Plan For Your Last Big Event

Recently, I met a man whose father died suddenly back in IL where he grew up. He was returning home to CA from the memorial. The man shared his father became suddenly sick. Within days of being admitted to the hospital, they called and told him to get there quick. He said that when he arrived, his father took four breaths and passed. I could see the shock and numbness in this man’s being from the experience of his father’s passing. The man said his parents were by no means hoarders but that he felt overwhelmed by his sadness and at the possibility of having to go through the house and make the final settlement of his father’s affairs.

In an article by Lawrence R Samuel Ph.D. in Psychology Today entitled “Death, American Style”, (*see link below) Dr. Samuel states: “Over the past century, death and sex battled it out to be the number one unmentionable in America; these two topics were most reflective of our shame and embarrassment when it comes to all corporeal matters. But death has surged way ahead of sex on a “forbidden quotient,” I think most would agree; the former is now firmly ensconced as this country’s leading source of uneasiness, discomfort, and apprehension.”

I’m confused by our cultures shyness of the subject of death. We celebrate and plan for birth. When planning to have a baby, we attain the best doctor we can, we read books on pregnancy, organize for the baby’s arrival and we prepare the nursery. Wouldn’t it make sense to plan in a similar way for death?

Both will happen organically, but certainly with some planning and education both can go much smoother for you and your family than with no plan or care at all.

Here are some basics to consider.

1. Attain a will or trust

2. Establish a power of attorney or springing power of attorney (see my previous article on this subject)

3. Create a Living Will, Health Directive or “Five Wishes”

4. Consider pre-planning your Funeral, Memorial or Celebration of Life

5. Convey your plan to your family or designated trustee

Even a person of modest means needs a trust or a will. A trust or a will conveys your wishes and legally indicates how your property will be distributed at your time of death. Depending upon the laws in your state, a trust can save your family 3-10% in probate court and attorney costs, not to mention the time it takes to go through the process that can be months and even years.

Will: A written declaration that names someone to manage your estate and how to distribute your property at death. You must sign, date and have your will witnessed.

Holographic Will: A will made out entirely in your own hand.

Trust: It is a legal vehicle where a property is held by one party for the benefit of another. Property of any sort may be held in a trust. Trusts may be provide benefits in estate planning, asset protection and taxes. It’s important to research the probate & estate planning laws in your state and find out if a trust or will is appropriate for your situation.

Irrevocable Trust: After you place property into an irrevocable trust, you can’t retrieve the property. For all intents and purposes, that property now belongs to the trust.

Revocable Trust: Your property is placed into the trust. You can undo the transfer by removing the property and terminating the trust.

Power of Attorney: Gives an appointed person power to act on your behalf in private, business and legal affairs. You can depict how much power your appointee has and in which circumstances they have the right to act on your behalf. (See article on powers of attorney)

Health Care Directive, Living Will or The Five Wishes:

An incredible amount of money is spent on end of life care in the US. Not enough of those resources are designated into an end of life plan.

A Health Care Directive or Living Will is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity.

An alternative to A Health Care Directive or Living Will is The Five Wishes.

Five Wishes lets your family and doctors know:

  • Who you want to make health care decisions for you when you can’t make them.
  • The kind of medical treatment you want or don’t want.
  • How comfortable you want to be.
  • How you want people to treat you.
  • What you want your loved ones to know.

“Five Wishes is changing the way America talks about and plans for care at the end of life. More than 23 million copies of Five Wishes are in circulation across the nation, distributed by more than 40,000 organizations. Five Wishes meets the legal requirements in 42 states and is useful in all 50. Fill it out on line and print it for $5.”

Most people want to keep assets in the family – and avoid big chunks of money going to probate lawyers and courts. Additionally, they want to keep peace in the family. Creating an estate plan and communicating that plan to whomever has agreed to handle your affairs.

All You Need to Know About Probate

When you see the dead body of your loved one, you are in a terrible state of shock. No doubt you have got nothing to do with the property, the money and the inheritance that you have been assigned with, deep down inside, you know that you must go on and live your life with a smile after a few days. After all, no one can control death and the things that are beyond your control make you surrender in life.

If you have recently lost a loved one and have been assigned with inheritance, you must know about the concept of probate. The word probate stands for proving of a particular will, which is written by the one, who wishes to pass his money or property to someone he trusts and adores. For an instance, if your father has a huge property, there are a lot of chances for you to be its heir, post his death.

