A Florida woman whose husband died about 16 months ago has been struggling ever since to try to get money out of the Wells Fargo savings account that her husband had in his name. Julia Bolena has had little luck in gaining access to the funds because of a number of problems.

Before her husband had died, the couple had apparently created a living trust and transferred some of their property to it so as to eliminate the necessity of having to go through probate. Unfortunately, it appears that Mr. Bolena never transferred the savings account he had with Wells Fargo Bank to the trust.

Though the couple had a checking account with Wells Fargo that was in both of their names, the savings account was only Mr. Bolena’s name. Because Mr. Bolena did not list his wife as a joint account holder, nor did he transfer the account to the trust, Mrs. Bolena has been unable to access the money.

To make matters worse, when Mrs. Bolena contacted a Florida probate clerk to ask what she could do to access the funds, the clerk told her that it would cost her $250 for the clerk’s office to issue her a letter that would direct Wells Fargo Bank to allow her access. The account in question only has a little over $270 in its, making acquiring the letter nearly pointless. To add insult to injury, Wells Fargo is charging a small fee to the account funds every month, further depleting them.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

Question 1: Who can be a witness to a Will?

Though state laws about wills differ slightly, any capable adult can be a witness to a last will and testament. When a testator—a person who makes a will—wants to finalize it, he or she must have the will signed by at least two competent adult witnesses. The witnesses must be present when the testator signed the will, or at least hear the testator affirm that the will the witnesses are signing is his.

Question 2: Can family members be witnesses?

Perhaps, but it’s better to get someone else. It’s always best to have witnesses who do not stand to receive property from the testator after he or she dies. These people are known as disinterested witnesses because there is no way they can receive an inheritance from the testator. In general, using non-family witnesses who are not granted gifts through the will is the best option.

Question 3: What does a witness have to do?

Being a witness is very simple. All you have to be able to do is witness the testator sign the will and hear him or her affirm that it represents the testator’s wishes. Once you do this you can sign the document.

If the testator is creating a self-proving will you may also have to prove your identity to a notary and be able to sign a sworn statement, known as an affidavit. If there is no self-proving will you might be asked later to appear in court and testify that you witnessed the testator sign the will.

You can learn much more about wills and other estate planning options at our next free estate planning seminar on Tuesday, May 7th in Thief River Falls, Minnesota. Contact our office for registration details.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

The simplest inheritance plan involves creating a will and dividing your property between your spouse, your adult children, and anyone else you want to include. But there are a lot more options available to you if you decide to create a more comprehensive plan. Thoroughly investigating these options and taking the time to ask your estate planning lawyer how different choices might benefit you and your family can make your inheritance plan much more effective. Consider the following options:

Lifetime Gifts

Instead of leaving property to distribute after your death, a lifetime gift allows you to give your property while you are still alive so you can watch your family enjoy it. You also get some specific tax benefits by giving lifetime gifts, though there are yearly and lifetime limit amounts you will need to be aware of.

Multiple Gifts

You may also want to create an inheritance plan that gives your gifts over a period of years. For example, if you have an adult child you can choose to create an inheritance plan that gives the child a gift every year, or when the child reaches specific ages, such as 21, 25, or 30.

Trust Transfers

It can also be very effective to create a trust instead of giving direct gifts. Depending on the type of trust you choose, both you and your family might be able to take advantage of some considerable tax benefits. You should ask your attorney about what kind of trusts might apply to your situation.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

Some estate planning clients first visit their estate planning lawyer after the client has created his or her own estate plan using do-it-yourself materials. For example, it’s not uncommon for a couple with a new child to come to an estate planning attorney and tell the attorney that they had, for the child, created their own last will and testament by using an online service or pre-made form.

Part of the process of creating a comprehensive estate plan is reviewing any old estate planning documents and making sure they fit your current needs. When people have an old last will and testament it isn’t uncommon for them to have to revoke it and create a new one. The manner in which you revoke your will is not very complicated, but you do have options in how you do it.

Destruction

If you have one copy of your last will and testament you can revoke it by burning it, tearing it up, shredding it, or otherwise physically destroying it. Because you do not have to file your will with any government office after you create it, destroying the document effectively renders it useless.

Revocation Clause

Creating a new will that has a revocation clause in it is by far the most common and effective way to revoke an old will. The revocation clause is simply a statement in the new will that says all previous wills you made are now rendered invalid. As long as the new will complies with all state laws, the revocation clause will effectively revoke all previous wills.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

Anyone making a will in North Dakota or Minnesota needs, at the very least, to ensure that their document contains all that is required by state law. In general, you must print your will, sign it, and have it signed by two witnesses.

Apart from those basic requirements, however, there are additional clauses or pieces a will needs to contain that are not specifically addressed by state will laws. Your lawyer will be able to tell you what your will needs to include, but here are some commonly used clauses.

Estate Management

Your will needs to choose someone to manage your estate. The person you appoint to this position is generally known as your executor. While your representative can be either an individual or an organization, you must choose someone to represent your estate in probate. It is also typically good idea to select one or two replacements in the event your original choice can no longer serve.

Revocation

Your will should make it clear to a probate court that it represents your final wishes. Whether you have made a previous will or not, one of the first clauses in your will should state that all previous wills and codicils are revoked. This clause will avoid needless complications once the will is probated.

Trustee

If you use your will to create a testamentary trust you also need to ensure that you name a trustee who will manage the trust property on behalf of minor children who cannot legally own it yet.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

Probate law, and the probate process, is something most people never really think about, much less have any first-hand experience with. At its most basic, probate is a set of legal procedures that apply after someone has died leaving behind property that has to go to new owners. However, not all of the property someone leaves behind is considered probate property.

