but that that person is going to be drafting your documents, the medical documents, the financial documents, your will trust or whatever, if you're a person that has a really, really simple situation, you don't own very much of anything, you're just starting to get into the process, and you're doing some free forms that are that you've found through that are available through your state. That's fine. You know, if you're, if you're planning retirement, and how am I going to pay for tuition as the kids get older, and you have gone through the process of selecting a financial planner, you do want that person involved not to draft documents, but you do want them involved to deal with like titling of your assets and keeping up on your beneficiary designations. I'm not a financial planner, because I'm not an expert in that area. And I've watched somebody else who is that, and I, when I change my documents, which I did recently, I can change the documents and send the most recent version to my financial planner and say, Hey, I need to update my beneficiary designations on my brokerage account, you know, like, or on my retirement plan account. I've met people who want to do all that themselves, which I think is not the smartest. I mean, there are people who go through a lot of training to do that properly. And I've met financial planners who think they want to take a stab at estate planning, no recommending that. I think that's important. So, yeah, but I also do recommend, like, talking to your doctor, some of the questions for an Advanced Directive are not legal questions, some of them are medical questions. So definitely talk to your doctor, if you have questions about, hey, if, if this were the circumstance, if this was my condition, and my spouse walked in with this, with this document, how would that actually be handled in real life? Like, that's not a legal question. That's a medical question. So get your doctor involved with those types of players trying to answer those questions for you.

Lindsay 58:39
We're identifying some, like red flags or things to watch out for. And I'm looking at the time and I know, you know, there's just a couple like, maybe I can do some, like rapid fire questions. Because just you know, each of these could be their, you know, their own complete event. But what is the biggest mistake that you see families making with estate planning?

The biggest mistake, honestly, that I have seen is not understanding the documents, you know, just not not understanding what the documents say. So sometimes I've seen people do estate planning early on kind of a knee jerk reaction. Oh, we have kids now, like, we should probably hurry up and do this. And then when they actually are ready to sit down and kind of go through everything, they haven't made decisions that make sense, you know, the documents, or, you know, like the online forms, especially for wills, like, can I just tell you not to do that. Don't download a form. I litigated those. They're extremely messy and can create a huge problem where otherwise there wouldn't have been. I mean, you'll spend thousands of dollars in litigation after the fact. And you could probably just get it done for much cheaper at the beginning and save your loved ones a lot of headache. So that's, those are the big things that I've seen people.

Lindsay 1:00:11
Okay. Yeah. And this is probably going to be, you know, an annoying question, because it's going to vary state to state and the scope of what you're trying to do. But like, how much can families sort of plan on spending for estate planning?

Yeah, that's a great question, honestly. And because of the experience that I've had, I can kind of pull back the curtain a little bit and talk about legal fees. In Maryland, I would say like where I am, which is not in a big city in Maryland, I would expect personally to pay somewhere between like $2,000 and $3,000, from beginning to end. For an estate plan, it isn't important how much it costs, I think what's more important is that you know what the costs are going to be going in. And it's impossible, really, for a lawyer to tell you without knowing any specifics of your situation, it's impossible. But people asked me well, I want to know how much it's gonna cost. And how can I answer that question if I have no idea how complex the situation. So I think, if you can ask the attorney generally, like for an uncomplicated situation, I don't own my own business, we don't have a blended family. There's nothing strange going on here. The most complex thing is that I have a child with special needs. And we are going to have to plan for that. But give me an estimate like a roundabout, or if they use a flat fee, you want to understand that going in, it shouldn't be a big surprise at the end, right, like, so definitely ask that question. Don't be shy about it. Do look at the bill, and make sure you understand it, the stakes happening, bills that are issued by attorneys. So you want to know going in what to expect?

Lindsay 1:02:07
Absolutely. And you know, one of my favorite things that this is just sort of a sidebar of what we're talking about. But one of my favorite things that we've discussed when talking about this entire series is how you organize all this information, right? Like we're talking about all this stuff, there's so much, and then we have to organize it. And we're definitely going to cover this in more detail in the future. But if you can give us one amazing tip about organizing all of the information that we are discussing today, I mean, do we just throw it in a Google Doc, share it with anyone involved in our estate planning and call it a day?

Okay, this is one of my favorite things to talk about. Because I don't think that there is much out there to give good advice about this specifically, and you could do all the fancy planning in the world. But if it's kind of all over the place, and nobody knows how to get to it, how helpful is it really? So what I will tell you is, I think you should select the process that works best for you. Okay, I mean, you're gonna see if you Google this topic, you're gonna see that there's people selling binders with tabs. There are like kits that you could get. Some people say write a letter, I would say use what works for you. Okay, my system is files, that's what works for me, I have a file for each bank account. On the inside, you'll see username, password, beneficiaries, co owner, all that information is in a file for each account. I've got like a list of debits and deposits that are going in and coming out. So that if it's my brother, who would be handling things, if both my husband if something happened to both of us, and I want him to know from opening the file, what do I need to pay? When does this mortgage pay? Right? Like, where are the kids’ health insurance cars? When was the last time we ordered medical supplies? Right? Like, who are the doctors? Where do I find their information? All that stuff, you do have to have organized, especially when you have a child with special needs. Um, but I will tell you, the way that works best for you. If it's a post it note system, fine, but do it right. All of us are not going to be there forever. That's all. Yeah. After you pass away, if you have not organized this, it will take months for your loved one or the person who's going to be in charge to track down usernames and passwords. I mean, you think Gmail is gonna hand that information to you? Do you think Bank of America is? The easiest way to do it is when you go through when you pay your bills, start writing that stuff down or put it into a Google Doc, but whatever works best for you, do that, and make sure that the person who is in charge knows how to get to it. Okay, I think I told you, my brother keeps this important stuff in a fossil tin on his dresser. And that's now I know where it is. What works best for you? If it's a letter, bind or whatever? Just do it.

