Welcome to the BogleHedge Chapter Series. This episode was jointly hosted by the Starting Out in the Pre and Early Retirement Life Stage Chapters and recorded September 13th, 2023. The presentation and discussion topic was Estate Planning with Attorney Summerfield Baldwin. BogleHedge are investors who follow John Bogle's philosophy for attaining financial independence.

This recording is for informational purposes only and should not be construed as personalized investment advice. Featured guest tonight, Summerfield Baldwin. Miriam did a basic intro. I'll elaborate on that a little just so folks know a bit more about Summerfield's background. Summerfield grew up in Brooklyn, New York. He has a BA from Johns Hopkins and his law degree from Brooklyn Law.

He's licensed in New York, so his comments will largely be based on his knowledge of his practice in New York. He started that practice in 1993 specializing in estates and guardianships. In his practice, he's served as a trustee of various trusts and as a guardian, guardian ad litem, which we may or may not get into.

He served as a court evaluator and attorney for alleged incapacitated persons in a variety of Supreme and surrogate court cases. Summerfield and his wife and his cat live in New York, just north of New York City, but will be moving back to Brooklyn to be closer with family. And in full disclosure, I have retained Summerfield for his services, and I also consider Summerfield a personal friend.

So with that, we'll begin what will largely, hopefully, be conversational. We have many questions to ask Summerfield. As Miriam mentioned, we'll have two sessions with Summerfield. This first will largely be the building blocks for legal understanding, and the second session, which will be scheduled within, it'll be a few months from now, likely, will be more of the people side of things like elder care and implementing care and guardianship and custody and moving residents and the complicated people side of things.

So we understand how sprawling this topic is and how relatable and how inevitable and how there's general interest, whether you're experiencing it or not right now. But when I say inevitable, almost everyone is encountering these issues. So with that, there's a near infinite amount of questions. So we have a lot to cover, limited time.

We want to turn it over to the questions from the chat. So I will sometimes, unfortunately, cut off Summerfield. We want to keep things concise. We're going to want to move on to different categories of questions. So if folks can, again, submit questions in the chat, and, you know, we hope everyone gets a lot out of this.

Summerfield, did you have anything you wanted to add before we start? Oh, just, I appreciate your having me on. I've been an admirer of Vanguard and their philosophy and, of course, John Vogel. And I appreciated our working together and friendship, Gorrie, so glad to be here. Excellent. Well, thanks again for being here.

It is such a topic of interest for such a wide group of people. And you mentioned Jack Vogel and Vanguard. And so the Vogel Heads span, this audience is certainly national, and sometimes we have international folks. So with that, it's an important point, I'll reiterate, folks will have very state-specific questions sometimes.

And there are questions relating to internationally held assets or beneficiaries located elsewhere. We are aware that that's a topic of interest, but we're also going to curtail some of those so that we can focus on what's most relatable for the broadest audience. So Summerfield, thank you for that. And again, for context, as you know, there's a wide range of, not just geographically, but age and kind of personal interest.

So with that, why don't we get started with the most basic of questions. Can you walk us through what a will is, what goes on in the absence of a will, and why it's important to have one? Sure. A will is a legal document whereby when you've passed away, the will controls how your property is going to pass, and it also nominates, and it was called an executor, someone to control and operate the estate.

And a will needs to be a writing. Most typically, it's a paper writing. I've never encountered anything different, although in law school, I know there was a case in England centuries ago, where some farmer had written his will on the back of a farm animal, on a cow or something.

And that was actually held up by the English court at that time. So yeah, writing. One of the requirements of a will is that it be published by the person making out the will. So when I supervise a will signing, I always ask my client two questions. I say, one, is this your will?

Person says yes. And then I ask, are you asking the three of us to witness the signing of your will and do a self-proving affidavit? They say yes, that's the publication. And then they sign the document. The will in New York, as it would be in other states, needs to be witnessed by at least two adults.

And for my will signings, I generally have the witnesses do what's called a self-proving affidavit where they basically attest to the fact that the testator was of sound mind, that they were not being unduly forced into signing their will, that they had understanding, they could read English, knew the English language, they had no physical defect, vision or hearing problem that would affect their capacity to make a will.

So Summerfield, sorry, I'll interrupt from time to time just for clarity. So two things. One is when you said two witnesses, I assume, but you'll clarify, these have to be disinterested parties. It wouldn't be a beneficiary or relative or could it be? As a practical matter, the answer is yes, although technically it can be an interested party.

The catch, though, is if a beneficiary is a witness, they have a choice or the estate has a choice. They can either withdraw as a witness or they can withdraw as being a beneficiary. They can't serve in both those roles. So yes, you would never like I would never want my client to have as his or her witness someone that he's included in his will as a beneficiary.

That helps. So I want to follow up on what it means to be published for folks outside of the legal space. But before that, I want to close this point. Can you elaborate on how these witnesses are sourced? If the average person doesn't know how to find a disinterested person, does the attorney provide them or how else is it done?

How I do it, most of most of my will signings are done in my office and I on my floor, there's a receptionist, sort of a receptionist who serves a whole number of offices. And she is usually my my lead witness. And then she, in turn, because she's sort of the property manager for the building, she will usually call in another staff person at the building and the two of them are my witnesses and I serve as sort of a third witness.

If I do a home visit to a person for their will signing, then I make arrangements beforehand. I'll say to them, look, are there some neighbors or do you have friends who could come by and and serve as the as the witnesses and usually that that works out well.

Fantastic. That was super clear. So now let's go back to being published. You said it must be published for folks, again, without the the legal knowledge. What is what does that mean to the average person? How how what defines published as it satisfies you? Yeah, just like a declaration to the to the witnesses that the person intends this document to be their last will and testament to dispose of their assets at their death and set up their estate.

And it goes partly into this whole thing of does the person know what they're doing? You know, one of the big concerns about a will, you know, oftentimes you have older people doing a will. And of course, with age can come some form of mental decline. And and so you want your witnesses to feel confident that, in fact, the person signing the will before them knows what they're doing, knows what's going on.

And so the publication requirement sort of goes towards establishing that that confidence in that. OK, so I wanted to hit on this later, but it's timely, given what you just said. If someone contests the will and says those witnesses were not qualified to make a determination that the decedent was of sound mind, how would that be handled?

Let's say someone went in and out, had had some early history of being in and out of lucidity, wasn't clearly suffering from, you know, full dementia or Alzheimer's. But in this hypothetical, some beneficiary or potential beneficiary or excluded otherwise beneficiary could say not of sound mind, those witnesses were not qualified to make that determination.

Right. Yes. Yeah. That can they can do that. The thing I mean, the best argument for a will object and regarding the witnesses would be, in my opinion, would be on the one hand, all the witnesses were under age, you know, because legally the witness has to be an adult, 18 or older.

So if if you can establish that a witness was 16 or something, then that, you know, you win your objection that way. I think a second strong object and argument to a witness would be the witness was was, you know, not not an independent, true witness. They were maybe maybe they received some money.

Maybe they were paid by the testator or the attorney or something. There was there was some kind of fraud going on. There was this plan to defraud a vulnerable person. And the witnesses were part of a scheme to do that. So I mean, I suppose you could argue that a witness is not doesn't have a particular qualification to determine whether someone has capacity or not.

And I mean, if you could establish that a witness themselves had some kind of disability that would limit their ability to understand, that might be successful. But generally, courts are used to witnesses being just sort of regular folks that aren't expected to have any particular knowledge or, you know, great qualifications.

All right. That helps. So it's a low bar to make that determination. Yes, it sounds like. OK, so let's say you've described what a will is, what it does, what happens in the absence of a will. Someone intended to do will started it, never finished it. There's a partial will count.

Does it need to be officially complete or let's say there's no will. Right. Yes. In those cases, I mean, in some case, in the ideally, if you haven't done a will, you've done other things, you've made beneficiary designations on your life insurance, on your bank accounts, on your pension or annuity that you may have such that.

There's really nothing. Everything is accounted for. Everything is provided for. Nothing will really come into your estate or if things do come into your estate, they're so small, some kind of refunds or a very small account that it just it doesn't make sense to hire an attorney to take the time and effort to go and and probate or handle the estate.

So that would be the ideal situation for someone who doesn't do a will. If if you don't do a will and you don't do the beneficiary designation or a trust or whatnot and property legally passes to your estate, then what has to happen is a. Distributee, which is a legal term for someone who's a close family member who, by virtue of their kinship, would inherit under the state intestacy law, a distributee needs to come forward and file a petition for letters of administration to be appointed as the it's not executor.

If there's no will be appointed as the administrator of the estate with the authority to marshal the assets, pay the estate expenses and then distribute the estate assets to those closest blood can as determined by the state law. OK, super helpful. So building on what you just said, I want to pick up on two things.

