HunteReport

Welcome to HunteReport

2020-12-21T16:52:00.001-06:00

A WARM WELCOME TO THE HUNTEREPORT

We extend a warm welcome to each of our Guests who visit our Weblog, and the HunteReporT, and would like to explain who we are, what we are doing, something about the people who get out the Weblog, how to find what you need, and many other aspects of something you will find that is an entirely new concept of a Weblog.

We hope to provide each of you with essential, but often hard to find, information that will assist in making your important decisions that help you to determine, in large measure, the kind of life you will live during "the rest of your years," whether you are 20 or 100, or something in between, or even older.

An Entirely New, Much Broader Concept of Estate Planning That We Call "Life Planning"

Through the blogs that we have posted and those to come, we are presenting an entirely new concept of Estate Planning. Rather than limiting our presentations to the traditional questions of wills, trusts, powers of attorney, etc., we are now including a number of additional subjects.

This concept can be more accurately termed "Life Planning." It considers many of the subjects that are the basis for making all the decisions that determine how the "rest of our lives" will be lived, whether we are 20 or 95 years old.

This concept includes the things that you do to protect your health, maximize your income, and build sources of revenue that will enable you to be comfortably situated for life. Life Planning declines in value to you to the extent that you fail to act when you should have.

A Duke University analysis of data from the Centers for Disease Control learned how many deaths in the U.S. are due to bad personal decisions and choices, such as overeating, unsafe sex, or smoking. They found that 55% of deaths between 15 and 54 are attributable to bad decisions, when suitable alternatives were readily available. A century ago, on the other hand, only 5% of such deaths were brought on by bad personal habits. The fact is that millions of deaths are actually caused by those faulty decisions, and can be avoided.

The kind of Life Planning that we are considering should begin early, the sooner the better, since it will avoid making serious mistakes. It isn't enough, though, to understand the rules of good Life Planning. For many, there is a missing ingredient. That is the grim determination to do what is necessary to carry out the Planning.

The basic rules of Life Planning are clear, simple, and well known. They include (1) Get plenty of exercise, (2) No smoking or narcotics, (3) No excessive use of alcohol, (4) Get enough sleep, (5) Careful avoidance of accidents, (6) Have a complete set of well constructed estate planning documents, including will, trust, powers of attorney for property and health, including an advance directive, (7) Live well within your means, (8) Regular saving of income to invest in sound investments, and (9) Constant upgrade of job skills to assure continued and improving jobs.

To learn more about us, click on About Us. To learn about making the best use of the HunteReporT, click on Guest's Guide.

#96 Surprise! Ants In Your Pants Are Healthy

2010-10-14T08:00:00.001-05:00

Jim Sollisch, a creative director at Marcus Thomas LLC, writing in the Wall Street Journal, admits that his mother, when he was a kid, accused him of having shpilkes (Yiddish for ants in your pants).

As a successful businessman, he still has them. At work, he's called a moving target, crossing and uncrossing his legs every 10 seconds, squirming in his chair, stands up and then sits down, running around the room.

Now he's glad he is that way for several important reasons. The American Cancer Society has confirmed that, if you sit still for more than 6 hours a day, the higher your risk of premature death (37% for women, 18% for men).

The moral: Don't just sit there. Stand up every 15 minutes. Bounce a leg. Get up and walk around. But the good doesn't end there.

This bounding around burns calories. It helps you lose weight. Tests show that it improves brain activity, making it easier to solve difficult problems. In fact, you can solve a complex problem easier by walking backward as you think (just don't spoil it all by breaking an arm falling over a chair).

There's even another benefit: you can communicate better with those around you. What else can you do that will make you live longer, take off weight, think better and communicate better. In addition, it doesn't cost a cent, its available right at home so you don't have to go to a store to get, you can use it any hour of the day or night, and you get a lifetime guarantee of its effectiveness.

So you can be glad if you have ants in your pants. You can proudly wear a sign on your back that says: I'VE GOT ANTS IN MY PANTS AND AM GLAD I DO.

#95 What Are The Grounds For a Divorce?

2010-10-12T08:00:00.000-05:00

The grounds that a person may have for divorce are determined by the state where the couple lives. Complicated rules can determine which state's laws will apply in those cases where either or both the couple have been moving from state to state before filing the divorce action. Those rules can become highly complex and are not considered here.

Formerly, people generally knew of this form of court action as a divorce. Your own state may use a term such as "dissolution of marriage," but such names are confusing to the public, and we'll use the term divorce to describe what people generally believe is included in this type of court proceeding.

There has been a great division among Americans on whether a divorce should be easy or difficult to get. Formerly, there were few grounds for a divorce. In some cases, the state legislature had to pass a law granting the divorce. Now some states freely allow a divorce to anyone who wants out of a marriage.

In states such as Illinois, it is required that the person wanting the divorce must prove that the facts occurred that are the basis for the lawsuit. There is no way that the parties can trump up a legal case when none existed. It does permit a Joint Simplified Dissolution where there are irreconcilable differences (easy to find in just about any marriage) and neither looks to the other for support, there are no children and none on the way, they have separated for more than 6 months and can't be reconciled, they have not been married for more than 8 years, they own no real property, their total property does not exceed $10,000, their combined income does not exceed $35,000, neither party earns more than $20,000, and they have agreed in writing to a division of their property. All of which means almost no one qualifies to obtain a divorce in this manner.

However, the Illinois laws now permit a divorce to be obtained for just about every ground other than incompatibility, by listing as the grounds that can support an application for a divorce. They include, among others (1) impotency, (2) the marriage is bigamous, (3) adultery since the marriage, (4) desertion for more than a year, (5) habitual drunkenness for two years, (6) gross drug habits, (7) attempt on his/her life, (8) extreme and repeated physical or mental cruelty, (9) conviction of a felony or infamous crime, (10) infecting the spouse with a sexually transmitted disease, and (11) living apart in excess of two years with irreconcilable differences.

We all want to avoid doing something about a future problem until it becomes critical. There is a lesson in the consideration of the grounds for divorce in your own state. It is that, if it now appears that a divorce in the fairly near future has become a distinct possibility, consult a lawyer, preferably not your family lawyer, who may now or previously represent other members of the family.

Find out what your grounds for divorce might be, and what you spouse's grounds might be. That will help you determine a course of conduct so that you will be in a better position if there is a divorce. The spouse who is most at fault in a divorce case usually comes away second best in the total outcome of all that takes place during and after the proceedings are entirely completed.

#94 Facts or Conditions That May or May Not Make a Marriage Void

2010-10-07T08:00:00.000-05:00

Some marriages appear to be valid in all respects, but they can be invalid if certain facts or conditions exist. One legal requirement is that the parties must be a certain age or older, unless they have complied with special requirements of the law, including a possible state statute that permits younger persons to marry under certain circumstances.

A marriage is not valid if either party has a living former spouse, and that marriage has not been dissolved by a court (bigamy). However, some state laws provide that the current marriage becomes valid when the former marriage is legally terminated; provided the current couple has continued to live together as man and wife.

Until 1967, people of different races were not allowed in some states to marry, an act known as miscegenation. All the documents may have been in good order, but the marriage was void because it violated their state's statute. However, the U.S. Supreme Court found such statutes to be unconstitutional in 1967, so such intermarriage is no longer forbidden.

Generally, impotency of either party can void a marriage, even though all the marriage documents are in order. Your own state statute may permit the marriage to be void, but not until there is a finding by a court that the party is actually impotent. Divorce may be a better way to dispose of the problem.

Common law marriages, those that became valid because the parties lived together as man and wife, are no longer recognized in most states, and have not been recognized for many years in most states, so that very few now exist. They are explained in our Blog, Just What is a Common Law Marriage?

Some marriages are invalidated by the Uniform Marriage Evasion Act, which provides that, if residents, who could not be legally married in their home state, come into the state of the marriage because they can be legally married there, the marriage is null and void as if it were performed in their home state.

Incest, the marriage of a couple who are closely related by blood, has been forbidden since soon after the dawn of civilization. Each state has its own statute and court decisions defining incest in that state. It may forbid a marriage between and ancestor and a descendant, brother and sister, or between an aunt or uncle, or between a nephew and a niece.

Marriages between first cousins are generally prohibited, but there are exceptions to this prohibition under some state laws. In Illinois, for instance, it does not apply between cousins if both parties are over 50, or if either party can supply proof that he or she is permanently and irreversibly sterile.

The foregoing should provide very good reasons, if any of those conditions would impair the validity of a marriage, to consult a competent lawyer to see whether it presents any serious problem. Trying to hide the defect in the marriage can come up many years later, in such questions as who will inherit your property.

#93 The Legal Requirements of a Valid Marriage

2010-09-16T08:00:00.000-05:00

People often seem to believe that all it takes to be validly married is to get a license, stand up before a priest or other person authorized to officiate at a marriage, say "I do," [called solemnization] and they are validly married. Actually, it is far more complicated to determine whether a marriage is valid.

These questions are answered by the statutes and the court decisions in your own state. State laws are very similar in many ways, but they contain important differences. If there is a question about the validity of a marriage that is important to you, the only way to get it answered right is to consult a lawyer who is experienced in marriage, divorce, and related laws of your state.

We start with the consideration of what it takes to make a valid marriage. We'll consider in forthcoming Blogs about (1) what may make the marriage void, and there is no way to change it, and (2) facts that could make the marriage void, but it will continue to be valid if it is not set aside in a court proceeding.

To get the license to marry, you go to the proper court clerk to apply for it. Among other things, the clerk may demand proof that the parties are of legal age to marry or have a required consent if either is under age. A medical certificate may be demanded. The law may require a waiting period before the license is valid. It expires in a specific number of days.

The marriage then must be solemnized, that is, the parties appear before any person authorized under your state law to perform marriages. After the wedding, the marriage certificate is completed and returned to the clerk who issued it. The clerk then registers the marriage.

Because of some fact or some clear violation of a law, some marriages are void from the beginning. Nothing can be done to make them valid. Those situations will be considered in a forthcoming Blog.

In other situations, there may be some serious defect in the marriage that makes it voidable, but it is treated as a valid marriage until someone takes the appropriate action to have a court declare it void. Those situations will also be considered in another forthcoming Blog.

#92 Preparing The Letter to Accompany Your Will (or Living Trust)

2010-09-14T08:00:00.000-05:00

About the most essential thing you can do in creating a sound estate plan that will be as easy and economical to carry out is to prepare a "Letter to my Executor." It might be addressed to the trustee of your living trust.

Ideally, that "Letter" will contain everything your trustee or executor will need to know about you, your relatives, your property, your debts, etc., that she/he would otherwise have to go out and ask someone for the same information.

This letter must be prepared very carefully, after giving it long thought and planning. The larger and more complex the estate will be the more time and energy that you should be devoted to it. For a small estate, where the owner doesn't have many family, financial, health, etc., problems, it could be enough to be only several pages.

In the larger estate of a person with much serious financial, family, and other problems, it can become a pretty large book. But every moment spent on it will be paid for handsomely when you are gone and no longer able to furnish information.

In the process of getting your will and other documents drawn, you should show your letter to your lawyer, who will have other suggestions as to what to include and what to omit.
To the extent practicable, the letter should contain the names, addresses, birth dates, and social security numbers for all those who are beneficiaries under your will or living trust. It should name your lawyer, your accountant your banker, and other advisors.

There should be a description of the various estate planning documents and where they can be found. Similarly, there should be a complete description of all your property, real and personal, and where it is located, as well as your stocks, bonds and other securities, and their present value. All your insurance policies should be listed.

In addition, there should be list of all your forms of retirement income, along with the addresses of those to be contacted when a claim is made.

There is a temptation to explain why you have distributed your estate, so that those who get less than "their share" will somehow be better satisfied. Don't do it, as your statements may be used in court. Also, don't give vent to your anger directed at one of your children, in explaining why he/she was "cut out of the will." Any such statements may be used in a suit to set aside the will.

You can be a great help in getting the maximum amount for some special asset, such as your business, your stamp collection, or anything else that requires knowledge that most people don't have. Explain the best sources of possible buyers, who can give unbiased information about the procedures and how to get the best prices.

This applies especially to something like timeshares which may have been pricey to buy but is worthless when it comes to selling them when the owner dies. A partial solution may be to put title to them into joint tenancy with a close relative, who would automatically take title upon your death.

This letter should be kept in a place where it is certain to be found upon your death. It should be reviewed frequently, and revised to reflect changes in the family [births, deaths, marriages, divorces, etc.

#91 Taking Steps So Your Will or Living Trust Won't Get Lost

2010-09-09T08:00:00.002-05:00

About the worst mistake a person can make in planning an estate is the failure to take the proper precautions, so that the will, living trust and other important estate documents are found immediately after the death. One of the great advantages of living trusts is that they come into existence during the donor's lifetime, are in regular use, and are rarely lost.

Many wills do get lost. The older they are, the harder it can become to find them. Fortunately, there is a procedure for probating a will that has been lost, but the requirements are strict. If the will is not found within 30 days after death, it is a worse than 50-50 chance that the original or a copy will never be probated.

Many people prefer to keep the originals of estate papers in their own safe deposit box. That is usually safe but the beneficiaries named should know which bank it is.

Others like to keep the estate papers at home. That is somewhat safer, but the interested people should know about it. Also, it should be fireproof, with a secure lock. It might be broken open during a burglary. Of course the burglar does not want it and will destroy it.

If a bank is your executor, the will can be found. Banks just don't lose wills. But the family must know the name of that bank. When a person moves to another city or state, and doesn't transfer the will to the new city, the family might not think about where to look for the old one.

Most lawyers, when they prepare a will, offer to keep the original in safe keeping. That is usually safe, but the lawyer may die leaving all his office files to another lawyer who does not know you.

Above all, DON'T KEEP IT IN A GOOD SAFE PLACE! Amazing suggestion? No. In several large estates, I almost gave up looking for the wills, before finding them. The importance of finding it can make a difference in how and to whom an estate will be distributed.

In one case, the lady left her entire estate to the School Sisters of Notre Dame, cutting out all her heirs. The will was not at the bank, where she assured me it would be. I searched her entire home. Finally, I saw the corner of an envelope sticking out through the lower shelf of a dining room cabinet. It wasn't lost. It was just hiding in a GOOD SAFE PLACE.

Another wealthy client of mine married late in life. When she died, her will couldn't be found. A month later, her husband brought in an old brown paper shopping bag and said, "I don't want to pry into her affairs, but there might be something important in this bag. She carried it with her wherever she went, putting it on the car floor in front of her, and never left it out of here sight." She knew it was in a GOOD SAFE PLACE!

#90 Why Young Parents Need An Estate Plan

2010-09-07T11:30:00.001-05:00

For one reason or another, most young parents put off making an effort to create an estate plan. Many think that, because there would be little left after all their bills are paid, there's no need to have a will. Nothing could be further from the truth! A good estate plan for young parents is far more than a simple will.

To protect the young children, a good plan should include documents that will minimize the impact of many unfortunate possibilities, or eliminate them entirely. Of course, one of the principal objectives is to assure that the minor would not acquire their parent’s property if either died. That can be done either by a will or by a living trust. More people all the time are choosing the living trust because it accomplishes so much more than a will can.

Young parents will avoid most of the problems and expense of probating an estate by using a living trust. See our blogs under the Category of Probate Avoidance.

Even young parents can have serious health and mental problems. There should be someone with legal authority to act for them, without the expense and embarrassment of going to court to have a Guardian [sometimes called a Conservator] appointed. See our other blogs under the Category of Guardianship. This can be avoided in advance by having a Power of Attorney for Property and a Power of Attorney for Health Care.

Actually, the estate planning program of the young parent should begin some years before they have one or more kids. They should be realistic about the fact that a very high percent of marriages end in divorce, legal separation, or living in an intolerable condition of the hatred that sometimes take the place of "eternal love and delirious happiness”. They should have a Prenuptial Agreement that settles without a fight most of the legal problems that result when a couple "agrees to disagree." See our blogs on Prenuptial Agreements.

These and other problems will be foreseen and provided for by an experienced, caring lawyer, who can do much, early in the life of an young couple to avoid many of the mistakes that destroy, partially or completely, all chance for happiness during the remaining years. True, the service will not be cheap, but it will be a small fraction of the results from failing to do anything.

#89 The Requirements for a Valid Prenuptial Agreement

2010-08-19T08:00:00.001-05:00

If you are getting married soon and thinking of a prenup, there are a number of questions that need answers. Getting a valid prenup that will do just want you want it to do is a very complex problem. It is worth the effort.

First, you will need a competent lawyer who has had some experience in working with prenups. You need a lawyer because of the many difficult legal questions that will confront you. You should never try to do this without legal advice. Also, someone who is not a lawyer not only will not understand the problems, but will be liable to being punished for practicing law without a license.

It is not difficult for a spouse to set aside the prenup, if she or he is not represented by a lawyer in the process of getting the agreement prepared and signed. There arises a fiduciary relationship between engaged couples that requires each of them to be very forthright and honest in the negotiations.

The lawyer for the spouse with the lesser resources should really represent her and bargain earnestly for her. That lawyer should not be a close friend of the dominating lawyer, and therefore not likely to speak up for his own client.

When there is a fiduciary relationship, the law presumes that there is some fraud in financial transactions between them. That will require one of the couple to prove, in the event of a lawsuit involving the prenup, that he or she was not guilty of fraud in the transaction.

Next, you need to schedule the timing of discussing and preparing the prenup with your intended spouse. You need to allow considerable time for this process, but courts have held that too long a delay in getting the prenup signed makes it stale and unenforceable.

Perhaps one of the most difficult hurdles to clear in getting a valid prenup is for spouses to give an absolutely complete statement of the nature, character, and amount of their property. To attempt to hide any substantial amount of one's estate may be punished in any litigation between them. Also, if the provision for one spouse is disproportionate to that for the other spouse, there is a presumption that the winner has intentionally concealed assets.

It might be assumed that a prenup is just too much trouble for the benefits it brings. Actually, that isn't true. We are explaining some of their more serious problems to impress on everyone considering them that they must be cautious in entering into the prenup agreement and that they must not be dishonest and avoid seeking unfair advantages.

Ironically, it is safe to assume, because of the many benefits of a prenup, that most of the couples who have signed a prenup, 15 years from now, will have those benefits. We strongly urge that you join that group now, long before you will probably need it, to minimize or avoid some of the most distressing problems that confront married couples.

#88 People's Slow Acceptance of Prenuptial Agreements

2010-08-17T08:00:00.001-05:00

Despite the number of problems that a prenup can solve, Americans have been slow to accept them as a part of their estate and lifetime planning. The wealthy recognized their importance in the Nineteenth Century, but they were about the only people who used them until the latter part of the Twentieth Century. Now, people are using them at an ever increasing rate.

The legislatures, of course, usually seek to adopt the will of the voters. Even judges watch the election returns. Our judges can, and should be responsive to the will of the people, but never of the mobs when they are infuriated by some issue.

Early on, judges reflected the view that marriage is a sacred institution and generally discouraged their use. Now, both the courts and the legislatures give support to the use of prenups.

Some states have adopted the Uniform Premarital Agreement Act. Each state that has that law has made its own changes to fit the demands of their people.

Primarily, the prenup is concerned with the support of each spouse by the other, and the division of their property when they divorce or when one of them dies. Provisions that eliminate a spouse's obligation to support their children or the spouse are prohibited in most states.

People are increasingly aware that the chance that any particular marriage will not survive until the death of one of them. In fact, abbot 40% of marriages is now terminated by divorce or at least by permanent separation. They are also becoming aware of the huge price that is paid when the couple never thought of a prenup. If they did, many of them rejected the idea.

If a poll was taken among couples intending to marry soon, and you were to ask them if their marriage would terminate otherwise than by death, they would be insulted. Because they are so madly in love, they actually believe that they will be two lovebirds, year after year, at the same intense level.

Even marriages that last are threatened by the ever deepening gulf between them. It makes a lot of sense to pay more attention to what the family lawyer advises than to listen to those wonderful songs of love.

#87 Just What Is a Prenuptial Agreement?

2010-08-12T08:00:00.000-05:00

The name that has been given to prenuptial agreements has differed from place to place and time to time. Here, we will consider antenuptial agreement and premarital agreement as synonyms for prenuptial agreement. We simplify this task by calling them "prenups."

Generally, the laws of your state govern legal questions relating to prenups. Until the 20th century, state courts often refused to recognize a prenup because they thought such agreements violated the prevailing views regarding marriage. Now, the state laws generally recognize prenups fully, when they are properly prepared and signed.

A prenup has been defined as an agreement by two people of the opposite sex who intend soon to wed, and which may provide for the ownership of their property, the distribution of that property in the event of death, separation, or divorce, the right to custody of children, and the support to be provided by either for the other or for their offspring.

Numerous other matters may be covered, such as a provision that the agreement is void if the female party should ever exceed a certain weight. Some contain a "sunset provision" that the agreement terminates at a certain later date,

Some of the provisions that get included in prenups are not legal in some states. For example, court frequently refuses to enforce a provision that reduces the liability of a parent to provide the care and support for minor children.

There are numerous advantages provided to those who have a valid prenup. They are considered in our forthcoming blogs.

#86 Just What Us A Common Law Marriage?

2010-08-10T08:00:00.000-05:00

A common law marriage has been defined as a legal marriage that takes effect without any official license or ceremony, provided certain conditions are met. Whether it is recognized in your state now depends on your state's laws. Also, the laws in most states that have had common law marriages have changed in one way or another. Some states abolished them so long ago that they no longer have any living married couples who became married in this way.

The conditions which must exist, where this arrangement is still recognized legally, are that the two persons of opposite sex must be legally capable to be married. Neither may have a living spouse from whom they have not been divorced. That would be a bigamous marriage. They must both have arrived at the age at which one can be married, or have parental consent to the marriage, and must be of sound mind. In some states, neither can be a felon, that is, someone who has been convicted of a serious crime.

They must live together and intend to be married. In addition, they must hold themselves out to their friends and to the public as married, and not merely "shackin' up," as the crude expression describes that relationship.

There are other important differences between the traditional marriage and the common law marriage. One is that the laws of the states make no provision for the divorce of the couple thus married. Another is the extreme inconvenience that is encountered when it is necessary to prove the existence of the common law marriage, as where one of the parties seeks to establish his or her rights as a surviving spouse.

For many who find themselves in a common law marriage, the biggest resulting problem is the differences in the way their state laws impose different rights and duties on the spouses. They also encounter laws of inheritance. It can be difficult to determine who the heirs are. They also find that their crimes of violence and homicide toward each other are punished more severely, if there is a valid common law marriage.

Because the parties rarely if ever consult a lawyer about this arrangement or its consequences, they walk into many serious expensive traps. They would have avoided those traps by going to the courthouse, getting their license to wed, and going through a legally recognized marriage ceremony.

