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June, 2019 | The Sheppard Law Firm

Information on the Internet

I imagine that when patients enter a physician’s office and make demands for specific medications after being influenced by an advertisement, it is perpetually frustrating for those physicians.

And don’t you just love the disclaimers? Overlaying the happy scenes of grandparents skipping along the beach with grandchildren, a serious narrative voice quickly says something like, “This medication may cause frequent vomiting, urination and even death! Stop taking the medication if you notice vision loss or blood trickles out of your ears…”

What this points to is a loss of context. Patients who ask for medications viewed on television typically don’t have a medical degree; they’ve not practiced medicine, and what little they know about whatever ails them, they may have learned on the Internet or by watching television. And in today’s age of misinformation, who knows what can happen! That’s enough knowledge (even if false) to make them a danger to themselves.

I sometimes encounter this in my law practice. Suppose that a client is interested in forming a charitable remainder trust, so he researches it on the Internet. Which is fine. Learn all you can. I just hope that he realizes the information he’s pulled up may be dated, it may be taken out of context, and it may be so broad in scope as to be useless to the particulars of his situation. That’s what you hire a professional for.

Once in a while, a client will engage in debate over an aspect of estate planning law with me. They may have read something on the Internet, believing it to be relevant to his or her situation. Most of the time the information is relevant but lacks context. Without context, the information or advice in the column may be way off base. That includes the columns that I write here.

What’s frustrating at times is trying to calm someone down from misinformation, or misapplied information. It’s difficult to convey all the knowledge that I’ve accumulated, including accounting degrees, a CPA license, a law degree, board certification and nearly 30 years of experience in a few client meetings lasting a couple of hours or more.

And I suppose that’s today’s thought.

There’s a lot of information out there on the Internet. More so than at any other time in human history, you can Google just about any topic and find a plethora of information. Be aware of this, however – that information is usually not specific to your individual situation and could be entirely false. It is mere information; it is not knowledge. Knowledge is accumulated over years of study and practice in any given field. Some practitioners are certainly better than others, and I recognize that it’s sometimes hard for the layman to know what level of expertise his professional has.

Is my physician the cream of the crop? Does he keep up with all of the new developments? Is my CPA up to date with all of the ever changing tax laws? Is my attorney aware of the recent legal developments and does he have the skill to apply his knowledge to a variety of complex situations?

Often, states have board certification programs that separate those who are exemplary in their field from those that are not. In Florida, for example, to become board certified by the Bar you must first be found to have high ethics and an outstanding reputation among your peers. Then you must pass a thorough examination in your specific field (such as wills, trusts & estates), and complete a serious amount of continuing education in high level course work every reporting period. Once certified, you must become recertified every five years. And only 7% of Florida attorneys even qualify!

Knowledge isn’t the only criteria one should judge their professional on. A true professional has the wisdom to know when, how and why to apply the knowledge. Wisdom is something that’s gained over the years, certainly. I have also found, however, that those individuals I consider wise haven’t achieved that level without first having an inherent quality that seems to be factory installed. They’ve always had the capacity for wisdom, and only needed life experience to shape it into something valuable for those they interact with.

And you don’t find that in areas outside of your area of education and experience by watching television advertisements or searching on Google for a few hours. Go ahead and do your research on your topic, as well as on the professional that you hire. Assuming you are comfortable with that professional, ask questions, and listen to the answers. If the answers appear reasonable, relax and trust his judgment. If not, find a professional that you can trust.

© 2019 Craig R. Hersch. Originally published in the Sanibel Island Sun.

When Death Comes Knocking, Look Busy

Nearly fifteen years ago, on a hot July afternoon, I was having a frustrating day at work (yes, even estate planning attorneys have bad days at the office!), so I took off a little early, deciding to ride my bike down to the Sanibel causeway. At the time, construction of the new spans was in progress.

Having pedaled from my south Fort Myers home to the toll plaza at Punta Rassa, I paused, looking at the orange cones wondering whether I should continue across the causeway to the island before making the trek back home.

At that moment I heard a loud CRACK, causing me to turn around. I saw flashes of lightning with dark, ominous clouds heading towards me. As most of you know, our summer thunderstorms mostly build in the east then head towards the coast and can be quite dangerous.

Realizing that I had thirteen miles heading directly into the storm to get home, I amped it up. On the Summerlin bike path I remember looking down at my Garmin bike computer mounted on my handlebars–that registered 23 mph–as I crossed in front of the Siesta Bay RV Resort.

That’s when it happened.