One is you mentioned if someone has relatively minimal assets or however subjective that is, but in what situations is it OK to do a will yourself or hire an attorney versus use an online tool? And then you mentioned executor. Why don't we segue after you address those if you can elaborate on the role of an executor, how to choose a good one, how to inform them what it means to be an executor.

So they're agreeing to something in an informed way. Great questions that before I get to those questions, and I may have to nudge you to remind me of them, but there is one point I should make that could be helpful to people with it in these small estate situations in New York.

And again, most states, although laws vary, do have similar type arrangements. But in New York, if you have a very small estate, I think it's up to 20,000, 30,000, even without a will and without doing a court proceeding at the surrogates court, there are provisions under the New York law where you can go to your bank or whoever is holding the small assets and you can fill out an affidavit.

And just by virtue of that affidavit and a particular section of the New York law, the bank, the financial institutions are required to turn over those small assets, so just something to bear in mind. And then the nudge, you were in terms of... Oh, well, so to finish up, let's say, so people have, they've definitely seen online they can do their own will versus they get comfort with an attorney versus someone has a friend who did it themselves and feel fine.

When is it okay and when should someone absolutely hire an attorney? Right. I mean, personally, my advice would be to... My best advice, I think, would be just to go to an attorney. And you can check with an attorney about their fees ahead of time and all of that.

Now, but that being said, if you feel comfortable, like maybe you have some experience with the state matters, wills, that sort of thing. If you want to draft your own will, I think that's just by yourself or with one of these will kits. I don't particularly have a problem with that.

You should be careful about, in terms of, you want to make sure you select all the people that should be selected, executors, backup executors. If you have children, you want to have guardians, backup guardians. You want to make sure you cover all the bases, but drafting your own will, I don't particularly frown upon.

But if you do that, I would recommend that you do have an attorney, at least supervise the execution of the will signing. And that, in terms of fees, that should be, I would estimate like a third or a fourth of what an attorney would charge for the entire process, because most of the attorney time goes into drafting the will.

If you come with a will to an attorney, and I've had a couple of clients do this, and I as the attorney, I'm just there to supervise the signing, that's not a big deal, and my fee is going to be considerably less. And the reason for that is that, like I mentioned earlier, the New York statute has very specific laws about what constitutes a valid will signing.

And the self-proving affidavits that the witnesses have to sign, ideally they're done at the will signing. They don't have to be, but it's much easier to get the witnesses to do these required affidavits at the will signing than it is to track them down 20, 30 years later, and then have them sign affidavits at that point.

So yeah, that, and then a final thing, like if someone's going to object to a will, just the fact that you've had an attorney supervise the will signing, that gives the surrogate judges a lot more confidence that it was done properly, as opposed to you went before a notary at FedEx or something.

So just for the purpose of having the will hold up, I'd have an attorney supervise it, even if you do draft your own will. - Okay, that was super clear and helpful. There's a lot there that I think is worth following up on, so I'm going to focus on a few things, but we'll move into sort of speed dating round.

I'll ask questions and we'll do like high level, concise answers. We'll get back to executors. So you mentioned a few things. Coming to an attorney with a self-drafted will would be helpful. How does one, I think we know referrals are a great source for choosing an attorney, but absent that is the bar association, or how would you recommend someone find a good attorney outside of casting a wide Google search and then bringing the draft?

So if one is going to self-draft, should they follow an online template? How do they know that they have good guidance for the draft they're using? - Right, that's kind of tricky, yeah, because I really don't have experience with working with the different programs and stuff. I mean, I had one person come to me, and this was a well-educated person, a friend, and he had gotten a hold of a program that was really quite complex and involved.

And I suppose it could have been good, but, and he did what sort of what I had recommended in that he had me look it over and I was going to supervise the signing. But to me, it was really too involved. I would favor a simpler program, or even, maybe even more so than a program.

If you have like your grandfather's will or your parents' will that a lawyer drafted, maybe just take that as your template and just kind of copy it and change it to pertain to your situation. And that could even be free. You wouldn't have to pay for, I would prefer something simpler, because if you go have too much complexity, you're going to confuse yourself, confuse the court.

So simpler is better that way. - Excellent. So ultimately, it should not, it need not be a highly technical document and someone can intuitively draft it, and that might be a great foundation. Okay. If it needs to be complex and all this, then your wisdom, go to an attorney, because if it's really, you know, you just, you know, so.

- Understood. Okay. So quick thoughts on how to find or select an attorney. - Yeah. Word of mouth, some, I know some companies have legal plans where for a discount, and, you know, I think that's worth exploring, you know, I think those guys could very well be good attorneys.

And then, yeah, bar associations, county bar associations have legal referral services where they have qualifications and everything for attorneys to register with them and they keep an eye on them. So that's a good source as well. - Great. So some great resources there. I definitely want to jump to executor, but to close out the physical will process, does it need to be registered or filed somewhere?

- No, in New York, it doesn't. In New York, you can file it with your, the surrogates court in the county in which you live, but there's a catch to that, which in my opinion, and every client I've spoken with, it's a deal killer for them, and what the deal is, is that you file it at the local county surrogates court, you pay like a $35 filing fee.

The catch is though, if you ever want to change your will, you yourself have to physically go to the court and withdraw that original will. You can't send your spouse, you can't send a power of attorney. Even if you're on death's door, it has to be you who goes to the court to pull it out.

So for that reason, it's not my top recommendation, so. - Okay. So building on that, who should keep, let's say the will is finalized and there are no changes being made, who should have a copy of the will? How many copies should be distributed and how do you know that the latest, how does the judge or the executor or the post-passing, how do parties know what the latest will is?

- Right. No, this is a very good question. Yeah, well, a standard clause in any will is that it revokes any prior wills. And so then you're, so you see that in virtually every will. - But if you don't know that there's a later one, any document saying it revokes preceding ones can seem like the most common.

- Exactly, exactly. So basically, yeah, I mean, you would have to, right, yeah, I mean, there is a default paragraph in the standard court petition asking for the probate of the will, where you say that you've done a thorough search and that this is the latest will kind of thing.

And I guess you just have to, whether it's from the attorney who drafted the will or kept it or from your search of the decedent's home, you just have to, I guess, yeah, to the extent you can, be sure that it's the most recent will. What some people will do is they'll, if they redo a will, they'll make sure they get their prior originals and just tear them up physically, just so that kind of a situation can't be.

- Okay, that makes sense. And so in your experience is, how often have you seen a surprise later version surface after what was thought to be the latest? - Right, to be honest, I have not actually seen that. I remember I assisted a gentleman, a colleague who had drafted a will for an older client and there was a contest and the specific issue you mentioned about not knowing if there was a more recent will didn't come up, but there were several prior wills and that came into the part of the objection.

So we dealt with a different number of wills, but specifically, no, I haven't seen what you described. - Okay, so that could be comforting for folks just knowing it's a low probability, low frequency event. - Yes, and one thing, if I could just jump in, one thing that'll help prevent what you've described is missing a more recent will.

Whenever you submit a will to be probated in New York, and again, this should apply to all states, there's a requirement that the closest blood can be notified, be provided a copy of that will, and they have the opportunity to object to that will. So the fact that you're alerting spouse, kids, siblings, parents, or whatever, of the will, they're the kind of people who would know or potentially would know if there's a more recent will out there.

So if they see something that seems too old, doesn't seem right, then they just go to the court and say, "There's something wrong here," and so that it could come to light that way. - Got it. Thank you. So let's jump over to executor demystification. So have you seen someone asked to be an executor, accept the role, but doesn't really have an understanding of what it entails?

They feel obligated. How does one empower a potential executor to make an informed decision? So if you can walk us through what it means to be an executor, what they typically do deal with, can they decline midstream and find a successor executor? How does that- - Yeah, I'll answer that one first.

You can decline midstream and sometimes it's unavoidable. If you have a health issue or you have to move, or sometimes there can be some kind of problems with the estate where just in order to get the estate resolved, you need to step aside and let someone else take over because of family issues or something.

So sometimes that's unavoidable. It's generally better not to sign up to be the executor at the beginning, because if you feel, if you've been nominated as the executor and you're questioning whether you want to do it or not, or can do it, if you go ahead and accept, then to get yourself out of that is a process.

You can't just sign a letter or something and send it to the court and that's it. You basically have to reapply to the court for permission to withdraw. And if it's gotten to the stage where you've taken hold of property, if you've administered money, access money, put it in a state account, then you need to provide an accounting of how you've handled that money before the court will release you.

So just sort of a warning that way. But yes. I mean- When you say a state account, who sets that up? The executor is empowered to- Yes, exactly. Yeah, because an executor, I mean, another way of looking at the executor role is it's basically the person who steps in the shoes of the decedent and can and does do what the decedent would be doing if they were still alive.