#J5 Take a Moment and Relax

2010-07-06T08:00:00.008-05:00

People may say to you something like “Stop stressing and just relax.” It may be annoying but, be aware that they are giving you sound health advice. Having a positive, relaxed mindset isn’t just good for your brain. It has other important benefits. It can beat stress.

A relaxed, optimistic person is usually better off than a stressed, pessimistic one. Why? When you’re stressed, your brain secretes a stress hormone called cortisol, and is more prone to inflammation. These both create problems with learning, memory, and other cognitive functions.

Researchers have learned this through a number of scientific studies. In one study, the participants were asked several times a day how they felt and some of their saliva was tested for traces of cortisol. The participants who felt good and were relaxed had less cortisol in their systems.

They also found that women who are relaxed, and in a pleasant state of mind, are less likely than men to have brain inflammation. Why women have this nice feminine perk has never been discovered.

Stressing out can cause learning problems. Stress can also physically alter your body. Cortisol can also give your waistline trouble. Cortisol is the same hormone that tells your body that it should put a little fat in your abdominal area. If though, you are relaxed, you are more likely to lose weight around your middle.

Being stressed can also cause immune system trouble. When you are happy your body fights off infection faster, leaving you less vulnerable to sickness. Another big benefit to relaxing and having a positive state of mind is lower blood pressure. High blood pressure can lead to health risks, such as stroke or heart attack.

Dr. Joel Pava of Massachusetts General Hospital’s Depression Clinical Research Program recommends (1) Don’t over schedule or over commit. Having some relaxation “nothing to do” time is good for everyone; (2) Get a good night’s rest, at least 6 to 8 hours; (3) Appreciate the small, simple pleasures in life, such as renting a movie or going out to dinner; and calm down a little, take life a little less seriously. Be positive. It will help you beat stress.

#J4 Food and Mood

2010-07-01T08:00:00.001-05:00

“You are what you eat.” Certain foods can directly affect how your brain functions. That, in turn can influence your mood for hours after eating. Different nutrients cause your brain to produce the brain’s chemical messengers, called neurotransmitters. Different neurotransmitters help cause the different moods. Wholesome foods are brain foods that do the most to lift your mood and help your brain function efficiently.

Studies have shown that depression can be linked to low amounts of the vitamin B12 found in meat, and B9 provided in green leafy vegetables like lettuce. Depression can be linked to low amounts of either vitamin.

The proteins in meats have other benefits than keeping your mood elevated. Benefits of alertness, energy, and enhanced ability to focus, are benefits received by eating enough protein.

Even cake, chocolate and pie can provide benefits. Desserts, which can provide carbohydrates, encourage your body to produce tryptophan (the amino acid that makes you drowsy) which the brain then converts to the neurotransmitter serotonin.

Serotonin promotes calmness and relaxation, and even reduces pain. This doesn’t mean though, that eating desserts is the best way to promote these benefits. Foods such as whole grains, fruits and vegetables take longer for your body to digest, thus releasing their mood benefiting effects over a longer period of time. So, finish your vegetables before you eat dessert.

These effects can be felt relatively soon or over a long period. Dr. Brent Forester, Director of the Geriatric Psychiatry Research Program at McLean Hospital in Boston, also adds that these effects can be seen relatively quickly, and not just over time. For example, a large lunch may make you feel drowsy in the afternoon. Our attitude toward coffee and its caffeine are changing as its benefits continue to be found.

Dr. Forester advises that you monitor your mood, following your meals, so that you can better
understand the effects that various food groups have on you.

As you eat, remember the potential benefits to your mood are on your plate waiting to help you. The right food is truly brain food.

#J3 Anxiety

2010-06-29T20:51:00.003-05:00

Some worry can be good. Some things should be worried about. But, have you ever been unable to stop worrying? Constant worrying is known as anxiety. Treating anxiety is possible. Anxiety consists of a group of disorders that are treatable. It affects some 18 million Americans.

Anxiety, as used here, is not a situation where parents worry about their kids coming home on time, or forgetting to do an important task. Those worries don’t hinder a person’s lifestyle. Anxiety, on the other hand, can cause longstanding stress, and a feeling of helplessness. It can hurt job performance, social skills, and one’s ability to adapt well.

We can be anxious about bad things. But we can also be anxious about good things, such as a work promotion or a marriage. Fortunately, there are ways to help manage this stress.
To confront your worries, you must stand up for yourself. You must be proactive, by confronting whatever is causing stress and by regaining control over an issue. Thus, you empower yourself to accomplish more. By working hard at it, you can block out some stuff that really doesn’t need to be on your mind all the time.

Keep busy. Enjoy lots of physical activity. It stimulates the release of a chemical called dopamine that makes you feel better mentally and physically.

Talking about your problem, expressing your concerns or worries friends or relatives can help. A good friend can comfort you, and help you find a good plan of action, that will even motivate you. Another way to block out your anxiety can be to spend time by yourself.

People, of all religions, as well as atheists and agnostics, should recite to themselves the following prayer. Atheists and agnostics can insert their own phrase, such as “some power” in place of the word God: “God grand me the serenity to accept the things I can’t change, the courage to change the things I can, and the wisdom to know the difference.”

If anxiety persists, you should contact a health care professional, who can create a plan that is specific to your needs.

All people at some point in their lives become stressed, or are seriously worried. With proper planning and routines, you can learn to reduce stress and manage anxiety. Anxiety, while more serious then an occasional stressful moment, is still something we need to learn to control. Treating anxiety is worth the effort.

#J2 Creativity and Memory

2010-06-24T08:00:00.003-05:00

You’ve probably noticed that the more creative people are, the more likely it is that they are brainier. Being creative is both a form of exercise for your brain. Activities such as painting, playing a musical instrument, or using your imagination will also exercise your brain, and stay in the ranks of creative people.

Being creative also helps to improve the overall function of your memory. That’s because being creative helps you to explore new possibilities, and to reexamine old ones.

By linking two previous ideas that may have thought to be of much consequence on their own, you may find a new option to solve a dilemma. You may not even have to combine two of your memories either. You may be able to look at one from another perspective (which is an example of thinking outside the box).

Essentially, you are dusting off your mind’s old memories and ideas, and keeping them fresh. This kind of mental exercise improves your ability to access memories of older ideas more readily. It also helps promote better overall memory access.

For some people, being creative is something that was always there. For others, it is something that needs to be found, practiced, and built upon. You have the capacity to improve your creativity.

Another way to spark your creative side is to explore the intense interests in your life. Decide whether they can be expanded upon. A useful strategy is to write down interesting ideas as they arise. Study them carefully from time to time to determine whether you can develop some doable plan for a new procedure or business.

Regardless how you seek to be more creative, every activity you choose should be enjoyable to you, and help you to join the ranks of creative people. Being creative can be as enjoyable as it is beneficial. Such mental exercises can produce innovations that will build something new and better and even more positive memories.

#J1 Brain Mapping and Serial Murderers

2010-06-22T08:00:00.001-05:00

Just suppose you are a scientist who discovered he has the genes of a serial murder. That’s what happened to Dr. Jim Fallon of the University of Pennsylvania. He recently released his discovery that he may have found a group of genes linked to causing possible brain abnormalities commonly found those who commit a serial murder.

The gene family called MAOA is a grouping of serotonin regulators. That means that they are indirectly responsible for a person’s mood. Dr. Fallon diplomatically calls the more dangerous members of this gene family “The warrior genes.” While not all people who have these genes are serial murderers, they may be abnormal risk takers and are more apt to stay and take a risk than to walk away.

After learning he had “all the wrong stuff,” Dr. Fallon was tested and scans were made. They showed what areas of his brain were active during decision making. That supplied Dr. Fallon with evidence that supported his research.

For the average person, two parts of the brain are communicating very closely during decision making. These two areas, the orbital cortex (which controls mood, impulsiveness, and social aptitude) and the anterior temporal lobe (which references past experiences, and recommends appropriate emotional responses) are relatively inactive in Dr. Fallon. It showed that, despite his benign personality, he had the same low emotional connections when making a decision as a serial murderer.

Dr. Fallon probably admits that a lot of his research was has been drawn from inference. Serial murders are scarce. They are usually unavailable for scientific study. Clear linking traits between his research and those who commit violent crimes cannot be well established. Although, Dr. Fallon has this collection of genes, he is hardly violent at all. Dr. Fallon suggests that is because he “had a charmed childhood.”

This supports nurture in the nature vs. nurture argument, that who you are genetically is not as important as how you were raised. On the other hand, he does admit that he does take abnormal risks. One such risk occurred when he took his 16 year old son fishing in Kenya, next to a sign that said “Beware of lions.”

Still, it is comforting to know that it will be many years, if ever, before any of us will be taking a serial murderer gene test to determine whether we’re capable of serial murder.

#81 Hospice and Palliative Care Services

2010-06-17T08:00:00.000-05:00

Two of the most important services for the seriously or terminally ill person are hospice and palliative care. They have a lot in common and are frequently presented by the same licensed agency. Both are concerned with the problem of furnishing care for dying people. More people would be taking advantage of them if they were aware of the benefits they provide.

Much of hospice care is provided in the patient’s own home, with the rest being provided in long term care facilities, such as nursing homes. Some providers may maintain hospice residences. Such residences must be licensed by the state and must conform to strict rules which are imposed and enforced by state supervision.

There may also be a volunteer hospice program that provides hospice service to patients regardless of their ability to pay, and makes extensive use of volunteer assistance in operating the program.

The hospice program is available only to those whose life expectancy is less than six months. Actually, most families do not resort to hospice until the patient is within several weeks of death.
Hospice provides a group of specialists who are trained to alleviate the problems of the dying by giving palliative care. Their object is not to affect a cure. They may provide physicians, nurses, social workers, clergy, bereavement counseling and home health aids. Hospice is a Medicare Part A benefit.

Palliative care means the management of pain and other distressing symptoms. It is not limited to the terminally ill. It is not a Medicare benefit unless administered pursuant to the hospice program.

Each state provides for the licensing and supervision of these services. The license may be revoked for violation of the rules applicable to them.

Families that have a member who is terminally ill or who is suffering greatly from serious illness should check with their own doctor, or at their local senior center, to determine which of these services are available locally, and the procedures for enrolling in the appropriate program.

Families who are helping an elderly relative should learn all about these services and take advantage of this splendid care for dying people.

#J7 The Miracle of Brain Study

2010-06-15T08:00:00.000-05:00

Among the modern medical miracles is the ability of physicians to see inside a living person’s head and to understand what is affecting their brain. In so doing, different physicians use different methods, depending on what they are looking for. Together they all contribute better understanding of the ailments that affect the brain.

There are four different methods that doctors can use to see inside patient's heads.

First: The P-E-T or PET scan. The patient drinks a small, harmless dose of a radioactive compound. When this compound is absorbed into a patient=s bloodstream it becomes detectable by the PET scan device. When the device detects the compound, a colorful display shows where blood is flowing in the brain. Thus, the examiner may detect an obstruction, such as a tumor or stroke.

Second: The M-R-I, or magnetic resonance imaging. The patient lies on a table while a large cylindrical magnet runs forward and backward past his or her head while at the same time radio waves pass through the patient's head harmlessly. These two combine to provide a two dimensional map of both the brain's surface and its subsurface, showing structural abnormalities, bleeding and inflammation.

Third: The F-M-R-I, or functional magnetic resonance imaging. It shows brain activity as well as the brain's structure, by measuring the magnetic properties associated with changing levels of oxygen. This procedure is useful for assessing strokes, and to plan future brain surgery.

Fourth: The C-A-T or CAT scan that uses X-RAY. The patient lies flat on a table. A device takes scans from different angles to produce a cross section of the brain. While this procedure is similar to the MRI, it produces less detail.

Thus, doctors have modern equipment find problems that were not formerly detectable, by using brain scans.

#80 Removing Clutter in the Home

2010-06-10T08:00:00.000-05:00

It is unfortunate that nearly everyone, until quite recently, thought of estate planning as just a matter of getting a will, and perhaps a few more legal documents. The developments of the past few decades indicate clearly that a well planned estate consists of many actions other than signing legal documents. One of those actions is clutter removal.

Downsizing is a very important part of estate planning, even though most people don’t give it much serious thought, until they are forced to downsize, sometimes almost overnight, when some impairment occurs, such as a stroke, which can strike without warning.

Many people have homes much larger than they need. The excess space increases as the kids leave the nest. Also, the ideal home for couples over 65 has all the living and service areas on one floor.

Another important step is to get rid of unneeded contents. The downsizing of the housing and contents can be planned and accomplished at the same time. Removing the clutter of personal property can be a huge job.

Plan to arrange the chattels of all kinds into several groups: (1) the junk that has no possible use, (2) the things you want to give relatives friends, etc., to have when you are gone, (3) the things not wanted but which have some but not a whole lot of value, (4) things not wanted but which have considerable value, such as antiques, (5) the things you will need to live comfortably where you are or where you intend to move soon.

This is a huge job. Don’t try to do it all at once. Make it easier by working on a room at a time. Don’t be afraid to ask family members to help, especially if you are weakened by old age.

It is possible to dispose of the junk by adding it to your local trash pickup. If you are doing the whole thing at once, you may need a dumpster. Don’t be surprised if you fill it more than once.

Don’t make the mistake of retaining large supplies of anything. Generally, you should keep enough to serve for a few months. Also, don’t keep clothing you haven’t worn for a year. Give this sort of thing, along with the chattels that have some value but you don’t need, to a deserving local charity to distribute to people who need them.

When you have finished sorting out chattels, it would be a good time to hold a garage sale of those items not wanted by your family. You’d be paid for things that you are better off without.

If there are nice items that you have intended to leave to others in a will, and the recipients would be pleased to have them, give them now. No one has ever enjoyed the smile on the face of a beneficiary of their will when the executor handed it to them.

If you have stacks or boxes full of newspaper items and the like, sort them out and make it a high priority to put them into attractive scrapbooks, just as soon as you have finished the rest of the downsizing and clutter removal.

As you clear out a room, resolve not to find a place for everything, but to find THE PLACE for everything, where it will always be kept. This can help bring an unbelievable amount of order into your life. Imagine never having to search the house to find where you keep your important items. A place for everything and everything in its place!

If you have items of substantial value, you should have them appraised if you will be required to file a gift tax return. Also, if you have family heirlooms of historical significance, you may want to give them to your local historical society. An item needs to be pretty significant because most such societies are crowded, and have no space for anything that isn’t really interesting.

It is hard to believe the benefits you’ll get from doing a good job of this decluttering procedure. Your home will be much safer, less conducive to falls, much less likely to cause a serious fire. There is much better chance that, if you need special care, your home can be quickly fitted to enable you to stay there rather than going to assisted living or other retirement centers. Any such move can cause a great loss in your privacy, your right to make all your decisions for yourself, your safety, and your right to live your live as you wish.

Your insurance can cost less after you have de-cluttered. There is less to insure, and the hazards will be less. The house will be much more ready to sell. This can be important if some incident demands that you must move to a nursing home or other form of long term care.
Clutter removal will make your life better in many ways.

#79 What Does It Take to Make a Valid Will?

2010-06-08T08:00:00.000-05:00

There should be a short, clear answer to that question, but the answer is long and complicated. As a result, the public does not understand the importance of complying with all legal requirements. Otherwise, the piece of paper that looks like a valid will is a worthless scrap of paper that will cause nothing but trouble. Ironically, the cost of mistakes is often many times the cost of getting it done right in the first place.

As with so many legal problems, the laws of our own State lay down most of the rules. While most states have similar rules, each state has adopted many variations that can alter the validity or the interpretation of a will. As a result, anything we say here may not be the law in your state. Also, the validity of the will may depend on what kind of person is making the will.

To be valid, the will must be in writing and signed by the testator who is signing the document intending to make a will, and must be of age, which is generally 18, and must have sufficient mental capacity and must know and understand the contents of the will and the effect that its provisions will have.

The will must be attested by two witnesses (three, in some states). That is, they must witness the testator signing it and state in a paragraph they sign at the bottom of the will the contains the facts that show that it was duly and properly signed and witnessed. Every witness to a will should read that clause carefully to be sure that they have done everything stated.

Also, there are many provisions in the state laws and in the decisions of the state’s courts that limit what the testator can and cannot say in a will. In addition, the wording of the provisions must be clear enough to determine what the testator meant.

And those are just some of the basic requirements. The problem is further complicated by the fact that the legislatures in their statutes and the courts in their decisions have written millions of words that attempt to construe whether certain wills and all their provisions are valid.

This is Murphy’s Law, with vengeance! Hardly a day goes by, in my writing of treaties on this subject for lawyers that I don’t observe another new way for things to go wrong.

As a probate judge and probate lawyer, I often observed that the biggest lawyer’s fees were being paid because some people saved a little money by drawing their own wills, with the result that the “will” did not get admitted to the probate, or required expensive litigation to determine that it was a valid will.

#78 Planning and Living an Active Old Age

2010-06-03T08:00:00.001-05:00

Our beliefs about the “retirement years” have changed greatly in the past few decades, when the number of people past 60 has soared. More and more, people are abandoning the belief that old age is the time to sit and rock, perhaps play some golf and visit the grandkids. They are seeking an active old age. They are seeing how much there is for them to do, and somehow, doing it enables them to live longer and happier.

Business Week told the story of 25 men who remained highly active long after they “should” have retired. The issue was raised nationally when John McCain, at 72, was the oldest man ever nominated by a major party to be President.

McCain is a youngster compared to the 50 men who achieved great financial success and continued to manage large companies with vigor. Consider Run Run Shaw who, at 100 was Chairman of Television Broadcasts of Hong Kong. Then there is Kirk Kerkorian who, at 91 was President and CEO of Tracinda.

My favorite of them all is Rupert Murdock, who is pushing 80, and is News Corp’s Chairman. He has seen the future perhaps no one on earth has seen it as clearly, long before others foresaw, that the print media, by and large, are doomed, to be usurped by the Internet. A few years ago he supervised the conquest of Dow Jones, owner of the Wall Street Journal, which is destined to survive long after the demise of the New York Times and the Washington Post.

The success of these wealthy, elderly men can be emulated by every older person who is reasonably in good health. They can all be thinking about a second life doing what they want to do. That can be creating their own new business, or by serving as a volunteer in any of the countless activities that are helping the less fortunate elderly, as well as the other people who really need help. Unless you have had a lot of experience helping others, you’ll be amazed at what a “high” comes with seeing that what you are doing is making life a little better for some less fortunate person.

But there is a flip side to this approach. A lot of the elderly make the mistake of believing that time has not taken its toll. I learned this lesson many years ago when I developed the “goodamin” theory. I visited a wealthy old farmer client (82 years old) who lived alone. I said “Bill, you’re defenseless here. What would happen if someone broke in and beat on you until you told where you hide your money?” He replied that he’d beat them up because, as he put it, “I’m just as good a man (pronouncing good-a-min) as I ever was.”

Many of us older citizens fool ourselves, and try to fool others by pretending that “I’m just as goodamin as I ever was.” We have to be objective with ourselves and make adjustments, such as giving up the car keys before we are a real menace on the highway, making a greater effort to recognize that we don’t move as fast as before, or that our short term memory is declining.

But, whatever our age, we can continue to such an active old age, to accomplish meaningful objectives, and above all, help others, for many years after our 65th birthday.

#77 Why Does An Estate Have To Be Probated?

2010-06-01T08:00:00.000-05:00

There are a number of reasons why the estate of a deceased person might have to be “probated.” To understand them, it is necessary to understand what this legal procedure entails, and what the probate reasons are.

The probate laws are provided in each state. They are similar in all states, but have many differences, some small and some huge. It is also confusing that each state has its own term for different things. I live in Illinois and was a probate judge here, therefore, I’ll use the terminology used in Illinois.

Basically, the purpose of the probate proceedings is to assure that the correct people get the right shares of an estate, as determined by state laws. Those people include beneficiaries under a valid will, heirs if there is no valid will, and creditors, in addition to the “costs of administration,” which includes the lawyer’s fee, the executor’s or administrator’s fee, and court costs.

The probate of a decedent’s may occur in a separate probate court, as was formerly the way in Illinois, or in a branch of a Circuit, or a general trial court, as it now is in Illinois. Regardless what that name is in your state, we’ll speak of it as the Probate Court.

If there is a will, among the first steps in the process is to probate the will. A number of safeguards are built in, to assure that the will is valid. Once there is a hearing, the court will decide whether it is a valid will, and if so, enter an order finding that it is the decedent’s last will. This assures the heirs at law, if they are cut out or cut down by the terms of the will, that it has been done legally, and not as the result of some kid of fraud, or undue influence imposed on the descendent in signing it, and that the decedent had the necessary “testamentary capacity” to sign a valid will.

A very important part of probating an estate is to assure that creditors get paid the proper amount on any outstanding claim against the decedent or his estate. A claim notice is published in a newspaper. Then, it is necessary for each claimant to file the claim within the time specified in the probate act. This may be only six months. Those who fail to file the claim are completely barred from collecting from the estate or out of property owned by the decedent. If there is no probate of an estate, so that claims are not filed soon after the death, they may have a right to claim estate assets for some years to come.

If there is some provision of the will that is not clear, there may have to be a separate proceeding to construe the will. If the will did not comply with the requirements as to the manner in which it is signed, or someone claims that the testator was subjected to undue influence, or that the testator was not competent, there maybe a will contest, resulting in an order that declares that it is not a valid will.

When these, and sometimes many more questions are answered by the judge after some appropriate kind of hearing, the estate is about ready to be distributed to those entitled thereto, and closed. But first the administrator or executor has to file reports to show that all receipts and disbursements have been accounted for.

Those who have not received their entire share of the estate must be given notice of a hearing at which time anyone having any valid objection can make that objection and submit roof of the mistake. In many estates, everyone entitled to that notice will sign an “entry of appearance,” which shows that they are satisfied and do not have to be sent the regular notice.

Once all objections and questions are finally resolved, the court will order a distribution of the estate. The assets will then be given to those entitled thereto. The executor or administrator will file a report of the distribution which the judge will normally approve and sign an order discharging the executor. Thus, you can see that there are numerous probate reasons in more estates.

#75 Falling - The Most Frequent Cause of Death for the Elderly

2010-05-27T08:00:00.000-05:00

It is frightening to think that, for you or a loved one 65 or older, the cause of death may not be cancer, a stroke, or Alzheimer’s, but most will be a falling death. Far too little attention and planning are given to this fact. Many people are dying unnecessarily as a result of failure to plan, and failure to take the proper precautions to prevent falling death.

I know about falling first hand, because I fell and fractured my hip recently. My life has been altered in many ways. Fortunately, the fracture was not serious enough to require surgery. But the results have been painful. One of the worst, but necessary results of this kind of accident is that it creates a deathly fear of falling. This fear is a protector because it creates great caution that may avoid another damaging fall.

Many of the elderly who fall hit their heads, causing serious brain damage that soon results in their death. Even if the head is not hit, hips are other bones may be broken seriously enough that normal activities cannot be resumed and death is hastened. As a result, a steady but fairly rapid decline begins. It is like the graveyard spiral of an airplane that cannot be righted before it crashes. Death may follow only months or a year later.