I don’t remember much, only waking up with paramedics hovering over me.

I’d been hit by a car and was seriously injured. It was a hit and run, apparently, but someone must have noticed me lying unconscious just off the bike path and called 911. A medevac helicopter landed on Summerlin Road to transport me to Lee Memorial’s trauma center downtown.

Luckily, I survived, despite having skull fractures (my helmet saved my life) and problems with my neck and spine that would require neurosurgery. To this day, titanium pin and screws hold my neck in place.

None of us knows when our time will come, or how it will come. I was only forty years old at the time of my near-death experience.

I’m reminded of the quote “when death comes knocking, look busy…” out of a scene from Woody Allen’s movie, “Love and Death” where Boris, the lead character played by Allen, encourages us to “not think of death as an end, but think of it more as a very effective way of cutting down on your expenses.”

As my friend Brian Kurtz of Titan Marketing writes about his recent brush with death, “while that might have been nice, I’ll take life plus the expenses, thank you very much.”

Since my accident, it’s been my priority to ensure that I’m always working on something big in my life and encouraging others around me to strive similarly…even after we’ve achieved great things. “Big” is a relative term, yet we all need something to constantly strive for, or we risk no longer looking busy, inviting the grim reaper to our doorstep.

Dan Sullivan, the top coach for entrepreneurs worldwide, has many stories and examples about famous people who set a huge goal in their lives, but, once attained, left too much room to not be busy.

Sullivan points to the curious tale when Thomas Jefferson and John Adams died within five hours of one another on July 4, 1826, fifty years to the day after the signing of The Declaration of Independence. Both had a goal of seeing the new republic survive its first 50 years. Having met the goal, they both quickly perished.

You can say that both men should have had some other milestone planned after that. We can cut Jefferson and Adams some slack since they lived in an era where life expectancies got the luckiest of average Americans to their 40s. Jefferson was 82 and Adams 90 when they died.

Yet this story illustrates how important it is to have something to live for, despite your age. Sullivan speaks of the dangers of “retirement” as letting oneself be “put out to pasture” waiting for the slaughterhouse. “Retire from the things you don’t like doing, retire from the things you don’t do well, and retire from people who drain you and don’t make you bigger and stronger,” he advises.

Sullivan goes on to say that once you remove the passion to achieve the next great thing in your life, you leave an opening to “cut down on your expenses.”

I’ve represented several clients who have cashed out of their careers in a big way, but once they were on the “other side” with nothing to do, they wilted and died both figuratively, and then literally.

So always plan your next achievement. Keep death at bay.

And don’t worry about those expenses.

© 2019 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Acting as the Tacit Enabler

A client of mine, Sandra, often complained about how much money she had to lend (give?) her daughter, Donna.

“It’s one thing after another,” she would say.  “She lost her job and can’t make her mortgage payment. Then she got divorced. Then her car broke down.”

With each successive tragedy, Sandra stepped in and wrote a check.  One after the other. Year after year.

Don’t get me wrong.  Sandra had the money. It didn’t really affect her lifestyle to continue making the gifts.

She called them “loans.”

And she would often have compose promissory notes including a stated interest rate at the lowest “applicable federal rate” that the IRS allows. Even if the borrower doesn’t pay the interest, in related-party loan transactions the IRS expects the lender to impute interest on her tax return.

If the lender doesn’t impute the interest, then there’s a chance that the IRS reclassifies the loan as a gift resulting in the use of the lender’s gift/estate tax exemption.

Over the years, Sandra made loan after loan, bailing Donna out from one financial disaster after another.

Then Sandra died.

In her will, the loans/gifts that she made were to be treated as counting against her daughter’s share. There were four other children, so the estate was to be divided into five shares.

The other children weren’t so understanding of their sister’s situation.  When they computed the outstanding balance of the loans, along with the unpaid interest compounded over the years, and applied that against her one-fifth interest of the estate, she didn’t inherit much.

So there Donna was. Nearly sixty years of age. Jobless. No savings to speak of, and very little inheritance coming her way.

I therefore ask this question: Did Sandra help her out over the years or did she enable her to continue to make poor choices?

It’s difficult for a parent to resist helping a child. I’m a father of three daughters, and I hope that I never find myself in Sandra’s predicament. When we see our children suffering, we want to do something to help. If it’s within our means, why not write the check?

Seeing what I see from behind my desk, I would suggest that sometimes writing that check only makes the situation worse.