Here is everything that you need to know about this concept:

It is related to:

• All the properties that a deceased individual has
• Repayment of debts that the deceased individual has left behind
• Getting the rights to get the royalties, dividends of stock, etc. that the deceased individual has left behind
• Settlement of all the property as well as financial disputes
• Liquid assets and properties of the deceased individual
• Distribution of the properties to the eligible heirs that are family to the deceased individual

When an individual dies, the will is read and disclosed to the entire family. Depending upon the choices he makes while he is alive, the property is distributed. However, if there are things that have not been mentioned in the will, lawyers are hired to distribute the properties and money in equal proportions to the eligible heirs.

How does probate work?

There is a huge process behind this concept:

• The petitions are filed and the court dates are taken for the individuals
• Probate is initiated with a petition, which is submitted in the court
• The court sets a hearing date within 120 days after the submission of the petition
• The process begins right when a personal representative or lawyer is hired for the hearing at the court
• If needed, additional pleadings and settlements come into the picture to resolve the dispute related to probate
• Finally, after all the hearings, court dates and the long process, the date of closing and distributions arrives. All the eligible heirs are called to the court and the judge announces his decision, based on which the heirs get what they deserve.

Inheritance by Law

Most people prefer not to dwell on this subject, but the fact is that life is transient. Upon the death of an individual, the fate of their property must be decided. Inheritance is the universal practice of passing on property, as well as rights, obligations, debts and even titles.

But although the practice itself appears in some form in all cultures, the rules of inheritance are subject to the jurisdiction where the decedent (deceased) died or owned property at the time of his or her death.

Inheritance in Israel is governed by the Succession Law of 1965 (‘Succession Law’). The Israeli courts have jurisdiction over the estate of any person who at the time of his or her death was a resident of Israel, or who left property in Israel.

The default presumption of the law is stated in section number 1 of the Succession Law, which is that a man’s estate passes on to his heirs upon his death. This includes his fiscal assets, real estate, copy rights etc.

The law stipulates two ways to bequeath assets: by will or by law. If the deceased has left a will, the inheritance will be meted out accordingly to the heirs stipulated in the will. If the deceased hasn’t left a will, the heirs will be those stipulated by law, according to the order of inheritance. These are:

– The deceased’s spouse at the time of death (the only relation mentioned here who isn’t related to the deceased by blood; this may include a common law spouse),

– The deceased’s offspring, including illegitimate and adopted children and their offspring,

– The deceased’s parents, grandparents, and their offspring.

– In the absence of the aforementioned heirs, the State of Israel inherits the estate.

The inheritance will be divided equally between the deceased’s spouse (one part) and the deceased’s children (the other part, to be divided equally among them). These heirs take precedence over the parents of the deceased and their offspring, which in turn take precedence over the grandparents of the deceased.

The spouse will inherit the entire estate only if the deceased has no children, siblings or parents. Otherwise, the spouse is entitled to half the estate if the deceased is survived by children or parents, and to two thirds of the estate if the deceased is survived by grandparents, siblings or other relatives. The spouse is also entitled to inherit the deceased’s movable property, including motor vehicles, which were part of the shared household.

It is important to note that assets belonging to the surviving spouse are not part of the estate which is to be inherited. These may include up to half of the value of the couple’s assets, due to the operation of the Spouses (Property Relations) Law 5733 – 1973, the principles of joint ownership of property, or a property relations agreement (for example, a prenuptial agreement or ‘prenup’).

The right to maintenance out of an estate is also accorded to the deceased’s children until the age of 18 (the court may grant maintenance until a later age in some circumstances), or parents who are in need of financial support and were dependent on the deceased prior to his or her death.

According to section 6 of the Succession Law, an heir may refuse to inherit his or her part of the estate, provided the estate has yet to be distributed.

In the case of inheritance in the absence of a will, the distribution of the estate to the heirs according to the law will begin with a request for a succession order. This request may be handed to either a branch of the Succession Registrar’s Bureau or one of the rabbinical courts in Israel.

The succession order is a valid judicial order. Like a court order, it does not suffer obsolescence, and can be enforced years following its issuance. The order does not specify the details of the distribution of assets among the heirs, but only decides upon the identity of the heirs and their respective inheritance rights.

The request for a succession order must be accompanied by several documents (one original alongside three copies):

– Two receipts: proof of payment of the government levy on submitting a request, from the Postal Bank of Israel.

