Paul O. Dillon, Attorney at Law

Making Your Own Decisions Through Estate Planning

Estate planning is often set aside in favor of more fun activities, like vacation planning and preparing for family holidays. However, once done, it provides great peace of mind. A recent article from MLT News, “Estate planning—making personal choices,” looks at what an estate plan encompasses.

Durable Power of Attorney for Finances and Health Care. These documents allow you to name the person you choose to make financial or health care decisions if you cannot because of illness or incapacity. They can take effect immediately upon being executed or created as “springing” documents that take effect when you are deemed incapacitated. However, springing POAs may lead to delay, so most people choose Durable Powers. Your estate planning attorney will explain the best options for you.

Advanced Directives focus on your wishes for medical care when you are unable to communicate and are nearing end-of-life or likely not to live without artificial means. Your advanced directives can be very specific about what kinds of treatment you want or when you would prefer to be taken off life-support.

Disposition Authorizations are used to convey your wishes for burial, cremation, memorial services, or other terms for what you want to happen to your body after you die. These vary by state, so check with your estate planning attorney. While difficult to consider, if you have strong preferences, it’s best to have them in a written document.

Last Will and Testament direct how you want your assets to be distributed after death. A will is also used to nominate a personal representative or executor who will settle your estate. If you have minor children, your will nominates a guardian to raise them. This is a highly personal choice you can make with a will. Otherwise, the court will decide who will care for your children.

Trusts are used to manage assets during life and after death. A trust is a separate legal entity created to hold assets and distribute them to beneficiaries. A revocable trust allows the person who establishes the trust (the “grantor”) to control the assets held in the trust. However, the trade-off for continued control of assets is that they don’t have the same level of protection as an irrevocable trust. An Irrevocable Trust requires the grantor to give up control of the assets. However, the assets are better protected against creditors and are not countable for Medicaid purposes.

Your estate plan should also include checking on beneficiary designations, which are used in a variety of financial and investment accounts, IRAs, 401(k)s and insurance policies, to pass assets directly to beneficiaries upon your death.

An estate plan includes tax planning to address tax liability by taking assets out of an estate and placing them inside trusts or LLCs (Limited Liability Companies), depending on the family’s circumstances.

For families with members who are disabled, Special Needs Trusts are used to safeguard funds to plan for the individual’s future while maintaining their eligibility for means-tested government benefits.

By creating a comprehensive estate plan with an experienced estate planning attorney, you get to be the one making decisions about your future and your legacy. Without it, the laws of your state and the courts will make decisions about what will happen to you during serious illness, who receives the assets you’ve saved and who will raise your children. We know you’d rather make these decisions than have them made for you.

Reference: MLT News (March 4, 2025) “Estate planning—making personal choices”

Making Your Own Decisions Through Estate Planning

Estate planning is often set aside in favor of more fun activities, like vacation planning and preparing for family holidays. However, once done, it provides great peace of mind. A recent article from MLT News, “Estate planning—making personal choices,” looks at what an estate plan encompasses.

Durable Power of Attorney for Finances and Health Care. These documents allow you to name the person you choose to make financial or health care decisions if you cannot because of illness or incapacity. They can take effect immediately upon being executed or created as “springing” documents that take effect when you are deemed incapacitated. However, springing POAs may lead to delay, so most people choose Durable Powers. Your estate planning attorney will explain the best options for you.

Advanced Directives focus on your wishes for medical care when you are unable to communicate and are nearing end-of-life or likely not to live without artificial means. Your advanced directives can be very specific about what kinds of treatment you want or when you would prefer to be taken off life-support.

Disposition Authorizations are used to convey your wishes for burial, cremation, memorial services, or other terms for what you want to happen to your body after you die. These vary by state, so check with your estate planning attorney. While difficult to consider, if you have strong preferences, it’s best to have them in a written document.

Last Will and Testament direct how you want your assets to be distributed after death. A will is also used to nominate a personal representative or executor who will settle your estate. If you have minor children, your will nominates a guardian to raise them. This is a highly personal choice you can make with a will. Otherwise, the court will decide who will care for your children.