So they're gone, so someone needs to be able to act for them for the purposes of carrying out their last wishes. And so more specifically to demystify for folks who are zero familiarity, what are typical things an executor does? And if you can build on that, what makes for a great executor and what are some unanticipated pitfalls, some things that executors aren't really foresightful to, things that an executor may not have foreseen and tripped over.

Right. I don't know. To me, I think there's kind of two things that make a great executor. Probably the most important, I'd say, is just having that connection, that loyalty to the person that passed away, such that you really want to honor and fulfill their own wishes. And whether it be to paying their last bills, making sure that the doctor, the home care worker, the cleaner, people that were important to them in their lives, those people get properly paid for the services that they did, but that the decedent wasn't able to pay during his last illness.

Honoring the decedent's wishes to leave gifts to charity, to cherished friends and family members, having a real devotion to the person means that you're going to, that kind of an executor is going to go the extra mile to, in a timely and caring way, carry out those person's last wishes.

So to me, that's the most important aspect. And then the second aspect I would say is just kind of maybe a general good sort of organizational business affairs kind of sense, because the executor really is the person in charge of the estate. And you don't have to necessarily have specialized knowledge or abilities, like either for investing or legally or that kind of thing, because as long as the estate is not really small, it's customary and fine to hire an attorney to help you with the legal aspects, hire an accountant to help you with tax aspects to the extent they exist, hire an investment person to make some investment decisions if the estate is going to go on for a little period.

Okay. And it's, it sounds worth mentioning the executor can be compensated. Is it predefined by the decedent early on? Is it a formula of assets? Is it a service? How does that work? Is it per service? It's in the, it's in the, the person making the will, it's in their control.

They can specify in their will, I want my executor to be compensated with X amount of dollars or X percentage of the estate, or sometimes they'll say, I direct my executor to serve without compensation. That's it's, it's rare for people doing their wills to make that kind of a specification.

The 99% of the time, the executor simply takes as his or her commission, the percentage that's set by the state statute. And to give an example, like in New York state for the first $100,000, and in the state, the commission is 5%. For the next $200,000 after that first $100,000, it's 4% of that, then it's 3% of every dollar from 300,000 up to 700,000.

After 700,000, it's two and a half percent. And then I think at a higher level, it even goes down to like 2%. Okay, that's a perfect segue. That's phenomenally important information. So thank you, Summerfield. When let's define the denominator there, as we segue to what is probate. So I'm conscious of our time, we're already near 840.

And we've covered a fraction of, you know, what we'd like to, when, let's say, a lot of folks in the Boglehead crowd know that financial institutions often require naming a beneficiary. And so that will bypass, even if a will directed otherwise, the financial institution will follow what's on their records as the beneficiary.

So when you say the first $100,000, and then the next $200,000, et cetera, can you clarify for folks, does this include financial assets excluded if went to a beneficiary already? And then with that, we'll segue to probate. Oh, definitely, definitely. Yeah. So, so it would be these percentages only apply to assets that come into the estate.

So so like, yeah, if you have an account at Vanguard, let's say you have two accounts at Vanguard. Let's say one account for $500,000, you leave to your, your spouse. Then when you pass away, leave to your spouse via the financial institutions form, right? We have the form, yeah, the spouse is the designated beneficiary with Vanguard.

Then yeah, when you pass away, by operation of law at death, that $500,000 goes directly to your spouse, it doesn't come into your estate. And so it's not part of your estate, and the executor's commission doesn't apply to that. If you had a second account at Vanguard for $250,000, and let's say you designated the beneficiary on the Vanguard form as your estate, then in that case, that $250,000 would come into the estate, and the executor would get a commission based on the percentage amount.

And that would be the equivalent of having no beneficiary named also, the outcome would be the same to the estate. Correct, right, it wouldn't go. Most people don't do this. Most people want it to go out of the estate directly to the family person or an individual. But yeah, but for for some planning purposes, you may want to have the assets actually come into the estate.

And in that case, yeah, it would the $250,000 would come into the estate and be administered under the will, however, the will specifies. Yeah. Great. So with that, again, this, this audience, a lot of Bogleheads are super educated on many things. But we also have folks who don't have such a deep foundation.

Can you walk us through intro to probate, nuances, intricacies? What does it mean? When is it relevant? How to how to have it go optimally? Absolutely. Sure. Well, one thing, one thing that's, that's very important. And I, we touched on this a little bit earlier. But this whole idea of knowing your closest blood can, you know, because, again, you can leave your property to anyone you want, you can disinherit, well, you can disinherit your spouse, although in New York, and again, in most states, they have a legal right to file a right of election for at least one third of your estate.

So that way, you can't totally lock out a spouse. But legally, you can disinherit children, parents, siblings, family, anybody. And is there a specific language that holds up really well, assuming it can be contested? Right? Well, what some people do is they'll, like, if, if they want to, if they're concerned that a, say, a disaffected child may contest a will that leaves most of the property to other children or someone else, they'll say, okay, I'll, I'll leave my child $30,000.

But on the condition that they don't contest my will, if they do contest the will, then they get nothing. Another, another recommended step is if you are disinheriting someone that you naturally would be expected to include in your will, you just do out an affidavit, just giving the reasons, you know, why you're doing that.

And then of course, I mean, sometimes if some attorneys will do a video tape of a will execution signing, if, if they fear there'll be, might be a contest or something, just to have a little evidence, a little more evidence that the testator was of sound mind at the time, that kind of thing.

Makes sense. You're probably seeing more and more of that. In your example of conditionally disaffected child will inherit $30,000 if they don't contest. But let's say they have a strong case to contest and could be entitled or awarded to a lot more than 30, such that they take this risk.

In your example, if they win the contest, but the will said excluded, if they contest, how would that play out? Right. So if they win the contest, then the will is thrown out totally. And then it goes, it's as if they, the person had no will, and then you look to the default in test to see law for the state.

And that's going to say closest blood can. And in New York, it's the first 50,000 goes to the spouse. There's a spouse and half of the remainder. And then the other half of the remainder would be divided equally amongst the children. So in that scenario, I mean, if the child was an only child and his or her father had no spouse, then they would inherit everything.

But depending on the family situation, it could vary. And that's the reason why when I do a will intake, I always try to get the names and addresses of closest blood can, even if they're not in the will, because these people have to be notified at death and given an opportunity to object to a will.

And if they can't be found or unknown, the court is going to hold up probate until there's like a due diligence search to either locate these people, give them the opportunity to object or else satisfy the court that a thorough search has been done. And then even after a thorough search has been done, the court's going to want a publication of the official notice of the opportunity to object to the estate to be put in a newspaper and run.

It's just part of the legal requirements. Okay. So I want to follow up briefly on two things you mentioned, and then we still will revisit probate what it is exactly, what it means to go through it. So two things, when you said, if the person wins the contest, the whole will is thrown out.

Is that the case for any contest or can a will be challenged in part and the rest of it stand? That's the first. And then I want to plant the second and I'll hold you to it so that we don't forget. You mentioned closest blood can. What about step-relatives?

Step-relative? No, a step, I mean, if a child, yeah, that wouldn't, the only way that would apply is if there's like a legal adoption. Yeah. Step-parent is not considered a parent. A step-like sibling wouldn't be considered a legal sibling unless there was an adoption. So a stepson would not have legal entitlement the way a blood son would, or daughter, but adoption makes them the equivalent of a blood relative?

Yes. Okay. Yes. Great clarification. And then contesting a will in part versus in full. Right. I mean, it's not only the will that a contestant can object to. They can also object to the appointment of the executor. So yes, in theory, a disgruntled family member could say, I'm contesting the part of the will that appoints this person as executor.

And in my mind, that's not necessarily attacking the will in that the contest could say, well, now the person has a drug problem, so they're not drug or alcohol or substance abuse. So they're not, because of that, what's become a disability, they're not qualified to serve as executor. It's not that there's anything wrong with the will per se, it's just this person can't do that.

The only other thing I'm aware of along those lines, like a partial contest of a will is if you say a certain beneficiary shouldn't inherit or legally can inherit because they committed some kind of a crime, like you do have situations where a spouse will kill another spouse and you're not allowed to benefit from an intentional wrong act or murder like that.

So that comes into play in that sense, too. But I've never seen or heard of a will contest where someone comes in and says, we're attacking, we want to knock out these gifts here, but allow the other gifts in the will. It's either the person had capacity and the will was valid or it's not.

Okay. So closer to an all or nothing situation. Okay. And then can you walk us through probate, high level, and then just heads up for other folks, I see we're 10 to the hour. Summerfield and I will try to wrap by nine Eastern and turn it over to the chat questions.

So Summerfield following your probate response, let's transition to trust one on one. What is a trust, et cetera, but after probate. Sure. Sure. So for probate, okay, you have your original will and touching on issues you raised earlier about copies. You only want to have one original will. If you have duplicate original wills, you have to produce all of them.