– A Succession Order Request Form signed by the submitter, who must be an heir, the estate manager or a creditor of an heir. The submitter’s declaration must be verified by an attorney, notary, judge or the head of the local council.

– An original death certificate or a copy faithful to the original.

– Notices to all remaining heirs notifying them of the Succession Order Request, including the aforementioned heirs’ signatures or confirmation of delivery of the notices by registered mail.

It is advised to consult an attorney regarding the exact procedural requirements of the process of requesting a Succession Order. Where the request for the order is made by an attorney on behalf of an interested party, it must be accompanied by an original Power of Attorney or a copy faithful to the original.

The Succession Registrar or a courthouse may nullify or amend a Succession Order (or a Probate Order, which is discussed in a separate article). If the order was granted by a court of law only a court of law may annul or amend it. Any interested party may request to annul a Succession Order; this right is not limited to the heirs of the estate. One of the most common examples of annulment of a Succession Order is when after the order is given it is found that the deceased had in fact left a will. In such a case the Succession Order may be annulled and a probate order must be requested in respect of the will.

It is important to note that there is no Estate Tax in Israel.

 

What Is the Difference

When people talk about the end of a marriage they often mix up their terminology. They sometimes use legal terms that have very specific meanings without due attention. It is common, for instance, to use the term “divorce” to refer to the termination of a marriage in all cases when, in reality, dissolution (or even a legal separation) is meant. The matter is further complicated by the fact that the definition of these terms varies from state to state.

In states like Ohio, where there is a legal distinction between divorce and dissolution, the difference hinges on whether or not the process whereby a couple terminates their marriage is subject to trial. On a personal level, the difference is largely a function of a couple’s attitude toward one another and their perspective on the end of their marriage.

Divorce

Fundamentally, a divorce is a lawsuit in which one spouse is the plaintiff and the other is the defendant. The complainant spouse is suing the defendant spouse with the intent, at the very least, of obtaining the termination of marriage. Often there is more at stake, which may be why the intervention of a court is necessary.

The process involves a specific set of steps. First, a complaint is filed with a court. Once the court has responded, temporary orders may be put in place to ensure that life goes on smoothly for everyone involved in the process before a final decision is reached-that financial obligations are met and that dependents are taken care of, regardless of future outcomes. Next, the parties to the divorce are given time to “discover” any information pertaining to their claims.

Once the facts are on the table, attempts may be made to reach a settlement without proceeding to trial. If this proves impossible, the claims of both parties will be subjected to the scrutiny of a court. This trial may take time and involve lawyers, judges, witnesses, and the presentation of evidence. Having heard and considered both sides of the case, the court will deliver a decree of divorce explicating the obligations of each party in terms of property division, finances, and child care, custody, and support. The marriage will then be terminated.

Dissolution

In many states, dissolution simply refers to the outcome of the divorce process, but in others (like Ohio) it refers to a discrete process, although the result is the same-the termination of a marriage.

Dissolution is an agreement to terminate a marriage in which all details are worked out by the two parties and their attorneys without being subject to trial. The two parties forge a separation agreement that addresses all the same issues as a divorce settlement: property division; debt settlement; spousal support; care, custody, and financial support of any children. Appropriate professional assistance may be sought in the preparation of this agreement, and once ready it will be filed with a court for a final hearing and approval. As long as there are no glaring instances of unfairness, such agreements will usually be expeditiously approved and the marriage terminated accordingly.

Divorce or Dissolution?

Whether a couple chooses to terminate their marriage by divorce or dissolution comes down to a few key considerations. First, there is the emotional factor: How well do they get along and are they emotionally capable of voluntarily exposing themselves to questions and facts that may stir up painful emotions? Secondly, they must consider how complicated it will be to reach an agreement and whether they have the requisite skills and/or patience to do so. Finally, there is the matter of trust. How confident are they in their own and their soon-to-be-former partner’s ability to consider the interests of both parties fairly?

Divorce is an inherently litigious process that will usually involve painful emotions and unwanted sacrifice. If it can be avoided through the use of dissolution, the latter may be worth pursuing. When done right, it can also save time and money. Sometimes, however, matters are either too complex or couples simply cannot get along. In such cases, divorce becomes an unpleasant but necessary avenue provided by our legal system to ensure that a fair outcome is reached for everyone.