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But Chances Are So Small – Estate Planning – Burkhardt Law Firm

The number one reason I hear for why people they don’t think they need an estate plan is: “Well, my spouse is named as a co-owner on everything I own or is a beneficiary on everything I own and the chances of us dying at the same time is small.”  Well, even if you are right and you and your spouse don’t pass at the same time and your beneficiary designations avoid probate, there are reasons why you still need an estate plan.

Things can fall through the cracks, and you may forget to put a beneficiary designation on a new asset, or there may be other unforeseeable assets that don’t have a beneficiary designation and will therefore go through Probate.  A will is a good way in those circumstances to be able to tell the Probate court what to do with those assets.  A will can waive bond and ask for independent administration which can reduce the cost and time if assets have to go through Probate.

A good estate plan does not only plan for death, it is also a plan for when you are living but incapacitated.  An estate plan may include both a medical power of attorney/heath care directive and a financial power of attorney.  These documents are utilized while you are still alive.

If you have retirement accounts, your spouse cannot be an owner of your account.  They can be a beneficiary, but that beneficiary designation does not give them any rights to access your account or funds from the account until you have passed away. If you to need to access money from your retirement account and are not capable of making financial decisions the only way to do that is through a financial power of attorney.  A financial power of attorney will allow someone of your choosing to make financial decisions and access funds when you are not capable.  If you do no not have a financial power of attorney, there may be a delay and added cost if someone has to go through the court system for conservatorship in order to access the funds. This is just one of many reasons a financial power of attorney is an important document to make part of your estate plan.

The other document utilized as part of an estate plan during your life is the medical power of attorney/heath care directive.  If you are not capable of making medical decisions for yourself a medical power of attorney will allow a person of your choosing to make medical decisions on your behalf.  Do you have specific wishes for end of life? Would you want treatments like feeding tubes to be removed if the doctor did not believe you would have significant recovery?  It is important to make your wishes known and this can be done through a medical power of attorney/heath care directive.

Even if you are not concerned about assets passing through Probate, I strongly suggest considering an estate plan so that you can have access to funds when needed through a financial power of attorney and to make your end of life wishes known through a medical power of attorney/heath care directive.

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When Does a Power of Attorney Start? Springing POA vs. Non-Springing POA – Burkhardt Law Firm

People always have a lot of questions regarding powers of attorneys (POA).  It makes a lot of sense.  Powers of attorneys are so important because they give access to decisions when otherwise your loved ones may be stuck without access! One of the big questions we always get is the different types of powers of attorney.  Specifically, durable powers of attorney and springing powers of attorney.  Today we’re picking on springing powers of attorneys and why you may or may not want a power of attorney that’s springing.

To start with we’re talking about a financial POA.  This is just a POA that gives someone you choose the power to make financial decisions for you.  That power can be springing or non-springing.  If the power is non-springing, then the person you choose has the powers you grant them immediately upon the power of attorney document being signed.  This means that even if you are capable of signing for yourself the person you choose could sign for you immediately.

If the POA is springing, the person you choose to make financial decisions for you will act only if you become disabled or incapacitated.  A medical doctor would need to certify in writing your mental and/or physical condition is impaired to the extent that you can no longer personally make financial decisions for yourself.  Only after a doctor certifies you are no longer capable can the person you choose begin using the powers given in your financial POA.

Some people just aren’t comfortable with the idea of someone else signing for them when they are still capable and may prefer a springing POA.  However, if the power is springing, and then there is a need for your chosen agent to act, there could be a delay while they try to get a doctor to certify that you are no longer capable.  A non-springing power of attorney may be preferred by some people for convenience.  If your traveling or just otherwise busy, your agent could sign for you if they are given the power to act immediately.

