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Relative Caregiver Affidavit – A Power of Attorney for Minors

Many families are going on vacation right now.  Some parents with their minor children, but many without.  At least once a year about this time, I have clients or friends reaching out to give someone else a power of attorney for minor children while they are on vacation.

A power of attorney can only be created by a competent adult to give their power to make decisions to someone else.  So, it’s not possible to create a power of attorney for minors.  And guardianships are more permanent arrangements made by the court to give someone the ability to make decisions for another.  However, Missouri does provide for the Relative Caregiver Affidavit under RSMo 431.058.

The Relative Caregiver Affidavit is what most parents are looking for if they are leaving their children temporarily in the care of another.  It allows a relative to make decisions for a minor’s educational services or medical treatment.

So, if you’re going on vacation and leaving your children in the care of another, before you go, take the time to get a Relative Caregiver Affidavit notarized.  You can even find a free one provided by the Missouri Bar online.

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Graduation Season – A Time to Plan for the Future: Power of Attorney

It is graduation season!  For many parents, graduation season is in full swing.  You may have a high school or a college graduate.  Graduation ceremonies may look a little different this year due to COVID-19 regulations and policies in place at different schools.  However, it seems like many schools have found ways to celebrate their graduates even if it looks a little different this year.  Congratulations to you and your graduate.  Graduation time is a time of reflecting on all a student has accomplished up to that point but also a time for looking towards and planning for the future.

This is a great time to talk with your graduate about the importance of planning for their future, including a discussion about estate planning for the graduate.  Many graduates are above the age of 18, meaning that legally mom and dad cannot make all the same decisions for their child as they could when they were a minor.  This summer would be a perfect time to set up a free consultation with an attorney regarding financial and medical powers of attorneys.  Without properly executed powers of attorneys, parents may not be able to access their children’s medical records or assist in making medical decisions in an emergency.   Parents would also not be able deal with financial decisions or sign legal documents on their child’s behalf without financial powers of attorney.  So while your celebrating graduation and preparing for the next chapter whether that be preparing to start college or entering the workforce, I recommend meeting with an attorney to discuss powers of attorney for the new graduate.

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My dad just left a few small assets. Do I have to go through Probate?

If a person passes away leaving assets without beneficiary designations, there is a court process called Probate. Probate allows for a personal representative to be appointed by the court to access those assets and distribute them to those entitled to them.  Who is entitled to those assets will be determined by the deceased individual’s will.  If the deceased individual did not have a will, who is entitled to those assets is determined by the intestacy laws of the state where the deceased person resided at the time of their death.

In Missouri, whether the deceased person had a will or not, if the assets are less then $40,000.00 you may be able to avoid the longer, more costly probate process.  You may be able to file a small estate affidavit with the court.  This process is faster and less expensive then if a full probate is required.

For example, assume your dad had a retirement plan, life insurance policy, bank account, and a car when he passed.  If the retirement plan and life insurance policy had beneficiaries, the retirement account and life insurance would not need to go through probate.  Assets that have beneficiary designations can avoid probate.  However, your dad forgot to add beneficiaries when he got a new car and opened a new bank account.   If the car’s value and bank account total less than $40,000.00, you may be able to use a Small Estate Affidavit to access the bank account and car.

In addition, to the Small Estate Affidavit, the court may require additional information as well.  If there was a will you will need to provide the court with the original will.  You will also need a copy of the death certificate, information about the heirs and those named in the will if there is a will (may need full legal name, address, social security number, date of birth, and date of death if applicable), and proof of values of the assets.  For the car, the car title would be needed that would include the vehicle identification number and for the bank, a bank statement showing the account number and balance of account would be needed.

Different states have different laws and even different counties may have different rules and procedures, so it is always a good idea to meet with an attorney.  The attorney can help you determine what court procedure is needed in your situation and can help you navigate the process.  My husband’s uncle recently reached out to me because his father passed away and he was trying to fill out court documents that he had found online and had a few questions for me.  I don’t practice law in the state where his father passed away but just from asking him a few questions, I was able to determine he was trying to fill out forms for the wrong county and also had forms for the wrong court process.  I suggested that he contact a Probate attorney in the city where his father had passed.  Losing a loved one is stressful enough, an experienced attorney can help you navigate the legal process.

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What is the Best Estate Plan? Different Estate Planning Options

Often when I help clients form an estate planning options, they need to decide if a trust is the best for their loved ones.  And for many reasons the trust can be the best option.  However, what’s right for one client may not be the best for another.