Everyone who is over 65, or has a close relative who is, should begin immediately to make plans and take actions necessary to avoid all falls, and to minimize the impact, if one occurs.

First, there is the house. Most houses are ill suited for the elderly. The home of an elderly person should all be on one level, and without any steps inside or at the doorways. If it is multi-level, it can be remodeled so that all the living accommodations will be on one floor. An elevator or stair lift may solve the “stair problem.”

Many elderly people develop extremely poor balance, so that they can become an accident that is waiting to happen. This problem can be minimized by frequent exercising, building up strength in the legs and ankles. They should not let their fear of falling unduly curtail their activities. Elderly people should increase their work around the house, their social activities, their walks, etc.

There should be grab bars throughout the house, wherever a fall might occur. The most dangerous areas are the bathroom and the kitchen. There should be sturdy railings and banisters along the stairways and hallways, with nightlights along the floors so that the nightly trips to the bathroom do not end in tragedy.

All clutter should be removed. Throw rugs should be eliminated. Good lighting should be available throughout the house.

It is difficult for an elderly person with poor balance to get in and out of a bathtub. If there is a bathtub, a great investment is to replace it with a shower stall, complete with grab bars and with little or no step up, to get into it.

Older people should take an elevator rather than an escalator when possible. Escalators are very dangerous for people with poor balance. Another dangerous place is the car, where getting in or out may produce serious injury or death.

Older people should never be embarrassed to use a cane or walker. That can be the only thing standing between you and a life threatening fall. Also, the elderly must take great care in crossing streets. Assess traffic conditions and allow more than enough time to get across. If there is a stop light, watch it for a few minutes and time your trip to start in time enough to get across without rushing that can cause a fall.

Faulty balance that could cause a fall can result from vision problems. Changing to bifocals, for instance, makes it difficult to perceive steps accurately. Medications may affect vision and balance. Demand that your doctor spend enough time to determine whether there should be a change in your prescriptions.

If you’re overweight, it’s time to lose excess pounds. Not only will that reduce your vulnerability to a number of afflictions, it will make it easier to avoid a fatal fall.

The elderly, with a loss of a balance, need to sit on firm seats that are higher than the comfy sofa that is so low. In rising from a chair it must be done with one’s center of gravity fairly far forward. The legs should be as far back toward the chair as possible. Lean forward so that “your nose is past your toes.” It makes getting up, out of a chair, so much easier.

Getting up from a chair too quickly can cause dizziness and a fall. Dizziness can be caused by dehydration. People who have been able to live to a ripe old age probably have factored in all these things, so that they can avoid a falling death. If your own balance or that of a close relative has begun to deteriorate, it is time to assess the entire situation carefully and adjust all your motions and movements to avoid a falling death.

#74 Suggestions for Preventing Falls

2010-05-25T08:00:00.000-05:00

Among those of advanced age, falling is the leading cause of deaths, surpassing strokes, heart failure, cancer, and all the rest. We should spend more time figuring ways to prevent falling. There is no charitable foundation to alert the public to the dangers of falling, and what can be done about it, as there is with heart disease, Alzheimer’s, cancer, and a number of others.

Seniors should begin the fight to prevent falling before they become unsteady on their feet. Those who have fallen or seem likely to fall should be doing everything possible to avoid falls and to minimize the impact of those that can’t be avoided. The steps required do not seem to have a lot in common, so we’ll list them.

1. Reduce the risk by exercising to increase lower body strength and improve your balance.

2. Check your vision regularly, being sure your corrected vision is as good as you can get it.

3. Eliminate the possibility that you are taking two or more medications that cause side effects that could reduce your balance. Your pharmacist can explain your own situation, depending on the medications you are receiving.

4. Adhere to a good diet, based on the Food Guide Pyramid. Check food carefully, read the labels, and avoid those that are loaded with salt, trans fats, and hydrogenation. Totally avoid all junk food. Drink plenty of water.

5. Get examined to be sure you don’t have osteoporosis. If so, create a program under a physician’s direction that will strengthen your bones.

6. If your balance is deteriorating, line up a locally recommended physical therapy program that will strengthen the weakened muscles. Exercise regularly using the exercises they suggest.

7. As you approach old age, begin the process of preventing falls in and around your home. This involves cleaning up clutter, removing throw rugs, placing grab bars and hand rails at as many strategic places as possible, eliminating stairs, moving all the living quarters to the ground floor if you live in a two story house. Clean up your home so that it is easy to move around an uncluttered place.

8. Be careful using elevators and especially escalators. Stay off escalators that move fast. Take the elevator. Buildings with escalators have an elevator somewhere, often hidden down a hallway.

9. Make full use of canes, walkers, and other assisting devices.

10. Avoid walking on icy sidewalks or where snow has accumulated.
Everything you do to prevent falling gives added assurance of a good old age.

#73 Payable on Death Accounts – A Useful Estate Planning Tool

2010-05-21T08:00:00.001-05:00

One of the most useful of the arsenal of estate planning tools is the payable on death account. There are many payable on death uses. It is frequently used for holding title to various kinds of bank accounts, and other property. Everyone should be aware of its strengths and weaknesses. It is much better than joint tenancy in a number of situations.

Typically, a person opens a new account in a financial institution. The account is owned solely by the depositor. She becomes the trustee who holds the account in trust, and names a beneficiary who will receive the entire remaining account upon her death.

The depositor is the sole owner of the account. She retains the right to make further deposits, and may make withdrawals, or may close out the account or change the beneficiary at any time. The beneficiary has none of those rights. If the account was set up in this way as a convenience in paying expense of the owner, the beneficiary or some other person may receive a power of attorney to permit him to make withdrawals.

Using this account, there is no doubt, when she dies, that she intended that the beneficiary is entitled to the full amount of the account. With a joint tenancy, there are frequently lawsuits to determine whether the surviving joint tenant has to share the remaining proceeds with other heirs.

This way to hold title to assets has other benefits. There is no gift tax on the transfer, but the amount in the account upon the death of the owner is included in her taxable estate in computing the estate taxes. The account is not included in the owner’s probate assets, so that it does not have to “go through probate.” That can reduce the cost of probating an estate.

Having assets held in this manner may reduce the probate assets below the maximum allowed for the use of the Small Estates Act of your state. That will permit settlement of the estate without any probate proceedings, which can save a lot of time and expenses. Setting up an account does not require a new will to assure that the desired beneficiary will receive the asset.

It would be a mistake, though, to think you can prepare your entire estate so it will go to various beneficiaries in exactly the right proportions. That should always be done, as to the bulk of the estate, by a well drafted will, or by a living trust.

You can see, and take advantage of these payable on death uses.

The trust agreement is in the fine print of the card often called a signature card. People who use these accounts should read that fine print and understand exactly what it means.

Even though this type of account leaves property to a beneficiary, just as a will might, it is not a will. Courts generally do not require that the agreement be witnessed, as in the case of wills.

The state generally adopted the Uniform TOD (Transfer on Death) Security Registration Act, which permits ownership of securities to be held in this manner. It permits them to be the following manner: (1)Sole owner-sole beneficiary: John S Brown TOD or POD John M. Brown; (2) Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD John M. Brown; (3) Multiple owners-primary and secondary (substituted)beneficiaries: (A) John S. Brown Mary B. Brown JT TEN TOD John M. Brown, SUB BENE Peter O. Brown; or (B) John S. Brown Mary B Brown JT TEN TOD John M. Brown LDPS.

#72 The Gift Legal Requirements

2010-05-17T08:00:00.003-05:00

Gifts, as generous as they sound, produce a great number of lawsuits every year. Therefore, it is important for people to understand the gift legal requirements. The issue in most of these suits is whether there was, in the eyes of the law, a completed gift that has met all the fit legal requirements.

In order for a gift to be effective, it must become irrevocable and effective at once. It must be made without consideration or remuneration. A promise to make a gift in the future is not effective. The donor of the gift must be mentally capable of making it and must not die before it becomes effective.

A gift of personal property may be made without any written statement of the gift. On the other hand, the Statute of Frauds demands, that the gift must be in writing. Usually, that is in the form of a deed.

There must be an immediate delivery of the gift property. For most property, that means that the property must be turned over immediately to the donee (the one who received the gift). However, exceptions may be made in cases such as where it is a large statue. Those cases usually involve valuable property, so that the transaction should be prepared by a capable lawyer, as should any that does not clearly and easily qualify as a legal gift.

Problems of delivery become difficult when changes are made on stock certificates or bank accounts. For example, a statement made by the owner of a safe deposit box, while handing the deposit box key to the donee, that he is giving the contents of the box is held not to convey the contents of the box.

A promise to make a gift at any time in the future is not effective. When giving a promissory note to a donee, with no consideration being given, does not amount to a valid gift.

The burden is on the donee to prove that all the requirements for making a valid gift have been met. If any of the requirements is not proven, when contested in court, there is no gift.

The problem becomes quite complex when the owner of a bank account places the name of the donor’s niece on the account as joint tenant, and then dies. The question then arises as to whether placing the name created a gift, so the surviving joint tenant was entitled to the entire account. Or, was it simply “convenience” account, with no intent to make a gift of the remaining balance.

This whole area of joint accounts creates a huge resource, much of which goes to put the lawyer's kids through college with the fees charged to sort it out. Forthcoming blogs will consider the many disasters created by putting property into joint tenancy.

The foregoing is only a partial list of the gift legal requirements. In most cases, the ineffective ways that the parties sought to meet the gift legal requirements was selected because it avoided legal services, but in so doing, raised enormously the legal costs caused by the resulting litigation.

#71 Creating an Incompetent's Estate Plan

2010-05-14T08:00:00.002-05:00

One of the most unusual provisions in any statute is that which permits the court to create an incompetent’s estate plan, for a ward who had not created or updated his estate plan before becoming a ward of the court. If the need for this type of service should arise, check to see if there is something comparable in your state that permits the court to create the incompetent’s estate plan. The comments following are based upon the Illinois statute.

Keep in mind that an adult incompetent who has a guardian may still be able to create some effective legal documents, where the incompetence is not based on any mental limitation, but because the person was squandering his estate by gambling and a guardian had to be appointed. The bar is not very high when it comes to creating a valid will or some other legal documents.

Under these provisions, the court may permit a wide range of estate planning changes that will result in carrying out the best possible estate plan for that ward, based on his wishes. If they can be determined, or, if they can’t be learned then certain presumptions, such as the wish to save on the amount of death taxes that will be due.

The various actions that the court can order cover about all the aspects of estate planning, including making or changing wills, living trusts, insurance beneficiaries, gifts to relatives, friends, charities, changes of residence, and entering into contracts.

There are numerous safeguards to prevent others from obtaining undeserved benefits from the estate. Illinois has had this law for 30 years. It surely has been used many times to make incompetent’s estate plans. Yet, there has not been a single appeal of any such plans, as revealed by the decisions of the Appellate Courts or Supreme Court of this State.

#70 Modifying Guardianship Provisions

2010-05-12T08:00:00.002-05:00

After a guardianship has been created for a ward, there may be further modifying guardianship proceedings, wherein it may be changed in some respect or terminated. The nature and extend of such modifying guardianship proceedings depends on a number of factors that differ from case to case. These modifying guardianship proceeds are defined by your state’s statute.

These modifying guardianship procedures may be started by the ward or someone else in his behalf to increase or decrease the duties of the guardian. Because the ward may be the center of a family fight to get control over him or his estate, the judge may appoint a guardian ad litem, which is an independent lawyer whose sole duties are limited to finding what shall be done in the best interests of the ward.

When such petition or request is presented to the judge, there is usually a hearing to determine the true facts. The judge may appoint a lawyer to represent him. There may be a trial, either with or without a jury.

After the hearing, the court will normally enter an order that states the facts as he finds them, and then, among other provisions, dismiss the petition if there is no good reason to modify or terminate the guardianship, or terminate the guardianship, modify the guardianship to conform to the situation that the judge now finds to exist, or remove a guardian and replace him with another.

These proceedings can be very complex, with some essential facts difficult to prove. A family or ward who contemplates taking any modifying guardianship proceedings, whether to terminate the guardianship or to make some essential change, should retain the services of a capable lawyer with courtroom experience, and as much experience as possible in practicing elder law.

#69 The Personal Guardian's Duties

2010-05-10T08:00:00.003-05:00

The personal guardian’s duties are outlined in your state statues. They are expressed differently from state to state, but the fact is that the personal guardian’s duties are basically the same in all states, with variations to meet local conditions.

Typically, a state statute provides that the personal guardian’s duties, to the extent ordered by the court, and under the direction of the court, are to have the custody of the ward and the ward’s minor and adult dependent children, and procure for them and make provision for their support, care, comfort, health, education and maintenance, and professional services as appropriate. The ward’s spouse shall not be deprived of the custody and education of the ward’s minor and adult dependent children, without the consent of the spouse, unless the court finds that the spouse is not a fit and competent person to have that custody and education. The personal guardian shall assist the ward in the development of maximum self-reliance and independence.

The guardian of the person may petition the court for an order directing the guardian of the estate to pay an amount periodically for the provision of the services specified by the court ordered.

If the ward’s estate is insufficient to provide for education, and the guardian of the person fails to provide education, the court may award the custody of the ward to some other person for the purpose of providing education.

If a person makes a settlement upon or provision for the support or education of a ward, the court may make an order for the visitation of the ward by the person making the settlement or provision as the court deems proper.

Your statute may also contain provisions, such as requiring periodic reports by the guardian. In Illinois, the statute requires that the decisions of the guardian on behalf of a ward are to conform as closely as possible to what the ward, if competent, would have done or intended under the circumstances, taking in account evidence that includes, but is not limited to, the ward’s personal, philosophical, religious and moral beliefs, and ethical values relative to the decision to be made by the guardian.

Where possible, the guardian shall determine how the ward would have made a decision based on the ward’s previously expressed preferences, and make decisions in accordance with the preferences of the ward. If the ward’s wishes are unknown and remain unknown after reasonable efforts to discern them, the decision shall be made on the basis of the ward’s best interests as determined by the guardian.

In determining the ward’s best interests, the guardian shall weigh the reason for and the nature of the proposed action, the benefit or necessity of the action, the possible risks and other consequences and benefits, and shall take into account any other information, including the views of the family and friends, that the guardian believes the ward would have considered if able to act for herself or himself.

Thus, it is evident that the personal guardian’s duties, when added to the estate guardian’s duties, if so acting, can combine to provide excellent guidelines.

#68 The Estate Guardian's Duties

2010-05-07T08:00:00.002-05:00

The estate guardian’s duties are listed in your state statute. The provisions that define the estate guardian’s duties will be entirely different, from state to state, but they are all quite similar in the results they seek to accomplish.

State statutes are flexible in providing wide discretion to tailor the duties to the very special problems of the ward (the person for whom a guardian is appointed). After hearing all the evidence about the ward and her or his needs, the judge will enter an order, consistent with those needs. The guardian will have the care, management, and investment of the estate, and shall manage the estate frugally, and shall apply the income and principal of the estate so far as necessary for the comfort and suitable support and education of the ward, his minor and adult dependent children and persons related by blood or marriage who are dependent upon or entitled to support from him, or for any other purpose which the court deems to be for the best interests of the ward. The court may approve on behalf of the ward such agreements as the court determines to be for the ward’s best interests.

The guardian may make disbursements of the ward’s funds and estate directly to the ward or other distributee or in such other manner and such amount as the court directs.

If the estate of a ward is derived in whole or in part from payments of compensation, adjusted compensation, pension or other similar benefits made directly to the estate by the Veterans Administration, notice of the application for leave to expend or invest the ward’s funds or estate, together with a copy of the petition and proposed order, shall be given to the Veterans Administration Regional Office within his state at least 7 days before the hearing on the application.

Also, the guardian may be given powers under your state statutes as to making a long list of changes that will affect the use and disposition of his estate. Those powers are considered in planning the estate of an incompetent person.

A person who feels responsible for an incompetent person may want to save money by handling the estate guardian’s duties without the aid of a lawyer. Appearing in court this way is considered the “practice of law,” so that only duly licensed lawyers can perform this service. In addition, its very complexity would keep a layperson from being able to handle such matters.

#67 Selecting Guardians

2010-05-05T08:00:00.004-05:00

As a person, who we will call the ward, deteriorates physically or mentally, it is time to think about selecting guardians for her or him. We say guardians because there are two kinds of guardians and a person may need either or both. In the process of selecting guardians, it may be necessary to select a guardian of the person and a guardian of the estate. One person can serve in both capacities.

In selecting guardians, it is necessary to consider two entirely different lists of qualifications. The first list is imposed by your own states guardianship laws. It is absolutely required that the guardian meets those requirements. The second list contains the factors that might be considered in making the best choice among the qualified people and bank trust departments. Then, you can select the one that you think will perform best.

The law imposes a standard that the selected guardian must meet. The proposed guardian should be capable of providing an active and suitable program of guardianship, and must be 18 or older, a resident of the United States, of sound mind, not one who has been judged incompetent, or a convicted felon (but this defect can be waived by the court). Also, certain public agencies that are capable of providing a suitable program may serve as guardians. The trust companies of banks and other institutions may only be appointed guardian of the estate, but not of the person.

Also, your statute may allow the ward (the one for whom the guardian is sought) to sign, while still of sound mind and memory, a designation of guardian, which will normally be followed by the judge in appointing the guardian.

If the selected person is physically and mentally capable of accepting this burden, she or he will be able to do a good job, even though some of the activities may be a little complex. That is not normally a problem, because the guardian’s lawyer will be in regular contact to provide guidance.

If there is no one in the family who can handle financial matters because they are too big or complex, the appointment of a bank trust department is the best. It will not take sides in family disputes. It will be there at all times in the future. It won’t die or take vacations or sick leave.

Often, a smaller trust department is better than a large one, since the former finds it much easier to have frequent and close contact with the ward and the ward’s family. Big banks make a great effort to provide a close, personal contact with their wards, but it isn’t easy.

In selecting guardians, the judge will normally appoint the person and/or trust department that is requested by the family when they start the guardianship proceedings. Problems arise when there is hostility within a family, and some of them are more concerned about their own financial future than the ward’s welfare. The judge will often work out these differences.

#S-2 Salt: How Bad is it for You?

2010-04-21T08:00:00.005-05:00

You probably don’t think of salt as a killer. Yet, a diet high in salt can lead to health troubles. A recent article in Johns Hopkins Health Watch warns that not only will a high salt intake increase blood pressure, but it also raises the risk of heart attacks and strokes.

The recommended daily consumption of salt is 2,300 mg a day (or 1,500 for those with high blood pressure). But, the average American eats about 4,000 mg of sodium daily. Limiting your salt intake is extremely important if you want to avoid heart problems. Indeed, in a study of 3,100 adults with pre-hypertension, the participants who cut their sodium intake were 25% less likely to suffer a cardiovascular event, such as a heart attack, a stroke, need for angioplasty or bypass surgery or die of cardiovascular disease, than those who stuck with their regular salt-laden diets.

So how can you and I reduce our salt intake? Removing salt from the table and home cooking is the obvious choice. We are unaware that 80% of the salt we consume comes from processed and restaurant foods and only 10% come from the table/home cooking.

Therefore, the most important method of reducing salt intake is to minimize consumption of processed and packaged foods. If, though, you need them because of your lifestyle, choose foods with “low sodium” labels. If there is no such label, look at the nutritional table on the product, and try and select foods that contain less than 200 mg of sodium per serving. Also, choose fresh fruits and vegetables more often. They are low in salt. They are also rich in potassium, a mineral that helps lower blood pressure.

Following these suggestions can help you avoid high blood pressure so that the risk of salt being a “silent killer” can be reduced.

#S-1 How to Avoid Heart Trouble Later in Life

2010-04-19T08:00:00.005-05:00

We all tend to think that heart troubles are just the problem of older men. That’s wrong! Actually, Coronary Artery Disease (CAD) can affect any man or woman, at any age. The factors that can bring on a heart attack, (such as, smoking) usually began at a much earlier age.

The main condition that causes heart attacks is atherosclerosis. It develops slowly over the years. Young people must become aware of the “risk factors” that produce atherosclerosis. By avoiding those risk factors early on, they will greatly reduce the risk of a heart attack.

There are 6 major “risk factors” that can damage your heart: Smoking, obesity, diabetes, high blood pressure, high total cholesterol and low (good) cholesterol. But smoking leads them all. In a Coronary Artery Risk Development in Young Adults study, they found that smoking 10 cigarettes a day increases the likelihood of CAD by 50%.

A recent shocking study on 11 year old children revealed that those who are exposed to second hand smoke had already developed artery problems. People who choose to smoke are not only increasing the risk to themselves, but are also endangering the lives of those around them.

Framingham Heart Study revealed that an individual who is free of all risk factors has only a 5% risk of developing CAD by age 95. On the other hand, people with only two or more risk factors have a 69% chance of developing CAD by the same age! Obesity is on the rise and bad dietary habits are widespread. Only 36% of children in America are exercising adequately.

Preventative measures that you can adopt to can lower the risk of heart disease include not smoking, eating healthy, and exercising.

You are surely aware of what you should do, but still many are choosing a lifestyle that fails to incorporate those preventative measures. Parents and other adults can improve their quality of life and, at the same time, service as role models, by teaching the value of healthy eating, exercise, and avoiding dangers like smoking.

#66 Memory Decline - How to Slow its Impact

2010-04-14T08:00:00.004-05:00

As we grow older, and pass the big 60, we become sadly aware of our memory decline, our inability to remember things the way we formerly could. No later than your 60th birthday, you should (or should have) begun to fight the battle against memory decline. There are a lot of things you can do, but you must do so proactively, and without putting it off.

We constantly remind people in these blogs that living through the problems of old age requires that we downsize our living quarters and get rid of the clutter. In other blogs, we explain how this can be done. Almost no one sees any urgency about it. Yet, if you have a plan to get your living quarters clear of all clutter, and you carry out that plan, you can be sure that your old age will be somewhat (possibly a lot) more simple.

This also involves making a plan, not a plan for a place for everything, but a specific place for everything and everything in its place! In that way, if you want something, you don't have to look for it, you just go to its own place. That's a difficult process because you probably don't want to get around to making the necessary efforts.

Another procedure should be working its way into your everyday life is to get into a habit of doing your regular activities in precisely the same way each day. In that way, you don't have to stop and figure out what you need and where it is. For example, you should try to follow the same procedure for laying out your clothes, etc., ready to put on when you start getting dressed. If you prepare your own food, follow the same procedures for getting out the food and your equipment.

In that way, you can vary the contents of your meals, but the procedures are always the same. This saves time, which becomes even more important as your physical activities slow down, even becoming painfully slow. This method of conducting your activities will apply to many actions that formerly took only a few minutes.

Also, have a pad of paper next to the phone so you can immediately write down any information received, as when the nurse calls to tell you when your next doctor's appointment will be. Get it in writing immediately or you will probably forget it or get it wrong.