If you can't produce all of them, the will is dead. It's out. And that's part of the affidavit, the self-proving affidavit that the will witnesses have to sign for probate to go through is their statement that there was only one original will sign. So you want to, you have to produce that original will, you have to produce a death certificate for the court.

You have to- So really quick, is it preferable, so is it best to have only one original? Let's say the person wants one in a safety deposit box, one with the spouse, one with the executor, is that ill-advised? Yes, definitely. Because again, if something happens to one of those originals, whether it's lost or maybe someone puts a line through the fifth page of one of those originals, that can knock out the whole shebang.

So you really don't, that's, yeah, highly recommend against that. That being said, when I'm having a testator sign his or her original will, I always do a conformed copy of the will, which is basically a duplicate that the attorney fills out that can be used as a substitute in case something happens to that original will, lost or destroyed.

Court has provisions for accepting that. There's nothing wrong with making photocopies of wills and sharing with the family and all that. But yeah, it's recommended not to have more than one original will. Would you recommend generally speaking, I know situations vary, that the will be shared with beneficiaries in advance?

That's really up to the family or the person doing their will. I'm not sure it matters that much. I mean, in terms of avoiding will contests and avoiding family angst and upset, to the extent that you can treat everyone the same, you know, and just try to promote peace, you know, that's the idea.

I mean, obviously that can't be done every single time, but you want to try to do your will and share or don't share the will with the family, with the mind towards promoting people working together and continuity and peace once you're gone. Because if you start springing things on people, that's just a recipe for legal battles.

Understood. All right. I'm going to try to accelerate this because time is going super quick. So any other key points for probate, what the process means, what it accomplishes, how to have it go as smoothly as possible? Right. It's basically the court looking at the will, the witnesses affidavit, the death certificate, just the general picture of the estate and just satisfying itself that there was no kind of fraud, that no one took advantage of the testator such that his or her wishes are not going to be honored and, you know, making sure the right person's appointed executor and just kind of loose supervision over the estate.

Okay. Are there situations where you want to avoid probate? What are the risks and benefits? Right. For one situation, the situation we addressed earlier in terms of if you have a family member whose whereabouts you don't know or they're disaffected, in that kind of situation, to avoid a lengthy due diligence search, potentially to avoid a will contest, it makes sense to think about doing a trust or having all your big assets be with designated beneficiaries so you don't have a lot of money being held up in a lengthy estate probate process.

And in terms of paying for these things, it's one thing to inherit as a beneficiary. Have you seen folks who write, you know, the person whose will it is, are they setting aside money for all these expenses? Is that advisable? Does that make it easier? Well, not per se.

I mean, you have to be a person doing their will wants to or should be attuned to their benefit to their beneficiary designations to the extent that they you want to be able to if you're planning for an estate to be up and running and you have specific gifts, you only want to have done in your will, then you need to make sure that you're not giving every single asset to your daughter by beneficiary designations.

You want to leave some money that's just going to come into your estate for that purpose, for the purpose of making those specific gifts and for having a sum on hand to pay the executor and last expenses. Got it. All right. Sound advice. So let's transition to what is a trust high level?

When is it most needed? When is it not needed? What are the different? What are the main what are the most common trust folks should be thinking about and learning about? Well, yeah. Yeah. Trust just to give a brief explanation. Trust is a legal document relationship where property is legal title is held with the trustee.

The trustee has possession of the financial assets, but they're not for the benefit of the trustee. They're for the benefit of a third party where it could even be partially for the benefit of the trustee, but also for other people. So there's what's called a fiduciary relationship where the trustee, the person holding the property is not just free to do whatever they want because it's their money.

They have a legal obligation to use the money, apply the money as directed by the trust to the extent the trust sets that forth and for the best interests of the beneficiaries. And so these kind of relationships, the trust relationships, typically where you see this is for for children, you know, for parents leaving money in their will or grandparents for children, people under 18 or for disabled people, you know, people who are at some kind of disadvantage such that, you know, if you just handed a 10 year old a hundred thousand dollars, you know, that that's a recipe for for disaster, much the same if you handed a person with severe physical or mental disabilities, that kind of money, you know, it's fraught with peril.

And the whole aspect, too, of if you're receiving government benefits as a person with a disability and inherit straight inheritance can be those assets can be seized by the government for reimbursement for the government benefits or they can disqualify a person from receiving public assistance. So in that kind of scenario, it's beneficial often to set up some kind of a trust where assets can be applied to help the child, the disabled person, but you don't face the perils of just turning the money over to those individuals.

OK, super helpful. So for folks, broadly speaking, what situations do you think? Have you seen that a trust was overlooked but would have been hugely advantageous? Oh, well, actually, I can I can think of an estate that I'm working on right now. And I had actually recommended that this person, the testator, do a trust.

But and the person was right, the person declined because they said it would have been a lot of work for the person. And they were in terms of retitling all their assets, because it's not a matter of just signing a trust document and boom, that's it. To do a real trust that's going to bypass probate, you have to retitle all your assets in the name of the trust.

But in this scenario, this this testator, she had a family situation where she basically had no family or none that she knew about. And so we had her had her do, you know, affidavits of her family tree, get documents together to try to help for the due diligence search that was to come.

But lo and behold, when she passed away. I had to start the due diligence and try to find family members. And it reached a point, you know, I'm not an expert genealogist or anything. So there's only so far I could go. And ultimately, we had to the executor had to pay for his ancestry dot com.

They have a service where they will do thorough searches. So and it's not the end of the world, but it is time and it is money. And if this individual had done a trust and gone through the then laborious steps of retitling her assets into the trust, her estate process would have been much, much smoother and quicker.

Okay, that helps. So in closing, as we're hitting nine Eastern, can you do high level power of attorney? What does it mean? What's the life of it? What terminates a power of attorney or different options to terminate it? Why is it important? What it allows what it doesn't? And then my last question, as broadly as it could help the audience, what do you think people are least aware of that they should be more aware of in this under this estate planning umbrella?

Why don't we start with power of attorney? Okay, sure. Power of attorney, well, there's two kinds. The general kind that most people think of when they hear power of attorney is what's called a durable power of attorney, which means it survives incapacity. And that's what most people want and really should have.

Because it basically says, you know, you're you've appointed someone a trusted family member or friend to step into your shoes to basically do anything that you could do for situations where you lack capacity. And so you want the document to hold up, you know, should you have some kind of accident or illness where you can't handle your financial affairs?

That's a durable power of attorney. There are non durable power of attorneys, which are more limited and specific. Like let's say you are going to purchase a home, and you're about to the closing is a week away, but you're you're called off on business, or you have a family tragedy, you can't make the closing, then what you can do, you can sign a non durable power of attorney, which won't survive your incapacity.

But it appoints a your attorney or your friend, your cousin, to be able to go to the closing in a week's time and sign the documents necessary to close on the purchase of your home. So that's a non durable power of attorney. But for our purposes of state planning, you want most people, it's important to have a durable power of attorney.

Because if you don't, and God forbid something happens to you where you're not able to pay your bills, sign documents, handle your affairs, then chances are, you're going to have to have a legal guardian appointed to do that. Because there's no if you're disabled, to the extent that you can't then make out your power of attorney, there's no way for anyone to get legal authority to act on your behalf absent a court proceeding, which is time and money and invasion of privacy.

So so power of attorney is important that way. Okay, very helpful. Thanks. And so then as in closing for this portion of tonight's, and then we'll, we'll go to the audience for both pre submitted questions integrated with the chat. What do you think is so often overlooked that folks should really be more aware of?

Yeah, I'll say I'll say three things. And one of them I mentioned before, and that's the thing about knowing who your closest blood can is. Because so many people, when I asked them for their closest blood can they'll say, well, I'm not leaving this person anything in my will, what does this person have to?

Why did they? Why did they even come up? You know, I haven't seen them in 20 years. But unfortunately, the fact is, that the court is going to require that that person be a part of the process at least get notice, and your will is not going to be probated until that person is found, and either signs a waiver or is cited and and you know, doesn't file objections.

So having your family tree squared away, that that's something that's often overlooked and is important. The other two things for a trust, some, let's say you want to do a living trust to avoid probate because you have a family situation or something where probate is problematic. A lot of people feel incorrectly that if they sign their living trust document, that's it, they're complete with their job.

When in fact, for that living trust document to be operative, you have to retitle your assets in the name of that trust, you have to go to your bank, you have to go to Vanguard, you have to go to your life insurance, whatever and put the asset in the trust name, or else the asset won't be administered by the trust.

And the only way you're going to administer that asset, have it go to who you want it to go to, is for a probate of your will, which you ostensibly are trying to avoid. The third thing, mistake I see sometimes, is for powers of attorney. People will sign their power of attorney, but then their agent, that person needs to sign the power of attorney as well.

And ideally, they'll sign it within a week or so of the principal signing it. And sometimes I will give the power of attorney to the person that's just signed it and they say, "Okay, I'm going to have my daughter sign it or my husband sign it, and then I'll get it back to you and we'll be all set." And then something happens, they don't follow through.

