Myths About Estrangement

From time to time a client will not tell me about a child because they have become estranged, and they don’t want to leave anything to that child or to that child’s children in the estate plan. When I don’t know that the child even exists, problems can arise since it is usually proper form to mention the child and specifically disinherit him or her in the will and/or trust. Otherwise, the child might successfully claim a portion of the estate.

I suppose that some clients who fail to discuss the relationship do so because of feelings of guilt or shame. They might feel that they’ll be judged if someone knows about the estrangement. Other times it might be out of pain. The client doesn’t want to even think about the issue, so they would rather pretend that the relative doesn’t exist.

A recent New York Times article sheds some light on the subject. Broadly speaking, estrangement is defined as one or more relatives intentionally choosing to end contact because of an ongoing negative relationship. The article points out those relatives who go long stretches without a phone call because of external consequences like a military deployment or incarceration don’t fall into this category.

Lucy Blake, a lecturer at Edge Hill University in England published a systematic review of 51 articles about estrangement in the Journal of Family Theory & Review. This body of literature, Blake wrote, gives family scholars an opportunity to “understand family relationships as they are, rather than how they could or should be.”

As more people share their experiences publicly, some misconceptions are overturned. Assuming that every relationship between a parent and child will last a lifetime is as simplistic as assuming every couple will never split up.

Myth: Estrangement Happens Suddenly

It’s usually a long, drawn-out process as opposed to a single blowout. A parent and child’s relationship typically erodes over time, not overnight. It is usually an accumulation of hurts, betrayals and other factors that accumulate, undermining the sense of trust between family members.

Failure to visit a parent and then not doing so once that parent becomes sick and hospitalized, for example, can be the proverbial straw that breaks the camel’s back. A parent who cuts off a child financially while he is in college despite having resources can be another triggering event after a lifetime of perceived indifference.

Kristina Scharp, as assistant professor of communications studies at Utah State University states that estrangement is “a continual process. In our culture, there’s a ton of guilt around not forgiving your family. So achieving distance is hard, but maintaining distance is harder.”

Myth: Estrangement is Rare

In 2014, a United Kingdom study found that 8 percent of roughly 2,000 adults said they had cut off a family member. This translates to more than five million people. An additional 19% reported that another relative was no longer in contact with family.

In a 2015 Australian study of 25 parents cut off by at least one child found three main categories of estrangement. In some cases, the son or daughter chose between the parent and someone or something else, such as a spouse or partner. In others, the adult child punished the parent for “perceived wrongdoing” or a difference in values. Additional ongoing stressors like domestic violence, divorce and failing health were also cited.

In-laws who keep the grandchildren away were common issues, as were perceived slights over child-raising, house cleaning/maintenance and even cooking. These slights can escalate into feelings of cumulative disrespect between the parties.

Myth: Estrangement Happens on a Whim

In another Australian study, 26 adults reported being estranged from parents for three main reasons: abuse (physical, emotional or even sexual), betrayal (over secrets), and poor parenting (being overly critical, shaming or scapegoating). The three were not always mutually exclusive and commonly overlapped.

Most of the participants noted that their estrangements followed childhoods in which they had already had poor communications with parents who were physically or emotionally unavailable. One participant said that because he was always responsible for two younger siblings, he decided never to have children of his own. After years of growing apart, the final straw was his wedding day.

In 2014, he and his longtime girlfriend decided to marry at City Hall for practical reasons. He didn’t’ invite his family, in part because it was an informal gathering. But also because a brother had recently married in a traditional ceremony, during which is father backed out of giving a speech. He worried that his father might do something similarly disruptive, so he did not invite him or the rest of the family.

The family found out about the marriage on Facebook. One brother told him he was hurt that he wasn’t even told, and the sister messaged that she and the father would no longer speak to him.

These are all sad tales. It’s interesting that family estrangement is so common. But when planning your estate, it’s usually important for your estate planning attorney to be aware of these issues and to, as delicately as possible, include necessary language in the legal documents.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2018 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Never Go Into Retail

Growing up in Indianapolis, my family was close to my maternal grandparents who owned retail men’s wear stores. My father joined the business, as did my uncle, who operated both a men’s and women’s clothing store. Between the family members there were six locations in the metro Indianapolis area.