I was just speaking with a client yesterday and their estate planning options were either beneficiary designations or a trust.  Both had benefits and disadvantages.  The client wanted to know which plan would be best for them.  In the end I recommended a trust because they had multiple children.  However, a trust isn’t automatically “better” than another plan. While a trust has many advantages and many great reasons to use one, a trust can make things more complicated.

For very simple estate plans, i.e., there’s one adult beneficiary who’s good with money, the appeal of using beneficiary designations can be the simplicity.  A trust upon someone’s death often requires a new tax ID number, separate tax filings, and can require interpretation or assistance in making sure all the terms are met.  Beneficiary designations, on the other hand, only require a death certificate. So, a trust can be overly burdensome, especially for simple plans where the people involved may not have a lot of experience with legal documents.

However beneficiary designations have a lot of downsides.

  • First, you have no control after you pass. The money goes to the beneficiary and that’s it.  You can’t tell them what to do or not do with it.  If you have minor children or someone who is bad with money, even just wanting something specific with real estate, beneficiary designations may not be a good plan for you.
  • It’s also much harder to plan for contingencies. Many beneficiary designations only allow a primary beneficiary.  So, if something happens to that primary beneficiary and you don’t (or can’t) update your plan, that asset will end up in probate.
  • Another major problem is that there’s no one person in control. Each beneficiary receives their share, so any expenses that are paid are paid by an individual, not the estate or by everyone.  That person then needs to work with the other beneficiaries to pay bills and make sure everyone pays their share.

So, when deciding between estate planning options, there’s advantages and disadvantages to trusts and beneficiary designations.  It’s best to evaluate your options, knowing the good and bad of all possible estate plans, then choose based upon your family and which path will be easier for your loved ones.  Maybe that’s simple beneficiary designations or maybe that’s a trust.  A good estate planning attorney can help you explore all the estate planning options and help decide what’s right for you.

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Reviewing Your Assets – Not Just a One Time Thing – Burkhardt Law Firm

As you begin filing your annual taxes or as you are waiting on that refund check, use it as a reminder to also review your assets.

For many people, one of their main goals when they created their estate plan was to avoid probate.  However, if a trust was part of your plan, did you know your trust only controls assets that are in the name of your trust? If you don’t have a trust, do all of your assets have the correct beneficiary or beneficiaries?

Usually if you have an estate plan you will also have a will that will tell the court what to do if an asset doesn’t have an owner or a beneficiary listed.  However, in Missouri, wills have to go through the probate court and can be a long process.

To avoid using the will, and be sure that your assets avoid probate, it is important to make sure you fund your trust or place beneficiaries on all your assets.  You may have done this right after you executed your documents.  However, our assets change over time and it is important to frequently review your assets and make sure any new assets are titled properly.

  • Have you recently purchased a new home?
  • Did you purchase a new car this past year?
  • Did you change jobs and get a new 401K?
  • Did you take out life insurance since you last reviewed your estate plan?
  • Did you open up a new savings account at the bank?

Every time you obtain a new asset you want to be sure the owner or beneficiaries of those new assets match your estate plan.

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Planning for Pets – Burkhardt Law Firm

I know so many people who with more time at home during the pandemic have adopted a new pet.Villareal Dogs

Maybe its their first pet, or maybe it is an additional pet for the family. For many people, they love their pets so much, sometimes as much as their human children.  I know my in-laws have 8 dogs, all poodles and chihuahuas (well I think it is 8, I can’t keep track as they are always rescuing more all the time, so hard to keep track) (pictured are two of their furry children), and pretty sure they love their pets as much as their children.  They barely leave town because they have so many dogs to care for.  We have to go to them to visit because they just can’t leave their beloved dogs.  So what would happen to their dogs if they could no longer handle their own finances or if they passed away?  Many times when a pet owner passes away, their pets end up in a shelter and sometimes end up being put down.  Did you know when you’re planning for your estate that you can also plan for your pets?

You can plan for your pets for when you’re still living but just not making your own financial decisions.  If you have a financial power of attorney executed, naming someone you trust to make financial decisions for you when you are no longer able, you can grant your agent the power to take care of the financial expense of caring for your pets.  We draft our documents to include the power for your agent to pay the costs and expenses associated with the care of your pets.

Planning for your pets after you pass is also possible.  Some clients choose to include provisions in their trust that provide who they would want to care for their pets when they are gone.  They may list backup caretakers for the pets as well incase someone they chose is unable or unwilling to care for the pets.  We have even had clients designate who the Trustee should contact to arrange for the care of their pets if they can’t find a proper home for the pet or pets.  You can even have your Trustee distribute money to the pet’s caretaker to help cover the cost of providing care for the pets.