Lindsay 1:05:23
Yeah. And just make sure people know where to find it. Yes, you know, wherever it may be, right? You just said like something you said over and over. We don't want to do this. But we have to do this. So we have to do it, we have to do it well, and we have to understand it. So do you have any last words for our parents?

Just encouragement, you can do this. Okay. You can initiate. So yeah, and don't just do it for your kids, that's a great reason to do it. It's a great reason. Also do it for yourself for your own peace of mind, you know, and if you wanted to skip town for a couple months, and leave someone else in charge, hand them your power of attorney and be on your merry way. For yourself, do it for your kids. But don't be so intimidated that you let that get in the way of going through with this. There's too many people counting on you. And you've done the hard work. My gosh, like, you can even understand all the hard things that you've done up till now. And you don't want to see that undone if something happens to you. So you owe it to yourself to get this done.

Lindsay 1:06:37
Absolutely. And I'm just gonna put Pam's comment, which is so true. Thank you so much for your confidence building and reassuring tips, because it definitely helps that you yourself are, you know, constantly going through this process, right? Because you're always on top of it. But you know, you know exactly what that any parent can relate in some way. But you acutely know what it is to have a child also with exceptional needs that, you know, doesn't come with a manual that most people have handy. So we put it all together.

I still wonder why they sent him home with us. We didn't know.

Lindsay 1:07:18
The stories that Brianna tells, think about how she and her son will go to doctors and just sort of like, you know, mess with them. I mean, they're just like this.

We do enjoy that we have a lot of fun at the doctor's office, if they don't look at the chart before they come.

Lindsay 1:07:38
I'm sure you're the highlight of the day. So I know that everybody has so many questions that are really complex. And that's why we've really broken this down. And we're going to talk about that, because so many pieces go into this that can also then really filter into our everyday lives. But good news for us that we're gonna have more opportunities to talk to Brianna. So more on that in just a minute. But thank you, again, Brianna, for sharing your knowledge and your time and making something that is entirely awful, you know, to discuss a dare I say enjoyable experience. So mostly, I know, I'm motivated to get it together to improve our family plan. So I hope you all feel the same. This was definitely a crash course. And you can review all of the essentials that we talked about today in Brianna's article. Donna has shared that in the chat window.

So just remember, I'm probably going to say this really wrong, like this recap in my head. So just shout out if it’s just the words that are going through my head, but like in a draft, your living will documents a power of attorney, appointed trustee, a guardian, determine if a trust or will is more appropriate to handle your assets. And on and on and on. Most importantly, do it now and start building that team for now and for later. Did you want to add anything to that, Brianna?

No, I think we got it.

For the remaining parts of our series, as we've said, it's going to cover special needs trusts, preparing for life after 18. And the last one that does make me nerdy excited, and we're calling it let's learn how to budget—do it for the kids. That's right, because as organized as Brianna is, she is also all about part of that organization is really how to budget and think about the long term because for many of us, our kids, you know this is going to help you know sustain them throughout their lives. So again, you're not going to believe these organization tips that Brianna had she shared a little with you today but you know she is the Marie Kondo of estate planning organization. So all of that's going to be coming soon.

And in the meantime, as I mentioned in the beginning, Brianna is coming back at the end of June for an Undivided office hours. She's going to review anything that we need to from today and add some additional iInsights. Most importantly, she's going to be there answering your questions. So these office hours are open to any Undivided member. If you want to learn more about our different memberships, check out the link that Donna shared if you want an estate planning prep partner, where we've also developed a step-by-step guide with Brianna so you can organize and personalize everything that we've discussed today, you can take that guide into your estate planning meeting with a confidence that you're not going to forget any of your priorities or questions in the midst of really emotional conversations. And you can get your guide at office hours. That's on June 29, and Breinna and I would love to see you there. Also wanting to say that this is going to be our last weekly event for a while, we hope everyone is running from their screens as much as possible, ready to enjoy summer, we figure everyone can use a break. But don't worry, we're going to be sending out our weekly newsletters and watch out for pop up events on our Facebook page. Because you know, you never know when when we're gonna have something that we absolutely, you know, want to talk with you right now, you can also be the first to know about anything we're planning or releasing if you're a member of our private Facebook group open to any parent raising a child with disabilities. This week, we're talking about singing lessons, navigator appreciation and medical insurance. You'd be so proud, Brianna, all the insurance talk there. And we like to be organized like Brianna, which is why we have an app that serves as your digital binder for all things. So you can scan and organize all of your documents, medical insurance, educational, maybe even estate planning documents, although I'm sure Brianna would have something to say about that. So you can ditch the three ring disaster and make your life a little easier. We're going to leave you just with a one minute sneak peek into the app with our lead navigator Kelly. Thank you for stopping by Undivided live. We made it through the school here. So if you're as tired as I am, I wish you nothing but sleep, a night out, whatever makes you relax. We've all survived a difficult year after several difficult years. So please remember to take time for you. So we love spending time with you every week, all of us at Undivided wish you a fantastic safe and happy summer. We will see you soon. Bye.

Thanks, Brianna.



Full transcript of our live event with Brianna Davidson Jarrett

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