Trusts are used to manage assets during life and after death. A trust is a separate legal entity created to hold assets and distribute them to beneficiaries. A revocable trust allows the person who establishes the trust (the “grantor”) to control the assets held in the trust. However, the trade-off for continued control of assets is that they don’t have the same level of protection as an irrevocable trust. An Irrevocable Trust requires the grantor to give up control of the assets. However, the assets are better protected against creditors and are not countable for Medicaid purposes.

Your estate plan should also include checking on beneficiary designations, which are used in a variety of financial and investment accounts, IRAs, 401(k)s and insurance policies, to pass assets directly to beneficiaries upon your death.

An estate plan includes tax planning to address tax liability by taking assets out of an estate and placing them inside trusts or LLCs (Limited Liability Companies), depending on the family’s circumstances.

For families with members who are disabled, Special Needs Trusts are used to safeguard funds to plan for the individual’s future while maintaining their eligibility for means-tested government benefits.

By creating a comprehensive estate plan with an experienced estate planning attorney, you get to be the one making decisions about your future and your legacy. Without it, the laws of your state and the courts will make decisions about what will happen to you during serious illness, who receives the assets you’ve saved and who will raise your children. We know you’d rather make these decisions than have them made for you.

Reference: MLT News (March 4, 2025) “Estate planning—making personal choices”

How Estate Planning Protect Assets

Elderly people are often targeted by scammers for two simple reasons: they have a lifetime of assets and are often isolated. When no protection is in place, convincing a lonely person to be generous is relatively easy. One family’s situation is described in a recent article from Market Watch: “’She’s still waiting by the phone’: My grandmother gave her life savings to a man she met online. What now?” It provides a cautionary tale for what can go wrong when no estate planning guardrails are in place.

Their elderly mother emptied her healthy bank and investment accounts and sent the money to someone from a foreign country. Despite the family’s efforts to help, she didn’t believe there was a problem. She told police and elder abuse officials to leave her alone, as she was getting married soon and didn’t need their help.

All she now has left is a pension from her late husband, which will cover the cost of the assisted living facility she’s moving to and $1,000 left over every month. Assets in her bank and investment accounts, which included proceeds from Coca-Cola stocks purchased decades ago, will never be recovered. The bank’s position in these situations is that the account owner authorized the transfers, and they have no responsibility whatsoever.

Having an estate plan in place could have prevented some of this. During the process of creating an estate plan, discussions about planning for the future take place to prepare for scenarios just like this one. Here’s how.

Estate plans often contain several documents in addition to a last will and testament used to distribute assets after death. A Durable Power of Attorney would have been created, naming another person, usually an adult child, to control the elderly person’s finances.

Changing some or all her accounts to joint ownership with an adult child might have added another set of eyes to monitor transactions. Alerting the financial institutions to the adult children being added to the accounts could have also been helpful.

If an elderly parent is unwilling to yield control, the family could go to court to obtain a conservatorship (or guardianship, depending upon the jurisdiction) to control the person’s finances.

A court investigator is appointed to interview the person to determine whether they are truly incapacitated and whether there needs to be a conservator appointed. The person has the right to attend the hearing, have their own attorney present and oppose the request for conservatorship. There is a court hearing where the person must appear, and the judge decides based on the investigator’s report and other evidence.

Having a Durable Power of Attorney is far simpler than going through conservatorship proceedings.

The family should also have her estate planning attorney create a Healthcare Proxy and HIPAA waiver, so they can contact her physician and make an appointment for a physical and mental assessment.

The steps taken in creating an estate plan with an experienced estate planning attorney anticipate the need to protect assets, especially for an elderly person. The estate planning attorney may also be able to refer the family to a social worker who can assist with their mother’s peace of mind. When she realizes she has been taken advantage of, she may experience an extreme emotional response, and the family should also prepare for this.

Reference: Market Watch (March 1, 2025) “’She’s still waiting by the phone’: My grandmother gave her life savings to a man she met online. What now?”

Estate Planning Is Essential for Unconventional Couples

A sad story appears in a recent issue of The Parkersburg News and Sentinel, “Legal-Ease: ‘How things might have been.’” It explains what happens to a couple who had lived together for three decades but never planned for each other’s illness or death.

When Bill became ill, his overbearing brother commandeered the hospital room and refused to let Bill’s companion of thirty years, Denise, visit. When Bill died, the same brother barred Denise from the funeral home. Denise was left out of Bill’s obituary and made to leave the home she and Bill had lived in for many years. The brother cleaned out the entire house. He also took the couple’s beloved dog.