Many married people will choose their spouse to act for them and are comfortable with their spouse signing for them immediately.  The thing to keep in mind if you choose a non-springing power of attorney is that if you choose a successor agent, someone to act for you if your first choice is unable or unwilling, and your spouse becomes unable or unwilling to act, then your successor agent will then have the power to act immediately as well.  Therefore, if you execute a non-springing POA, you need to be comfortable with all successor agents acting immediately and not just the first named agent. However, there is some protection in the fact that that a successor agent would have to prove that the prior named agent was unable to act before they could act on your behalf.  Regardless of whether you choose to execute a springing or a non-springing power of attorney, you should select an agent that you trust will act in your best interest.

Having a springing or non-springing power of attorney is a big choice and one we spend a lot of time discussing with our clients. So if you’re wondering which is best for you and your loved ones, the best idea is to contact an attorney and figure out your estate plan.

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Stop Waiting – Burkhardt Law Firm

I joined Burkhardt Law about 5 months ago, and since joining the firm I have had an opportunity to shadow Martha. I have learned a lot from her in these 5 months.  One of the things I have seen while shadowing her is people who wait until it is too late to create an estate plan.  Did you know that for a will to be valid you have to have mental capacity when signing?  In the time that I have been at Burkhardt Law I have seen Martha have to turn away potential clients because they no longer had mental capacity to execute an estate plan.

Has a loved one recently been diagnosed with an illness that may affect their mental capacity? Their illness may progress faster then you think and it could become too late to execute an estate plan.  If your loved one doesn’t have capacity to execute an estate plan and does not have a power of attorney, it may become difficult to access funds they need.  If a power of attorney is not in place, a loved one may only be able to access accounts by going to the court and petitioning for a conservatorship.  This can take time and there is the added issue of court costs.

I have also unfortunately seen clients come in when they are sick but still have mental capacity to sign, however, they have passed away before coming back in to sign and execute their documents. That is just heart breaking. Don’t wait until it is too late.  Benjamin Franklin once said, “Don’t put off until tomorrow what you can do today.” This is excellent advice especially when it comes to creating an estate plan. You never know what tomorrow will bring so be prepared today.

 

— Lisa Villareal

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One of the Most Important Documents – A Financial Power of Attorney

A lot of people have questions regarding wills and trusts.  Those documents do make up a part of a complete plan, but one of the most important documents is a financial power of attorney.

For families without minor children, my first priority is ensuring my clients are taken care of if they cannot take care of themselves.  Now, the medical power of attorney is important to make sure the correct person can make health care decisions.  However, often times, I find medical professionals will follow instructions even without a medical power of attorney.  Now, that may not always be true, so a medical power of attorney is necessary.

However, I can guarantee a bank or financial institution will not allow someone who is not listed on an account to sign.  This is a major concern for those who have the majority of their money in retirement accounts.  On retirement accounts, only one person is listed as an owner for tax purposes.  There may be beneficiary designations, but those don’t go into effect until death.  So, without a power of attorney, if the owner cannot sign, no one can.  This can present a huge problem for married couples who rely on each other’s retirement money.

The same would be true of a couple with a house in joint names.  If the home would need to be sold to provide for them or just to downsize, both would need to sign.  However, if one can’t, the home cannot be sold without court intervention.

A financial power of attorney is an easy solution.  By completing a power of attorney, you can decide who can access financial accounts for you and what powers they have.  So, tell me, who do you trust with your power of attorney?

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Free Advice – Estate Planning Consultation – Burkhardt Law Firm

As soon as someone hears I’m an attorney, I get a rush of legal questions. And I actually enjoy answering questions when I can. However, so many questions don’t have an easy solution or a quick answer.

Every legal question I’m asked creates a whole list of questions that I have to ask in return.  There’s rarely an easy yes or no. In fact, one of the favorite responses of an attorney is “well, it depends.” And it’s the truth.  So much depends on who, what, where, when, how. And for each response, I generally have yet another question!

My other favorite thing that goes hand-in-hand with this is “my neighbor said” or” I heard.” And that’s great.  Your neighbor might be exactly right. But more likely, your neighbor’s situation is just slightly different.  Which is enough that causes what your neighbor said to not apply to you.  Or what your neighbors said failed to mention a really important detail that completely changes everything.