My grandfather was a man of small physical stature but had a large personality. Standing at a mere 5’5” and weighing, I would guess, approximately 130 pounds, he wore size six shoes.

Every evening coming home from the store, he would enter his home. He wouldn’t talk to anyone until he finished his post-work ritual of walking slowly over to a wet bar that he kept in the living room, placing his hat on the stand, hanging up his overcoat, and removing his gloves. He would pour whiskey from a crystal decanter into a shot glass, take the shot and then light up a cigar.

One evening when I was about nine years old, I was over at my grandparents home excited to share my day with my grandpa before going together to an Indiana Pacers (then in the ABA) basketball game. I couldn’t wait to talk to him, anxiously standing next to the wet bar as he finished his routine.

As he lit his cigar I opened my mouth to talk, but he put his index finger over his lips shushing me. Bending down to my level he pulled me, by my shirt collar, close to his face and said, “Craig, never go into retail. But if you ever have anything to do with death or taxes, you’ll ALWAYS make a living!”

And that’s when I decided one day to become a trusts and estate attorney!

But are taxes still a big deal for someone like me? As most of you are probably aware, the new tax law signed by President Trump increased the estate tax exemption to $11 million per person. A married couple may now shield $22 million from federal estate tax. At a lunch the other day a CPA asked me, “Is there any reason for someone to plan their estate anymore?”

I answered, “Certainly! Too many clients confuse estate TAX planning with ESTATE planning. Even before the new exemption limit many people didn’t fall into the federal estate tax threshold that was $5.5 million per person.”

What are the reasons to do estate planning, you might ask? There are several. A good estate plan considers who will take care of your affairs, both health-wise and financially in the event that you are unable to do so for yourself. With revocable living trusts that is commonly your successor trustee as well as your agent under a durable power of attorney for assets held outside of your trust. The powers and functions of that office must be carefully thought through. Furthermore, how your trustee is to act requires careful drafting inside of an estate plan.

Privacy is another issue today. Rampant identify theft is something all must now guard against, so having your estate a public affair, as would happen when you die with a will, is not wise. Many people don’t realize that when they die with a will and not a trust, their individual assets will only be transferred to their loved ones through a public probate process. Probate doesn’t refer to taxes, rather it is a legal process, and in Florida one must have an attorney to represent you in a probate process. Contrast this with New York, for example, where residents can administer a probate without a lawyer. This points to the differences in state laws and how important it would be to update your legal documents to Florida law when you become a resident here.

That brings me to discuss yet another point: ancillary probate administrations. Clients who own real property in different states and do not have a fully funded revocable living trust run the risk of having two probate administrations, one here as your domicile and another in the state where the real property is located. While many new clients that I meet with already own revocable living trusts, almost none of them have transferred all of the assets that would otherwise be subject to probate into their trusts.

Finally, income taxes aren’t going away. A greater percentage of clients have their net worth comprised of qualified retirement accounts like IRAs, 401(k) plans and 403(b). These assets have income tax issues that should be well thought out. For more on this subject visit my firm’s website www.sbshlaw.com where I’ve recorded a podcast episode.

Grandpa was right. Even in an age when the estate tax appears to not affect many, there are always reasons making it necessary to take care of death and taxes.

And in an age of amazon.com, quite frankly, I’m glad I’m not in retail!

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2018 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Five Signs a Caregiver is Stealing From Your Loved One

What do you do when an heirloom bracelet goes missing? How about when a bank account starts to inexplicably bleed cash?  If you talk to anyone who’s hired someone to help care for an elderly loved one, theft is a big worry.