And it starts at a place well before our children become adults. When your daughter calls from high school and asks us to bring the essay to her that she forgot from home – should we do it or allow her to suffer the consequences of not turning in her assignment on time? When your son wants to quit the recreational basketball team because he discovers practices are hard and he isn’t having as much fun as he’d hope, do we make him keep his commitment to his team or allow him to find something he considers to be better?

Where should the parent step in to buffer his offspring from life’s disappointments, and where should the parent step away and let the offspring experience the consequences of his or her choices?

I’m not smart enough to tell you the answer to those questions. I suppose that it depends largely on the facts and circumstances of each individual situation. A kid who otherwise is an exemplary soul but who finds herself in a tough situation might and probably should be treated differently than the “serial offender.”

But I do know this. Sandra’s situation is a no-win situation for everyone involved. One of her sons said it best, “We can all be hard on her now,” he said, “but she’s going to show up on our doorsteps now that Mom is gone. What are we going to say then?”

© 2019 Craig R. Hersch. Originally published in the Sanibel Island Sun.

The Tragedy of Aretha Franklin’s Estate

When Motown legend Aretha Franklin died last August, it was reported that she had no will. That all has changed as several handwritten documents were recently found in her home. The documents are purported to be in her hand. A judge will ultimately decide if the wills are valid.

Franklin passed away a resident of Michigan, where state law provides holographic (handwritten) wills as valid even if not witnessed, so long as the will is dated and the testator’s signature and the document’s material portions are in the testator’s handwriting.

Florida law, by the way, would not recognize an unwitnessed, holographic will.

Apparently three such documents were found in Franklin’s Detroit-area home, two in a locked closet for which the key was difficult to find and one in a spiral notebook stuffed under sofa cushions, according to documents filed with the Oakland County, Michigan Probate Court.

The 16 scrawled pages haven’t yet been authenticated as being in Franklin’s handwriting, attorneys for Franklin’s four sons and the personal representative in charge of the estate wrote. And even if they are real, it’s not clear that they’re valid, according to the court documents, which ask the judge to sort through it all and determine what happens next.

But if they are real, they reveal a businesswoman who was intent on making sure her sons were treated fairly. Several times across all three documents, she writes that her assets should go equally to her three younger sons and outlines detailed instructions for the care of her eldest son, Clarence, who has special needs that, to date, had never been publicly disclosed.

Clarence Franklin was born in 1955, when Aretha Franklin was just 12 years old. Aretha rarely talked about her family and personal life, and for decades, Clarence Franklin’s father has been reported to have been a man named Donald Burk, who was a schoolmate of the singer’s.

The paternity is an issue, as one of the purported wills, dated June 21, 2010 states that Clarence’s father is Edward Jordan Sr. — who’s also the acknowledged father of another of the singer’s sons, Edward, who was born when she was 14.

Little is known about Edward Jordan Sr., but Franklin was decidedly unimpressed with him. He’s described in David Ritz’s 2014 biography, “Respect: The Life of Aretha Franklin,” only as a “player” whom Franklin once knew.

Page six of the purported will includes this adamant declaration as part of the instructions for Clarence Franklin’s care: “His father, Edward Jordan Sr., should never receive or handle any money or property belonging to Clarence or that Clarence receives as he has never made any contribution to his welfare, future or past, monetarily, material, spiritual, etc.”

Both instances of the word “never” are underlined for emphasis.

A hearing is scheduled for June 12. What’s very sad about Aretha Franklin’s saga is that a good estate planning attorney, through the proper drafting of documents, could have ensured that her wishes would be carried out.

Assuming the authenticity of the handwritten documents, she had some very real concerns about taking care of her loved ones. Now, not only are the documents called into question, but there is so much ambiguity and conflict between the documents that no one knows who may benefit from her purported $80 million estate.

Who manages the estate? Who would serve as trustee for her special needs son? How are the funds to be invested and distributed? Who decides whether the amounts are to be held in trust or distributed outright? Estate taxes aren’t minimized in the document, nor is there any proper income tax planning.

The bottom line that estate litigation attorneys are likely to be significant beneficiaries. I would guess that hundreds of thousands if not millions of dollars will be lost to attorney fees. Moreover, the litigation will take years to resolve. It truly befuddles me why someone as wealthy as Aretha Franklin, a legend who could readily afford whomever she wants as her attorney to properly plan her estate, chose instead to leave behind hand scrawled notes to take care of her loved ones.

Perhaps she didn’t want to discuss her family’s history with a stranger. We’ll never know. But it’s a real shame.

© 2019 Craig R. Hersch. Originally published in the Sanibel Island Sun.