So, when you have a generic legal question, and you’re asking for advice, or you heard something, it’s not that simple. I’m not going to have an answer.  It’s going to take a lot more. That’s the reason I do free consultations.  That’s the reason I want to sit down with people and talk.  Because each person’s situation is going to be slightly different. Each person is going to have a different concern. Each person is going have a different thing that’s important to them.  And that’s what I went to law school for; to ask the questions to find those things out.  It’s after I ask those questions and get the answers (which most people don’t know to ask and didn’t know were important) that I will have an answer.

So, do me a favor next time you have a legal question, or your neighbor told you something: just stop and ask an attorney.  Set up a time to do a consultation and to give specific answers to the questions that your question just brought up.

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Another Estate Planning Attorney – Burkhardt Law Firm

I love working with all the families who have trusted me with their loved ones and avoiding probate through estate planning.  I even appreciate the opportunity to help those who needed probate and let me navigate them through court.

As I look forward to helping more people and families through these legalities, I wanted to also provide a back up, more options, and flexibility.  For those times I’m sick, in appointments, or just booked six weeks out, I’ve hired another attorney:  Lisa Villareal.  She joined our Burkhardt Law Firm family in June.

Lisa has been licensed to practice law in the state of Missouri since 2007.  A St. Louis native, she attended Parkway Central High School in West St. Louis for high school.  She graduated with her B.A. in Political Science from the University of Missouri-Columbia and continued her education at the University of Missouri-Kansas City School of Law. Knowing that she wanted to help individuals and families better plan for their futures she participated in the UMKC School of Law Estate Planning Clinic and was the recipient of the UMB Excellence in Estate Planning Award for her work in the Clinic.  When working in a position with H & R Block she was recognized for her excellent service to clients and now brings this same excellent service to the clients of Burkhardt Law.

Lisa is still shadowing me and learning how I practice, but if you see her in the office or out networking, don’t hesitate to say hi!

 

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5 Cybersecurity Tips to Keep Your Data Secure

In today’s world so much of our lives revolve in the digital world.  Beyond just email or social media, there’s online banking and access to investment accounts.  A lot of personal information is available through these online accounts.  Now, I deal with confidential matters on a daily basis and I’ve hired CMIT Solutions of St. Charles/Chesterfield  to make sure that my client files are well protected, but I asked them to provide me some simple, important, changes to personal digital security to share with you. Here are their five top suggestions:

  1. PROTECT YOUR PASSWORD.

Most of us create passwords that are easy for us to remember, but easy for others to guess. Our passwords may reference a pet, friend, family member, or “happy place”. Then, we adapt that same password to create new ones. Unfortunately, many sites fail to block or encrypt your password; the password that gets stolen from a website you may consider low-risk could hold the key hackers need to access your bank account, amazon account and more. Cybersecurity experts suggest that you use a combination 10+ characters that include uppercase and lowercase letters, numbers, and symbols. They advise you to change your passwords every three months if possible. If this feels like too much, one great tool I use is LastPass, which will manage all of your passwords for your, so you only have to remember a single password for all sites you visit on a regular basis. One final note: Many sites offer two-factor authentication (2FA), which pairs your username and password with a separate piece of data only you could have access to. This could include requiring you to confirm a pin you’ve set; a code form an SMS message or provide a fingerprint. Take advantage of this service whenever you can!

