A friend of mine officiated at another friend’s wedding not too long ago. I asked him (in jest) if he was acting in his official capacity as a notary public.

“No,” he replied, “I’m an ordained minister!”

“You’re a WHAT?!?” I quizzically responded. My surprise registered because this particular friend of mine was never the religious type. I didn’t recall him attending any regular church. As it turns out, he got ordained by an online church on a free internet site. Good enough, I suppose, to officiate a friend’s wedding!

Today there are all sorts of honors, accreditations, recognitions and certifications. Some of them are quite difficult to obtain, others you can get by sending in a couple cereal box tops and a few bucks. How can you tell the difference?

When choosing a doctor, lawyer or other professional, the right certification can mean all the difference in the quality of care or service that you receive. Not all professionals are equal. Each one of us has a different educational background and work experience. In order to differentiate between those that may have superior skills, many professional regulatory agencies offer board certification credentials.

The Florida Bar offers such a program for consumers to differentiate between specialists and generalists.

Estate planning, for example, has become so complicated through all of the myriad laws, rules and regulations that have to be addressed, that there could be a big difference in skills between a “generalist,” someone who might do a little divorce work, a real estate deal or two, as well as prepare wills and trusts, and those skills of a “specialist” that works solely in estate planning.

A Florida lawyer cannot call himself or herself a “specialist” without becoming board certified in his or her respective field. There are over 40 certifications available. I happen to be Board Certified by the Florida Bar in Wills, Trusts & Estates, earning my certification back in 1996. John Sheppard, one of my law partners who retired some time ago was one of the first board certified wills, trusts & estate specialists in Florida. Michael Hill, one of my current law partners, became board certified in 2008.

You can look up Florida Bar Board Certified Attorney specialists in various fields on the Florida Bar web site http://www.floridabar.org/certification.

That web site explains what it means to become board certified in a particular field. Generally speaking, board certification recognizes attorneys’ special knowledge, skills and proficiency in the area of law in which they are certified. These attorneys must also display the highest degree of professionalism and ethics.

In order to become a board certified attorney in Florida, one must have a minimum of five years of law practice and substantial involvement in the field of law certified. We must also obtain a satisfactory peer review assessment of competence in the specialty field including character and ethics assessments.

Board certified attorneys in wills, trusts & estates must meet stringent continuing legal education requirements (90 hours in advanced estate planning topics in the three years leading up to initial certification alone, then similar amounts each and every reporting period) and be recertified every five years after passing an initial rigorous board certification examination.

Because of Southwest Florida’s plethora of retirees, I am blessed with a practice that allows me to earn a living concentrating in a narrow area of the law. Because of our unique demographic, I have the luxury of being able to make a living concentrating in one specialty as opposed to having to be a generalist.

That’s why there may be a difference between what your northern attorney may have told you about updating your will and trust to Florida law and what a board certified specialist here in Florida tells you. It’s kind of like asking a question of your primary care physician as opposed to asking a specialist in, say, neurology, cardiology or gastroenterology.

So if you are looking for a professional, it’s not a bad idea to determine if there is a board certification in the field that applies, then going to the appropriate web site to determine who might meet those criteria in your area.

©2013 Craig R. Hersch

Susan Silk, a clinical psychologist, recently wrote an interesting piece for the Los Angeles Times, explaining how not to say the wrong thing when interacting with those who are suffering from terminal illnesses or who have just lost a loved one. Recovering from breast cancer surgery, Dr. Silk told those concerned about her that she wasn’t up to receiving visitors.

Imagine her shock and hurt when a colleague said to her, “This isn’t just about you.”

“It’s not?” Dr. Silk wondered. “My breast cancer is not about me, it’s about you?”