Similarly, you should keep a TO DO list next to where you normally sit. As anything occurs to you, or is brought to your attention, write on that list what it is to be done, and if applicable, when it must be done.

You should keep a meticulous address book in which you insert, as you learn it, all the contact information for all your family and friends and all your suppliers of products or services. That should include for each, their name, address, land line telephone number, cell phone number, and email address.

If you have not done so, acquire the equipment and skill to use the computer for its email, its Internet, and its word processing program. It will keep you in touch as you become more isolated in your own room. Many people now past 60 are reluctant to take the time to get the equipment and proper instruction on how to use it. Nearly every community has that form of instruction available. Just inquire at your Senior Center for sources of help. Most communities have many resources to help you prevent the memory decline.

#65 Maintaining Independence as Long and Completely as Possible

2010-04-12T08:00:00.003-05:00

Maintaining independence as long as possible is a major objective for most people who are past 70. They know that it is a loss of dignity, privacy, and freedom to act when, they are compelled to live in a nursing home. There, maintaining independence is completely impossible.

Most of the aging population who require special services and attention prefer to stay in their own homes, or in the home of a relative, thereby maintaining independence for a much longer time.

Your ability to maintain your independence depends on where you live after you leave your home, or that of a close relative. In a hospital, you lose about all ability to make your own decisions, or to be left alone.

It is a little less restrictive to live in a nursing home, but even there the loss of independence is nearly total. There is considerable freedom of movement about and decision making for those who reside in an assisted living home. It provides as near normal living condition as possible, but has many more services needed by the elderly close at hand and available on short notice. Many people are happy to enjoy that kind of life and sacrifice some independence in return for the greater amount of care they receive there.

There are many kinds of living facilities provided under different state programs for people with specialized needs. In such facilities there may be a total loss of independence.

An increasing number of Americans are moving into Continuing Care Residential Communities (CCRC). They usually begin there by living in a condominium much like any other, except for the fact that they will be living where special kinds of care are nearby and quickly available. They might, later in life, move into an assisted living situation within the CCRC, or into a facility more like a nursing home.

These CCRC programs require a large advance nonrefundable payment, plus rather high rental for the various types of facilities. They are only for the relatively affluent.

People with some strength and determination can do a lot for themselves that will delay or prevent moving to a nursing home. In fact, it should be standard procedure for every aging person to do everything possible for her/himself. It may be very slow and uncomfortable, for instance for an elderly to bathe oneself, or to dress, unassisted. Those simple tasks become excellent exercise with physical benefits that will extend the time the person can avoid going to a nursing home or other care facility.

Maintaining independence can be a struggle, but is usually worth every bit of energy that is spent on it.

#64 Mind Improvement- An Essential Part of Aging Gracefully

2010-04-09T08:00:00.003-05:00

Mind improvement is an essential part of aging gracefully. That's because, as we age, our minds deteriorate if we do not challenge and exercise them constantly with some kind of mind improvements.

Some people in their 80s, even in their 90s and beyond, seem to have bright, active minds that can match or equal those of people who are much younger. It is interesting; in studying these elders, to note that the vigorous use of their minds is the cause, not the effect of their abilities to engage in working on complex problems.

Some of history's greatest people did much of their spectacular work when they were very old. This is attributed to their wisdom, which accumulated over the years so that they could "wrap their minds" around a problem and come up with a startling result.

Here we can again apply the perception of St. Francis in his prayer for the serenity to accept the things one can't change, the courage to make the changes that should be made, and the wisdom to know the difference.

Uniformly, over the entire world, people have observed the fact that it was the long, white bearded old men (somehow women were rejected from this process until fairly recently) who had the necessary wisdom to help in the solving of the difficult problems of his friends and neighbors. Usually, he was much older than the age attained by his contemporaries. That was probably the inevitable result of his constant intense use of his brain.

Educators, sociologists, psychiatrists, etc., are now sending a loud message to people, as they age, that is, to spend as much time using their brains as possible. Depending on your strength, independence, and affluence, you will be able to meet with friends, play cards and other games or talk about serious subjects.

Even with little strength, independence, or affluence, you will have plenty of ways to exercise your mind. They might include reading good books, delving into Wikipedia and other Internet sources in order to study numerous subjects, taking courses at the Senior Center, distance learning, working difficult crossword puzzles, learning photography, painting, writing and a host of other skills.

Elderly people lose some part of their short term memory, which is the part of the brain that retains new ideas, sounds, pictures, for later transfer to the long time memory in another part of the brain.

When we are young, short term memory quickly grasps what we see or hear quickly. Seniors take somewhat longer to record a perception. You can improve short time memory by making a definite, positive effort to fix something new in your mind. You might summarize it out loud (or to yourself, if you attract puzzlement when others observe you).

For example, you may want to be sure to remember where you put the aspirin so you won't have to search for it. As you put them down, make an intense mental note, picturing yourself putting them where they are. Think about it for ten seconds or so. That will survive to go into your long term memory for use tomorrow when you need the aspirin.

Spending the time and effort will result in impressive mind improvement that will make you less forgetful.

#63 Proactive Living to Improve Your Remaining Years

2010-04-07T08:00:00.003-05:00

People generally tend to be either proactive or reactive. Those who practice proactive living enjoy better lives than those who are generally reactive, letting the world do to them what it, and its people want to do. Proactive living takes more time, more energy, and more dedication, but pays huge dividends when thoughtfully practiced.

The great and successful people of the past were highly proactive. They saw a problem and conceived a solution, and organized the resources necessary to meet the challenge and produce an improvement.

That isn't true just of the wealthy and powerful. It is true of you and your neighbors, if you can accept a challenge and succeed with it. It might be as small (but important) as getting the neighbors together to transform a junky lot into a neighborhood park, with lawn, plants and flowers. Or to help an ill, isolated, poor widow to enjoy a more normal life.

That is precisely what St. Francis referred to when he begged for the serenity to change the things he could not change, but the courage to change the things that he could. It doesn’t make any difference whether you are an atheist, agnostic, Christian, Muslim, or Jew, or another religion. The very process of classifying your problems as those that you think require serenity or that require courage, cause you to be more proactive.

Perhaps you will find a solution to that problem. From such thought processes comes a proactive person (you), who removes or improves the faults, evils, and other undesirable situations that surround her or him.

Most of us spend a lot of time grumbling about dishonest politicians, lazy workers who serve us poorly, bad local conditions, etc. The list of our complaints is endless. How much better it would be if everyone were proactive. When a bad local condition raises its ugly head, People would create a solution, and mobilize the forces necessary to eliminate, or least improve the problem. There is a lot of that going on, but we need much more of it.

In this process, the proactive people absolutely must apply that quality that some cynics say is in short supply in America, common sense. Being proactive is bad, even tragic when the proactive person decides that, in order to stop a person from doing harmful things, the way to stop it is to take the law into their own hands. They don't stop at arranging a parade or other massive show of force. They're forthright, showing it by throwing a bomb in the miscreants’ place of business. In sum, proactive living can improve a person's life and happiness. But even that great quality must be harnessed by having one's proactive living be socially and legally acceptable.

#62 Developing a Cheerful Attitude

2010-04-05T08:00:00.002-05:00

People who enjoy their retirement years are those who have developed a cheerful attitude toward others and the world around them. Those who are grouchy and unfriendly lack a cheerful attitude. They tend to turn others off. As a result, the world gets worse and worse for them, making their situation even worse.

It may be a cliché, but it describes the cheerful attitude as the feeling that “the cup is half full,” rather than “half empty.” When you are around someone for even a brief period of time, it becomes apparent which type they are.

I have enjoyed the company of numerous people in their eighties and nineties who have seemingly impossible burdens to bear. They suffer physical pain and diverse kinds of inconvenience. Yet, they have a bright outlook and are a real pleasure to know. My own father, who died a month before his 100th birthday, and spent the last decade of life in a wheel chair, still had a guffaw that could be heard at a distance. He was a believer in the statement that a good laugh is the best medicine.

Norman Cousins was another strong believer in the idea that serious ailments could be corrected through a positive attitude, love, faith, hope and laughter, even though he had far more than his share of serious health problems. He said, “I made the joyous discovery that 10 minutes of genuine belly laughter had an anesthetic effect and would give me at least two hours of pain-free sleep. When the pain-killing effect of our laughter wore off, we would switch on the motion picture projector again (to the Marx Brothers’ comedies) and frequently, it would lead to another pain-free interval.”

In addition to many diverse accomplishments, Cousins was an adjunct professor at the University of California, and did research in the biochemistry of human emotions, which he long believed were the key to the human beings’ success in fighting illness.

Of course, those who are in deep depression have a difficult problem. They can be improved with available medication such as Valium. If you or someone close to you should suffer from any form of severe depression, you should seek psychiatric help quickly, in order to return to a condition where you can adopt a much more cheerful, optimistic state of mind.

There is a treasure-trove of humor at your local library. You can use the comedies and sitcoms like All in the Family, to learn to get into a state of mind where you can joke and laugh (loudly), as part of your own self-discipline that can lead to a much happier, more positive state of mind.
Thus, by adopting a more cheerful attitude, you will attract people rather than repelling them. They will be happier to assist you through the difficult years of old age. In addition, you will obviously be a happier person by the re-inventing of yourself to include a cheerful attitude.

#61 Learning Patience as you Grow Old

2010-04-02T08:00:00.002-05:00

Instead of becoming more impatient, as we age, with the world we face, we must emphasize the learning of patience. That is difficult because our world becomes increasing difficult, as our physical and mental strengths decline. While it requires careful planning and hard work, our happiness at an old age will be improved by studying, practicing and learning how to be patient.

St. Francis of Assissi spelled out a large part of learning patience in the form of a prayer. Yet, it is a guide for all people, whether Christian, Jew, Muslim, agnostic or atheist, or of any other faith, and need not be expressed in the form of a prayer. It is, though, an important compass for our lives that we have received from the great thinkers of the past. "God grant me the serenity to accept the things I can't change, the courage to change those that I can, and the wisdom to know the difference."

While the aging process develops in earnest at the beginning of our adulthood, it picks up speed and devastating impact on our minds and bodies with each passing decade. At 60, most of us are nearly as good as we were years before. At 70, most of us have begun to suffer from one or more serious health issue. Then at 80 and even more so at 90, we become increasingly dependent on others.

Our impatience is beamed at ourselves, and out inability to accomplish what we did in the years before. It takes more time to perform all the tasks of self care and hygiene. Our walks get shorter.

At the same time, we are getting more impatient with relatives, friends, and others who provide the goods and services we need. Much of our impatience we experience as seniors is directed at the new ways later generations are finding to live and waste their time, with the computer and other sophisticated products that are beyond our capabilities.

There are many aspects to this developing impatience. They will be considered in more detail in forthcoming blogs. But much of the solution lies in developing your serenity. The more you replace your impatience with the quiet serenity that enables you to ignore all the things about you that distress you, the more you have proven the effectiveness of your determination to learn patience.

#60 Aging Gracefully- Being Willing to Reinvent Yourself as You Age

2010-03-31T18:06:00.004-05:00

Aging gracefully is the ability to make changes in behavior and lifestyles as we grow older, in a way that provides the best quality of life. People experience, all their adult lives, many changes as they grow older. Those who are unable to learn and practice the art and science of aging gracefully are doomed to an unhappy old age.

All people are capable of reinventing themselves. Most do it numerous times in a lifetime. They are somewhat different people after they settle down to their first job, to their marriage, to the birth of their first child, to rebuilding after a personal tragedy, such as a serious illness or accident. Often those basic changes are small, subtle, and not very frequent. On other occasions, as when an alcoholic quits drinking, the reinvention is dramatic.

If you are now over 70, you have probably begun to learn that old age can present countless new problems. Those problems may include, among other things, health, finances, and distressing family changes, such as the death of a spouse or parents. Those disasters, quite naturally, make us angry and bitter. The more numerous and serious they are, the more angry and bitter they make us.

It is ironic that the pressure we experience causes us to express our anger by being unpleasant to others. We grow decreasingly appreciative of anything that someone does for us. We become increasingly demanding of those around us who may really owe us nothing.

This is not an unusual development for the elderly. In fact, it seems to be the usual path for a large number of people ages 60 to 70. Tragically, this deterioration is counterproductive. Rather than gaining stronger support from those around us, we find our relatives and longtime friends make increasingly greater efforts to stay away.

Happily, there are many things that you can do, if you want to make the effort, to make others like us more, and encourage them to give more and stronger support as we weaken with age.

Forthcoming blogs will provide specific actions that can be taken to make you a more likeable person. A person whose relatives, friends, even strangers are glad to help, and give their friendship and support when you will need it the most.

The lessons and precepts we adopt are equally valid for all adults (depending on your present age) for your children and grandchildren, your parents and grandparents. Be generous. Share what you are learning with them.

You can master the practice of graceful aging. It is easy when you admit to yourself that it is essential, if you want to enjoy the best possible quality for the rest of your life. Graceful aging is not some form of hypocritical acting. It is a sincere way of life that will be well accepted by those around you.

#59 How Does One Go About Avoiding Guardianship?

2010-03-08T08:00:00.002-06:00

Avoiding guardianship should be a basic objective of nearly all estate planning. It can avoid wasting a lot of time and money in hiring a lawyer, possibly paying a bank to serve as guardian, and appearances in court. Unless there is some problem that absolutely demands going to court, avoiding guardianship is nearly always the best solution.

In most cases, no guardian will be needed if, in preparing an estate plan, one takes advantages of the other tools, which can permit the family members of an impaired person to get everything done to protect that person, and his or her estate.

A living trust containing nearly all the assets of the impaired person can give the trustee the power to invest and use that person's assets much as though they would have used them.

Durable powers of attorney for property may be used, without a living trust, or in coordination with a living trust. They continue to be legally effective after the principal has become mentally incompetent, unlike the law until fairly recently that provided that all the powers given in a power of attorney for property terminated when the principal becomes incompetent, thereby defeating any use, just at the very moment when they were really needed.

Another fairly recent invention is the power of attorney for health care. It enables the named agent to make the kinds of arrangements a competent person would make for themself. Those decisions included where to live, what type of care would be sought, and what type of remedial surgery would be used.

In addition, states have been adopting legislation that permits a guardian to create all the estate planning documents, such as the will, living trust, etc., that they might have made if competent. In that way, once a guardian takes advantage of that law, the documents would be in place and the guardian may no longer be needed. That provision is the subject of a forthcoming blog.

Your state may have a law that permits you to name the person who is to be appointed guardian, in the event that one is needed. If that person is friendly to you and interested in your best interests, the mere existence of that document may deter some greedy member of the family from starting an action to appoint a guardian, knowing that they will not be in control of the proceedings.

These measures are complex. Determining how they should be used in a way that will best suit your own needs and objectives, should be turned over to a competent estate planning, elder law attorney, who can weigh, for you, the pros and cons of each of these instruments and their necessary contents. In that way, you can achieve your objective of avoiding guardianship, and get the best results.

#58 What is a Guardianship?

2010-03-05T08:00:00.002-06:00

A guardianship is a proceeding in a probate court to protect a "disabled adult." Guardianship is called by different names in different states. The laws relating to guardianship differ from state to state, as to the terms used, and their procedures, but the procedures are very similar.

A guardianship may be required because the person has some mental or physical problem. The guardian can be appointed for the person or the estate, or both. In an early day, that person was described as crazy, then insane, then incompetent. Now, the favored description is being called a "disabled adult."

A petition (request) may be filed in the probate court stating that the person meets the description of a disabled person, and requires a guardian for his person, property, or both.

Under our Illinois statute (others will be worded differently) a disabled person is someone who is over 18, who because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or is a person with a mental illness or a developmental disability, and is not fully able to manage his person or estate, or because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or is diagnosed with fetal alcohol syndrome or fetal alcohol effects.

A hearing is held before a judge who decides whether the person is or is not a disabled person in need of a guardian. If he is not, that ends the proceeding. If he is, the court proceeds to select a guardian of the person or estate, or both.

The same person can be both the guardian of the person and estate, or separate guardians may be appointed. A corporation, such as a bank trust department, can be the guardian of the estate but not of the person.

From that point on, the guardianship proceeds with the guardian performing the duties that are imposed by the statute.

#57 Easing the Caregiver's Burden, Can We Help?

2010-03-03T08:00:00.004-06:00

There are numerous ways that a Caregiver's Burdens can be lightened. They will differ in each case. It will take an exhaustive search by family members to find each of these ways to ease the Caretaker's Burdens.

The first step can be a careful study of all who are concerned about mom's security and welfare. Some may be able to help by supplying a periodic cash payment to acquire services that will lighten the Caregiver's load.

Others may be able to help by replacing the Caregiver for a week or a month, by taking mom home with them.

There should be a careful study of all the opportunities for help that are available through your local Senior Center. They probably provide daycare for seniors. They may also provide other ways to lighten the load, or to find someone who will.

You should check with any elder law specialist, who will have a thorough understanding of the problems of caregiving and caregivers. The more resourceful that lawyer is, the more ways she/he will come up with one or more ways to lighten, or at least redistribute the load.

There are numerous books that describe how someone found it possible to bear the burden. They are probably all available from Amazon.

Those books include Eldercare 911 by Susan Beerman, Helping Yourself Help Others A Book for Caregivers, by Rosalynn (Mrs. Jimmie) Carter, and Circles of Care, How to Set Up Quality Care for Our Elders, by Ann Cason, and many others. Amazon will continue to add a flood of such books, all of them somewhat different but each of them giving many ways to lift some of the Caregiver's burdens.

In addition, there are organizations that are devoted to the problems of Caregivers. They include American Bar Association, Commission on Law and Aging, abanet.org/aging; Family Caregiver Alliance, caregiver.org; National Academy of Elder Law Attorneys, naela.com; National Alliance for Caregiving, caregiving.org; and National Family Caregivers Association, thefamilycaregiver.org.

It is reassuring to know that, when people are called upon to lift some or all the Caregiver's burdens, there is a massive amount of information that can and should be learned immediately.

#56 The Caregiver's Burden

2010-03-01T08:00:00.002-06:00

Believe it or not, countless people have answered the ad. They have taken up the burden of providing care needed by mom, dad, or other loved ones with serious health issues. They have given up having a life of their own. Often, they have given up a badly needed paycheck.

As Gail Sheehy said in Parade Magazine, "You are expected to assume all the duties that were spread among three shifts of registered nurses and aids, plus residents and interns, dieticians and social workers. Numerous other duties must be performed, such as acting as a member of the emergency squad when it is necessary to administer CPR immediately to save a life. Over the course of a lifetime, they sacrifice an average of more then $500,000 in total earnings."

Other factors can make the situation even worse. They include a dad who not only doesn't appreciate the services, but openly fights against them, never cooperates, and otherwise acts like the curmudgeon he always was, but who got worse with age.

This situation is even worse for many of these caregivers. There seems to be no light at the end of the tunnel. Unless she can get help, and a lot of it, she loses hope and feels that there is no real future for her.

Fortunately, there is help, which is described in a forthcoming blog, but even with the best of help, her job is virtually impossible for many caregivers.

Many of these people have a simultaneous caregivers' burden. That is, they are caught in the "sandwich generation," in which they also have kids in school who need constant attention.

#55 What Senior Resources are Available?

2010-02-26T08:00:00.002-06:00

The states have done a good job in providing senior resources for its residents. While each state has its own list of senior resources, they are all governed and financed, to a certain extent, by very similar senior resource programs.

Senior resources are available in my city (Quincy, IL) in a Senior Center. The Senior Center is located at a large, handsome building, that houses 33 agencies that help the elderly, along with all sorts of dining facilities, meeting halls, and activity rooms of every kind.

Also, there is a group of telephone specialists who are trained in all aspects of supplying senior services. They spend their entire day answering calls from people who want to know which agency provides a particular service.

That same information is available at http://www.seniorresource.com/illinois.htm. Insert your own state, if it is not Illinois.

The Senior Center has a Case Coordination Unit, a service designed to help seniors stay in their own homes, and is available free of charge to all who are 60 or over. The Unit is designed to help those who have problems with staying in their own homes, meals, transportation, managing finances, understanding special diets, confusion, housing, or isolation.

At the Senior Center, there are full time personnel who act as an ombudsman, or advocate, for those who might be experiencing any form of financial, physical, or sexual abuse. There are some legal services for those who need them.

There are also adult day care services, providing activities and supervision for seniors who cannot care for themselves, and to offer respite for caregivers who must work to provide necessary income.

Additional help and advice may be obtained from www.medicare.gov/caregivers, which gives information on navigating through Medicare, health care services, and links to partner organizations.

Assistance in hiring in-home help is also provided. At the same time, special assistance is offered by hospitals in arranging the transition for seniors after being discharged. Further help in finding senior resources can be found through the eldercare locator: http://www.eldercare.gov./

#54 Institution Caregiving

2010-02-24T08:00:00.002-06:00

It's easy for families to fall into the trap of believing that Institution Caregiving, done by a professional staff, does not require careful monitoring by a patient's family. Actually, it is a national tragedy that so many people who rely on the Institution Caregiving die because simple precautions are not being taken by those staffs.

Everyone who has a family member in a hospital, nursing home, or other long term facility should get the book, How To Survive Your Stay in the Hospital by Gail Van Kanegan. It is more than 200 pages filled with the mistakes, omissions, etc., that are made in hospitals. Many of those mistakes are shared by other long term care facilities.

It was recently reported that about 90,000 people die each year in American hospitals because of the failure of the staff to wash their hands.

At a personal level for me, these facts are particularly frightening. Until recently, Ms. Van Kanegan worked in Quincy, so that much of the information was acquired here. She was recently hired by the Mayo Clinic. Fortunately the CEO of our local hospital for the past few years has turned the hospital around so that it is fast becoming a national model for others to emulate.

Those forming the Caregiving team for a loved relative in a hospital, or any kind of long term care facility should acquire the Van Kanegan book, study it carefully, and treat it as a checklist.

On behalf of hospitals, it should be noted they have been forced to operate under impossible rules in recent years, when it has become difficult to impossible to get funds promised by government.

Armed with the Van Kanegan checklist, the family can investigate all the problems their relative has with Institution Caregiving. Don't be afraid to ask questions or to demand explanations.

#53 The Family's Caregiving Agreement

2010-02-22T08:00:00.002-06:00

Excepting in very small families, where there are less then two relatives who are willing to help and to sign a Caregiving Agreement, such an agreement should be considered, worked out, prepared (preferably by a lawyer), and signed.

There are many points that can be covered in such a Caregiving Agreement, including the selection of the executor of mom's will, the trustee of her living trust, the agents to be named in powers of attorney for property, and for health care, the person to be named as the guardian of her estate and/or her person, if one is needed. It is essential that those who will need authority to act should be selected to act as soon as necessary, with all arrangements and legal documents in place, so that action can occur quickly.

