Seniors & Aging

Real Life | Answering your questions about estates, fiduciaries and executors

Last time we featured some composite cases based on your awesome feedback questions, comments and stories. Here is some more to which I think you can relate.

A tip from a reader

“At last, to get the darned thing sold, we had to take back a promissory note from the buyer, letting him pay in several years’ worth of monthly installments. We didn’t think we needed to incur the expense of hiring a lawyer to draft the paperwork.

“Well, our worst nightmare came true. You guessed it: Buyer defaulted then died and now a year later his estate still hasn’t been probated, leaving us twisting in the wind. Because the note lacks default language, because the buyer and his family engaged in some evasive maneuvers, and because of the way the laws are written, we seem to be ‘falling between the cracks.’

“Lessons painfully learned: About blithely assuming that strangers (even friends and family, too) always will be honorable and honest in money dealings; about venturing into deals that we’re not savvy enough about; about expecting the law to bend over backwards to protect us against bad guys when we’ve screwed up, too; and about the false economy in saving a few hundred bucks by not engaging a lawyer to prevent us from blundering into deals that can cost us thousands.”

This reader’s motive is to alert us to such nasty-dealing people in the community, and about how we’re tempted to invoke lousy judgment when we’re under pressure. Thanks to him for coming forward despite his own confessed errors, and cheers to him for his candor, self-respect, insight and humanity.

By the way, did you know that a South Carolina estate isn’t required to be probated right away? It has up to 10 years, and you can strategize ways to get rid of creditors during that time.

Speaking of estates

“Gary, my brother attended your seminar on estate planning and administration and learned about the possible negatives of being a fiduciary. Now, he doesn’t want to be my trustee, attorney-in-fact, health care agent or PR. Thanks a lot!

“Can he refuse?”

Anyone nominated or appointed to be a fiduciary can decline to serve or resign. Sure, we feel honored, duty-bound, vitally supportive, important and complimented when we are asked to serve. And in many families there just aren’t any other suitable candidates, despite our reluctance.

All of that being said, there can be some good-sense reasons not to serve. For instance:

▪ Someone else who is much better suited to the task becomes available, or it needs a professional.

▪ When the task will last, or might not even begin until, long into the future, are you young enough and healthy enough now to expect to be able to do it well then?

▪ If the “instrument” (document) governing your role is weak, defective, possibly invalid, inadequate or fails to grant you protection against unwarranted challenge, should you risk heartache and personal losses?

▪ Are you walking into vexsome squabbles among family members or conflicts with those who will resent your power or are disappointed over being slighted or disinherited?

▪ Can you afford to give the task the time it needs, especially if there isn’t enough money to compensate you or if you don’t want to take payment from loved one?

▪ Will the diversion of your time and energy to the task harmfully or unfairly impact your other loved ones?

▪ Is there sufficient liquidity and are the person’s affairs sufficiently free of problems so that you’re not tumbling into a black hole of impossible duties and heartache, even if professional help is available?

▪ Will your plans, both near and far, render you unavailable or located at a problematic distance?

▪ You don’t feel confidently qualified or experienced enough, and there isn’t enough money to engage experts to advise you.

▪ It’s complicated. The enormity of the task scares you, and no one has convinced you that yes, you can do it.

▪ You just don’t want the high degree of responsibility.

Of course, we can give our fiduciaries a well-deserved break by really maximizing the countless available estate planning and administration techniques to minimize the downsides.

Emergency help for the elderly

“We’re empty-nesters now. What do elders like us do when we need immediate help in an emergency?”

Picture this: You’re alone, or your spouse is unable to manage life’s crises. Family, including your fiduciaries, are scattered across the country or even the world, or are on travel, duty or work assignment, or are vitally absorbed in their own family urgencies.

Suddenly, you’ve had a crippling stroke or a fatal heart attack. The rescue squad and hospital first responders have done their job.

Now, you, your remains, Fido and Whiskers, the house, the mail, your funeralities, the leaking water heater, the nearly overdue bills and tax payments, and business affairs need immediate attention. The word has to get out to friends, family, health care providers and associates right away. Help!

The authorities find the Personal First Responder in your wallet on the emergency information card, or on your fridge in the “File of Life” envelope. Their call immediately activates the individual or team -- the savvy, capable and available, friends, neighbors or professionals (law or wealth management firm, financial practitioner, pastor, etc.) who you wisely arranged for long ago to step in and handle the immediacies until family and fiduciaries can get up to speed. Obviously, at least one PFR has to be local, for immediate access to the house in order to handle the myriad things that have to be done there.

You’ve empowered them with a key to the house and car and access to your miraculous Estate Operators’ Manual (“Doomsday File”) containing every bit of information, instructions and documents that they will need. And you’ve given them the legal authority via your property will, powers of attorney and trusts, to act as your fiduciaries’ agent. In fact, whenever feasible the fiduciary and the PFR can be the same person or team.

And you’ve made sufficient money available and accessible for immediate and short-term needs. One simple, clean method to do all of this is to create an empowering and funded personal revocable trust that continues and becomes irrevocable at death, naming one or two PFRs as co-trustee(s) with powers to do whatever is needed, including operate the trust’s financial accounts. You and your estate’s “personal representative” (executor) and your general durable power of attorney’s “attorney-in-fact” (agent) are logical co-trustees.

The need for personal first responders, as well as for surrogate fiduciaries, is so widespread in communities like ours that it’s inspired a growing professional firm here, whose mission is to respond immediately and take care of everything.

Your feedback is welcome. Keep sending me your concerns, questions, suggestions and ideas.

Contact GARY NEWMAN at gary@gnewman.org. Your ideas and comments are always welcome.

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