Dr. Silk described another incident when a friend named Katie had a brain aneurysm. Katie was in intensive care for a long time, finally being transferred to a step-down unit. No longer covered with tubes and lines and monitors, Katie remained in rough shape. That’s when one of Katie’s friends visited but then stepped into the hall with Katie’s husband, Pat. “I wasn’t prepared for this,” the visitor told Katie’s husband. “I don’t know if I can handle it.”
While the visitor clearly was moved by Katie’s condition, what she said wasn’t appropriate. And it was wrong in the same way Dr. Silk’s colleague’s remark was wrong about her cancer being “not only about you.”
Dr. Silk has since developed a simple technique to help people avoid this mistake. It works for all kinds of crises: medical, legal, financial, romantic, even existential. She calls it the Ring Theory.
Draw a circle. This is the center ring. In it, put the name of the person at the center of the current trauma. For Katie’s aneurysm, that’s Katie. Now draw a larger circle around the first one. In that ring put the name of the person next closest to the trauma. In the case of Katie’s aneurysm, that was Katie’s husband, Pat. Repeat the process as many times as you need to. In each larger ring put the next closest people. Parents and children before more distant relatives. Intimate friends in smaller rings, less intimate friends in larger ones. When you are done you have a “Kvetching Order”.
Here are the rules. The person in the center ring can say anything she wants to anyone, anywhere. She can kvetch and complain and whine and moan and curse the heavens and say, “Life is unfair” and “Why me?” That’s the one payoff for being in the center ring.
Everyone else can say those things too, but only to people in larger rings.
When you are talking to a person in a ring smaller than yours, someone closer to the center of the crisis, the goal is to help. Listening is often more helpful than talking. But if you’re going to open your mouth, ask yourself if what you are about to say is likely to provide comfort and support. If it isn’t, don’t say it. Don’t, for example, give advice. People who are suffering from trauma don’t need advice. They need comfort and support. So say, “I’m sorry” or “This must really be hard for you” or “Can I bring you a pot roast?” Don’t say, “You should hear what happened to me” or “Here’s what I would do if I were you.” And don’t say, “This is really bringing me down.”
If you want to scream or cry or complain, if you want to tell someone how shocked you are or how icky you feel, or whine about how it reminds you of all the terrible things that have happened to you lately, that’s fine. It’s a perfectly normal response. Just do it to someone in a bigger ring.
Comfort IN, dump OUT.
There was nothing wrong with Katie’s friend saying she was not prepared for how horrible Katie looked, or even that she didn’t think she could handle it. The mistake was that she said those things to Pat. She dumped IN.
Complaining to someone in a smaller ring than yours doesn’t do either of you any good. On the other hand, being supportive to her principal caregiver may be the best thing you can do for the patient.
Most of us know this. Almost nobody would complain to the patient about how rotten she looks. Almost no one would say that looking at her makes them think of the fragility of life and their own closeness to death. In other words, we know enough not to dump into the center ring. Ring Theory merely expands that intuition and makes it more concrete: Don’t just avoid dumping into the center ring, avoid dumping into any ring smaller than your own.
Remember, you can say whatever you want if you just wait until you’re talking to someone in a larger ring than yours. Unfortunately, we all get our turn in the center of the ring. Until that happens, this Kvetching Order may be a useful guide when comforting those closer than you are to the ones who are in the center of the ring.
©2013 Craig R. Hersch

Did you ever wonder where the phrase “acting in concert” comes from? It may have originated from the Old Italian word “concerto,” meaning “agreement, harmony” which sounds very nice. You would hope that two people who have to decide things together would do so collegially and with mutual consensus on the issues.

But the phrase may also have originated from Vulgar Latin “concertare,” meaning “to settle by argument, debate, or to separate – decide by fighting.” This definition suggests an adversarial process to reaching agreement.

Which brings me to today’s estate planning topic – how many cooks should you have in the kitchen when creating your estate planning documents? Normally when a husband and a wife have a will or a trust, they name each other as personal representatives (executors), successor trustees or agents under a durable power of attorney or health care surrogate documents.

Who should succeed the surviving spouse when making all of these decisions is where all of the real fun begins.

Many times, parents will name their children to act as their successors. They might name two adult children to make their legal, tax, financial and health care decisions together. They might name them in successive order but in several instances they might want two or more adult children to act together. They expect the children to “act in concert.”

This then begs the question – do both of them have to agree in order to carry out business? Under Florida law the general answer to that question is “yes.”

And here’s where it gets interesting. What happens if the two parties named in the legal documents can’t stand one another? One says the sky is blue and the other disagrees. There’s no shame in the fact that we have raised children who don’t see eye to eye – that seems to be common among many siblings for whatever reason.