The Caregiving Agreement should state which members of the family are willing to contribute financially to mom's welfare, along with the amounts, and the other details of such payments.

Depending on whether there is a need for it, the Caregiving Agreement may also designate who will be the Caregiving Manager, the Principal Caregiver, and Caregivers in other capacities.

The Caregiving Agreement may designate mom's residence for the immediate future, possibly with the name of a selected Nursing Home or Assisted Living, if either type of service becomes the most appropriate.

One of the principal benefits that is derived from this arrangement is that the family has dramatic proof that "We are a family that works together," and that the same sort of help can realistically be expected if one of the parties, or her mom, needs a similar sort of plan. That is a great inducement to support this plan. It will be much easier to replicate the next time, and the time after that, when similar situations arise for other members of the family.

There should be provisions in the Caregiving Agreement as to what help and respite the other family members will give the Principal Caregiver. These can be in the form of having mom stay with other family members at regular intervals. It also may provide that there shall be another Principal Caregiver designated for certain weeks or months so that the regular one can "recharge her batteries," and get somewhat caught up on her own personal activities.

In order to keep family members informed of all developments, there can be provision for a simple, informal email that would go out periodically to family members. Thus, all would know of the development of new situations and the likelihood of others arising soon. Such an informal report will accomplish a lot in keeping the entire family working together, but with little demand of time from the Principal Caregiver.

The Caregiving Agreement should provide its amendment to meet conditions not foreseen when the original Caregiving Agreement was signed. While this kind of Caregiving Agreement is frequently of short duration because of mom's age and condition, it may go on for a decade or two.

#52 Creating A Caregiving Plan

2010-02-19T08:00:00.002-06:00

There should be a carefully put together Caregiving Plan for every senior who needs, or soon will need, substantial amounts of caregiving. Where there are two or more close relatives of an elderly person who needs caregiving, they should work together to create the Caregiving Plan. A Caregiving Plan is either binding or non-binding on the parties to it. It outlines in detail the particular services that each will give for the elderly person.

The need for a Caregiving Plan has increased greatly in recent years, because of the huge number of people who need care, the high cost of giving it to them, and the difficulties involved in obtaining the care.

As soon as possible after the senior has had the triggering event that caused the sudden need for help, the "family," those who are concerned about getting the best care possible should get together and work out their future actions.

Because of distances, not all the family may be able to get together. The meeting should be held right away, with all present who can be there. The others at a distance can participate by phone, email, conference calls, etc.

If there is a family lawyer who has been involved in this person's care, the meeting should be held in her/his office. In that way, legal questions will get quick answers. It will put the lawyer well on the way in preparing any agreement, and any other legal documents, etc. that come out of that meeting.

At the meeting, there will be many things to work out, if they have not yet been put into place, such as where mom (and pop, if living), will reside, who will be the Principal Caregiver, who will be the Managing Caregiver, if one will be needed, and who will contribute financial help, if needed.

To the extent possible, they will anticipate the additional need for other services as her physical or mental condition declines.

Compromises among members of the family should be made for any problem that threatens the family harmony. Those who don't want to provide a fair share of the help needed should be persuaded that they have a moral obligation to do so.

Even though the Caregiving Plan is to be only an understanding that does not bind the parties legally, it should be written down, with a copy for each participant. It will be something to point to later, if any family member shirks.

Of course, if it is to be binding, it should be put into proper legal language by a competent lawyer. As a result, there will be a Caregiving Plan that will afford mom the best possible care during her remaining years.

#51 Having a Professional Caregiving Manager or Lawyer Manage Caregiving

2010-02-17T08:00:00.004-06:00

In most families, a member of the family will be both Caregiving Manager and the Principal Caregiver. However, other families will have a Professional Caregiving Manager supervise all the functions of that job. The services provided by a Professional Caregiving Manager are expensive. Therefore, they are used by the more affluent.

A careful search should be made, if a Professional Caregiving Manager is to be used. Many kinds of dire consequences can result, unless they are highly professional and meticulously supervise those who provide the services required by elderly clients.

Even when a Professional Caregiving Manager is used, their services must be monitored continuously, to assure that the client is receiving the best of care. There should be surprise visits and extensive discussions with others who could have noticed any lapse in good service.

Another possible choice for Care Giving Management can be the lawyer who handles the client's legal affairs, assuming that he or she has extensive experience practicing elder law.

Because of the high hourly lawyers' charges, he or she may utilize a capable secretary or paralegal. In fact, in my treatise on Elder Law, I urge elder law specialists to have more than one paralegal. In any such practice, one lawyer's clients can keep several paralegals very busy.

The benefits of such a system that uses paralegals are substantial. Clients get a quick response when help is needed, without waiting for an appointment with the lawyer. The hourly rate of lawyers is generally ten times or more greater than that of paralegals. Hence, having paralegals do everything that they can do so well (often better than the lawyer) enables clients to get first class services that they can afford. At the same time, the lawyer can monitor the situation to assure that the client will receive good caregiving services.

Because the cost of a Professional Caregiving Manager is high, any family of an elderly person should search carefully within their own ranks for the Manager. They can supervise from a distance. They can divide their chores among two or more members of the family.

#50 Determining the Extent of a Person's Caregiving Resources

2010-02-15T08:00:00.002-06:00

Every person who needs any caregiving has a number of caregiving resources. They may include their own financial resources. They will also include the caregiving resources available from friends and relatives who can provide help. In addition, government, charities, and other groups provide a wide range of caregiving resources.

It is extremely important that, when a person requires those caregiving resources, all the information should be accumulated and analyzed to determine where and how the resources can be obtained for the person who needs them.

A good place to start is at the local Senior Center, where they have experts who counsel families as to how to get the needed services. Another good place to start in this search is an experienced elder law attorney. This group is relatively small but is growing, to fill the need for professionally trained people who have studied the entire situation carefully.

A search of caregiving resources might begin with seeking the appropriate residence for the senior. For example, a veteran may be eligible to receive full living accommodations and medical care at a delightful place like the Illinois Veterans' Home here in Quincy.

All sorts of long term care is available to eligible people, including nursing homes, assisted living homes, and special residential venues for people with unusual needs. The cost of such services may be fully or partially underwritten by local, state, and national programs, by Medicare, Medicaid, and by insurance policies. The more affluent will consult their bankers, trust officers, and stock brokers, as well as professional financial planners, for assistance in making and living with these plans.

The ultimate objective of this careful study of the available caregiving resources is to assure that the aging family member will receive all the care needed to assure a comfortable, carefree old age.

#49 Avoiding Unsafe Caregiving

2010-02-12T08:00:00.001-06:00

When elderly people begin to need an extensive and expensive list of caregiving services, they and their families may be tempted to plunge into an unsafe caregiving arrangement that should be been avoided. We will, in this blog, explain the nature of those caregiving arrangements. In other blogs, we suggest more suitable methods of getting proper care.

One such arrangement that long has been followed is the conveyance of the elderly person's home or farm to a caregiver who will provide that person with care the rest of his life. That method provides no assurance that the caregiver will do anything to warrant the conveyance. The caregiver may perform those services poorly. Also, the elderly person may die soon thereafter having left practically his entire estate to one person who has done little or nothing, and cutting out others who might have been beneficiaries under his will.

A similar unsafe caregiving arrangement calls for transferring property in return for a promise to care for the owner. It requires that the owner signs a deed to the property to the caregiver. In this deed, the owner reserves for himself a life estate in the property. That means that the owner uses it as though he were the owner, but upon his death, the property belongs to the caregiver.

This arrangement is subject to the weakness that the caregiver will die or become unable to perform any caregiving services. That means that the owner gets nothing in return for turning the property over to a caregiver who does not give care. Also, it can also happen that the once pleasant relationship between the parties turns to dislike, even hate. Not only will the owner not receive good caregiving services, they will be constantly reminded of their poor decision to turn over their biggest asset to someone they now dislikes.

A similar arrangement provides that the elderly owner puts the ownership of the property (house, farm, securities, etc.) into joint tenancy with the caregiver. That means that the person could die, after little or no care has been given, so that a high amount was paid. Also, if the caregiver dies before the owner and after considerable services have been given, neither the caregiver, nor his/her heirs or will beneficiaries will get anything for the work done.

There are numerous other plans designed to transfer property to provide for old age care. The allure of most of them is that they are cheap to set up. Yet, it would have been cheaper in the long run to avoid these unsafe caregiving arrangements, and to prepare and live out a plan that would avoid the problems described above.

#48 What Are The Basic Caregiving Services?

2010-02-11T16:08:00.003-06:00

There is a staggering list of Basic Caregiving Services (and products) that can be needed for a senior whose health has begun to decline. That person and his family should carefully study the list of such Basic Caregiving Services as they begin their deliberations as to who shall provide either the service (or product) or furnish the money to pay for it.
Some of these services and products are not usually thought of as part of the caregiving process. Nevertheless, they will be needed and it will be the Caregivers who will have to make arrangements to get them.
One of the biggest demands is usually finding adequate medical and dental care, and other forms of treatment, including glasses, hearing aids, prosthesis, sight saving equipment, and transportation to such sources.
After the selection of the proper residence is determined, all steps need to be made to move him to it, or move a Caregiver to his residence. If he continues to live alone, there are all the problems of a home owner, such as maintenance, yard work, snow removal, etc.
Inside, there will be a need for continuous housekeeping, pet care, and laundry. There will also be meals to prepare, or delivered, as by Meals on Wheels.
Arrangements may be needed for transportation for shopping, medical appointments, and recreational trips. There may be trips to a clinic, or hospital, etc. in another city.
One of the most difficult jobs can be the furnishing of personal care, as for feeding, bathing, incontinence, bathroom assistance, and dressing. One of the more complex jobs may be the assurance of a steady supply of prescription medicines and dietary supplements, and arranging a system whereby the proper amounts of each are administered without interruption or mistake.
In addition, it may become necessary to bring nursing care into the home for blood withdrawal, care of injuries, changing catheters, and making various injections.
When a family member has been drawn in as the Principal Caregiver, it frequently occurs that the same person will be called on to be the executor of her will, trustee of her living trust, and agent in powers of attorney for property and for health care. Also, if the senior becomes mentally incompetent, it may be necessary to become guardian of her estate and/or her person.
Fortunately, all seniors do not require all these forms of basic caregiving services. The sad fact, though, is that just a few of those duties are enough to crush a Caregiver, and demand what one author has called the "36 hour day."

#47 Sources of Caregiving Services

2010-02-10T08:00:00.001-06:00

For people who are in hospitals, nursing homes, and for most who are in assisted living, their caregiving services are almost automatically provided. But there are countless other Americans who need caregiving services that are not available where they reside. In most cases, the relatives and close friends are called upon to provide the necessary caregiving services.

These people are usually poorly prepared in advance to render the services. Also, for nearly all of them, it is a difficult job because of its impact on their time, their own jobs, their family life, and their ability to enjoy life.

People in need of caregiving services typically live in their own homes, sometimes with a spouse with similar or greater needs. Yet, their present capabilities will not be sufficient to cope with the ever increasing burden of obtaining needed services. It is that vast army of unfortunate people we are considering here.

There often is a "triggering event," such as a stroke or heart attack that has suddenly made the problems much more complicated. It is then that the entire family must rally around to find solutions to the problems.

For some, the "entire family" may consist of only an adult daughter. In that case, she must make the arrangements for the required caregiving services to be available whenever needed. This may mean moving in with mom. Or it may mean having mom move in with her. If mom has several children, that close supervision can be divided among them.

Each family member must understand that, while they have no legal obligation to care for an adult parent, they usually have a strong moral obligation.

In the course of this procedure, one member of the family will evolve into the position of the Care Manager, that is the one who divides the burden among the other family members. Normally, that Care Manager is the Principal Caregiver, the one who does the most, which often means providing a home for mom. All the others who help we simply call Caregivers.

Rarely do the family members use those terms or define themselves as a Care Manager, Principal Caregiver, or Caregiver. Yet the obligations each assumes indicate which category a particular relative is in.

In assessing the ability of each of the relatives to help to the extent possible, it is necessary to consider their financial situation, their freedom to spend the needed time without too much negative impact on their own home and family, their distance from mom, their ability to provide housing for her, and their flexibility that will enable them to move in with her.

All these factors should be considered by the family as a group. In a forthcoming blog, we suggest ways that this analysis can be made, reduced to an agreement form, and a statement agreed upon by the family members. A legal agreement can be prepared whereby each agrees to perform certain specified caregiving services. Or, it may be drawn only as an understanding, to refer to from time to time, but imposing no legal obligations on the family members to perform any caregiving services.

#46 Determining a Person's Need for Special Caregiving Services

2010-02-08T08:00:00.003-06:00

As a person's ability to take care of her/his own needs declines, relatives and others generally step in to aid in assessing the needs, finding others to provide those needs, and in many cases providing those special caregiving needs themselves.

The need for caregiving is not confined to the elderly. A recent report prepared by the MetLife Foundation shows that (1) the top reasons adults need caregiving assistance are old age (12%), Alzheimer's (10%), mental/emotional illness (7%), cancer (7%), heart disease (5%), and stroke (5%), (2) nearly a third of American adults(65.7 million) are caregivers, and (3) that most of them (66%) also have full time jobs.

If a person is institutionalized in some form of long term care, such as a nursing home, most of the special caregiving services are provided. We are primarily concerned here with obtaining special caregiving services for a person living in their own home or with friends or relatives.

A thorough list of a person's needed special caregiving services is derived through a careful geriatric study of the person. This assessment determines their physical, mental, and emotional needs, and their nature and extent. The geriatric assessment may be made by a specialist, or by a doctor who is experienced in dealing with the elderly.

There are many areas within which many kinds of help are now needed, or will soon be needed. They can include the need for additional financial help, for someone to manage the selection, control, and use of the help that is given, for a new residence better suited for obtaining and giving necessary help, for members of the family who will provide one or more of the needed kinds of help, and for management of the person's financial resources so that they will be used in the best possible ways for that person's benefit.

Also, there should be an assessment, in relation to the person's needs, as to what providers are available for each of them, whether they are provided at government or charitable expense.

At the same time, the family should be making preparations that will make the elderly person eligible for important programs such as Medicaid. If there is reason to believe that the person now needs, or will soon need Medicaid benefits, there may be some urgency to taking certain steps, in order to make the maximum amount of benefits available.

With Medicaid, for instance, it may be necessary to "spend down" the person's estate so that it meets the standards required for eligibility. Spending down can be a very complex procedure, requiring expert advice that should be found as quickly as possible.

Simultaneously, family members may want to provide additional financial resources that will be free from claims by the state for money advanced. This can be done by the careful preparation of a "special needs" trust. Its preparation requires expert assistance which should be found quickly, if the need for Medicaid is already present or is not far in the future.

For most people, the more serious health issues begin to arise during their sixties and pick up momentum each decade thereafter. Their conditions and needed special caregiving services often seem to increase at an exponential rate. Even in less dire situations, the burden never gets lighter. The burden in acquiring special needs services only gets greater.

#36 The Importance of Funding Trusts

2010-02-05T08:26:00.003-06:00

Funding trusts is one of the most important actions required in order to create the living trust so that you can expect it to go into effect. Funding trusts includes the actions necessary to transfer the title to the trust of all the assets to be included in the trust. Without funding trust, there is nothing in the trust and it cannot perform any functions.

Without transferring any assets to the trust, there is no funding trusts and no trust. If the grantor transfers only a portion of his estate to the trust, it cannot provide all the benefits that estate planners have come to expect for living trusts, and especially the Comprehensive Living Trust.

If half the Grantor's estate is transferred to the trust, that half will sail right through without having to be probated, while the other half will be subjected to the costs and delays of the probate process.

Funding trusts should be handled by the lawyer who prepared the trust and understands the way each kind of transfer to the trust is to be made. Then, after all such transfers have been made, a careful check should be made to be sure that none of the intended assets has been forgotten.

Chattel property is transferred to the trust by making a bill of sale from the owner to the trust. Similarly, a deed is delivered from the owner to the trust for real estate.

In funding trusts, bank accounts are transferred to new accounts in the name of the trust, stock transfer agents are notified to make the same change in the name of the owner of the account. Also, in funding accounts, there may have to be an assignment of some interests.

#35 Potentially, What Can a Trustee's Liability Be, What Can Be Done About It?

2010-02-03T08:26:00.001-06:00

There are many actions or failure to act that can impose trustee's liability on the person or bank that acts as trustee of any trust. We will enumerate a number of them, and suggest ways that a trustee can avoid, mitigate, or recover from some other source to avoid trustee's liability. In addition to his personal liability, he may be removed for wrongdoing, and may be unable to be compensated for work already done.

The trustee is obligated to comply with the terms of the trust, to act in good faith, and to use care, skill, and diligence, to take charge of the trust property, see that it is secured, kept in good condition and insured, to seek out and recover claims of the trust and to resist claims against the trust, and avoid committing any cries while handling the trust estate.

The trustee must not mingle trust assets with his own, must not self deal, and must deal fairly with each of the trust beneficiaries. He must keep an adequate set of books and records and must report to the beneficiaries at prescribed intervals. The trustee is obligated to make the trust profitable and to diversity the investments. These matters should be studied carefully in drafting the trust, to anticipate the problems and to permit deviation from those principles.

He must make timely distributions of the income and principal of the trust, and must make distributions in the correct proportions to the people entitled thereto under the provisions of the trust. There are a number of other duties but the foregoing gives a picture of the complexity and demands of the job.

The best protection against most of these claims is to act with skill, care, and diligence. In any situation where there can be any doubt as to the proper course of action, the trustee should obtain the advice of the lawyer for the trust, preferable in a letter to avoid misunderstanding, and to prove the effort made to do the right thing.

A grantor may protect the trust somewhat by inserting an exculpatory clause in the trust, relieving him of the burden of such claims. Even that, though, will not protect a trustee for wrongdoing if it was done intentionally, recklessly, or in a bad faith.

There are times when a grantor may want to enable a trustee to assume a role which represents a conflict of interest, such as enabling him to buy the grantor's farm. There should be a provision to that effect in the trust agreement, if such is the case.

The mistakes of a trustee may be forgiven by the beneficiaries, so this avenue should be used where he was trying and the beneficiaries were understanding and willing to release him from the trustee's liability.

#34 Using Probate Avoidance Trust

2010-02-01T08:26:00.001-06:00

In our blog,"What Is A Probate Avoidance Trust?", we explained how a regular living trust could be used to avoid probate. Here, we will explain something of the procedures for using the Probate Avoidance Trust when the grantor dies. If the grantor has used caution and diligence, it is probable that the family can completely or substantially avoid most of probate. Either way, it has been a success to use the probate avoidance trust.

When the grantor dies, the trustee determines, from the amount of assets that were not included, as well as the need to have an executor to accomplish some special action, whether the pourover will has to be probated. If so, it will be quite routine and require very little time, and a limited amount of fees.

If it is necessary to probate the will, there will be one gain that is not realized when probate is avoided. That is, probating the will and publishing notice to all potential claimants, their claims will all terminate in some (usually six) months. Without that publication, a creditor could come along some years later and be able to recover against the assets of the estate.

When either the trustee or the executor seek to recover or sell assets of the estate, only banks, corporations, etc., will require proof of appointment in most cases. That means that the trustee, acting in that capacity will merely ask for and receive the property.

Others will require proof that any particular asset was in the trust and that the trustee is the proper person to recover it. If it is still in the name of the decedent, the person or company holding it will demand the letters of office (official appointment) of the executor.

If the estate does not have to be probated and the total personal property is less than the minimum provided in your state statute ($100,000 in Illinois), the agent who is authorized under the Small Estate Act prepares and files a Small Estate Affidavit. If it is in proper form, the holder of the asset must give it to the agent for estate.

All this sounds confusing, but it is much more simple than probating the estate to get the property. It is a simple procedure for a capable estate lawyer who handles this situation from time to time.

The greatest benefit from using a Probate Avoidance Trust, other than the saving of time and money is the very short time it requires to distribute the estate assets to those who are entitled to them.

#33 What is a Probate Avoidance Trust?

2010-01-29T23:20:00.004-06:00

A Probate Avoidance Trust (which I sometimes call a Comprehensive Living Trust) is the name I have given to a living trust that is designed to perform various specific functions. As with so many other trusts, with a Probate Avoidance Trust, grantors put the bulk of their estates into the trust. After the grantor's death, the trustee distributes the estate or holds it longer for other specified purposes in the trust. Usually, there is some hope with the typical trust that probating the estate in court will be avoided. With the Probate Avoidance Trust, probate will be entirely or largely avoided, provided certain steps are taken.

To be sure that the Probate Avoidance Trust will largely or entirely avoid probate, it is necessary to have most of the grantor's personal property in the trust. Under each state's Small Estates procedures, the amount of personal estate allowed to be retained in the grantor's name is fixed by statute. In Illinois, that amount is $100,000.

When the trust agreement is drawn, there should be a detailed list of the items in the estate and their values. At that time, the ownership of those items has to be transferred from the grantor to the trust. That is a process that is known as "funding" the trust.

Funding is performed by taking each item and determining how it is to be transferred to the trust. That is a service that is performed by the lawyer. They will be transferred by a bill of sale, an assignment, a change of name of beneficiary on certain assets, or whatever document is appropriate.

Constant attention is given to the value of personal property remaining in the grantor's name. The process of transferring title continues until the total value of personal estate remaining in the grantor's name is as small as it practically can be made.

Then, the grantor must be careful to see that property that she or he acquires is put into the name of the trust. Over a period of years, this process can become a bit careless.

Normal practice requires that the grantor also sign a "pourover will," that will pour over into the trust all personal property remaining in the grantor's name. This may be carried out using a Small Estate Affidavit, without probating the will. If not, it may be necessary to probate the will. That process is simple, and can assure that all the property will get into the trust.

Even if it is necessary, for some reason, to probate the will, the use of the Probate Avoidance Trust will reduce the work in court to a very limited amount, with the bulk of the distribution done by the trust. Nearly all the cost of probate will be avoided.

#32 What is a Testamentary Trust?

2010-01-27T23:17:00.001-06:00

A testamentary trust is very similar to an inter vivos (between the living) trust, except for one very important difference. That is, the living trust usually goes into effect when it is signed, whereas the testamentary trust does not go into effect until after the testator has died. Since the Comprehensive Living Trust has so many important advantages, the use of a testamentary trust is declining.

The testamentary trust is incorporated into the grantor's last will. It may be a trust for only a portion of the testator's estate, such as a trust to provide funds for a grandchild's education or to support an elderly relative. Or, it may provide that the entire residue of the estate will be transferred to the trustee.

The testamentary trust must be contained in a valid last will of the testator. That means that the will has to be filed for probate and may be attacked on any of the grounds that would invalidate it, such as lack of testamentary capacity, fraud, duress, or undue influence. If the judge finds that the will cannot be admitted to probate, he/she will find that it is not a valid will.

Even if the judge finds that it is a valid will, disgruntled heirs will still have a chance to set aside the finding that it is a valid will. That procedure is done in a will contest.