And unfortunately, at that point, the power of attorney can just be invalid. Because if the longer- Can you clarify, you use the term agent and you said the daughter or the, are these the intended power of attorney person or? Correct. Like, let's say a mother appoints her daughter as her agent on her power of attorney, and the mother signs the power of attorney, giving the daughter the authority.

But for the New York State power of attorney form, the daughter has to sign the form as well, and banks and financial institutions, they want the daughter to have signed on as agent within, say, a week of her mother signing on. If much more time goes by, often they will balk at honoring the power of attorney because they'll say, "Why is there this big time lag?

Something's wrong." And is it simply the date that the signer dates? Because they could post, they could put an earlier date, right? Well, it has to be notarized. Okay. That answers it. Yeah. With that, I know we have many questions from the audience. I'm over time. Thank you so much, Summer.

One of the questions that came in on the RSVP, many of them involved spendthrift trusts, and also just the difference between a trust and a will, and also special needs trusts. And first, on the difference between a trust and a will, Summerfield, is it correct that one of the main differences is that a will is public record, and a trust is private?

So for example, if you are somebody important, I've heard that Robin Williams kept everything in trust. Nobody knows anything about his, very little about the passing of his estate, because it was all in trust, whereas we know other people have not done that, and they are in wills and they are public record.

So that would seem to me to be one consideration in going a trust versus a will. And then another one that I heard is that a trust moves along quicker. If you want your beneficiaries to have their, what you've left for them, smoothly and quickly, you put it in a trust, a living trust, or a revocable trust, just to get it there right away.

The trustee just hands it over, whereas a will, most of these, everything is distributed towards the end of the will. It takes a while for the will to progress through the system. And it could take months and months for the beneficiaries to get there, what they have been given.

Have you found that to be true? That is true. That is true. And yes, because the will has to be probated, approved by the court, and that takes time. And then even after that, once the executor is appointed, in New York, there's a statutory period of seven months over which creditors have the right to submit claims on the estate.

And so while the executor technically, right when he or she is appointed, can make distributions to beneficiaries, it's generally unwise to do that because if expenses come in, if claims come in, and the executor is given out money such that he or she can't meet the burden of the expenses that come into the estate, then he or she is personally liable to the extent that he gave that money out, liable on those legitimate claims.

So as a practical matter, executors typically wait the seven-month period, even after they've gone through probate, before they'll make the beneficiary designations. And trusts are quicker. Now it's a little bit of a catch-22 in that you're going to have to go through some paperwork and hassles with either a living trust or a will.

Unfortunately, it's kind of unavoidable. The good thing about a trust is that you handle the hassles ahead of time. You deal with your own financial institutions and banks. You show them the trust document. It's not like a traumatic experience or anything, but the financial institutions, this isn't a top priority for them.

They're not getting new money or new customers. They're just having to do bureaucratic change of ownership forms. So they're not particularly motivated to be helpful or quick. So it is a little bit of a frustrating process. But if you go through it and you complete it, then the benefit is, yes, when you pass away, you don't have to go to the court.

You don't have to deal with probate. The assets will transfer by trust when you go to the financial institution and show them the death certificate. I mean, you have to fill out some forms, but it's a much smoother, easier process than the probate process. And also another thing, a trust can provide for periodic distributions to a beneficiary, for example, children, elderly people, and even if, and this gets into some of the other questions on the RSVP, about leaving funds, leaving your estate to children who may burn through their money very quickly.

If you leave it in a trust, it's true, isn't it, that you can distribute it over time, whereas in a will, can you do that? Well, yes and no. And that's a good, you're bringing up an excellent point. And because we've, so far we've looked at trusts and wills as two separate things and not being intermingled and not working together, when in fact they can and do work together oftentimes, and in this sense that oftentimes in a will, people will set up a trust and a will.

So it's not a living trust where you've gone through all the rigmarole before you pass away of retitling your assets into the name of the living trust. Rather in planning your will, you've written the trust into your will. And like with the example with children, you can say in your will, if I pass away before, you know, while my child is a minor, then my gift to my child doesn't go directly to him or her, it goes in trust.

And yes, and I direct that one third of the trust be distributed to my child when she's 25, the second third gets distributed to her when she's 30, and the final third gets distributed to her when she's 35. You can set that up exactly how you want. But then that's a trust in a will, not a living trust, but a trust in a will.

And those actually are, you know, are fairly, fairly common, generally, a little more common than the living wills. So, Well, before the next question, I want to just mention that I did read somewhere, there are only two things we should never do ourself. The first is anything electrical. And the second is prepare our own will.

But I don't know about the second one so much because Vogel heads are pretty, they're very detail oriented. Right. The other question had to do with spendthrift trust, we had two questions on spendthrift trust. What is a spendthrift trust? Well, spendthrift trust is basically a provision or a type of trust where you're saying that the assets in the trust cannot go to creditors of the beneficiary, or cannot go to reimburse, say the government for public assistance that may have gone to the beneficiaries.

So it's basically seeking to streamline the funds in the trust to go directly to the beneficiary for the beneficiaries enjoyment or be applied for the beneficiary for education, support, maintenance, something like that, just to prevent some kind of leakage where a creditor or spouse or someone can get at those funds.

And that's a benefit of that kind of a trust. As opposed to if you simply handed the money over via a will or via a gift, if you give it unfettered to a person, then yes, if they get sued, if they have creditors, if they get divorced, if they apply for public benefits, their assets are subject to being lost.

And it is a catch 22 though, because you do see situations where trust for people are helpful for the beneficiaries, but you also see situations where beneficiaries are resentful that they aren't simply left the money. Sometimes they feel slighted, like what you don't trust me to manage my own money.

Like I'm not an adult, I can't handle things. Sometimes they can feel resentful of the trustee. The person can say, I have needs, I need to buy a car, I have a health issue. And the trustee is being stingy with me. They're not releasing the funds for my wishes or my needs.

So it cuts both ways, but obviously you have to evaluate your own situation and make the best decision you can. Thank you. Okay. Carol, do we have any questions from the chat? Yes, we do have one that is in Florida, but I do believe it should have some general applicability.

First of all, are you aware of any special treatment of a primary residence in Florida regarding it, allowing it to avoid probing? And if so, assuming you have beneficiary designations on all of your other assets, so you don't otherwise need to go through probate, how would you direct who your house goes to?

Would you use a lady bird deed? And just for this question, there is no wife or children. Oh, yeah. If I were a Florida attorney, hopefully I could answer that. But unfortunately, in New York, we don't have those kinds of things. So I really, unfortunately, I'm not able to answer that.

Okay. Thanks anyway. Sure. Sure. Oh, Alice. Yeah. So we have a question from Steve. What are your thoughts on checking and verifying a will with chat, chat, GPT, or other similar programs? To be honest, I'm unfamiliar with with those programs. I mean, I know about the wheel kits and those kind of things.

Um, yeah, I don't. Yeah, I guess, yeah, I really, again, I have to plead ignorance. I mean, to the extent I mentioned earlier that I think that, to the extent you can keep things simpler, and maybe a simpler program or just following the will of an attorney is done for a family member, I personally would recommend that a little more than trusting yourself or specific programs that because the will of your grandfather that you have, I think the odds are pretty high that that's gone through probate, and, and held up to the court review, whereas something that comes from the computer, you know, probably hasn't hasn't had that vetting.

Yeah. Um, thank you. The question regarding the Lady Bird deed in Florida, we can push that question, perhaps towards the end of the meeting. And because there are Florida, there are Florida people here, and we do know a little bit about the Lady Bird deeds. Okay. Um, let me see.

And by the way, the states that have Lady Bird deeds are Florida, Texas, Michigan, West Virginia, and Vermont. And a Lady Bird deed can be in other states. But it's called an enhanced life estate deed. It's not a trust. It's a deed. But why don't we put that question at the end of the meeting, so that we can discuss the other questions.

Now, let me see, Lucas, are there any other chat questions? Yeah, yeah, there's a few more. Um, thanks. Thanks, Summerfield. Thanks for this insightful discussion. Um, so one, uh, one question was, if a will is created in one state, and you have moved to another state, is a new will suggested or required?

Um, what I recommend to people is I say, take your will that we've done in New York and show it to your attorney in Michigan, or a new attorney in Michigan and ask that individual. Because the state laws are generally similar in terms of the requirements for, you know, witnesses and all that and a will.

But like, my main concern with that is, I could see where, say, in Michigan, the specific statute setting forth what the witness affidavits have to recite, it could be slightly different. So that while the will that we did in New York is still valid, the Michigan court, when the person passes away, may want their specific will witness affidavits to be signed by the witnesses we had in New York.

And in 20 or 30 years, for the people in Michigan to try and locate these New York witnesses and get them to re-sign affidavits, that's, that's enough of a challenge where in that situation, I would recommend, and I imagine the Michigan attorney would recommend, let's just do a new will here in Michigan.