  1. BE AWARE OF YOUR PRESENCE ON SOCIAL MEDIA.

We use social media to connect with family and friends, but there are plenty of strangers ready to use your information for a profit. Social media sites have almost all of your personal information, ranging from your phone number and payment information, your birthday, and the answers to common security questions. A major data breach can easily lead to identity theft. I’m sure you’ve seen friends who’ve had their profile pictures and information hijacked on Facebook in order to be used by scam artists. To keep yourself safe, these social sites are constantly making changes to increase security. Take advantage of this! Use new features Facebook is offering, and be careful about what information you add to your profile, not every field on your profile is necessary or required. Be smart about friend requests, keep your profile private and only add people you know. Finally, be aware that there are scammers out there. Social engineering scams are on the rise: scammers try to gain your trust to learn personal information and then once they’ve gathered enough information, either guess a person’s password or get them to reset. Beware of links and attachments sent through social media, and be cautious if someone you know asks you a strange question on social media (they could be a scammer who’s hacked or created a fake profile).

  1. BACKUP YOUR DATA AND UPDATE YOUR SOFTWARE.

Imagine the headache of trying to reconstruct files and documents if someone were to steal your laptop. External hard drives are inexpensive and worth the cost. Save your data to an external hard drive and keep it in a secure place. Do not rely on thumb drives; they are handy but easy to lose! If your data is ever held hostage by ransomware, having a backup of your data will save you a lot of heartache. Another way to ensure you data is secure, is to update your devices. Companies regularly update software, making it easier to use and, more importantly, more secure.

  1. DON’T CLICK ON AN EMAIL OR WEBSITE IF YOU DON’T KNOW THE SOURCE.

Web browsing can lull us into a false sense of safety, and before we know it, we have clicked on a suspicious link. Not only do you put yourself at risk, but you also expose your friends, family members, and business associates to potential danger. Hackers can snoop around your profiles, likes, and activities and gather information about your contacts.

  1. MONITOR YOUR ACCOUNT FOR ACTIVITY

Log out of all websites and lock devices when you are finished. This means that you will have to log in each time, but it also means that you can see if an unauthorized person has tried to access your account. Delete all accounts that you no longer use.

With a little time and effort, you can begin to secure your electronic devices!

 

 

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When You Don’t Avoid Probate – Part 3 – The Worst-Case

Last month, we took a break from talking about probate to have a guest writer.  However, I want to tell you about the worst-case scenario of probate, or at least what I consider the worst-case scenario.  Before I get into specifics, I’m an attorney, I have to give a caveat:  Law is very fact dependent.  Probate cases can proceed in many different ways and require many different things depending on the specific case.  That being said, a full probate proceeding usually follows this generic procedure:

First, the people applying to be a Personal Representative has to apply for the Letters.  It can either be Letters of Administration if there is no will or Letters of Testamentary if there is a will.  As part of this process, the court requires the information I mentioned before.  If there is a will, the court requires the original will to be submitted.  Depending on the specific case, the heirs or beneficiaries involved may have several different forms to sign off.   These could include waiving bond and consenting to the Personal Representative being named, among others.

I also want to point out that notice has to go out to the legal heirs, not just the people listed in the will.  So this means if someone was disinherited, they get notice they were disinherited and have a court case already filed where they can contest the will.

Once the Letters have been approved, this court order will allow the Personal Representative to collect assets in the name of the estate.  From the estate account valid expenses of the personal who passed (burial, bills, taxes, etc.) can be paid.

After the Personal Representative has been appointed and received the Letters, the court requires an Inventory. This is just a list of assets that were held in the name of the person who passed.

Then after all of this initial work, there’s a waiting period.  Nothing really happens for about 6 months while the creditors have a period to file any claims.

After the creditor claims period, any claims can be negotiated.  Often times, we can set a hearing for the claims and the court will dismiss the claim if the creditor does not appear.  What this means is that I often will go to court, the estate will pay me for my time, but the claim does not need to be paid.

Once all of this has been taken care of, the Personal Representative can begin closing the estate.  To do this, they need to give notice to all of the people receiving money and an accounting (called the Settlement) of what has happened to the assets.  With the consent of everyone involved, some of these formalities can be waived.  They can then hand out the money and close the estate.

What this all comes down to is: The money that is supposed to go to the loved ones, ends up paying for court and legal fees.  Disinherited family have the opening to contest.  Creditors have the opportunity to get paid. The beneficiaries have to wait over (and at best) six months before receiving money.  All in all, a situation most people want to avoid.