When there are so many problems getting a will with a testamentary trust found to be valid, the advantage in having a living trust, and particularly a Comprehensive Living Trust becomes very obvious. Also, when the living trust does so much by saving the costs of probate and enabling almost immediate distribution of trust property without any of the delays of probate, it is possible to find a substantial reason for using the testamentary trust.

#31 What Are Some of the Living Trust Uses?

2010-01-25T10:00:00.001-06:00

There's a long list of trust uses, and the list keeps growing. There are, of course, the living trust and the testamentary trust, both of which are considered at length in my other blogs. Space allows us to list only some of the present trust uses.

There are charitable trusts that provide some charitable help for the beneficiaries, and income tax benefits for their donors. There are life insurance trusts wherein the trust is the owner of the life insurance, and is designed to pay the benefits in a way that will keep that entire amount out of the taxable estate of the insured person.

There are marital deduction trusts that are created to keep the estate of the spouse first to die from being subject to federal estate tax. By meeting strict requirements, there is a marital deduction in the estate tax return of the first to die, which would not exist without that provision.

There are revocable trusts, that is, they can be revoked (or amended) by the grantor without any consent from anyone to do so. There are irrevocable trusts that can't be amended or revoked. There are no special kinds of trusts but are given their names because they either do or do not contain a provision that expressly declares that the grantor can revoke it.

There can be death tax advantages that result from making the trust irrevocable. No express condition is required to make it irrevocable, even though it is often included in the document. Failure to reserve the right to amend or revoke a trust make it irrevocable.

A similar condition results in creating a spendthrift trust. That is done by providing in the trust instrument that one or more beneficiaries will not be able to assign or sell their interest in the trust. In that way, they have to wait the time provided in the trust agreement for distribution(s) to be made before they can "cash in" their benefits. A spendthrift trust gets its name from the inclusion of that provision, and not from the purposes of the trust.

A sprinkling trust, likewise, is not a special kind of a living trust. Rather, it is one that gives the trustee power to sprinkle (distribute) trust funds to certain beneficiaries based on some kind of standard, such as financial needs, to start a new business, etc.

A land trust is a trust created to receive title to the grantor's specific pieces of real estate. That is all the trustee does, i.e. hold title. The trustee has no power to take control of the property, to manage it, or to collect income from it. About all it can do is to execute a deed to a purchaser when directed by the beneficiaries of the trust. The percentage of real estate held in land trusts constantly increases because of the benefits of this type of ownership.

Some trusts are not created by any trust agreement. Instead, they are created by the courts as constructive trusts or resulting trusts. Such action is taken when it appears that someone holds legal title who is not entitled to it, so this is the procedure for returning full owner to the person(s) entitled to it.

This brief, limited list of the kinds of trust uses gives some idea of the wide range of objectives that can be accomplished. It is safe to assume that trust uses will continue to grow.

#30 What are a Trustee's Duties?

2010-01-22T10:00:00.001-06:00

There is a long list of trustee's duties. They are imposed upon her by the trust instrument, by applicable federal and state laws, and other sources. It is essential that anyone who agrees to be a trustee should understand what a trustee's duties are. A number of the powers that are given to a trustee also impose duties upon him/her/it.

The trustee must take charge of the trust property, manage it, and distribute it in accordance with the trust's terms. The trustee must use due care, diligence, and skill, and act in good faith.

The trustee must preserve the trust property, keep it insured, and in good condition. The trustee must claim and recover all property to which the trust is entitled and take all reasonable steps to obtain it. Also, the trustee must defend against claims by others for trust property.

The trustee must keep good records and account to the beneficiaries regularly for its activities, its receipts and disbursements. It must give proper information to the trust beneficiaries.

The trustee must not take personal advantage of his position, and must deal fairly as between trust beneficiaries. A very high standard of conduct is required since the trustee is a fiduciary who owes the highest of standards to the beneficiaries.

Of course, the trustee must not embezzle trust funds, or otherwise commit any criminal acts while acting as trustee.

It is obvious that the trustee's duties are numerous, and can be a very heavy burden. The trustee who performs the duties imposed by law, can be sure no claim for money will be made against him or her.

#29 What are a Trustee's Powers?

2010-01-20T10:00:00.002-06:00

In order to carry out the duties of a trustee, the trustee must have numerous powers. Years ago, the trustee powers that were granted were those that were stated in the trust instrument. In more recent years, the state legislatures have passed laws that provide many of the powers that are now conferred on the trustee.

While those statutory powers are, in effect, written into the trust agreement, the grantor can delete them, or may supplement them with any additional powers, provided they are not illegal, such as the power to deal in drugs.

When a trustee lacks a certain power that is not given in the statute or in the trust agreement, it may be obtained in other ways. For instance, all the beneficiaries may agree to give the trustee that needed power.

Also, a trustee may have an implied power, that is, one that is not conferred, but is necessary in order for the trustee to carry out the objectives of the trust.

Living trusts do not normally come under the control of a court. Yet, if any beneficiary, for instance, is dissatisfied with the actions of the trustee, he can request the help of a court. If the judge believes that the trustee has abused its powers, he/she can compel him to make corrective action, even hold him in contempt of court, punish him, or replace him with another trustee.

#28 How Should Trustee Selection Be Made?

2010-01-18T10:00:00.004-06:00

The trustee selection is almost automatic in the case of many living trusts, wherein the grantor appoints himself/herself as trustee. Also, in many families, if the trust is not huge and complex, spouses make their trustee selection by nominating each other as the trustee. Trustee selection becomes somewhat more difficult when the trust is large, or none of the principal beneficiaries is capable of handling the trust.

In making the trustee selection, the question originally is whether a corporate trustee should serve, or persons close to the grantor are preferable. In many cases, the answer is obvious. If there will not be serious or complex problems, the grantor or a member of her own immediate family is usually preferable.

In other cases, a need to select a corporate trustee may be obvious. There might not be a family member who is available and capable of performing the duties. Or, there may be serious family friction that would make it impossible for any member to serve in a fair, objective manner. There is always the possibility that a dishonest individual trustee can embezzle the entire trust property, with no remedy for the beneficiaries.

In another group of cases, the decision as to whether to use a corporate trustee may be balanced, as between the pros and cons. In such cases, the grantor, in making a decision as to trustee selection needs to weigh the benefits that a corporate trustee can offer.

The corporate trustee has skilled people who are well trained in their duties and perform them promptly. It does not die, become old and infirm, move to another city or country, or take vacations. It has sophisticated accounting and other computer services, so the records are quickly and accurately kept. If a trust department employee embezzles funds, the bank and its insurance company is ready to reimburse the trust.

The corporate trustee knows of the obligations to file state and federal tax returns, it pays for its mistakes. It is carefully supervised by its own accountants and by state and federal agencies.

On the other hand, a corporate trustee charges substantial fees. It lacks the knowledge of the grantor and the grantor's family that is frequently needed to solve problems and resolve conflicts among beneficiaries. The bigger the trust department, the less personal the services become, despite all their efforts to maintain a sensitive, thoughtful approach to the families problems.

In those trusts that include the grantor's family business, there maybe a family member who should take full and immediate charge of all the aspects of adjusting to the grantor's inability to manage that business.

Most trust departments have a minimum size of the trusts they will handle. Anyone contemplating a corporate trustee for a living trust should work with the trust officers in setting it up, so that they will realize in time whether it is a trust they can afford to handle.

It is obvious that the trustee selection should be made after giving careful consideration to all those factors. Choosing the wrong trustee can be a disaster. That is far too high a price to pay just to save fees in making the trustee selection.

#27 What are the Trust Beneficiary's Rights?

2010-01-15T10:00:00.001-06:00

There are numerous trust beneficiary's rights that are enforced by the courts. A trust beneficiary does not have the right to take possession or control of the trust property, excepting to the extent that such rights are conferred on them in the trust agreement.

The most important of the trust beneficiary's rights is to have the benefits that are provided in the trust agreement. They have the right to have the trustee be careful and diligent, to take control of the trust property, protect it from loss, and keep it insured, and in good repair.

A beneficiary has the right to have the trustee refrain from self-dealing, taking sides in conflicts among beneficiaries, mingle the trust property with his own. He has the right to demand that the trustee will invest trust assets prudently, and diversify the investments.

The trust beneficiaries rights include the right to have the trustee keep good records and accounts, render regular reports as to the beneficiaries, and to distribute the trust income and principal in accordance with the trust agreement, promptly and without any need for compulsion to get the trustee's action.

Trust beneficiaries are entitled to have the trustee divide revenues and receipts fairly between income and trust beneficiaries in accordance with the Principal and Income Act. They are also entitled to insist that the trustee, when given discretion in matters such as the distribution of income, will exercise such discretion fairly and reasonably.

It should be noted, at this point, that the beneficiary has many rights that may or may not be respected by the trustee. On the other hand, when there is an honest, diligent family member, who is represented by a competent lawyer, there is very rarely any cause for dissatisfaction on the part of the beneficiaries.

A beneficiary has the right to have a trust construed by the court if the trust is not clear as to an important point. Also, there is the right to have an offending trustee removed and replaced.

In the great majority of cases, the trust beneficiary's rights are scrupulously observed. Any beneficiary who has reason to feel that his/her trust beneficiary's rights have been abused or ignored should consult competent counsel to assure that the faults are corrected quickly.

#26 What is Undue Influence?

2010-01-13T10:00:00.001-06:00

Undue influence is influence exerted by a beneficiary of a will over the testator in obtaining a benefit under the will that is not the testator's free and voluntary act. Of all the grounds for setting aside the will, undue influence is the most difficult because there is no clear line between being nice to a person and making that person feel that she/he must do something for the influencer.

Most of the testators of these wills that are alleged to have been subjected to undue influence are elderly, often feeble, and dependent on the kindness of others. It is easy to charge that an unselfish caregiver became Aunt Maud's principal beneficiary as a result of improper urging. So much depends on the state of mind of the testator and that of the beneficiary. Nevertheless, there are complicated rules that help in the decision of this.

In most of these cases, state law provides that undue influence will not effect the validity of the entire will unless the influencer received the entire estate. Instead, proof of invalidity results in the partial invalidation of the will, with other beneficiaries receiving the benefits therein provided.

A special situation arises in some of these cases. That is the existence of a fiduciary relationship between the beneficiary and the testator. The fiduciary relationship is found to exist between (1) an attorney and client, (2) one holding and using the testator's power of attorney for property, and or power of attorney for health care, and (3) any other situation in which the testator puts great confidence and reliance on the beneficiary.

Where a fiduciary relationship exists, the law creates a presumption that there was undue influence when such person caused the benefit to be given to him/herself. The most common example occurs when a lawyer draws a will which leaves him a substantial gift. That is something that now occurs infrequently because of the severe punishment of lawyers who break the Rules of Professional Responsibility.

When the fiduciary relationship exists, the burden is on the beneficiary to rebut the presumption of undue influence. In view of the dislike some people have for lawyers, a jury is likely to find that there was undue influence when the client gave a substantial bequest in his/her will to the lawyer who prepared the will.

#25 What are Will Contest Grounds?

2010-01-11T10:00:00.001-06:00

There are a number of will contest grounds, including the lack of testamentary capacity, considered in a separate companion blog. Some of the other will contest grounds are considered here.

A will contest ground is the violation of some legal requirement about the will, or how it was signed and witnessed. These usually result from the fact that the will was not prepared by or signed and witnessed under the watchful eye of a qualified lawyer.

When the will is found after the testator's death, the fault is usually observed very quickly so the will is never presented for probate. If it is, the judge's ruling that it is not a valid will nearly always settles that question.

In some cases, there may be a dispute over some critical fact, in which case, there will be a constant fight. Such fights can include a contested hearing at the proceeding to probate the will, in appealing the judge's ruling, in hearing a will contest, and in appealing that ruling. Some states limit the issues that can be heard at the original proceeding to probate the will. Others, such as Illinois, permit evidence as to fraud, forgery, compulsion or other such misconduct. They can be raised again in a will contest proceeding.

Undue influence, as well as compulsion, are grounds for contesting the will, as where the contents of the will were the result of pressure the beneficiary brought on the testator to leave a benefit to him/her. Influence is undue when it prevents the testator from exercising his own judgement, so that the will is more the will of another person.

A will may have been revoked by the testator, so that it is no longer valid. Your state statute defines the way a will can be revoked, and might include such actions as burning, canceling, tearing, or obliterating it, execution of a later will declaring the revocation, or executing a later document that declares the revocation. Your state statute may also cause a will to be revoked, or may be ignored if the will has interlineations.

In some states the marriage or divorce of the parties may revoked all or parts of wills. The birth of a child after the will is signed may give that child a share of the estate equal to the amount he would have received if the testator had died without a will.

Disgruntled heirs are quick to search out contest grounds. Therefore, a person should not tamper or modify a will in any way without consulting a lawyer, since the action could defeat the testator's objectives.

#24 What is a Contest Prone Will?

2010-01-08T10:00:00.002-06:00

The term Contest Prone Will is the name we have given to a will signed under circumstances where it appears that it might not be admitted to probate or, set aside in a will contest, because of the existence to some condition, such as mental or aging problems, which would render the will invalid. Either the Contest Prone Will should not have been made, or it should have been drawn and signed in a way that the problem would be eliminated or at least minimized.

Certain facts should alert all concerned that a proposed will is in danger of being a Contest Prone Will. Such as, any friction within the family, being married late in life, having children by more than one wife, the conditions of the testator, such as old age, blindness, deafness, serious illness, signs or existence of Alzheimer's or Parkinson, or being bipolar, neurotic or otherwise disturbed, among others.

Other dangerous signs appear when a friend or relative makes the appointment to prepare the Contest Prone Will, and insists on being present when the testator and the lawyer talk, or does most of the talking for the testator, or all of the above.

Because of the many problems than can arise with the Contest Prone Will, most lawyers will have in effect certain precautions. Some of them will be used for every will they prepare. (1) permit the execution of the will in the lawyer's office, in the absence of special circumstances, (2) have the witnesses be experienced secretaries and others who are not related in any way, (3) be personally present either when all wills are executed, or when special precautions are deemed necessary, (4) all steps mentioned in the attestation clause are scrupulously performed, and particularly that the testator and the witnesses all executed the will at the same time and place and seated so that the testator and the witnesses sign their names, (5) the will is read to the testator or the testator reads it, and is asked whether he/she understands the will, that it distributes his property, and it is clear that the testator knows the natural subjects of his bounty, (6) no one is present for the signing other than the testator, the witnesses (and the lawyer, if not a witness), and (7) steps are taken to assure the safety of the will and that it will not be tampered with or destroyed inadvertently or intentionally.

Other precautions will be taken if the determination is made by the lawyer that there could be a contest prone will, including (1) make a tape recording or video of the entire proceeding, (2) have the testator examined by a psychologist or psychiatrist the morning immediately before the will is to be executed, and base the decision on whether to go ahead on that finding, (3) retain any prior will if it is not too different from the new one, because it will not have been revoked if the testator lacked capacity to sign a valid will.

If there is any serious doubt, the signing of the will should be called off. A similar will might be accomplished if a guardian of the estate is appointed, and the lawyer has a good case for the preparation of such will, under court supervision, to make a will that will accomplish the testator's known objectives. That procedure may not be available in your state.

Other precautions may be exercised when any of the signs that the will being prepared one is contest prone. The more serious the facts that make it a contest prone will, the more likely these precautions will be used.

#23 Should You Use a Lawyer Executor?

2010-01-06T10:00:00.001-06:00

Lawyer Executor is the name we have given to the lawyer who prepares your will and who is named therein as the executor. There are important advantages and disadvantages to the Lawyer Executor arrangement, and you should consider them carefully.

There are advantages to having a lawyer executor serve as executor of your own or your spouse's will, particularly if the charge is based on the number of hours, rather than the size of the estate. Also, the lawyer and experienced secretaries or paralegal will do the work. They won't have to explain complicated procedures to an executor and then lead him/her around to get things done.

A lawyer who is willing to act as executor is not likely to bite off more than he can chew. She/he is either capable of doing everything that has to be done to settle that particular estate, or has in mind a competent assistance who can assure that it is done right. That is especially important if there is a family business, or the testator has a large, complex properly.

If the business relationship has been of long standing and the testator has come to place trust in such person, the executor is not likely to seek anything more than reasonable compensation. A friend, even a relative, might be more inclined to latch onto estate assets improperly.

If the Lawyer Executor retires, she/he can continue to act. If she/he dies or becomes incapacitated, the lawyer will usually have provided for a capable backup in the form of another lawyer in the office.

There are potential conflicts over fees and other questions when the Lawyer Executor is acting. Only an ethical lawyer can be trusted to comply with the Rules of Professional Responsibility, and deal with such conflict properly.

By using the Lawyer Executor approach, the testator loses the advantages that result from two people consulting, watching all the moves of the other, providing expert knowledge the other does not have.

#22 Why You Should Not Use a Joint Will

2010-01-04T10:00:00.002-06:00

One of the worst mistakes people make is signing a joint will. They can be a source of business for the lawyers who understand the laws on the joint will. We want to plant firmly in your mind that if you currently have a joint will, or if your lawyer suggests a joint will, it is reason for great concern.

You need to understand the difference between a joint will, a mutual will, and reciprocal wills. A joint will is a single document that is to serve as the last will for each of two people, usually spouses.

In the past the joint will has been used intentionally to tie both spouses to the same ultimate distributions of their estates. That means that the survivor could not sign a new valid will or codicil after the death of the first to die. That almost always means that the survivor will have a serious obstacle in making some important decisions required for her/his own future life.

Reciprocal wills are two individual wills signed by each of the spouses in which they leave all or most of their estates to each other. This is a very common arrangement and is perfectly safe, provided certain precautions are taken.

A mutual will or wills is an arrangement whereby in a joint will, or in their individual reciprocal wills, the spouses leave all or most of their estates to each other.

The serious question in all these cases is whether either spouse, before or after the death of the first to die, can change the will. This depends on whether there is (1) a contract signed by both of them that clearly states whether either can create a new will, or (2) some court can find that they have entered into an oral contract. This is one of those cases where Sam Goldwyn was correct in stating that "an oral contract isn't worth the paper it is written on".

Generally, courts hold that where two wills are reciprocal, there is not necessarily an oral or written contract not to change them, unless there is actually a written contract, or an agreement to that effect. Therefore, reciprocal wills should clearly state that it is or is not intended by the parties that either of those wills cannot be changed.

Generally, courts hold that in the case of a single mutual will, there is an oral contract, but it can be difficult to prove. Even worse, the matter is not settled until there has been a bitter, intra family fight, at great expense to all participants.

In any case, this situation creates a number of new legal problems. For larger estates, the use of the mutual will (and the reciprocal wills without a clear written statement of their intention) produce catastrophic estate tax results, by disqualifying the inheritance of the survivor's share as a part of the marital deduction. A lawyer that helped create this situation would probably be successfully sued for malpractice.

Also, the same lawyer often represents both spouse initially and some of the family after the death of the first spouse. That creates some serious conflicts of interest, which demands that the lawyer make a full disclosure of the possible conflicts and must get approval of all parties who may get inappropriate advice concerning the effects of a joint will. At any rate, both the joint will and the lawyer who gave the advice regarding the mutual will he has prepared, are to be avoided. They should not be hired to prepare the joint will in the first place, or they should be discharged when the dangers of the joint will become known to the parties, unless it was done after careful study and found to be in the clients best interests.

#21 What is a Will Contest?

2010-01-01T13:43:00.002-06:00

A will contest is a lawsuit brought to set aside a will that has been found to be valid, and was admitted to probate. A will contest is brought by someone who was left out of the will or thought that the benefits under the will were too small. The will contest is heard by a jury who either finds that the will met all the requirements or it did not.

The will contest can only be filed by an interested person, as defined by the statute. That means that such person must have a pecuniary, existing interest which would be affected detrimentally by the probate of the will that has been admitted.

The legal expense is high, therefore, many people could not bring this kind of action. If a person wants to bring it, and has a reasonable chance of winning, competent lawyers may be willing to handle it on a contingent fee basis. That is, there would be no fee, except that the lawyer will get the agreed percentage of the recovery.

The fact is that an overwhelming number of wills that look correct on their faces will be admitted to probate, and only a very few will be set aside. Even setting aside of a will can be good. That is because it probably means that someone who was not entitled it didn't get money he or she was not entitled to.

In some will contests, the fault is that one person has committed some selfish act, such as using duress or undue influence on the testator. It is not fair to the rest of the will beneficiaries that they should get nothing if the entire will is set aside. As a result, the laws in some states provide that the jury can find the partial invalidity of the will, thus cutting out only the wrongdoer.

Where the court has heard the testimony for the probate of the will, has held that it was not valid, and refused to admit it to probate, it is then possible for a beneficiary under that will to file a suit like a will contest. It is known as a contest of the denial of admission of will to probate.

In Illinois, the will contest must be filed within 6 months after the date of the order admitting it to probate. Your state law, as with all state laws, may be different. That time can't be extended for any reason no matter how good the excuse for lateness might be. Any party may request and get a jury to hear the will contest.

#20 What are the Benefits of a Corporate Executor?

2009-12-30T10:00:00.005-06:00

A corporate executor has trained personnel who are capable of handling complex problems;

A corporate executor exists permanently and does not get sick, retire or die;

A corporate executor does not incur the expense of a surety bond;

A corporate executor is impartial and will not take sides in family conflicts;

The existence of a corporate executor calms family fears that might exist if a family member were the executor;

A corporate executor has trained accounting personnel and modern equipment, so that financial mistakes will not be made;

A corporate executor is subject to regular and thorough auditing by bank and government auditors who deter and quickly detect financial irregularity;

A corporate executor has large assets enabling it to assure payment of any losses caused by their mistakes;

The personnel of a corporate executor are full time employees and will not be playing golf in Augusta when their knowledge and help is needed.

#19 What is an Intestate Estate?

2009-12-28T10:00:00.001-06:00

When a person dies and their estate is probated, it is either a testate estate (had a valid will), or an intestate estate (had no valid will). Essentially, the procedures are the same in both the testate and the intestate estate. There are important differences, though. These matters are governed by your state statute and they all have differences in their provisions and their terminology.

First, in an intestate estate, an administrator is appointed and in a testate estate, an executor is appointed. Second, the distribution of the residuary estate, after payment of debts in an intestate estate of the estate, is made to the decedent's heirs at law. Where the testate estate, the distribution, after payment of claims and probate expenses, is made in the manner directed by the will.

Third, in the testate estate, the testator has the power to name the executor, who is nearly always appointed by the court. In the intestate estate, there is a list of close relatives who have the right to name an administrator, and serve as the administrator.

In both cases, the executor and the administrator have to have certain qualifications, such as being an adult.

Among the benefits of having a will is the ability to name two or more people, to serve successively as an executor, in case the person named first cannot or will not accept the office.