But the short answer is, take it to an attorney in the new state to be best guided. Great. Great. Thank you. Sure. Carol, any more questions from the chat? Yes. Would there be a circumstance under which it would be a good idea to videotape the signing of the will to demonstrate sound mind and intent?

Yes. And, and I've, I've never done this and I've never been involved in a case where it has been done, but, but I have read literature. There are attorneys who say, and it makes sense that in certain situations you would want to videotape, you know, if a person has some kind of illness or disability, or they're really quite old or something, and you sense that there could be a challenge, then it makes sense that a videotape could be very valuable.

But I've also read and heard where it could backfire as well. I mean, you could have a person who really has capacity, but they could look somewhat frail and fragile. And just that appearance could raise an inference that they don't have capacity. So the answer is yes, but I think you need to be a little bit careful with that, so.

Thank you. Alice. Question from Jim. Can a will be modified by strikeouts, initials, et cetera, or do you have to redraft the company will? Well, it can be modified at the time of the will signing. Like, I mean, it happens with some frequency that, like a will I've prepared, maybe I've made a typo, or a person's address has changed, or the testator themselves, they'll want to make a change sort of at the last minute.

And so it is fine at that point, when you're having the person sign their will, to do a line through that kind of thing, and you have the witness's initial and all that. As a practical matter, that's not-- well, it's not a big deal. The courts down the road, when you go to probate the will, they will want an affidavit just about that little change, which is not a big deal, but something to keep in mind.

Where you can't do a cross out is after the will has been signed and witnessed. Like if the testator takes the will home, and a week or three years later, they want to make a small adjustment, doing a line through, that can invalidate the entire will. So you'd want to go back to the attorney and redo it.

How would one know, Summerfield, whether it was done for your post? That's an excellent point. I suppose you'd have to look at the documents. If I've had a typo, or the testator's changed something at the last minute, I think whether I have the will initialed, and then-- I was going to say I put the date on, but I don't think we've done that.

I think you just have to look at the totality of the-- probably looking at the-- because the change should be initialed by the witnesses. And you've got the-- if the handwriting for the initials doesn't match the handwriting of the witnesses at the end of the will, then that's a red flag that the testator or someone has done that themselves.

So-- That makes sense. The strikeout would be initialed, and perhaps dated, at the time of the signing. Right. Yeah. OK. We have another question from the RSVP. And this says, how do you handle firearms in an estate? None are NFA items, those requiring the ATF approval and tax stamp.

There is a mix of firearms. Most go to the son and the rest to the wife. Do I place them in a trust or in a will? And I read years ago not to list individual serial numbers in a will. Right. My recommendation for that would be that you say in your will, I leave my personal property or my household effects or items in my home, items in my garage, I leave them to my executor to distribute as I have made known to him or her in a separate writing.

So you're not actually mentioning, you're not putting down in your will that you have firearms. That's something that people do a lot of times for jewelry and that kind of thing. Because again, like we mentioned earlier, wills are a public record. And I think to the extent that you can not reveal every specific property that you own, I think that's probably better.

Now, just so you know, like in New York State, within nine months of being appointed as executor, an executor or the attorney for the estate is required to submit an inventory to the court. And that inventory, one of the questions asks about firearms. And if there are firearms, you have to indicate that there are in the estate.

And then there's a separate page you have to submit about the type and all that sort of thing. So in some cases, it's unavoidable. I mean, if you could leave the firearms, gift them prior to passing away, I mean, that's one option. A trust could be an option, but I'm not sure that that would actually work.

I guess you'd have to check with the licensing authority in the state. And if the licensing authority will allow a trust, like if you can register the trust as the owner of a weapon, then that's fine. The trust can hold the title to the guns and that would pass separately from your estate.

But I'm a little bit doubtful that the gun licensing authorities in the state are going to allow a trust as opposed to an individual to be the registered owner, because then the background checks and all that. But that's something you could look into. Summerfield, are there other things that you should not put into a will?

For example, in the chat, they talked about funeral arrangements, organ donations. What I understand is that if you put those in the will, usually you're going to be long gone and buried before will is even found, perhaps. Exactly. I mean, it's not so much, I mean, putting it in the will, that's, I mean, that's, yeah, it's not going to help, but it's not the end of the world.

The problem is if you rely, if you haven't done it elsewhere, if you're relying on the will to, for the organ donation and for the funeral, handling the funeral, yeah, it's going to, it's going to take too long. You should, you know, have it in a separate letter to your executor about your, or your family, about your funeral arrangements and last service.

And you should have on your driver's license or on something with your doctor, you know, the, the organ donation form, you know, have that done before. If you want to put it in your will also, that's fine, but don't rely on the will because like you say, it's going to be too late.

Lucas, any more chat questions? Yeah, let's see. One of them was, you know, what are the pros and cons of designating beneficiaries in a brokerage account? For example, like a TOD designation versus designating beneficiaries specifically in a will? Well, the pro, I think we've talked some about the pros.

The pros are that the money is, if you designate someone on your account, as opposed to in your will, the money is 99% of the time going to go to the beneficiary much quicker because you just have to show a death certificate to the financial institution. You don't have to wait for the probate process, the estate process to go through.

I mean, I suppose there, you know, strange circumstances where it could be a negative, like I remember I had one case, I think, where someone had left a beneficiary designation on their bank account to a family member, but they spelled the person's name wrong and the bank was very difficult about turning over the funds because the name didn't match exactly.

And in theory, if you did that by will, probably you wouldn't have, the court wouldn't give you such a difficult time. I mean, another sort of, just to play devil's advocate, you could leave beneficiary designations in your accounts and then forget about them. And then when you go to set up your will, you could have your whole estate plan put forth in your will, and the fact that you've done the beneficiary designation is going to throw off what you plan for in your will.

So, but if you integrate, if you know all your assets and your beneficiary designations in your will, you're going to avoid that pitfall. So. Okay. Thank you. Bob, I'd like to open it up for raised hand questions. Do any of the, does anybody have a question they would like to raise their hand and ask?

1, 2, 4, 8. You're mute. Hi, 1, 2, 4, 8. Are you ready? Yes, I am. Hi. Hi. I have a question that I, I had a question that I submitted via RSVP, it applies to at least nine states of the union and in parts, five or six others, and that deals with the difference between estate documents drafted in a state that does not have community property laws versus then moving into the state that does.

So that was my question, and I wonder if Summerfield has anything to comment about things to watch out for in that instance. Yeah. I really, unfortunately, I really can't say much to that because I've only practiced in New York, you know, which is not a community property state. I haven't had, I mean, I've had some experience with people who leave the state and come into the state, but I've never been involved in the community property issue.

I think the only, my only advice would be if you do change states to speak to an attorney in the state in which your new state, just to try to figure, yeah, figure all this out. And Summerfield, for folks not familiar, can you clarify what it means to be a community property state?

Community property, if I remember my history, I think the, well, there's part, I think, with just laws in terms of divorce and spousal property, I think that's different. And it may even be tied in, and you guys may know this better than I do, some of you, but I think that, you know, when we set up our legal system in America, most of the legal system was modeled, most of the states modeled things on the old English system, the common law in England, and statutes and all.

But the influence of the French and Napoleon, like Louisiana was in the Napoleonic code. And so that was a whole different, you know, just legal history background precedent. So I think that that's where that comes in. The community property states are, they're out west usually, Alaska, Arizona, California, Idaho, Nevada, New Mexico, Texas, Washington State, also Tennessee, Wisconsin, and Louisiana is its own thing.

Yeah, I mean, generally, I think states are, look to do the similar, you know, very similar type thing. I mean, I'm sure there are differences in terms of rules and regulations, but like with spouses being disinherited, it would surprise me greatly that there were certain, if there were certain states where you could completely disinherit a spouse, you know, that.

For example, Florida is not a community property state. But as you mentioned earlier, you cannot disinherit your spouse in your will, you do have to provide for them, I think it's 30% and for your minor children. So it's not a community property state, but it does still, the goal of it is to provide for, you know, your family so that they're not out on the streets.

Sure, sure. Yeah, the question didn't arise from an intent to disinherit, it arose from the context of just making sure that the estate plan wasn't screwed up by, you know, the new laws in the new state. So I am an attorney, but I'm not an estate lawyer. So since I am an attorney, I'm trying to find out the answer to the question before I ask it on the record.

So I thank you, Summerfield, for your advice, but I am going to hire a lawyer, I just kind of wanted to know what the answer was before I did. Sure. I mean, to me, the thing that always pops into my mind in terms of different states is not so much the will per se, but estate taxes.

Because, you know, some states have an estate tax, and others don't. And there's always the federal estate tax, but that's at a very high threshold. So that doesn't really apply to many people. But some states have, yeah, the state taxes that do to apply to a lot of folks.