Bill’s brother was well within his legal rights to do all of these things, since the couple had never done any estate planning to protect each other. There are many things that they could have done to protect each other.

Bill and Denise should have created and executed medical powers of attorney, naming each other to make medical decisions when they could not make their own decisions. This document would have given Denise the legal power to be in Bill’s hospital room and talk to his physicians. It would also have ensured Denise’s ability to visit Bill and arrange care for him either in a nursing home or at home.

They could have also used the Medical Power of Attorney to nominate each other to be appointed by a court as a guardian if ever needed, avoiding Bill’s brother’s taking control of care by a court order.

If the couple had created Living Wills stating their choices for end-of-life care, each could have made sure they knew what the other wanted and ensured their wishes were followed. For example, a Do Not Resuscitate (DNR) order is used to prevent healthcare providers from performing CPR on patients if they have a heart attack while incapacitated. CPR can leave patients with broken ribs and punctured lungs, and some elderly patients or those near the end of life often choose not to have CPR. Without a DNR order, healthcare providers or emergency responders must, by law, perform CPR.

At the very least, Bill and Denise should have each signed a Durable Power of Attorney, naming each other as their representative for all legal and financial matters. This would have allowed Denise to take care of Bill’s financial and business matters. Bill could have also added a provision in the POA stating that he did not want his brother to be involved.

For unmarried couples, trusts are used to provide protection for the surviving partner. For instance, if the house had been put into a trust with Denise as a trustee, Bill’s brother would not have ownership of the home, and Denise would not be unhoused.

Bill and Denise could have named each other as beneficiaries on a variety of financial accounts, including life insurance, IRA accounts and investments. Upon Bill’s death, these assets would have been paid directly to Denise.

If Bill and Denise had used wills to name each other as executors as well as heirs, they could have left all their worldly possessions to each other and served as administrators of each other’s estate. While a will is not as bullet-proof as a trust, having a will could have protected Denise from being left out in the cold.

Regardless of marital status, couples who want to take care of each other throughout their lives should meet with an estate planning attorney to protect each other. Death and incapacity aren’t limited to married couples, after all.

Reference: The Parkersburg News and Sentinel (Jan. 8, 2025) “Legal-Ease: ‘How things might have been’”

Money Tips for the Coming Year

A fresh start for 2025 should include your financial life and your health and wellness resolutions. A recent article from USA Today, “Start 2025 off right with these 9 money moves,” offers good suggestions to make this new year a good one.

Get out of debt. If you have high-interest debt and high-earning investments, you’re only treading water and not getting ahead. Take care of the high-interest debt first if you want to see your net worth grow.

Try living below your means. Too many of us spend more than we bring in and then try to catch up (See “Get out of debt” above). The more significant the difference between what you earn and spend, the better your savings accounts will grow. If you’re saving for retirement and your kid’s education, changing spending from what you want to what you need will help.

Build an emergency fund. Unless you are lucky enough to have untapped wealth, you need an emergency fund in cash ready to pay for at least three months of non-negotiable expenses. This means taxes, housing, food, transportation, medical expenses, etc. Few people are ready to deal with the economic impact of losing a job, having to replace a car, or needing major surgery. Having an emergency fund protects you from needing to use retirement funds or take on debt to deal with a short-term financial crisis.

Revaluate your portfolio. Investing in great companies for the long haul is how most people set their investment portfolios. However, it makes sense to look at a rebalance every now and then. People who are in their high-earning years may be okay with a 60/40 split between stocks and bonds. However, as you get closer to retirement, you may want to change this. After a few years, when stocks grow faster than bonds, your 60/40 split from a few years ago might have become an 80/20 split.

Maximize retirement accounts. If you can make use of tax-advantaged retirement funds, your future self will thank you. Use IRAs and 401(k)s to build long term wealth. If your company has a matching program, make sure to maximize your contributions using what is essentially free money. Your retirement withdrawals will be tax-free, if you can use a Roth account and pay taxes when you make contributions.

Check beneficiary designations. Make a list of all the financial accounts with beneficiary designations and check to see if the people you named to receive the assets on your death are still the right people. This is especially true if you’ve gone through a divorce, moved, or married.