Another great benefit of the will is that the will can waive surety on the bond of the executor. No similar benefit is available in an intestate estate. Since the executor named is usually a trusted friend or relative, a corporate surety is not needed, but if needed, it can be expensive.

Another benefit is that in a testate estate, the testator can create a testamentary trust that will protect and control his assets until all his objectives have been accomplished. A similar arrangement cannot be made in an intestate estate, nor can the decedent who has an intestate estate have a pourover will that transfers all his property into an existing living will.

#18 What are the Probate Benefits?

2009-12-25T10:00:00.008-06:00

So much is said about avoiding probate and the high cost of probating an estate that we lose sight of the probate benefits. Actually, there are numerous probate benefits.

The first of such probate benefits is that many necessary actions could not be taken until the estate was probated, the will found to be a valid will, and having someone appointed with full authority to take all necessary actions:

Probate gives assurance to the testator that the selected person will take over the collection and proper distribution of the estate;

Probate provides procedures that enable a business owner to provide an estate plan that will give maximum assurance that the business will be continued by present associates, or members of the testator's family;

Probate, in most states, has been modernized and has taken full advantage of the computer, Internet, and other new equipment, and enables the quick completion of transactions. Unless some complex situation arises (which is infrequent) the total amount of time expended in court is limited to several brief visits to open the estate and to close it;

Probate gives someone the authority to recover estate assets using procedures that are normally quick and efficient;

Probate creates procedures that will terminate all claims (except taxes) if they are not filed within a few months. Without probate, the claims may be asserted and collected from estate beneficiaries during longer periods provided for different kinds of claims have expired, which can be some years;

The probate judge has the tools to correct the situation quickly if the executor or administer is lazy, doesn't get things done, or steals a little or a lot from the estate, and quickly replace him and appoint another;

Where the family doesn't get along, the independent judge and an independent executor (often a bank in such cases) can act fairly for all parties;

Probate handled by a capable lawyer and executor gives great assurance that everyone will get their share, as determined by the law and the will;

Probate handled by a capable lawyer gives great assurance that the difficult problems that can arise in the preparation of income tax, gift tax, and death tax returns, and the payment of taxes due will be handled properly.

In considering the amount of time saved by the lawyer and the family members, bear in mind that the use of a living trust to hold and distribute one's estate also requires many of the same activities that are performed by the executor, where the estate is probated.

While probate benefits do not fully compensate for the extra cost in money and time normally spent on probating an estate, there can be much to gain. In view of my strong preference for the Comprehensive Living Trust, I believe that its benefits normally will outweigh all the probate benefits.

#17 Selecting Your Estate Planning Lawyer

2009-12-23T08:26:00.006-06:00

There is a lot of good information available on estate planning. We are in the process of putting together a large amount of such information. If at all possible, when you have learned as much as possible, and think you have all the answers, consult a capable estate planning lawyer to avoid mistakes.

You have an infinite number of options that you can combine in building a great estate plan. The best choices for you will not be the same as the best choices for any other person. Only a capable estate planning lawyer can understand which options are available to you, and which are best for you.

We speak of the capable estate planning lawyer. What is the test for such a lawyer? Generally, it is one who is well educated and experienced in the various subjects that relate, directly or indirectly, to estate planning, they include wills, trusts, and probate. But a good estate plan may also require understanding of such fields as divorce, taxation (income, gift, and death taxes), as well as business law, elder law, and discrimination law.

Young lawyers can be considered capable, despite their limited experience. They became capable by attending classes in law schools, attending seminars, studying a lot of books on law, and various other ways.

It is fairly common to appoint a spouse as first choice and a bank as second choice. The Internet offers many ways to find a lawyer. At best, there is little assurance that who they suggest would be someone you would want. Some of them are based on the lawyer's name that has risen to the top of a list. The list is not ordinarily based on the lawyer's abilities.

The best way we know to get a lawyer you like is to find out from someone you know the name of a good lawyer to handle your estate planning and the details it involves.

One of the best ways we know to find a qualified lawyer is to inquire among your friends to learn the names of lawyers who are capable, sincerely interested in your problems, avoids procrastination, and charges reasonable fees. One of the best sources of recommendations is one of your friends, relatives, neighbors, members of the same service club, country club, and any other group you see frequently or would be comfortable in calling. Don't just call a relative of a lawyer, if you can help it. The suggestion they make will be somewhat biased.

If you now have, or in the past have had a lawyer you know, like, and trust, check to see if they handle a fair amount (not necessarily a lot) of estate planning practice, they might be the right one for you. If not, she/he may be able to recommend someone who handles more estate planning.

#16 Your Executor Selection

2009-12-21T10:00:00.001-06:00

Often, executor selection will be fairly obvious, as where spouses name each other as their executor. At the other extreme are all those situations where executor selection becomes complicated. In all cases, there are some requirements to qualify in your state to act as executor. Here, we consider the factors you need to think about in making your executor selection.

When you appoint an individual rather than a bank as your executor, it is best to provide one, even two, alternates who can be appointed to take over if the first person named hasn't completed the job.

Some people appoint co-executors, which is not recommended. Each has to participate in all the work done, so that there will be double the amount of executors' fees, unless they are in the family and work for nothing. Even so, rather than a way for unfriendly factions in a family to be represented, the better solution is to appoint a bank with trust powers. Also, if their surety bonds require professional bonding, it will double this expense, which will probably be substantial.

It is fairly common to appoint a spouse as first choice and a bank as second choice. You may appoint a person or a trust company, as your first choice. There are a number of advantages that result when your bank is your executor. They are considered in What Are the Benefits of a Corporate Executor? There are benefits and disadvantages to having the lawyer who prepared the will be the executor. See What are the Benefits and Disadvantages of Having a Lawyer Executor?

Some testators who have more than one child will feel obligated to appoint the oldest first, with all other children as successors, in the order of their ages. This can be a big mistake. Instead the parent should consider their location, their experience, their business ability, their ability to get things done, and similar attributes and pick the best qualified child. The appointment of an executor is no time to be timid about making a choice.

Be sure to ask those nominated if they are willing to be appointed executor when the need arises.

The executor must be at least 18 or 21 under your state law. In some states, but not all, the executor must be a resident of the state. There should be a very good reason to appoint a nonresident of our state because of the inconvenience in handling a complicated matter with someone miles away.

Some states bar the appointment of convicted felons. Old age does not disqualify, but the elderly usually shouldn't be appointed, especially if they have declining health, which decreases the likelihood that they will survive and complete their work as executor.

Where an operating business is part of your estate, your executor selection should have sufficient business experience to oversee operation until it is distributed from the estate.

#15 The Wonderful, Treacherous World of Powers of Attorney

2009-12-17T11:08:00.001-06:00

There are many kinds, and a multitude of uses for powers of attorney. But a power of attorney, improperly drawn or managed, can be a license for someone to steal a person's entire estate. In most cases, the best way to assure that the power of attorney will be used properly is to have a capable lawyer supervise its drafting and supervision.

The following is an overview of some of the different kinds of power of attorney. Later blogs will cover some of them in more detail.

A general power of attorney gives the agent power to do just about anything with the principal's property that the owner could do. This can be of great help for the person who is incapable of handling business and financial matters unassisted. At the same time, it permits the unsupervised agent to loot the principal's estate until apprehended.

The power of attorney may give the agent power to deal with either personal or real estate, or both. Frequently, the power of attorney is given to deal with a very limited amount of the principal's business or property.

Formerly, powers of attorney were subject to a serious limitation. That is, they became null and void when the principal became mentally incompetent. That is precisely when the principal needs the most help and often forced the principal's family to go to court to have a guardian of the estate appointed, usually at considerable expense in time and money.

That fault was corrected as state legislatures provided durable powers of attorney, which continue to be fully effective until the principal dies. With infrequent exceptions, powers terminate upon the death of the principal.

A principal can specify a specific date or event when the power of attorney shall begin, and/or when it shall terminate.

A very important form of power of attorney is the power of attorney for health care. It will be a subject covered at length in several of our blogs that will appear in the future.

Even people with small estates should seriously consider creating and giving general powers of attorney to highly trusted close relatives, to take over in the event of a serious illness, accident, stroke, Alzheimers, etc. If there is no such person, the best way to protect and manage the estate is by using the Comprehensive Living Trust which will be considered in a future blog. Most families have a person who can be trusted to be received as the agent under a general power of attorney.

#14 Using the Small Estate Affidavit to Avoid Probate

2009-12-17T11:05:00.001-06:00

The Small Estate Affidavit has special powers to settle an estate. Usually, when a person dies owning stocks, bank accounts, and other items of personal property, it is necessary to have a personal representative. An executor (where there is a will) or administrator (where there's no will), is appointed to collect and distribute the estate. That person, when appointed, will be able to obtain from the clerk of the court proof that she has been appointed. With that, the bank or other holder of the asset is required to turn the asset over to the personal representative. That proof is a sheet of paper, called letters of office.

The Small Estate Affidavit takes the place of letters of office. Your state statute tells you what the Small Estate Affidavit must recite. The affidavit must be made under penalties of perjury, that is, it is perjury (a serious crime) to make untrue statements in the affidavit.

The Small Estate Affidavit states all the facts that constitute a summary of the estate proceedings, if the estate had been probated. It must state, up front, that the gross value of all personal property is not more than the maximum. In Illinois, the Small Estate Affidavit does not apply if the value of the decedent's property exceeds $100,000. Not included in that total is property payable directly to a named beneficiary, such as jointly held accounts and life insurance.

Among the statements made, and which then have to be true, are (1) that the funeral bill is paid or provision therefore has been made, (2) that there is no known claim against the decedent (so, if there are other unpaid bills, one of the beneficiaries should advance the funds and be repaid out of the forthcoming assets), (3) provisions are made for a surviving spouse and dependent children awards, (4) the names and relationship of heirs, the beneficiaries of the will which is filed with the court clerk, (5) that there is no known dispute over the heirship or the validity of the will. Based on that information, the affidavit states the manner in which the desired account, etc., shall be distributed according to information given in the affidavit.

The Small Estate Affidavit also permits the interested persons to appoint an agent to get access to a safe deposit box, or to sell personal property. Using the Small Estate Affidavit is almost the same as if the estate has been probated. It requires a lot of work to be done. Because of the time and money saved, it is well worth the effort.

#13 How to Avoid Probate

2009-12-17T11:04:00.002-06:00

Probate is an expensive, time consuming, difficult process. Little wonder, then, that people would like to avoid probate if possible. Indeed, there are several ways to avoid probate without losing any of the important advantages of probating it. We'll outline each of the four basic ways to avoid probate here.

The first way to avoid probate is to so live that you won't have any estate that requires probating. Far too many people die, entirely destitute of sufficient property to require probate.

The second way to avoid probate is much better, that is, to have all your estate tied up in non-probate assets. They include joint tenancies, tenancies by the entireties, employment benefits and life insurance payable to named beneficiaries, and similar arrangements.

There are many faults and weaknesses in this second way to avoid probate. They include (1) the named beneficiary may die before the owner, so that the beneficiary's heirs would be entitled to it, if there is no will; (2) it is almost impossible to keep the net estate apportioned among two or more beneficiaries, to that they will each receive the intended portion of the total estate; (3) these arrangements are normally between spouses, so that if one of them dies first, the survivor would receive the entire estate. If no more changes were made, the entire estate of both would go to the survivor's family, with the family of the first to die receiving nothing.

A third way to avoid probate is the use of the Small Estate Affidavit, which may be permitted by your state statute. The Small Estate Affidavit is a detailed statement about the decedent, her heirs, her will, if any, her assets and liabilities, and the persons and the amounts they are entitled to receive from the decedent's estate.

The Small Estate Affidavit is used in place of the letters of office (a paper that is issued to an executor to show his authority to receive and distribute estate assets) that an executor uses. To be able to use this device, the value of the personal property in the name of the decedent must be below a certain amount. In Illinois that has risen to $100,000. The value of real estate is not included in that total.

For many larger estates, an even better way to nearly or completely avoid probate is through the use of the living trust and the Small Estates Affidavit. Structurally, it is almost like any other living trust that holds the bulk of the owners property. Because it performs so many services, I have named it the Comprehensive Living Trust. It is described in detail in other forthcoming blogs.

It is clear that there are several different ways to avoid probate, ranging from the ridiculous to the sublime. It is up to you to select the right one and build your estate plan around this worthy objective, to avoid probate.

#12 What are the Duties of an Executor?

2009-12-17T10:58:00.001-06:00

The executor is the person named in another person's will to file the will and to supervise all the work required to collect that decedent's estate. Also, to pay all debts and costs of administering the estate, and to distribute the remainder to those named in the will. A female executor was formerly called the executrix, but the term executor now generally applies, regardless of gender.

While the general duties of the executor are much the same in all estates, the actual actions required of an executor can vary widely, depending on the complexity of the will and the problems encountered in liquidating assets and paying debts.

The executor has the right to retain an attorney of his own choice, who will be consulted, soon before or after the death. If the same attorney prepared the will, it is likely that she will have much of the information needed to collect the estate and distribute it. Otherwise, the lawyer and the executor will have to gather that information and outline the steps needed to begin and complete probating the estate.

In so acting, the executor and the attorney represent the interests of the estate, and not the person selected as executor. Any conflict between the interests of the executor, personally, and the best interests of the estate must be resolved to protect the estate.

While the following description of the executor's duties is not exhaustive, it shows the general nature of the work to be done.

The first group of duties are imposed by the state's probate law. Those duties include the duty to (1) find the will and file it with the local probate court, (2) have a hearing set for determining whether the will is valid, and there can be an order entered finding the will to be valid, and appointing the executor to that office, (3) sending notice to all heirs of the hearing or getting their waiver of such notice. The waiver is called an entry of appearance, (4) arranging to have the witnesses present at the hearing to testify in proof of the validity. A more modern practice allows for self-proving wills, which avoids this hearing if the will is in order and other conditions are met.

In addition, the executor (5) causes a claim notice to be published in the newspaper, notifying creditors of the need to file claims. If a debt is routine, it is usually paid without formality, (6) locating all the decedent's assets and arranging to sell them or to distribute chattels, (articles of personal movable property) which have been specifically bequeathed in the will, (7) appraising chattel property and, if necessary, holding a public sale of all chattels that have not been given in the will, (8) delivering title to the residence if a spouse or some other person is entitled to it, (9) arranging for the private or public sale of any real estate that needs to be liquidated, (10) preparing an inventory of the probate assets owned by the decedent, (11) arranging for the completion of the decedent's contracts, (12) filing reports of receipts and disbursements, (13) defending any suit filed to contest the will, (14) filing all required income, gift, and estate taxes, and negotiating with the I.R.S. as to disputed points, and paying taxes (he is personally liable and must pay out of his own pocket if he pays any other debts, so there is not enough cash left to pay the taxes), (15) making a final account and report of his actions, (16) after that has been approved by the probate judge, distributing all remaining assets as provided by the will (17) and obtaining the court order approving the report and discharging the executor.

In addition, the executor will provide many other actions and services in transferring title to property, obtaining insurance proceeds, transferring the decedent's business, obtaining social security, pensions, and other benefits. Often she will also update the estate plans of other family members, assist in transferring nonprobate assets, such as jointly held property. While many of those duties are not legal requirements of an executor, they are routinely performed by the executor and attorneys.

#11 Things that Can Make a Void Will

2009-12-17T10:55:00.001-06:00

The term void will is not in general use. However, any will which could not be admitted as the valid will of the testator is void. Also, a will that is admitted but is later set aside in a will contest also becomes a void will. Similarly, a will that is later replaced by a later valid will also becomes a void will.

The execution and witnessing of a will is a highly complex process. It is similar in all states but each state has different legal requirements. We strongly urge you to consult a lawyer where you live to assure it will be carried out. Also, if you are moving to another state, you should have a lawyer in the "new" state draft another will that complies with the new state laws.

The following is a list of the facts that can and probably will void or alter the distribution of an estate. Be sure that none of them can render your will void.

The testator was not 18 when it was signed;

The will was not in writing;

The signature on the purported will was a forgery;

The will was not filed within the time required (a requirement in some states but not in Illinois);

In a few states, the will must be prepared by a lawyer, but this is rare and is probably not an enforceable law;

The Testator did not sign it with the intent to make it his will;

The Testator did not have knowledge of the contents of the will;

The will was not properly signed by the Testator;

The proper number of witnesses did not sign the will;

The Testator and the witnesses did not see each other sign;

The Testator did not have the defined degree of mental capacity when the will was signed;

The Testator was subject to fraud in signing;

The Testator was subject to duress in signing;

The Testator was subject to improper influence or other conduct;

The Testator revoked the will, in whole or in part, by making a new will with inconsistent provisions;

In nearly all states, the former prohibiting of certain people from making a will have been abandoned. Those people were married woman, an illiterate person, an immoral person, and felons;

Formerly, some states prohibited a person with a guardian of his estate from making a will. However, guardianship may be based on facts other than serious mental problems, so that the test is only that a person meet the required test of competency to make a will;

The will may have disappeared (lost, stolen, destroyed, etc.)

The Testator may have marked or cut it up, or written other provisions on its face in ink, so his intentions could not be determined;

The Testator may have divorced or remarried since it was signed so that, under state law, it has been changed or destroyed for all practical purposes;

A child born after the will was signed may be entitled to a share even though he/she was not mentioned;

A beneficiary may have died with no provision in the will as to what should happen to his share.

#10 What are the Important Parts of a Will?

2009-12-17T10:52:00.001-06:00

There are numerous requirements for the creation of a valid will. Failure to comply with some of the requirements and are obvious from an examination of the document. Those are covered below. The conditions that must surround the execution and witnessing of the will are covered in our forthcoming blogs.

The will must be written. It is customary for the will to state that the testator revokes any previously made wills. Without that, an earlier will could turn up. The question would then arise as to whether any of its provisions will be effective.

It is also customary for the will to direct payment of debts, which is required without that provision. However, the will may state that the debts and expenses shall be paid out of the share of any particular person or group.

The will may, and often does, include specific bequests and devises. A legacy is a gift of cash. A bequest is a direction that a person should receive personal property, other than cash. A devise is a direction that a certain person should receive a particular tract of real estate. It has become customary in some states for all testamentary gifts to be called legacies.

The will may create one or more testamentary trusts. It will set aside funds for the trust to perform described functions which may continue long after the testator's death.

A testator should never use the will to tell people things. A statement like, "I left my nephew, Bill, out because he stole a thousand dollars from me." Whoops! Accusing a person of a felony is libel, for which the person libeled can sue the estate for a lot more.

Also, the will should not contain statements as to one's opinions and beliefs. They often anger people and create further disharmony. Those statements are better left in a Letter of Instructions where they will not become a public record for all to read.

The last provision in most wills is the residuary clause. It begins with "All the rest, residue, and remainder I give to ...." That is the property that was in the name of the testator, but does not include jointly held property, property in trusts, life insurance, pensions, etc. which became payable to a survivor of the testator. From that amount is deducted the costs of administration, death taxes, attorney fees, court costs, etc., as well as liens on any of the property. Every will should have a residuary clause to dispose of property that has not been given any other way.

The will must be signed by the testator, and the person making it. It must be properly witnessed by the required number of witnesses, two in some states and three in others.

Either the will must contain an attestation clause, which is a paragraph above the witness's signatures, and states in detail the actions taken at the signing and related information, or the proponent of the will (the one who asks the judge to find it is a valid will) must be prepared to provide testimony from a witness that all those requirements were met.

The will should always be signed by the testator and all the witnesses, at the same time and in the same place, so that the statements in the attestation clause will be true. Failure to do so, may or may not make the will invalid in your state.

#9 Should You Have a Living Will?

2009-12-17T10:50:00.001-06:00

In the past two decades, the term living will has been bandied about freely but not many people understand what a living will is. As a result, far too much reliance is put on these instruments. Having a living will raises one's comfort level. In fact, hospitals and many others encourage them and consistently ask if you have one.

A living will is simply a statement of a person's desires as to life sustaining procedures that are to be used, if he/she is close to death. A living will does not, as its name seems to imply, dispose of the ownership of property. A living will is not to be confused with a living trust.

The need for a living will was brought on by the fact that people who were close to death, for any reason, were required by law to continue to live, even though they and their families suffered terrible emotional trauma, plus the extremely high cost of keeping them alive. More than 25,000 Americans, at any one time, are being kept alive even though they are in a vegetative state, with no hope of recovery.

Assisting a person in any way to commit suicide has, until very recently, been uniformly treated as a serious crime. That was true even though the intentions of family and friends in so doing was to end the suffering of a dearly loved relative or friend. A poll has indicated that the great majority of people would disfavor any strenuous life extending effort to keep them alive if they were comatose with no hope of recovery.

Not until 1969 did anyone come up with the idea of the living will. As its use developed it began to include suggested forms which provided for users the standards that should guide their caregivers. They ranged from a statement that they wanted to be kept alive as long as possible at all costs, to those that would withdraw all life continuing efforts immediately.

As the public and legislatures gave increasing support to this device, laws have been enacted by states to recognize living wills and to impose certain conditions.

The tendency is to state the person's exact wishes as to the death delaying actions that will be given and those which shall be withheld. Most people opt for a form that provides that they are to be made as comfortable as possible, and that nothing shall be withheld to that end, but that no other life extending service shall be given. Nearly half the people now have a living will or other advance directive.

If you have a living will, be sure you have a close friend or relative who knows where it is, so that it can be delivered to your primary care doctor if you have a serious health condition.

Living wills are not a satisfactory method of assuring yourself that your wishes in this connection will be carried out. Far better is the power of attorney for health care. It appoints an agent, a person who will be willing to supervise the person's health care. That will extend to such matters as treatments and placement in living quarters.

The power of attorney for health care also contains an advance directive, similar to a living will, but it also gives the agent authority to demand and get the proper treatment for the terminally ill. This document should be considered in place of the living will.

#8 Careful With Community Property

2009-12-17T10:48:00.000-06:00

Community property is a legal manner in which ownership of both real and personal property is owned by spouses. Community property applies only in a few states, although a few more states have adopted similar community property, or some form of limited community property.

Community property laws apply in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Even those states have differences as to how they deal with the ownership of spouses property.

If both spouses have lived entirely in their present community property state, it is likely that more or all their property is community property. Certain assets are not community property. That includes property they owned before marrying and property they have been given or have inherited during the marriage.

The fact that property is community property can effect the manner it is distributed to heirs. It is especially important in determining each spouse's right to their property in the event of a divorce. It also presents income tax problems that demand the aid of an expert.

Community property must not be confused with marital property, which has been adopted in many states. It does not change the way manner title is held, but comes into effect if there is a divorce or legal separation.

Everyone who has property in a community property state should learn the rules that will be applied in the case there is any future controversy over the rights in the property. That should be obtained from an experienced lawyer. It also means that, as to such community property, you should keep an accurate record of such assets as a business, gift and inherited property, stock options, and pensions.

