THREE ESTATE PLANNING MISTAKES

JOHANNA DAVID, Adjunct Faculty Member at Hofstra Law School is with us to talk about three estate planning mistakes and how to avoid them. Johanna is a Trusts and Estates lawyer, and a partner at Forchelli, Deegan, and Terrana. She's also the adjunct professor of law at Hofstra University. We're going to talk a little bit about mistakes that we see in estate planning and the simple things you can do to keep them away from your situation. Enjoy. https://youtu.be/gD_d9J609Vg Three Estate Planning Mistakes Chapters 00:00 The Importance of Estate Planning09:47 Common Mistakes in Estate Planning19:54 Understanding Trusts and Their Benefits24:00 Navigating Elder Care and Estate Planning Outline of "Three Estate Planning Mistakes" Frazer Rice (00:01)Welcome aboard, Joanna. Johanna C. David (00:03) -Three Difficult Planning Stories and What Can We Learn? Hi, thank you. Thank you so much for having me. I appreciate it. Frazer Rice (00:06)Well, happy to have you on because we are now, most people sort of put their estate planning off toward the end of the year, but I have a feeling given where the legislation is going, et cetera, that the crush is going to happen earlier than we think. In the meantime, you and I were talking beforehand about some mistakes that people make from an estate planning perspective and that they're very avoidable. I thought we'd take this opportunity to go into that a little bit. In your practice, maybe let's start with a couple of, or sort of the big ones that you see, ⁓ give us some ideas of some mistakes that people make that really should be avoidable. https://open.spotify.com/episode/57MMskGgp1P3fOVklGt090?si=ISap3Z_YSdqK_zg4-Dlevw Johanna C. David (00:48) - Structure and Other Planning Tactics Sure, absolutely. So the number one mistake that I think that people make is not having the proper estate planning documents. I see this happen time and time again. I don't know if it's because of the stigma. People are afraid to approach estate planning, right? Sometimes it makes your mortality very real. But the biggest estate planning mistake is not having the right documents. Everyone, everyone, I cannot stress, everyone needs to have at least a will, a power of attorney, and a healthcare proxy. And there are people that say, well, you know, I don't really have much, I don't need to do that, or ⁓ everything's gonna go directly to my husband and my children anyway. You know, that's how it works. But that's not exactly the case, right? You and I both know. So, especially if you have young children, young couples definitely want to have those things in place. You want to think about who is going to be the guardian for your child or your children if both of you pass away. And a lot of people don't think about that. And those only cause problems in the long run. I'll give you a quick example if we have time. But ⁓ Frazer Rice (02:02)⁓ please do. Johanna C. David (02:03) - Long Term Planning Issues and Avoiding Problems I remember, this was several years ago. I must have just started practicing and I had been a young attorney. So it was about 15 years ago and a woman came into the office and she and the decedent had been living together for about 30 years. They held themselves out to be married. Now, Frazer, you and I both know that New York does not recognize common law marriage. Frazer Rice (02:30)This is true. Johanna C. David (02:32) - Correcting a Big Will Mistake She was not aware of that. And so they were married for 30 years. Everything was in his name or excuse me, they were not married. They were together for 30 years, held themselves out to be married, not legally married. He owned the co-op apartment. Everything was in his name. Now he had a daughter from a previous marriage, legal marriage that was a strange. And you guessed it, our client did not get along with the daughter. So the father dies and guess who inherits the co-op that this woman has been living in for over 20 something years, right? And who inherits all of this man's assets. It ends up being the daughter and the woman is out. Frazer Rice (03:09)It's not the intent. Johanna C. David (03:13) - The Price of Neglect and Other Costs of a Mistake Right, exactly, not the intent. And you know, this man didn't have a will. He did not have a will. Again, there are so many myths out there about estate planning. You know, this woman was under the impression that, hey, you know, we're common law married. If he passes away, if I pass away, everything will go to each other. That's not the case. So I always remember that case. I always give people that example because it's so important to have a will. Frazer Rice (03:38)The other part too on that is that the poor person who has to administer that estate has to go through the court and all that. You're not doing your executor any favors by not having a will. And, you know, there isn't