Right. Yeah. But for example, on ours, we did one thing with a house in our primary, in our former state. And then now in the community property state, we bought a house. So it's going to get treated differently in the estate. So but I have a special needs trust to deal with.

So I'm well on my way, but I just was looking for your perspective. So thanks for considering the question. Oh, sure. Sure. And good luck. Good luck. Thank you. Thank you. Does anybody else have a raised hand question? Miriam, in the absence of other raised hands, I'll, I'll ask two more of Summerfield that we ran out of time, which is Summerfield, can you give folks high level summary of healthcare proxy and medical directive slash living will?

Sure. Just like the power of attorney was for your financial matters, the healthcare proxy is for your healthcare matters, where you're appointing someone to make the decisions that you would make if you had capacity, if you could communicate them. So I mean, in my experience, doing the financial power of attorney is is more important than a healthcare proxy.

Because if you fall ill and go into a hospital, the doctors are going to speak and take direction from your closest blood kin, even without a healthcare proxy. But if you go to a bank without a financial power of attorney, you're you're you're, yeah, the bank's not going to honor the requests of your close family, they're going to insist on something in writing.

So and but and to go along with the healthcare proxy, you can also do a medical directive, which is basically your statement of what kind of treatment you'd like to accept or refuse at sort of an end of life situation, you know, whether you accept artificial respiration, cardiopulmonary resuscitation, you know, all that sort of thing.

And in New York, at least there, there's no specific statutes that say, as with the power of financial power of attorney, that doctors and hospitals have to honor a medical directive. But in cases that have gone before judges, if someone has a statement in writing that's witness that says, I want the plug to be pulled, if I'm in a coma, the writing holds up is given more weight by judges than testimony of friends or family saying, Oh, Susan always said if she was unconscious, she you know, she wanted the plug pulled.

So Carol, do you have any more Alice from the chat? Yeah, there's a couple more. This may have already been covered. But there are two questions that were basically the same thing. If all of your assets are passing, you know, directly to beneficiaries via beneficiary designation or transfer on death.

So there's two parts of this. What happens if you don't have any money to pay in this, there's no state to pay those final bills? And the other question is, like, should you leave part of your money to make an estate just to pay final final bill bills? Yeah, that's an excellent question.

I haven't personally encountered that situation. I mean, I suppose it's possible that certain Yeah, I mean, yeah, it's possible what you know, whether it's taxes, or I don't know, child support or something. Or a lawsuit, I suppose it's conceivable that those entities, those creditors could somehow reach into assets that are left to D or directly to a beneficiary.

I could see that happening. But but that this is just based on hunch as opposed to knowledge. So ultimately, I don't know, I've never encountered that. But I mean, as a practical matter, though, I think it'd be very difficult for any creditor to get at those assets if they don't come into an estate, if they've waited till the person dies.

So as to the second question, should you leave something to pay those final expenses? I mean, every situation is different. I would probably say, yes, you should do that unless you've made some other kind of arrangement. Like if you've made a prepaid funeral, set up a prepaid funeral, unless you've maybe asked your if you have life insurance, you've asked your life insurance beneficiary to make sure that certain obligations were taken care of out of that life insurance money, you know, or maybe, yeah, have a have a joint account with a trusted person so that and have them use the the joint account funds to pay off certain expenses.

So. Thank you. Yes, Steve. I was just curious if you had any recommended books on this subject. It's so complicated and it's kind of hard to get a big picture view. I almost feel like a flowchart would be super helpful or like this thing supersedes the next thing, supersedes the next thing.

And like, I don't know, I just write myself like, well, I just found myself like looking on Amazon and I found like the top 10 estate planning books, but I was wondering if you had any recommendations. I don't. You know, to be honest, it's it's it's interesting. I have never the only book I've read about like a state and estate planning was the book.

Well, I forget it was about the Johnson and Johnson estate contest in the New York County Surrogates Court with that that older fellow who married his much younger maid. So I and that was more of an entertainment type thing as opposed to the nitty gritty of the state. So I honestly I don't have a book recommendation.

One thing you might consider is, you know, sometimes local libraries or a university or even a bar association or and like Schwab or Vanguard, they may have programs where they would maybe something like this or something, but where they would have written materials about estate planning, estate process. That might be something to to explore.

Thank you. There is one thing about beneficiaries, Summerfield, and that is and this came up in the chat. Also, the power of attorney, a general power of attorney that that is created and it covers everything. You know, I mean, we have family members who have powers of attorney that are like twenty five pages long and it covers everything, every every aspect of your life, the power of attorney, the banks, the this, the that, the doctors, the everything.

But really, when you go to when you have Vanguard, Chase Bank, Fidelity, Wells Fargo Bank, those institutions, the financial institutions want their own power of attorney because it specifically addresses what that institution does and they have your money and they have sometimes millions of dollars of your money and they want to make sure that the beneficiary, the power of attorney, everything is correct and accurate.

And so they, for example, at Vanguard, we're at Vanguard. We used that. We made sure that we use their powers of power of attorney, which is called the full agent authority. And it is a little process to set it up. But once you set it up, it's at Vanguard there.

You don't have to worry about bringing your own and, you know, emailing it to them or faxing it to them. And they're just not going. They may not accept it. First of all, I'm not going to it's just so thick. Sure. Sure. And we have on the forum posts where people go to Chase Bank, they go to Wells Fargo Bank with their power of attorney and it's worthless.

It's not useful. Right. It doesn't work. Sure. Sure. Yeah. Now, I think the banks. Yeah, I mean, in New York, they recently changed the law where they've made it now where banks have to provide a specific reason for why they are rejecting a power of attorney. And if it turns out that that rejection is unreasonable, then banks can be liable for a limited amount of money damages for not honoring a power of attorney.

And I think banks run a little bit of a risk when they when they do that, you know, just automatically reject the power of attorney. But yeah, nine times out of 10, they're going to get away with it. So it makes sense to be proactive and try to make sure that you have the power of attorney that the institution is going to honor ahead of time.

So it makes it easier. Yeah. Yeah. Any other questions, chat raised hand? There's two related questions in the chat. One is from Mark saying, do you even need a will if all your assets have beneficiaries? And Uzma says, if I only have assets and accounts that have designated beneficiaries, I have no property, just an old car, nothing expensive in my home, do I need a trust?

Will I have to go through probate for these meager assets? In terms of the trust, yeah, I would say probably not unless you have one of those scenarios where you have someone that you want to benefit who's disabled or if it has to go through the estate. If you have a situation where someone in your family may contest the will or you don't quite know your family tree, that kind of thing, which is going to complicate the probate process.

And you never have to have a will. It's just, if you don't have a will, it's harder for your family, the person who's going to be handling your estate to function. And one example is if you have a will and you submit it to probate, and let's say you do have a problem with someone objecting to your will or you don't know where a family member is, you have to do a due diligence search and that draws out the process.

You can still apply for what's called preliminary letters where the court will give you a preliminary appointment and allow you to marshal assets. Let's say the decedent has a portfolio that's in a risky stock and the stock is going down and you need to sell that stock before it just bottoms out.

You can get the preliminary letters, sell the stock before it's plummeted, sell the home before it's foreclosed on. So having a will in those situations really saves the day, even though you have to wait time to ultimately finish the process of turning over the assets to the beneficiaries. Flip side, you don't do a will, you still have the assets that are tanking.

You have a home that's in foreclosure. If you don't have a will and you submit in your application to be appointed as the estate administrator, it's going to take time and the court, because there's no will, they can't give you preliminary letters. They can't give you the advanced authority to sell assets to protect the estate.

The chances of it happening are not that great, but there are scenarios where if you don't have a will, you're kind of stuck just waiting for the court process to go through, and meanwhile, the estate can lose value. So while you don't have to have a will, even if your assets are with beneficiary designations or you don't have a lot of assets, I'd recommend getting a will, even if it's a basic simple will, plus until you die, you never know exactly what's going to be in your estate.

In theory, at the last minute, you could inherit a lot of money. You could be a victim of medical malpractice, or you could get hit by a FedEx truck where all of a sudden you have a big lawsuit. You never know at the end of the day how much money could be coming into your estate.

And money that's from a lawsuit or something or an inheritance, it can't go into the trust you set up. It's going to have to come into your estate. So for that, better to just have a basic will in place. Thank you. Mark. Mark Seipan. Mark, you're on mute. Hi there.

I think you just answered a lot of the questions I just had about wills and needing an actual trust in addition to the will. I know that Miriam, we're going to stay on a little after to discuss a primary residence in the state of Florida, which is homesteaded, and my understanding, avoids probate.

The question we can discuss later, Miriam, I guess is, is a ladybird even necessary if you just have a will that designates where the home goes? And I know some of you, I know you can't really answer that being in New York, but my general question to you is, if you do establish a will, then a trust should be added if you feel there's a need for that.