Get your estate planning documents in order. If you don’t have a will, durable power of attorney, healthcare power of attorney, living will, or advanced directive, make an appointment with an estate planning attorney now to get these documents in order. If you have these documents but they are more than four years old, you’ll want to update them to be sure they still reflect your wishes. If you have young children, be sure your will includes naming a guardian.

Celebrate the New Year by organizing your estate planning and financial life. Next year at this time, you’ll be glad you did.

Reference: USA Today (Jan. 5, 2025) “Start 2025 off right with these 9 money moves”

Why Singles and Child-Free People Need Estate Plans

A growing number of Americans are single or have chosen to be child-free. They may feel they don’t need estate planning, since so many articles about this topic concern couples, children, and grandchildren. However, estate planning can be more important for these individuals, according to a recent article from Yahoo! finance, “Don’t let the government inherit your wealth: Estate planning is essential for those who are single or child free.”

Without spouses and children, most state laws about inheriting property when there is no will rely on kinship or bloodlines, and assets will go to the next of kin, whether you like them or not. The other estate planning issue facing singles and child-free people is planning in advance, so someone you trust can manage your financial life and make health decisions on your behalf if you are incapacitated. All of these things are part of an estate plan.

For starters, review your financial accounts. Which ones allow you to name beneficiaries? If you have nieces or nephews, beloved friends who are your family, or charitable organizations you care about, you could name them to receive these assets.

If you don’t already have a durable and medical power of attorney, speak with an estate planning attorney to get these started immediately. Downloading templates from the web is not a good idea for these documents, as you may give someone expanded powers you didn’t intend to, or they may be deemed invalid. An estate planning attorney will create these documents to reflect your wishes. Do you want someone to be able to pay your bills but not to sell your house? Do you want to be kept on life support only if certain indicators are present? These are specific wishes to discuss and document.

Everyone should have a last will and testament. The will is used to name the executor overseeing your estate upon your passing. They will need to notify the Social Security Administration, Medicare and/or Medicaid and your state’s motor vehicle bureau, of your passing. They’ll also create an estate bank account, file for an estate taxpayer identification number, pay taxes and more. They’ll be in charge of distributing assets according to the directions you’ve left in your will. Without a will and a named executor, a court will name someone you don’t know as your estate administrator.

If you are a member of the LGBTQ+ community, having an estate plan is even more important to protect your wishes and, if you have one, a long-term partner. Without being legally married, even someone who has been part of your life for decades will not have any rights to inherit from you. Another reason to work with an experienced estate planning attorney is that every state’s laws regarding same-sex marriages, domestic partnerships and civil unions vary. An estate planning attorney will make sure that your documents align with state laws.

An unpleasant but necessary fact to consider: financial elder abuse can occur more easily when there’s no one closely involved in your life to keep an eye on you and your finances. Decision-making can be less heartfelt. Will a distant relative deciding on your nursing home pick one you would have wanted, or will their eyes be on their inheritance?

Whether you are child-free, single, or unmarried but in a serious relationship, don’t delay sitting down with an estate planning attorney to map out your future.

Reference: yahoo! finance (Dec. 19, 2024) “Don’t let the government inherit your wealth: Estate planning is essential for those who are single or child free”

How to Avoid Estate Planning Mistakes in 2025

Even if you could remove all of the emotions about estate planning, like considering your eventual demise and the possibility of incapacity, it can still feel a bit overwhelming. Having an experienced estate planning attorney on your team makes the process far easier, with the knowledge you’re in good hands. A recent article from GO Banking Rates, “4 Expert Insights on Avoiding Estate Planning Pitfalls for 2025,” explains how estate planning helps to avoid family fights, lost assets and legacies.

Estate Planning encompasses your entire life. Wills express how you want assets to be distributed, and trusts minimize taxes by taking assets out of the probate estate. However, an estate plan is more than these two pieces. Estate plans include incapacity plans, caring for children and transferring wealth in a number of ways.

If someone becomes incapacitated and hasn’t created a Durable Power of Attorney, no one can manage non-healthcare matters, from paying utility bills to maintaining their home. A family member must go to court to obtain guardianship to do anything.