technically an executor in that case, but someone's left to clean up that mess. Johanna C. David (03:45) Yeah, the administrator has to clean up the mess and it's not an easy thing, believe it or not. It's funny because this week I had a client come in and this one is a little interesting, but I'm going to, you know, just stay with me because it gets a little hairy. OK. Frazer Rice (04:09)Gosh. Johanna C. David (04:11) - Difficult Phone Calls It gets a little hairy. When I teach at school, cases like this, I like to draw out on the board. So I hope that our listeners can kind of follow a little bit. A woman comes in and she tells me that her cousin died. OK? This man died in, I believe, 2012. Up until his death, she was his power of attorney. OK? Another myth. People don't realize power of attorney dies with you. Okay, she's no longer the power of attorney. He died in 2012. She was the power of attorney. He was a widow, a widow were rather. His wife had predeceased him. He had no children. She's a cousin, but they're very close. She's the power of attorney. All of a sudden, and I don't know how this happened, she figures out that there is a fidelity account that has about 300,000 numbers in it. What now? She's like, well, you know, what do I do? I asked if he had a will. Of course, he didn't have a will. So I explained to her that, you know, we have to go through what is called an administration proceeding. And I tried to figure out his family tree. He had no children, his wife pre-deceased. He was survived by a brother. For example, for this example, let's call the decedent Will. William will call him. Will and his brother- let's call him Dave. So Will was survived by Dave. Right after Will dies, Dave dies. Dave also didn't have children but was married and had a stepdaughter. So Dave dies, right? As it's go to Dave's wife. Dave's wife dies right after him. I know, it's crazy. So now Dave's wife dies. Dave's wife has one daughter, okay? She dies. I'm not making this up, I promise. Frazer Rice (05:43)My gosh. Tell us where they live so we can avoid it. Johanna C. David (06:01) - Complication So daughter dies, okay? So now, so the brother, Dave, his wife, his stepdaughter, they all die. Daughter had no children, okay? Whose daughter's next of kin? Frazer Rice (06:18)You've lost me, if you go back up, I think there's a stepdaughter in there somewhere. Johanna C. David (06:22) - Tracing the Lineage Right, so that's daughter. Her next of kin would have been her biological father. So guess who's entitled to the assets? So let me bring it all back for our listeners. Basically, Will's assets, so Will died. His assets will end up going to his sister-in-law's ex-husband. Frazer Rice (06:28)Right. gosh and they may not have ever met. Johanna C. David (06:49) - The Family Tree Correct. All because if, again, none of these people had wills, and when you don't have a will, you know, New York State basically writes one for you. And those are called the laws of intestacy. The laws of intestacy determines what happens when someone dies, who inherits, who are their heirs. So we have to follow the family tree. It's very unfortunate. I had to explain to this woman that the truth of the matter is, yes, we needed to administer all these people's estates. But then at the end of the day, assuming that this man is alive, which we think he is, right, he will be entitled to the assets. Imagine getting that phone call, Frasier. Frazer Rice (07:28)And not only getting that phone call, but then having to make that phone call when you find this all out. And then part of that too is, some people, and it's easy to get confused, is that you have beneficiary designations. So the fidelity account, guess in theory, could have also been designated, but that doesn't sound like that happened either. Johanna C. David (07:49) - Beneficiary Designations All right. There was no beneficiary designation. So you're right, he could have had a will or he could have at the very least if he was very close to his cousin, you know, she was taking care of him. She was power of attorney and healthcare proxy. He could have at least had her as a beneficiary, which he didn't. Frazer Rice (08:07)Well, as I tell people, ⁓ yes, the beneficiary designation is useful and powerful, but don't let that act as a substitute for a will because there are going to be other things going on in your estate, most likely. Johanna C. David (08:19) - Dealing with Institutions Yeah, absolutely. And sometimes people put beneficiary designations. They forget all about it. And then they pass away. So I have seen beneficiary designations that might have been a parent, right? Maybe you had this account since you were young and you were not yet married or had children. And so you put your parent on the account, you know? Now you pass away. Maybe your parent has passed, but now the assets may end up going to, you know, who knows?