-Lisa Villareal

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A Time to Plan – Burkhardt Law Firm

As I sit and reflect on the last year, brainstorming for helpful topics, I’m left with one main thought.  It’s time to plan.  We’ve spent the last year much more isolated from friends and family, and, for many of us, faced with loss of loved ones or the reality of health issues.

This year, Burkhardt Law Firm has helped many families form plans and many people navigate probate when there was not a plan or when things fell through the cracks.  I’m always so grateful that our clients trust us with their loved ones and something that is rarely fun to discuss.  That being said, I see so many families put off making an estate plan.

One of the saddest moments in my job is when we have a client pass.  I hate losing someone I’ve come to know and learn about their lives and loved ones.  We’ve lost a few clients this year and my heart is truly with their friends and family.  And while losing a client is the sad part of my job, often it’s also rewarding in seeing those friends and family navigate the loss with grace and knowing that I made a difficult time easier.

On the other hand, we also get calls from potential clients’ families when they never took action and moved forward with an estate plan. This is truly the worst part of my job.  Telling someone, who is already suffering a loss, that we didn’t help the person who was passed.  Then that someone has to figure out what to do next.  Often, this involves probate.  And while I appreciate the trust in guiding someone through probate, I so wish we could have made a hard time easier by having helped with an estate plan.

My days are generally filled with conversations getting to know people and their loved ones.  I truly love my job, my clients, and my co-workers and am thankful for a different, but still great year.  I sincerely look forward to more of these conversations in 2021.  My wish for your and your loved ones is for a very Happy New Year.  And perhaps as part of that New Year, an estate plan or a update to your estate plan.

 

 

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Flexibility during a Pandemic – Burkhardt Law Firm

As we have endured this pandemic in the last several months, I am so grateful that we have not had to quarantine due to exposure and that none of my immediate family has experienced COVID.  That being said, I know at times my schedule has had to be more flexible with two little ones at home and myself and my husband still working full time.  This has required me to ask my clients to be more patient and flexible.  I sincerely dislike inconveniencing anyone and most specifically my clients.  As such, I wanted to extend a very sincere thank you to all of my wonderful clients who have had the grace to be flexible and patient in the middle of this pandemic.

This pandemic has changed the way many of us are living our lives and most of us have never lived through something like this before.  It may have gotten you thinking about what would happen if you got sick with this virus or some other illness.  Who would make medical decisions for you or financial decisions for you if you were not able?  You may be thinking that you no longer want to put off planning for those unexpected situations.  I know now more than ever, people are concerned about getting things in order, and we want to be here for you to help get your estate plan in order.  However, we want to help you do so in a safe manner.

Our normal process for estate planning involves three appointments. The first appointment is a consultation to learn about your family and assets and determine what documents you need to be part of your estate plan.  During the second appointment, the drafting appointment, we sit down and go over each of the documents in your plan in more detail to customize your documents based on your needs and wants.  After this second appointment, we prepare drafts and send them to you for your review.  This gives you time to go over the documents again and determine if any changes need to be made or if you have any questions.  Then, we have a shorter, final appointment to make things official with you signing your documents.

To reduce the amount of time you need to spend in our office, we are now offering video or phone call appointments for the first 2 meetings. This way, you can come to the office only one time, for the final appointment to sign your documents.  This is the shortest appointment.  We provide witnesses and a notary in our office who practice social distancing and wear face masks when meeting with clients.  In addition, we are giving more time in between appointments to allow time to sanitize any surfaces that clients touch.  We have sanitizer available as well as clean pens set out for each signing.

With cases across Missouri rising, we have suspended in person meetings as much as possible while trying to have remaining flexible to meet your needs.  By having the first two meetings done virtually or over the phone, we can still help protect you without having to delay getting the process started.

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Guardians – A Tough Decision for an Estate Plan

For a long time I delayed executing my own estate plan because I got hung up on one thing, but one very important thing, who would take care of my children if something were to happen to both my husband and I.  For families with minor children choosing guardians can be the most important and hardest decision to make when working on an estate plan.  When thinking about your will, you have to decide who you want to act as personal representative of the estate, who the beneficiaries of the estate will be, and who will be appointed guardian of minor children.  That last part can be the hardest, as it is so hard to imagine anyone replacing your role as mom or dad.  No one can truly replace you, but you can consider many things when making that difficult choice.