Every estate plan should include a Healthcare Power of Attorney and HIPAA release authorization so a designated person can be involved with their loved one’s healthcare, talk with their doctors and be involved in any medical decision-making.

Keeping beneficiary designations up to date. Beneficiaries aren’t just the people you name in a will. Designated beneficiaries are those listed on retirement accounts, investment accounts, life insurance policies and other documents to receive assets when you die. Make sure these names are up to date, especially if you haven’t reviewed them in years. Any account with a beneficiary designation does not go through probate, and your will has no control over these assets.

Things will get messy if beneficiaries on your accounts are no longer in your life. Assets could go to an ex-spouse, an estranged family member, etc.

Choosing your executor with care. Many people get stuck when there is no obvious person to manage this task. An experienced estate planning attorney can help you work through this issue, since a poor choice could put your entire estate plan at risk. Whoever you choose to serve as executor—the person who manages your estate—will need to deal with financial institutions, family members, government agencies and every facet of your life. Many automatically name their eldest child or best friend, which might lead to disaster if they are not available, good with details, fiscally knowledgeable, or able to manage your family’s personalities. Ensure that they are up for the task and also have a backup executor named.

Introduce your family to your estate planning attorney, financial advisor, CPA and other professionals in advance. The people who help you manage the business side of your life will be able to help you better if family members know who they are, how to contact them and have already met them. They don’t have to be friends. However, making introductions in advance can make their work together easier.

Reference: GO Banking Rates (Nov. 17, 2024) “4 Expert Insights on Avoiding Estate Planning Pitfalls for 2025”

Your College Student Needs a Power of Attorney for Finance and Healthcare

Once a child reaches the age of legal majority, they are considered an adult with privacy rights.  This means that parents lose access to private information. This can have dire consequences if the student is involved in an accident or gets seriously ill, explains the article “Navigating The Transition To Adulthood: A Legal Guide For Parents” from mondaq. With proactive steps, parents can address these situations before they occur.

Whether or not your insurance covers your child’s healthcare doesn’t matter. Without a Healthcare POA, parents cannot make medical decisions, speak with healthcare providers, or talk with the health insurance company. Parents are strongly urged to have their college-bound student complete a Healthcare Power of Attorney.

If there is no POA and the child is incapacitated, parents will have to go to court to be able to make medical decisions for their child. Hospitals and healthcare providers are extremely strict about following these rules to avoid litigation and fines. No matter how bad the situation is, don’t expect any rules to be bent.

Your adult child should also have a Living Will. This is a document controlling decisions about end-of-life. It only becomes effective when a person is in a state of permanent unconsciousness, like a coma, or if they are terminally ill. The student uses this document to express their wishes concerning care: do they want to be artificially fed, hydrated, or kept alive by extraordinary means? Do they want to become an organ donor? This document conveys their wishes and can save the family an unimaginable amount of added stress during a trying time.

A Durable Power of Attorney is used to name a person, known as an “agent” or “attorney in fact,” to act on their behalf. The agent can take care of legal and financial matters. This is needed in case of incapacity so the parent or trusted person may deal with financial institutions, colleges, courts and any other company or organization on behalf of the student. Without it, parents cannot access account information or act on the student’s behalf.

Does your student need a will? The estate planning attorney who helps create the documents listed above can help you answer this question. Depending on their situation, if the student owns a car, has a bank account, an inheritance, or sizable cryptocurrency accounts, they may need a will.

The documents mentioned above should also be in place for parents. If parents don’t have a will, Power of Attorney, Healthcare Power of Attorney, Living Will and trusts, if appropriate, their newly minted adult will have a lot to deal with if they should both die unexpectedly. A visit to the estate planning attorney for all generations is a good idea.

Reference: mondaq (June 24, 2024) “Navigating The Transition To Adulthood: A Legal Guide For Parents”

How Should a Single Person Create an Estate Plan?

The short answer is singles should be doing the same things as people who are married and have families, except their situation may require some additional steps, says an article from Kiplinger, “Estate Planning for Singles.”

The most important thing is having a Durable Power of Attorney, naming someone as your agent so they can make financial decisions if you become incapacitated. Similarly, you should also appoint a Health Care Proxy to handle medical decisions.