But when you are entrusting your legal, financial and health care decisions to those who you love but may not necessarily get along, what should you do? One choice is to clearly name the children in successive order. Indicate who is to act first, then second, then third.

The idea of putting two cooks in the kitchen at the same time isn’t always a bad one, however. One child might be good with financial aspects but might be impulsive. Another child might temper the impulsiveness of the first. So even if they butt heads on occasion, naming two very different siblings to act together might actually lead to better decisions.

When choosing two or more individuals to serve together in these roles, you should first communicate with all of them what to expect. Tell them that they’ll be working together. Set expectations. You might tell them that while you expect them to debate certain decisions and not see eye to eye on all matters, you are choosing them both because you appreciate and value their different perspective on things. This kind of a conversation might help them see their differences in a new light, and be more open to one another’s viewpoints.

If, however, you suspect that the bad blood between them may lead to stalemates, then it is a wise idea to impose a third party “tie-breaker.” You might name a close friend, relative or advisor to fill this role only when necessary. The legal documents can be drawn to anticipate these issues and provide for a means to resolve them.

One type of document is a bit problematic – your Durable Power of Attorney. Under Florida law, you cannot create a “springing” Durable Power of Attorney meaning that it is only effective if the person holding the one before it can’t act. The Durable Power of Attorney document is valid the minute that you put pen to paper and sign it. Therefore, when you have more than one Durable Power of Attorney, you usually have multiple individuals all with current authority.

One solution is not to give individual Durable Power of Attorneys, but rather name multiple individuals in one document. While this avoids the multiple individual powers problem mentioned above, it also creates a situation where the incapacity of one of the agents named in the document renders the entire document useless. So that is usually not a recommended course of action.

The bottom line is to carefully consider those that you are naming in positions of authority within your legal documents, and to communicate what you have done and your expectations for when they must act for you. And then hope for the best!

©2013 Craig R. Hersch

Most of the time our wills and trusts aren’t controversial, or at least we don’t think that they are. We might leave amounts either outright or in trust for our surviving spouse and then when we’re both gone it all goes equally to our children.

But sometimes, it isn’t so straightforward. We might be in a second marriage situation. In that case, we could decide to leave amounts in trust for our surviving spouse and then when he or she dies the remainder of what is left is destined to be distributed to our children. But every dollar that the surviving spouse spends is one less dollar that our children will one day inherit. Because he or she has only a step-relationship to our biological children, things could get a little testy when it comes to our money and assets.

Another instance is where we want to disinherit a child or other loved one. Perhaps the child has had alcohol or drug dependency problems that leave us afraid that when we die the child will squander their inheritance on booze or illegal substances. Or perhaps there has been a dispute in the family that has become irreparable. You’d rather leave the inheritance to the ones that you share a close relationship with, or skip the child entirely in favor of the grandchildren.

When we have more delicate interpersonal relationships that are going to affect our estate planning, it is imperative that we get the intent documented. It might be written inside of the will or trust itself, including the reasoning behind the bequests or lack of bequests. Or, sometimes it will make sense to write a separate letter explaining why we are choosing to do what we do.

Absent a clear narrative of our intent, others might try to fill in the gaps after our deaths as to why we did what we did. They could claim that we weren’t in our right mind when we left such large amounts to our second spouse, or wrote the child out of the document.

Another popular challenge to a will or trust is the claim of undue influence. The complaining party could file a court action declaring that absent the influence of a party who otherwise benefited from our action, then we wouldn’t have written the will or trust the way that we did.

Aside from worrying about challenges to the legal documents themselves, we have to guard against challenges to the way that our wills or trusts are administered following our passing. Allow me to explain by example.

Suppose that Bob leaves amounts in trust for his second wife, Mary. Mary is to receive the income from the trust for the remainder of her life, and she can take principal from the trust if the income is insufficient for her health, maintenance and support.

Suppose that Mary needs a new car. She withdraws amounts from the trust to pay for it. What if one of Bob’s children challenges the withdrawal? The child says that Mary could have bought a less expensive model or even a used car. This would have preserved more of the trust for the children to inherit once Mary dies. What happens now?