Probate Property

In general, any real estate, personal property, investments, and cash the deceased person owned is lumped together into what is called the probate estate. The probate court has jurisdiction over this kind of property, meaning it has to be notified that such property exists and then approve its transfer to new owners. However, each state has its own set of probate laws and not all states include the same property in probate estates.

Non-Probate Property

Some property doesn’t have to go through this probate process. Employment benefits received as part of an employment contract, transfer on death accounts that name a beneficiary, jointly held property with the right of survivorship, and some other assets are typically excluded from the probate estate. This kind of property will get transferred to new owners without the probate court’s involvement.

Living Trusts

If the person who died, known as the decedent, created a revocable living trust and transferred his or her property to that trust before dying, this property does not have to go through probate. Because you can transfer almost anything to a living trust, it is a very effective means of avoiding probate.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

In 2000, the Centers for Disease Control and Prevention estimated that about one out of every 150 American children had an autism spectrum disorder, or ASD. The newest data from the CDC paints a much broader picture, saying that one out of every 88 children will be diagnosed with ASD.

Even though autism is becoming a more common disorder in the United States, especially amongst children, there are still many widely held misconceptions about what it is and how it affects people’s lives.

Because April is autism awareness month it’s worth the time to briefly discuss what autism is and how it presents itself. Additionally, if you are a parent with a child recently diagnosed with autism, and you haven’t talked to an estate planning attorney about special needs planning, you should schedule an appointment soon.

Autism is not a single disorder, but rather a spectrum of disorders typically grouped into three different categories.

Classical autism is what most people think of when they hear the term. Also known as an autistic disorder, people with classic autism will display significant problems with language, communication, and socialization, as well as have intellectual disabilities.

Asperger’s syndrome is another fairly common form of autism spectrum disorder. However, people with Asperger’s do not have intellectual or language disabilities. While they may display socialization difficulties, people with Asperger’s maintain full cognitive abilities.

Finally there is Pervasive Developmental Disorder-Not Otherwise Specified, also known as atypical autism or PDD–NOS. People with this disorder have slight social and communication challenges, but their symptoms are generally milder than with other types of autism spectrum disorders.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

All seniors need to think about the possibility that they might have to transition to an elder care facility, such as a nursing home or independent living center. While younger seniors—those age 65 to 75—only have a 50% chance of moving to a nursing home, chances increases significantly as you age. By the time you reach 85 years old you have a 90% chance of having to stay in some kind of elder care facility.

Because the cost of these facilities can easily exceed $50,000-$70,000 per year, it’s important to consider not only how to pay for those expenses but also how to ensure that you preserve as much of your assets as possible to leave as inheritances.

When it comes to protecting your assets there are some steps you can take now that will help you in the future. If you are a senior who is currently managing your own finances you’ll definitely want to create a power of attorney that, when the time is right, will transfer your financial decision-making abilities to someone else. While you may still be capable of managing your own finances, there may come a time when you want someone else to do it for you, and having a power of attorney in place will make this transition seamless.

Additionally, you may want to consider creating a Medicaid plan. By using a Medicaid plan you can allow Medicaid to pay for your nursing home care costs. These plans require significant preparations, so you need to speak to an elder care attorney as soon as possible if you’re thinking of creating a Medicaid plan.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

If you’ve ever been the victim of identity theft you know how aggravating it can be. Yet, even if you haven’t been victimized by identity thieves you may still have to deal with the problem because a thief has stolen the identity of a deceased relative.

According to a new study about 2 ½ million deceased Americans have their identities stolen every year. When this happens, the former spouses and family members of the deceased person are often left to deal with the mess.

According to financial security firm ID Analytics, identity thieves stole the Social Security numbers of about 1.6 million Americans last year. In another 800,000 instances, criminals used a deceased person’s identity to apply for credit cards, cell phone service, or other lines of credit. This type of identity theft can cause a headache for the deceased person’s family members, but they won’t be responsible for paying back any debt.

There are some practical steps you can take to help protect you from this kind of headache. A good way to start is to closely guard financial and personal information, especially information belonging to an elderly family member who is in a nursing home or other elder care facility.

Once a family member has died, you’ll need to ensure that the person handling the probate case contacts all relevant government agencies and notifies them of the person’s death. This will greatly reduce the chances that someone will be able to open an account in the deceased person’s name and cause the estate problems.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.

The new year is a good time to review your estate plan and make any necessary changes. For those who created a plan years ago and have not taken the time to update it, you may want to consider going back and revising it or adding new elements. The changes you may need to make don’t always come specifically because of changes in law, but rather because of changes in how we live and the continued advancement of technology.

Computers

Everyone who has an e-mail account, digital photos, or any kind of important information stored on a computer needs to consider what might happen in the event you become incapacitated or die. A good estate plan will carefully inventory all of your digital assets as well as make it possible for your executor to access needed information if the time comes. If you have more significant digital assets, such as online business information, a personal blog, or you own any websites, you will need to make sure your digital estate plan is always kept up-to-date.

Pets

Many older people find that having a pet is not only a great comfort, but taking care of their pet is something they want to consider when they create their estate plan. You can create a plan that provides security for your pet should it outlive you. By creating a pet trust and setting aside property to provide for the pet’s care, you can rest assured that your pet will be cared for should you no longer be able to do so.

Raymond J. German, LTD. is a member of the American Academy of Estate Planning Attorneys.