If you don’t have a will, your state’s law will determine how your assets will be distributed, but no state will have a list of people to make financial or health care decisions for you.

Adult children often fill these roles, but it’s fine to look for other people to serve in these roles. A trusted friend whose judgment you trust completely and who is good at managing financial and legal matters could also serve in this role.

If the person you name to be your representative dies or becomes incapacitated, you’ll want to have a plan for someone else to take on the role.

Consider the age of the person you may want to serve in their role. If they are your age, can they take on these tasks if and when needed? A younger, trusted person may be a better choice, although there are no guarantees of age determining their availability.

If you don’t know anyone who could manage these roles, you could hire a professional, either an estate planning attorney, a trust company, or, in some states, someone licensed as a “professional fiduciary.”

What about your pets? An estate plan can also deal with issues of special concern to singles who own pets. You can use your will or create a pet trust to name a guardian and provide financial support for a furry or feathered friend.

Lastly, certain states have estate taxes, which have far lower exemptions than the current federal estate tax of more than $13 million. Some state estate taxes kick in on estates valued at $1 million. Married couples can delay estate taxes until the second spouse's death, but singles need to plan for tax liabilities, which is part of an estate plan.

Reference: Kiplinger (Feb. 17, 2024) “Estate Planning for Singles”

These Celebrities Didn’t have Wills…But You Should

Rapper Coolio died at age 59 after being found unresponsive on the floor at a friend’s house. His real name was Artis Leon Ivey Jr., and his former manager, Jared Posey, recently filed a probate case to appraise the value of his estate, according to a recent article “What Coolio, Prince and Picasso didn’t have that you should” from MarketWatch.

The filing names Coolio’s seven adult children, who are reported to wear his ashes in necklaces, as his next of kin and likely beneficiaries of his estate. There are also three other children who are under legal age.

The estimated value of the estate is more than $300,000, including personal property, demand deposit accounts, financial accounts, insurance policies and royalties.

Coolio is far from alone in failing to have a will. A 2021 Gallup poll revealed that fewer than half adults in the U.S. have a will outlining how they want their estate to be handed upon their death. It’s a recipe for disaster for their families.

Dying without a will—known as dying intestate—means a local probate court has to decide how to distribute property according to state law, which can take months or even years. What finally occurs may not be what you intended. However, it will be too late.

A will is only one of many tools in the estate planning toolbox. You also need an updated Medical Power of Attorney, a Financial Power of Attorney and to have beneficiary designations on all of your accounts. The beneficiary designations override your will, which is often news to loved ones.

If you have a beneficiary listed on your 401(k) plan, the person listed will receive the assets in the 401(k), regardless of what is in your will. You want to make sure beneficiaries and secondary beneficiaries are all up to date on all of your accounts.

Another important consideration: if a spouse is cut out of a will who would normally receive an inheritance, they have legal standing to challenge the will in court.

For a complete estate plan, you need a Durable Power of Attorney, which states who can make financial decisions on your behalf if you are incapacitated. A Medical Power of Attorney names a person to make medical decisions for you if you are unable to make them yourself, and guardianship designations if you have minor children.

Every few years or after any big life changes, these documents, including beneficiary designations, need to be reviewed and updated with your estate planning attorney.

Other accounts, like brokerage accounts or bank accounts, may have “Pay on Death” or “Transfer on Death” designations which would immediately put the assets into the named person’s hands upon your death.

Another item to consider is a letter of intent, in which you describe for the executor of your estate your final wishes regarding burial or funeral. This document is not legally binding but can be used to share your wishes. The will may not be reviewed until after the funeral, so final directions for funerals, cremations, memorial services, etc., should not be in the will.

You can create a list to be appended to your will listing who will receive certain tangible items, like the family silver or your mother’s pearls. One good thing about having such a list is that it gives you an opportunity to update beneficiaries of your tangible personal property without needing to update your will itself. Be sure the list doesn’t contradict anything in your will and describe the items with great detail. You might also want to include contact information, so your executor can easily locate the person and make sure the items find their desired home.

Better yet—give the items away before you die. You won’t have to worry if they won’t get to the right person, and you’ll get to share the person’s enjoyment when they receive the gifts.

Reference: MarketWatch (Dec. 31, 2022) “What Coolio, Prince and Picasso didn’t have that you should”