When we first started brainstorming guardians and who we wanted to raise our children if something were to happen to us, we thought of those whom we are closest with and also more importantly, whom our children are closest with.  We thought of my parents.  Although our children are also close with my husband’s parents, they live out of town and we don’t see them as often as we would like.  My parents live less than a ten-minute drive from us, so naturally my kids are vey close with them because we are able to spend a lot of time with them.  If something were to happen right now, I would love my parents to be there for the kids.  However, it is important to look further out.  Would my parents be able to care for the kids until they were old enough to be on their own?  With our parents getting older we didn’t know that we could answer yes to that last question.  Losing parents would be hard enough on our kids, and we would want to give them as much stability as possible, so we decided for us, our parents may not be a good long- term option.  With that in mind we were able to cross both sets of grandparents off our list of possible guardians.

Next, we looked at our siblings, our children’s aunts and uncles.  My husband and I each have two siblings, so this gave us four more options to consider.  How can you choose between sides of the family?  We considered everything from mental health, medical health, relationship history, financial responsibility, location, life- style choices, and again relationship between them and our children.  We ultimately ended up choosing the sibling who lives nearby, has children that are close with and close in age to our children, and even lives in the same school district as us, so that our children wouldn’t have to be uprooted from their school community.  That sibling doesn’t always make same the parenting choices I would, but ultimately, I know that my children would be taken care of, and would feel loved under their care as the guardian.

What I realized, was part of my delay was from not having what in my mind was the “perfect” choice for a guardian.  Because again, how can anyone replace me, as mom?  All the uncertainty of the current pandemic definitely gave me the urge to make a decision and get things in order.  You never know what is going to happen and having a plan in place will make things easier on everyone.  And although this kind of decision definitely warrants taking time to think about, it probably shouldn’t take 10 years like it took me!  Luckily, nothing happened to us during that time, but you never know and at some point you just need to make a decision.  Documents can always be redrafted at a later time if after further thought you change your mind.

-Lisa Villareal

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Another Reason for a Trust – Multiple Beneficiaries

There are many reasons to use a trust to avoid probate rather than simple beneficiary designations.  I often use them if the beneficiaries are minors or need someone else to control the money.  Trusts can also be used to simplify real estate or just have one person in charge when someone passes.  But recently, I’ve encountered a few clients where I’m recommending a trust for another reason: multiple beneficiaries on different assets.

If you have one person as a beneficiary on your retirement money, another on your life insurance, and another on your investment accounts there can be problems.

First, you aren’t guaranteeing any of these beneficiaries money, let along a specific amount of money.  For instance, if you are 65, most of your money probably is in your retirement account.  So, you may think that beneficiary would be getting a substantial amount of money.  However, if you live another twenty years, that money will transition slowly from your retirement account to other assets, such as your investment account.  As this happens, if that investment beneficiary is different than your retirement beneficiary, your investment beneficiary may be getting much more than you originally planned and the retirement beneficiary may get much less.

And that is if you’re in charge of the money.  If you think of it, you may be able to adjust beneficiaries to account for that discrepancy.  But think of how much worse it is if by the time this is happening, you’re no longer capable and your power of attorney is making decisions for you.

In that case, your power of attorney must think about where to pull money to pay bills and expenses.  If they don’t know or don’t understand the nuances of what beneficiary is on which account and how much you would like that beneficiary to get, there is no way they can follow through on your plan.  This means they would really just be figuring out the best way to take care of you.  Then, unknowingly, they could be pulling money from an account and a beneficiary you don’t want them to touch!

Or the asset listing a beneficiary may not even exist by the time you pass.  A life insurance policy may lapse, or a home may be sold.  If those were the only assets designated to a beneficiary, then the beneficiary would end up with nothing.

A much simpler way to provide for multiple beneficiaries, would be a trust.  Within a trust you can turn the amounts you want beneficiaries receive into percentages.  This ensures that any money left will be divided amongst all your loved ones and no one will be accidentally disinherited.

In addition, a trust would allow someone you trust to focus on the best financial decision for you without having to worry about beneficiaries.  This would allow them to make better decisions and save them the worry of a beneficiary suing them for pulling money from an account that benefited the beneficiary.

Trusts have many other benefits as well, but with complicated plans, like multiple beneficiaries, a trust can make things a lot more simple.

Burkhardt Law Firm

Phone: (314) 518-1581
Email: mburkhardt@burkhardtlaw.com
Address:
2333 Grissom Dr., Suite 107
St. Louis, MO 63146