You just don't do a trust without a will, is that correct? Yeah, that's what, yes, and that's sort of the standard practice that I've seen in New York is, yeah, you always, I mean, you, some people do wills and don't do trust, but you never sort of do a trust and don't do a will.

Yeah. Okay. Okay. Thank you so much. Sure. What do you say? You think we are? I actually have, so, Summerfield, this is phenomenal. We're very respectful of your time. If you have a few more minutes, I have two more questions and any closing comments. So midnight, midnight Pacific time.

So one is throughout your comments, I think folks can gather some best practices, but I wanted to see in your, you know, years of experience, if you would elevate certain things that have been exceptionally helpful in the planning stages. So one example is a list of accounts, contacts, where things are located, you know, things like that.

So that to me seems probably intuitive, but maybe a lot of people don't get to it. So if you have other things like that, that's one. And then what would you, what guidance would you offer folks who were procrastinating for whatever reason, started a will, didn't finish it. They feel overwhelmed.

They keep putting it off. What do you say to folks like to simplify the process and have them move further? Right. Well, one thing that I think helps psychologically with that is to know that you can always change your will, and in fact, you probably will change your will at some point, but just to have something and particularly, and, you know, like if you have children that are minors, just the fact, just, if you just did a will that did nothing, but simply named the guardians, that would be incredibly meaningful because like, if you have kids and God forbid you and your spouse, assuming you have a spouse, both pass away while the kids are still minors, it's basically a free for all as to who's going to raise your children and who's going to have control over where they go to school, their medical care and their money.

I mean, the court would, the court and hopefully your family would try to come to the best solution, but it's so much better if you can pick, pick the family member or the friend that you want to raise your children ahead of time and have that, have that, you know, set up and, and of course, and, you know, the next, the day after you sign your will, if you feel like you've made a mistake, you just call the attorney and say, you know, we need to change it.

We need to do it differently. So maybe thinking a little bit less of all or nothing and more in terms of let's make things a little bit better than what they were, I think that can help overcome that, that procrastination makes sense. Something is better than nothing. Getting it started.

Yeah. Yeah. Uh, finalizing a preliminary version and then making updates whenever you need to. Yes. And also, and it used to be, you know, they used to have codicils and yeah, like my mother had an aunt who had like 20 codicils to her will, and she was always leaving people out and you know, this kind of thing.

Can you explain what a codicil is for folks who don't know? Yeah. Codicil is like a brief addendum to a will where you make a, well, I say brief, typically they're brief. They can be any length, but yeah, typically it's, it's just sort of like an amendment. Like people, we were talking earlier about, can you just write in a change to your will, hand write it on your will after you've signed your will?

And the answer is no, but, but so what people have done over the years is they've done codicils, which are brief kind of mini wills as addendum to the main will. They're out of favor these days. And the reason is because if you do a codicil, it's a second will execution ceremony and you're republishing the first will as well.

And so any objectant now to your will, they can attack either the codicil or the will itself and the witnesses, the will executions. So it's giving two, an additional opportunity to try and knock the will out. And in the days of word processing, it's so much simpler and easier just to, you know, type in the change on your will, print it out and sign again before witnesses, as opposed to doing the whole codicil business.

So it's not, I mean, attorneys will charge for redoing a will, but it's not as much as for the first go round. So it's not that big a deal to, to update, change your will. So. Understood. And perhaps you could, you could couple it with a fun event the way you said ceremony.

Sometimes people have a house painting party, get a bunch of friends, you get a few pizzas, you could have a codicil re-signing party or, you know, the new will party. Yeah. Yeah. Yeah. Definitely. So let's do one last round of questions. Alex, Alice, Carol, Lucas, Miriam, any raised hands in the audience before we sign off with Summer Fields?

I saw one more in the chat. I'll sneak in. What happens if the survivors can't find the original will and only have a copy? If that's the case, well, this is a very good question. It, a copy can be used as a substitute, but it's easier to have a copy used as a substitute for the original.

If the original wasn't held by the testator, the person who did their will, and the reason for that is there's a legal presumption that if a will is lost or destroyed while it's in the custody of the testator, there's a legal presumption that he or she intentionally revoked the will or tore it up intending to revoke its terms.

So it's harder to have a copy admitted as the replacement than if you have the attorney or if a friend or a family member has the will and it gets lost or destroyed. So the short answer is, yes, you can have a substitute copy be probated, but it's more likely that's more likely to work if you're not holding on to your own original will.

What if like there's a fire and it burns with your house? I mean, I suppose if you can document, well, yeah, I suppose, well, yeah, I mean, I suppose there are scenarios where, you know, the testator has their own own will and you can somehow there's proof that they didn't destroy it or whatever.

But all things being equal, you're better off having someone else hold it regardless of how the destruction happens, so. We have a question, Gorrie, and Kyle, I'm going to try to ask your question. It would involve a corporate trustee, I would imagine Kyle's question is whether to use a corporate trustee for your trust versus a family member as a trustee.

But I thought in a living trust or normally a regular trust, a revocable trust, the person making the trust would be the trustee. And then you have a co-trustee, which would be the corporation or your spouse or a child or a family member. Right, or successor trustee, usually a lot of times for trust, you name yourself.

And then but if you're disabled or incapacitated or pass away, it's a family member or a corporate trustee. Corporate trustees can be good. I mean, in my experience, and you hear that they're generally only willing to take on a trust or an executive position if there's like a million dollars or something.

But you know, typically you it's good if you can have a family member be an executive or trustee so they can benefit from the commission. And also they can always they can have control and they can hire attorneys, accountants, investment people to help. But certainly there are institutions that have served very well as executors, co-executors, trustees, co-trustees.

So it's really just sort of a particular person's preference and where their loyalty, where they feel they'll get loyal service. The person answered and says on the corporate trustee, we have minor children. If we die, while they're minors, our family would take the children and be excellent family figures for them and parents for them.

But they're not very money smart. They're very casual with money. So therefore, we are considering a corporate trustee to manage some form of trust for life insurance policies, as well as our other financial assets, and this would be for the minor children. Can you discuss the pros and cons of a corporate trustee in a scenario where they're being handling minor children?

Right. Well, yeah, I would say the pros would be what you've described in terms of the corporate trustee having more savvy for financial management, investing, that kind of thing. And also there can be a benefit too in having an outsider hold the funds, the family funds, because sometimes if you have a family member hold the funds, it can affect the relationship between the young people and the individuals holding the money.

There can be a tension there. Whereas if you have an outsider, you kind of can avoid some of that. The potential downside, it's not a huge thing, but the corporate trustee is entitled to fees, statutory fees. So to the extent that an outsider is getting the fees as opposed to a family or friend, that could be considered a disadvantage.

The second thing, a potential disadvantage, and I think this goes to what we spoke of a little bit earlier in terms of having the right mindset for being an executor or being a fiduciary in terms of loyalty and service. I mean, you do hear about situations, see situations at times.

If the money situation changes, if God forbid, a lot of the funds in the trust need to be spent for medical or something unforeseen, and the trust balance goes down, does an institutional trustee necessarily have the loyalty and attachment to stay with the trust in lean times? I mean, a family member or a friend may not have that stick-to-itiveness either, but that's just something to consider.

And then aside, I remember reading an article years ago in the New York Times about a corporate trustee. Well, I think he was an attorney, might've been an accountant who handled the trust of a family when the parents had been killed, and he basically raised the children from the financial point of view.

And the article pointed out that there are actual people, trustees, corporate trustees who specialize in that, or whose practice is geared towards children and also special needs, trusts, that sort of thing. So you might have to search around to find one, but I think they're around. Sure. Yeah. There are attorneys who will be guardians, be trustees for private trusts.

You're not necessarily limited to either a big bank or a family member. Yeah. Summerfield, I noticed a question in the chat that I think is interesting. So we've evolved where electronic documents that are signed serve as bona fide legal documents, the equivalent of paper, original signatures. How does that apply to a will?

Must a will be paper or is electronic valid? Yeah, that's an excellent question. To my knowledge, yeah, I've never heard about a contemporary will being done on anything but paper. I mean, I don't think the statute specifies paper, but I think as a practical matter, unless it's some kind of an emergency where you're literally sort of passing away or something, I don't think you would want to take that risk and be sort of the test case by doing an electronic thing.

I think you'd want to, for no other reason either than just having your will go through in a timely and standard manner as opposed to the novelty of having the court try to figure out what you've done, kind of as an alternative. So I would encourage just going with the tried and true, but yeah, the way I know for notarization with COVID, they changed the rules on notarization.

And I personally haven't done any of the remote video notarizing because the rules and regulations are so cumbersome and convoluted, it's just not worth it for me to try to figure it all out and deal with it. But as technology changes and stuff going forward, I guess we have to keep an eye on that.

Right. It goes back to the written on the hide of a cow alternative. Yeah.