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Grandparent Rights

When clients call with family law issues, I am quick to defer to and refer to a few fellow attorneys I trust and who know family law infinitely better than I ever will.  However, one area, I think is important to touch on with regards to estate planning are grandparent rights.  Now I try to help my clients plan with ways to encourage visitation when I/we foresee a problem.  However, to give you a more educated view on those rights, George Halenkamp of Halenkamp Law was nice enough to put some thoughts together.

One unforeseen circumstance that can dramatically effect estate planning for grandparents is when a child goes through a divorce or has died. Goals can quickly change when this scenario occurs, especially when it comes to visitation with their grandchildren. It seems unfortunate that grandparents would have to go to court just to see their grandchildren, but sometimes grandparents are forced to consider their options.

Under Mo. Rev. Stat. §452.402 (RSMo Supp., 2011), the court may grant grandparent reasonable visitation with their grandchild under the following circumstances:

  1. When the parents of a child are filing for divorce, grandparents are able to file a Motion to Intervene to request a reasonable period of visitation from the Court or file to modify an existing order;
  2. When the parent of a child is deceased, and the surviving parent denies the decedent’s parent reasonable visitation with the child; or
  3. If the child resided with the grandparent for a minimum of six months within the two years from the filing of the petition, and if the grandparent has been denied visitation with the child for at least 90 days.

A common assumption has existed over time that grandparents have little to no chance of being awarded visitation with their grandchildren. This assumption is not necessarily true. It is presumed that parents living together know what is in their child’s best interests, but this is a “rebuttable presumption,” meaning that the burden of proof is on the grandparents to prove that granting them visitation is in the child’s best interest.

How do grandparents show that reasonable visitation it is in the child’s best interests? The answer is complex and fact specific. However, generally speaking, Missouri statutes allow the court to appoint guardian ad litem, order a home study or consult with the child in order to determine the child’s best interests. The court may consider several factors in determining the best interest of the child. Additionally, the court may conduct a further analysis to make this decision, including talking to the child about his or her own wishes.

In many cases, grandparents are a valuable part of a child’s life. While the parents of the child do generally have primary rights to the child, grandparents are place into a difficult situation if an unexpected divorce or death happens. Grandparents do have legal options to consider in certain circumstances. It is always preferable for the relationship to stay outside of the court room. However, grandparents sometimes may not have any other choice but to involve the courts.

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When You Don’t Avoid Probate (Pt. 2) – Your Options

So as I mentioned last month, I have been doing a lot of probate work recently.  And there I discussed what is needed to begin probate.  This month I want to discuss what the different probate options are.

The simplest option is the small estate affidavit.  The limitation is that you can only use a small estate affidavit if the total assets are under $40,000.  You also have to have proof of the assets and will not be an executor or personal representative. This means if you don’t know the assets, you cannot use a small estate. But if you know all the assets and they’re under $40,000, a small estate affidavit will result in a court order giving access to those assets. It’s a great option.

Another “easy” option is the determination of heirship. However,  this is only available a year after a person has died. It also requires a court hearing. And because a will has to be admitted into probate within a year of the death, you cannot use a will. The assets can only pass intestate.  At the end of the hearing, there is a court order showing who the heirs are who get the assets. So again, there will not be a personal representative to get access to unknown assets,  but it’s another simple option to get to assets.

However,  if the assets are over $40,000, you can’t wait a year, or if there’s an unknown and you need to gather information,  the only option is a full probate proceeding. A full probate process is what most people want to avoid with a proper estate plan for a few reasons.  First, it opens the assets to creditors and challenges.  Secondly, you’re paying attorney to handle it all.  And finally, in a simple case, it won’t be resolved for over six months and normally will take over a year to complete.  So while, it’s sometimes the only option, it’s the proceeding most people think of and want to avoid.

Burkhardt Law Firm

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