We have more than our share of legal problems in Illinois, but we rejoice that community property is rarely one of them, excepting for people who move into Illinois from a community property state.

#7 Decluttering Your Home in Preparing for Your Senior Years

2009-12-17T10:45:00.001-06:00

Ideally, every senior's home would have a place for everything and everything in its place. Actually, most of us have homes that are badly in need of decluttering. They are jammed with things that we don't use, and never will. The sooner that a person begins the process of decluttering, the sooner the benefits can be enjoyed.

To accomplish a campaign of decluttering, you need to be inspired by the benefits that can result. You will have more space, be able to find things, reduce fire hazards and insurance costs, save your heirs from having to dig, sort out the mess and be able to present a home for sale, when necessary you will get cash for things you don't need and avoid the expense of buying things you don't need.

If you are truly determined in decluttering your home to obtain its many benefits, you need to stop buying things you don't need. You need to stop stocking up with more of anything than you will need soon.

You need to stop accumulating things you don't use, such as old magazines and newspapers. You can clip important articles and put them in a scrap book. If they aren't worth effort, throw them out.

You need to get rid of all the old clothes and shoes you haven't worn for a year, the appliances that don't work and aren't worth fixing.

As you go through these processes, you should be listing the items according to their value and importance. You should think about the way you will dispose of them.

This process will reveal that you have (1) a lot of pure trash, (2) a lot of things that might be acceptable for some charity, (3) a lot of things that would be cherished by your children or other relatives, and friends, whether or not they have value, (4) a lot of things that may not be wanted by your family but would be income producing at a yard sale, and (5) some things that would be important enough to require careful disposition in your will or living trusts.

As to the first two types, gather them and sort them into a pile for the dump and a pile for the local charity (and don't insult the charity by giving them junk).

As to the third group, begin a process of handing them, one by one to family members, perhaps with some comment about their history. For the fourth group, set these items aside for your own or a neighborhood yard sale. As to the fifth group, make a list and discuss with your lawyer, the next time you are upgrading your will, the best way to dispose of them.

When you have completed this process of decluttering, you will have increased your cash, improved the appearance and safety of your home, made your home more saleable if that should become necessary, released you from taking care of a lot of junk.

The process of decluttering will have required motivation, determination, and persistence, but will pay off immensely.

#6 Joint Tenancy-The Legal Aspirin Tablet

2009-12-17T10:43:00.001-06:00

Somehow, there is a widespread belief that joint tenancy is some kind of aspirin tablet that can cure most, if not all, estate planning problems. Actually, like some medicines, joint tenancy can help in a number of situations, but it has some very unpleasant side effects.

As with so many other laws that pertain to the ownership and conveyance of property, the laws of your state determine how a joint tenancy is created, how it is owned, and ultimately transferred. Also, what might be good for one person may be very bad for another. Only a competent lawyer can determine whether the good outweighs the bad for any particular client. We are not giving any legal advice here. We are only pointing out certain principles that should be considered.

In some states, title to a house is put into joint names by describing the grantees in the deed "to A and B, in joint tenancy with right of survivorship." Actually, that is redundant, saying the same thing twice, since joint tenancy includes the right of survivorship. You need to be careful in dealing with the joint tenancy because the meaning of words used differs from state to state.

The magic of joint tenancy is that it provides "the right of survivorship." That is, if A and B own a home in joint tenancy and one of them dies the other is the immediate owner of the entire property. No probate proceedings are required to clear the title in the new owner. That provides possible savings in much time and legal expense. These are important advantages, but they are usually offset by the disadvantages.

People often put bank accounts and other assets in joint tenancy in their own name with another name "for convenience," so that the other person can draw on the account to pay the owner's expenses. These cases may result in a fight over who gets any remaining balance after the owner dies.

There are many other distinct disadvantages in using joint tenancy. They are so numerous that they will be the subject of a forthcoming blog. Also, there are other estate planning tools that are available for specific situations. They will also be the subject of another forthcoming blog on joint tenancy.

#5 Important Ideas About Trusts

2009-12-17T10:40:00.001-06:00

First, in talking about the trust, we are not talking about the arrangements America companies had to dominate petroleum, steel, and telephones that were finally "busted" by anti-trust laws. Rather we are talking about an arrangement whereby a grantor (donor or settler) puts property into the receptacle known as a trust to be held by a trustee for specific defined purposes, and is finally distributed to specific people and agencies. The provisions of this kind of trust seem to have an infinite number of variations.

In its simplest and usual form, there are three parties, (1) the grantor who conveys the property, to a (2) trustee who hold the property (called the corpus or res of the trust) for one or more (3) beneficiaries, to be distributed at specified times to the same or other beneficiaries. This is called a living trust, since the donor is living when she creates it.

The other basic form of trust is known as a testamentary trust, that is, it is very similar excepting that it is included in a will and goes into effect only when the testator-grantor dies, and a valid will has been admitted to probate. The corpus of this kind of trust is the amount distributed by the executor of the estate to the trustee.

The drafting, signing, funding, investing, and distribution the corpus of a trust are all very complex matters. They are normally done by an expert estate planner. Contrary to a popular belief, though, trusts are not just for the rich. There are many kinds of trusts that are designed for people with small estates.

Putting one's property into a living trust removes it from his "probate estate." That is, it does not have to "go through probate," and enables a family to settle an estate much quicker and at much less cost than with a will that controls the manner of distribution of substantially all the estate.

In a forthcoming blog, we'll explain features of the living trust that permit the distribution of most or all of the estate with little or nothing to do in probate court. In that case, in addition to the living trust, the lawyer prepares a "pourover will" which transfers title to all the decedent's assets (such as title to the car and other chattel property) that were still in his name, into the living trust. I have completely settled and distributed large estates (other than the settlement of income and death taxes) within a month or two after the death.

The trust is rapidly replacing the will for disposing of estates in America. We will write a number of blogs about the trust in the future. The more you know about the trust, generally, the more you can help your lawyer in picking the right trust arrangement for you.

#4 The Enormous Job of Caregiving

2009-12-17T10:39:00.001-06:00

The number of people who are reaching 65 and up and their needs for caregiving are spiraling. Our ability to pay for the required caregiving is declining rapidly. There is a huge challenge to America to provide all the caregiving that will be required in the decades ahead.

Much of the caregiving is done at the expense of the government. On the other hand, many families are sufficiently affluent, and have enough insurance, etc., to cover these huge expenses.

Others who need it may have to pay for the caregiving they receive. Countless others who lace funds to pay for it, must rely upon family members for their caregiving, as well as help they receive from government and charitable service.

We are particularly concerned by the greatest of them all, when a family member must give up a job, as well as a social life and a normal family life, in order to provide caregiving for a parent or grandparent who could not long endure without them.

In forthcoming blogs, we will explain what can be done in order to make it possible for a caregiver to get help from various sources, including such things as respite programs that give them time off from their arduous tasks.

Until one is confronted with the problems of an aging relative who is no longer able to handle his/her feeding, bathing, dressing, traveling, bathroom needs, let alone provide for safety from falls and other threats, it is impossible to imagine how many difficult problems can arise.

Worse still is the fact that these needs can arise quickly, without warning, or time for preparation. They can be brought on from a serious fall, a stroke, a heart attack, terminal cancer, or a diagnosis of Alzheimers or Parkinson diseases, to mention a few. For each of these situations, there is help out there, but many families fall through the cracks because they don't know where to seek such aids. We will make suggestions in forthcoming blogs on how to decrease this staggering burden.

#3 Do You Know Who Your Heirs Are?

2009-12-17T10:37:00.001-06:00

There's a lot of interest in who is a person's heirs. We may be interested in who a person's heirs are. We are not quite sure whether being an heir will entitle us to something from their estate. We will know the answer to these questions when we learn how the laws determine who one's heirs are.

Whether or not one person is one of the heirs of another is determined by your state's laws. That is usually the state where he/she resided at the time of death, but that is not always the case.

Every state has a statute that declares how the estate of a person who dies, while a resident of that state, without a will (intestate) will be distributed. There are minor differences from state to state. But, those differences will not be so minor if the definition cuts you out of inheriting from your rich Uncle George.

Don't get too excited about the possibility that, since you are Uncle George's heir, you will inherit part of his estate. Unless you were a favorite, you may not share in his estate. His will could cut you out of it.

In addition, Uncle George may have had all his property in a living trust, which made no provision for you. Similarly, Uncle George may have had a lot of life insurance, and you weren't named as a beneficiary.

Also, property that he held in joint tenancy with another person would go to that person at his death (known as the right of survivorship). The moral of this story is that you don't count your chickens before they hatch. You shouldn't count your inheritance from Uncle George until (1) he dies, (2) you see his will and, if any, his living trusts, and (3) you know whether his property was tied up in life insurance, joint tenancies, and other methods of giving it to some other specific person.

The names of the heirs of every person who dies and whose estate is taken into court (that is, it is "probated"), are established in what is sometimes known as a "proof of heirship." In it, evidence may be taken, or affidavits submitted to the court. The judge enters an order finding the names and relationship to the decedent.

Most of those cases are very routine. Others may haunt the courts for a long time, particularly if Uncle George had an assortment of lady friends who bore him heirs he was not exactly hoping for.

If you are listed as a person's heir, you must receive a notice that the estate is being probated. At that time, you can establish your relationship to the decedent, even though he left you nothing. In that way, you are alerted to the fact that the matter is now in court.

If you are dissatisfied with the will and would receive more if it was not admitted to probate, you will have a short period after the will is probated to file a "will contest," which is a proceeding to set the will aside because it was not properly signed, properly witnessed, or that he was not mentally competent to make a will. You can't get it set aside just because you don't like it. You have to prove "good grounds," which is hard to do. Few will contests are successful.

You might benefit from Uncle George's death in other ways. For instance, if some quack terminated his hope for a long life of by his medical mistake you could be one of the people who will share in a huge jury verdict.

#2 What Probate Means to You

2009-12-17T10:35:00.001-06:00

The word probate is a vague term to most people. Even though they hear the word probate a lot, they aren't sure what it means. You will understand the entire estate planning concept much better if you know what that one word means, and more importantly, what it will always mean to you.

In its most common usage, the word probate means the process that takes place in a courtroom, after a person has died, where it is necessary to get a will recognized as the legal will of the decedent, that is, in a testate estate. If the person left no will, it is known as an intestate estate.

A person who seeks to "open" an estate establishes a number of facts, including evidence that the submitted will meets with numerous legal requirements. The judge then enters an order "admitting" the will to probate. The judge also signs an order that appoints the executor named in the will.

If the estate is intestate, that is without a will, the decedent's property will "descend" to his/her heirs at law, that is the people who, according to state statute, are entitled to the decedent's "residuary estate," that is, what is left after all the debts, costs of administration and similar expenses are paid.

People who die are said to have a certain "probate estate," that is, property that will be distributed to the heirs, if there is no will, or to the beneficiaries named in the will.

The term "probate estate" will probably be very important to you. Generally, it includes all the assets owned by the decedent that were held in his/her name. It also includes her/his share of any property that was held as tenants in common. A tenancy in common exists where there was no right of survivorship, as there is with joint tenancy property.

A number of kinds of ownership will keep decedent's assets from being treated as probate assets. They do not "go through probate." They consist of jointly held property, most life insurance, property held in the decedent's living trusts, and other kinds of ownership.

Assets that don't have to go through probate are much easier to transfer almost immediately to the new owner or beneficiary. This avoids the often large expense of including them in the probate estate. Lawyers' fees are usually based, directly or indirectly, on the size of the probate estate. They will also charge for aiding in the transfer of non-probate assets.

In the probate process, the lawyer takes all the necessary steps to bar claims against the decedent, unless a claim is filed in the probate court. Before the estate was fully opened, the lawyer will have proven to the court who the decedent's heirs were, and their relationship to the decedent. That is important because it establishes the distribution of what is left after expenses, etc. (which is usually called the "residuary estate,") if there was no valid will. If there was a valid will, those names are still important, even if they don't get anything under the will. That is because they are entitled to a notice and a right to "contest," that is, oppose and defeat the approval of the will.

We want you to be alert to the facts that: (1) these can be highly complex proceedings which will produce a number of variations, exceptions, etc., (2) the terms used will vary from state to state, as will the exact manner they will proceed to conclusion, and (3) we are only giving general information at this point. As we will say so many times, we do not give legal advice. That is the job of a licensed lawyer. Everyone's situation differs in many ways from the situations of other people.

The executor or administrator proceeds to settle the estate by (1) disposing by agreement or after a court hearing of all the claims against the estate, and possibly some in favor of the estate, (2) finding and collecting all the decedent's assets, (3) defending any suit to contest the will, (4) be sure that all those who have any rights as heirs or credits are paid their exact share of the estate, and (5) file income, gift, and estate tax returns where any such tax is due. Generally, the amount of the lawyer's work varies directly with its size.

When the personal representative (executor or administrator) has done all of that, she/he will file a final report with the probate court, and give notice to all who might disagree with the distribution. Then, when the probate judge is satisfied that the accounts are accurate, he/she will direct that the residuary estate will be distributed in accordance with the report. The personal representative makes the distribution, reports the fact to the probate court, and is discharged from any further responsibilities in the probate of the estate.

#1 The Basic Estate Documents

2009-12-17T10:26:00.001-06:00

A century ago, few people had a will, let alone the basic estate documents that are now used by a large portion of our population. Here, we'll review the basic estate documents, and something about them. In forthcoming Blogs, we'll expand on all of them. The array of basic estate documents is now so large that no person feels a need for all of them.

As we point out in many different ways, it is a serious mistake to think that an estate plan simply means signing several legal documents. Our strong belief is that everyone should think of those basic estate documents as the start of Life Planning.

In the first half of the past century, people thought they had a complete estate plan if they had a will. In the second half, people were realizing that there could be a number of documents that would make the estate plan more complete, and therefore provide better for the handling of whatever the future might bring.

For many people, the will is still the cornerstone of their estate plan. It is the document that must be signed and witnessed in compliance with your state's laws, in order to be valid. Without a will a person is said to die intestate. In those cases, the person's entire estate goes to his/her heirs. The heirs are those people who inherit the estate and are defined in the person's state probate statutes.

Toward the end of the past century, there was a movement toward the use of a living trust to control a person's property during their lifetime, and thereafter for some time, to accomplish the objectives of the testator (the maker of the will). Even if there is such a living trust, it is customary to prepare a pourover will, that pours over into the trust any of the testator's property that was not included in the will. The pourover will may or may not have to be productive, depending on a number of facts.

Increasingly, people are also signing Durable Powers of Attorney for property. They are Durable because they continue to be valid when the principal (who signs the power) becomes mentally incompetent. Formerly a power of attorney became useless when the principal became mentally incompetent. They permit the agent to carry on the business, investment, and other financial activities of the principal.

Several decades ago, people starting using Living Wills, which are not wills of property. They are merely a statement of the principals desires when they are near death and direct the amount of life sustaining procedures that should be used to keep alive.

Living Wills are being replaced by Powers of Attorney for Health Care. They give the agent the power to make numerous decisions as to living accommodations, health care, and arranging medical procedures when the principal can no longer make the decisions. They also normally contain an Advance Directive, that is a direction such as a Living Will contains.

There are numerous other basic estate documents, such as (1) gifts of the body or body part for science or transplant and (2) designation of the person to be selected, if one is necessary, to serve as the principal's estate guardian. Which of these numerous basic estate documents are best suited to your own needs and objectives can be suggested by a competent estate planning lawyer, who has gotten to know you well. Never was there any situation that failed to fit into the one size fits all, as totally as in respect to your basic estate documents.

About Us

2007-12-21T17:16:00.002-06:00

My entire adult life has been deeply involved in many ways in the law. My practice of the law began in a large firm on LaSalle Street in Chicago, but the lure of my old home town, Quincy, Illinois, pulled me back there. Soon, I was elected a County Probate Judge, the youngest judge in Illinois.

Estate planning was a very primitive art and science then, compared to its practice today. Most people thought they had a complete estate plan when they had a will. They didn't think of estate planning as an all encompassing assessment of their situations and combining them into the best possible condition for the rest of their lives.

My two terms as Probate Judge were followed by a few years of intense building of a law practice, largely devoted to estate planning and probate matters.

That short era was followed by a 7 year term as a Circuit Judge for the Eighth Judicial Circuit of Illinois. That brought me into close and constant contact with the most serious civil and criminal cases, and further broadened my experience in such matters as will contests, bitter divorces, and murders, never as a party, fortunately.

Each of those experiences convinced me more, all the time, of the necessity of helping people to plan their lives so that they could prosper, and retire with a good quality of life.

At the end of my term as Circuit Judge, I began writing law books, an obsession that has stayed with me for a number of decades.

My wife and I turned out a trial handbook for Illinois lawyers. It was marketed by direct mail and was an instant success. Several law book publishers approached me about publishing it. We chose Lawyers Cooperative Publishing Company of Rochester, New York. It was later merged into West Publishing Company, now known as Thomson Reuters West, for whom I continue to write up to the present.

I currently write new volumes for West that are divided between (1) books that explain to lawyers and judges the rules relating to the trial of federal and state civil and criminal cases, and (2) books on estate planning in all its branches, including elder law, which is an area of the law that is growing spectacularly.

It is this background that has brought me to the strong belief that the great middle class of Americans cannot afford professional advice for most of the problems confronting them. With the creation of weblogs, it became immediately apparent that they are the best way to convey, without cost to the viewer, a wide range of useful, essential information, much of it concerning the law, to those who want to take control of their own destinies.

We'd like to think that the highly significant, important information that we are furnishing to all Americans, without objectionable advertising and without cost, justifies our calling this weblog a weblog of useful significant information.

While working obsessively on the writing of books and the practice of law, I created one of the very first websites, quincynet.com, which is continuously built by a group of stay-at-home moms. In 15 years, they have put together America's most complete Community Service Website. You are invited to check it out to see how thoroughly one American City's story is told worldwide to everyone who has any reason to want to know more about Quincy, Illinois.

I am particularly proud of the fact that, in creating and maintaining a system of employing stay-at-home moms who can work at home, closely supervising their children, caring for an elderly relative, or a combination of all of them, while receiving many benefits, and making it profitable for the employer, I have created procedures that one day will be picked up by business and industry, to the immense advantage of millions of stay-at-home moms and hundreds of thousands of more far sighted businesses.

Guest Guide

2007-12-21T17:12:00.001-06:00

We Are Not Giving Legal or Any Other Kind of Advice

We are not offering, in any way, any kind of legal or other advice as to what you should do in your Life Planning. Rather, we are giving timely information that may be useful to you. It would be a serious mistake to take information as advice.

Most of the information we are giving relates to some law. Nevertheless, because of the broad implications and requirements of Life Planning, the contents of our Weblog will always contain timely information about many other subjects. We will not be advising you about any of them. Rather, we will be furnishing information about those various subjects.

We could be compared to a World Almanac or a Farmer's Almanac, that give a wide range of information. The information you take from them helps you make a decision. But, that information is not advice.

Giving legal advice is a combined science (knowing the law) and art (knowing how to understand the client, the client's problems, and to determine the best of all the alternative for that specific client). Each client differs from the other. Often, two different clients will receive different advice based on the differences between them, rather than on their situations, which may be different.

Giving sound legal advice demands a professional with four years of college, three years of law school, rigorous study to get a good grade on the LSAT, even more rigorous study to pass the bar examination. And that is just the beginning, because the neophyte lawyer quickly learns that learning, understanding, and keeping up with the changes in the law is a huge challenge. You can't buy all that skill and knowledge by buying a book about your problem, let alone by reading a free weblog.

All we can assure you is that we will be very careful to furnish accurate information. But, our sources may be wrong, so we can't be responsible, even if we should provide you erroneous information.

The contents of the information the HunteReporT is bringing to every American

When we decided to make Life Planning, rather than traditional estate planning, as our goal to cover, we entered into many areas that are not traditionally thought of as Estate Planning.

One of our principal subjects, of course, will be anything that is now considered as Estate Planning. That includes information on wills, trusts, living will, powers of attorney for property and for health, probate, avoidance of probate, gift, estate, and income taxes.

We will also include numerous areas that were not treated as part of the Estate Planning package. They include subjects like Medicare, Medicaid, physical and mental health and fitness, caregiving for children, impaired elderly relatives, and helping to solve the burden of caregiving on the family member who has to take care of grandma.

We will also report on recent discoveries about how the mind works, through such subjects as gerontology, psychiatry, psychology, and the uses of DNA and pictures of the activities within the brain. All can contribute to a better quality of life for the "rest of your years."

The sources of the information that the HunteReporT is now bringing to all Americans

We have, readily available to us, a huge amount of timely, reliable information about all the subjects we cover. Particularly useful are the many newsletters we receive, covering a wide range of those subjects.

We have a large library of books on those subjects. They provide a large amount of information that is not available to the public who rely on the media, which often treat these subjects superficially or not at all.

There are very few publishers that provide books to the general public on these subjects. One of the few is NOLO, which provides excellent books for the layperson. We will credit them for information when we use them as an authority for any statements we make.

Unfortunately, the Internet does not provide much information on most of these subjects. The little that is available relates to estate planning, and is provided by insurance companies, investment companies. Naturally, their advice is ultimately directed to urging you to buy their insurance, investments, etc.

How to find and use the information we provide for you

There are several ways you can refer to our Weblog to find information you need in Life Planning. We have used all the procedures afforded by Blogger to make this a simple, quick process.

All our Blogs are filed under different categories. They are immediately archived under their respective categories, which describe very briefly what those particular Blogs contain. Thus, you can check the list of categories and find the one you are looking for, and you are then able to scan the list of Blogs under that category.

Also, we will post a separate list of recently published Blogs. You will click on that list on our home page. It will give the titles of the blogs that we have published during the present and the prior month. Thus, you won't have to search around to find those that you have not looked at since your last visit to our Weblog.

In addition, we have an internal search engine on our home page. Type in the word or phrase that best describes the type of information you are seeking, and click on it. If that does not produce what you are looking for, change to similar words that could describe such subject.

My own possible conflicts of interest, and how they will be avoided

Some of the publications that I will cite in my Blogs are written by me. Of course, I have researched their material thoroughly before submitting it to the largest lawbook publisher in the world, and am confident of its reliability.

I will seek to give material from any source that appears reliable and useful, whether written by me or someone else. The amount of information that is needed by the general public is huge in comparison with the sources that provide it. There is plenty of room for many other companies and authors to help overcome this terrible lack of help for the vast group of middle class Americans.

We encourage you to let us know if you have any corrections, or suggestions, by emailing us at plans4estates@yahoo.com. We stand by everything we say in this Weblog and therefore cannot have comments from others. We do not have the staff to answer questions, but you can be sure that we will give serious thought to any suggestion you might make.

(We cannot print comments or other contributions by our Guests)

Our copyright policies

Copyright 2009 Robert S. Hunter. We encourage you to make fullest use the material we provide herein, for you and your friends. We do not, though, approve of any of our copyrightable material for commercial purposes.