Imagine that Bob included language in his trust that says this: “During Mary’s lifetime, Mary shall be the primary beneficiary and her needs should be first considered notwithstanding the effect that it may have on the inheritance of my children.” Doesn’t that kind of language strengthen Mary’s position?

Now instead, let’s add a scenario where Mary has plenty of her own assets. Bob still wants the trust to pay her income, but she should only invade the principal if she doesn’t have sufficient assets of her own. Now Bob’s trust reads: “During Mary’s lifetime, the Trustee shall pay Mary the income from my trust. The trustee may also pay Mary from the principal of my trust for her health, maintenance and support, but in so doing the Trustee shall first consider Mary’s other assets, income and resources available to her for such purposes.”

Do you see how the two different provisions give all of the parties more clear direction on what Bob wants the trust to pay for and what Bob doesn’t want the trust to pay for? Can you also see how each one of the provisions gives more specific direction than a generic clause that says: “pay Mary the income and principal that she needs for her health, maintenance and support.”?

Statements of intent go a long way to not only thwarting a challenge to your estate planning documents in their creation, but also in providing clear direction to your loved ones which should result in warding off conflict between them.

©2013 Craig R. Hersch

From time to time when drafting up wills and trusts, I have a client tell me that they want to split their estate into shares for each of their children, but they don’t want the estate to go to their daughter-in-law or to their son-in-law. Instead, they would prefer that whatever is left of the inheritance would go to their grandchildren.

The intent is perfectly reasonable. If your son dies and if his inheritance goes to your daughter-in-law who then remarries, it’s possible that your hard earned estate will one day end up with some other family that you don’t know.

So when I get direction to bypass the in-laws, I will often ask my client if they are talking about what would happen if their son/daughter predeceases or if they are talking about a situation where their child survives my client and then dies.

“What does this matter?” is a question I often hear in response to mine.

“Well, let’s say that your son survives you,” I begin. “If you leave his share of the estate outright to him, then he now owns it and can leave it to whomever he wants. So if his will gives everything to his wife, then she’s likely to inherit what you left him.”

“We love our daughter-in-law,” my client might respond, “but what if she remarries and leaves everything to some new husband? We don’t want that. We’d prefer that our grandchildren receive what’s left.”

“In that case you shouldn’t leave everything to your son outright, instead you should leave it in a continuing trust for his benefit,” I add. “You can make him the trustee of his own share, but instead of it being subject to his will, you could add a provision that if he dies and if there is anything left of the share, then it is to benefit your grandchildren. That way you give him control as trustee and as primary beneficiary, but you can direct it at his death rather than giving his will complete control over what you left him.”

Before the client instructs me to do just that, I throw something at them that they may not have ever considered.

“If you leave the assets in a continuing trust, you might want to give your son a power of appointment over the assets so that he can direct who gets them in his will.”

“Why would we do that? Then we’re right back where we started! If he gives everything to his wife, then what’s the point of creating a trust share for our son that would go on to our grandchildren?”

“That’s a good question,” I say. “But consider this – what happens if your son has hit hard times economically and dies unexpectedly? Then there might be considerable sums held in trust for the grandchildren leaving their mother destitute. You wouldn’t want that either would you?”

“Probably not.” Client says. “So what do we do?”

“A power of appointment does not have to be an all or nothing proposition,” I’ll advise. “You could give your son the power to appoint some portion of his share, but it must be appointed into a trust for his wife that continues for her lifetime. In other words, you could limit how much of his share he can redirect away from the grandchildren (who would be the default beneficiaries) and to his wife, but you can also ensure that upon her death it goes back to your bloodline.”

The power of appointment might say something along these lines: “I grant to my son the limited power to appoint up to half of the remainder of his trust share to his wife, provided that he exercise the power in such a manner as to direct such sums into trust paying his wife income for her life and then the remainder of the share at her death will revert to my grandchildren.”

I explain that the actual wording of the will would be more “legal” in nature, but that would be the gist of it.

While it’s easy to simply go with default language that would distribute all of a deceased son’s share to that son’s children, that might not be the right thing to do, especially when your child is in a long term marriage and your grandchildren are of that marriage. Every family’s situation will be different, so it is important to consider the ramifications of your default beneficiaries should something unexpected happen.

©2013 Craig R. Hersch