Your loved one is probably the most vulnerable when you bring a paid caregiver into the home. So it makes sense to be on extra guard against theft. Here are five warning signs that the caregiver is on the take:

  1. Groceries and Drug Store Bills Increase. If grocery shopping and normal errands are among the caregiver’s responsibilities, it’s pretty easy for a personal item or two to make it onto your loved one’s credit card.  The same holds true when going out to eat. Don’t let even the smallest transactions pass without scrutiny, as the caregiver may be testing the waters to see what he or she can get away with. If you find something unusual, confront the caregiver with the evidence in a gentle manner, so as to limit the damage if it wasn’t something out of the ordinary. If you hired a caregiver through an agency, report any problems with that agency as soon as possible. Another good idea is to replace credit cards with debit cards for common transactions, while maintaining low balances in the debit card account to limit the damage should fraud occur.
  2.  Frequent Cell Phone Use. If a caregiver is constantly on the phone, this could mean that he or she is not giving the requisite time to your loved one, or worse, planning with others how to steal from your loved one. Always run a background check on a caregiver before he or she is employed. Next, make sure that your family member’s finances, such as credit cards, bank and brokerage accounts are removed from the home and placed in the care of a trusted family member.
  3.  Getting Too Personal. Some thieves will plan a scam to “prime the pump” by seducing the elderly with lots of affection until she or he becomes emotionally dependent upon the caregiver. The elderly person will try to reciprocate the affection by giving expensive gifts, or worse, paying for the caregiver’s expenses like rent and food. Here it is important to ensure that your loved one has daily interactions with people who are not their caregivers. It is also a good idea to transfer bank accounts to those who hold a durable power of attorney or who act as a trustee to a trust.
  4.  Bids for Sympathy. The “getting too personal” phase may quickly rise into the “bids for sympathy” phase.  The caregiver may concoct stories of the caregiver’s own family members who are in dire need of medical care, but do not have the resources to pay for that care. By planting the seed they hope that the elderly person under their care will offer money to help.  It’s always a good idea to put every caregiver through a thorough background check to ensure that they don’t have any prior records, including allegations of fraud.
  5.  Missing work on Mondays. It could be a bad sign when a caregiver is AWOL on Mondays, even if he or she is responsible throughout the rest of the week. Monday absenteeism could be a warning sign of alcoholism or substance abuse. The caregiver may have gone out over the weekend and therefore is in too bad of shape to make it in on Monday.  Checking your loved one’s liquor cabinet may be a good idea when you suspect that a caregiver to be suffering from dependency problems. Note the level of liquid in the bottles, and you may even go so far as to sample the contents to make sure that they weren’t replaced with water. If the caregiver has a few unexcused absences, that’s the time to discuss your concerns with the agency that you went through to hire them.

 An ounce of prevention is worth a pound of cure when dealing with in-home caregivers. Too much can happen in such an unsupervised setting. Take all the necessary precautions by removing valuables, financial records and bank accounts, including checking accounts when hiring in-home care.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2018 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Limits of Technology

The other morning, at 2:30 AM local time, I watched my cousin’s son’s Bar Mitzvah at the Western Wall in Jerusalem via a live Facebook stream. An extremely moving service, he chanted from the Torah in front of the holiest site to the Jewish people.  The rabbi set up a small table on which he placed the Torah scrolls, covered by a tallit (prayer shawl) until it was time to read the day’s parsha (weekly reading of the Torah portion).

In the background I could hear other Bar Mitzvah ceremonies going on concurrently. I figured that it would be difficult to concentrate enough to chant a Torah portion with the cacophony that surrounded the young man, but he did an exemplary job.

Technology is amazing isn’t it? A few years ago the only way that I could have “been there” would be to hope for a national news service’s live satellite feed. Today, with nothing more than a Smartphone and a wifi connection, I enjoyed sharing the family’s celebration.

But technology sometimes embeds a false sense of security.

Since this is an estate-planning column, I’ll focus here on instances I’ve seen when a self-made estate plan went bad. Legalzoom, Rocketlawyer and other services provide inexpensive and convenient means to create wills, durable powers of attorney, health care surrogates and even trusts. These web-based document preparation services lead the user through a series of questions similar to the online tax preparation programs, resulting in the estate plan.

While self-prepared, web-based documents might be fine and appropriate for someone with a very modest estate and a very straightforward financial and family situation, for others it can lead to unintended and even adverse consequences. You may be familiar with a computer programmer’s common lament “Garbage In – Garbage Out”, meaning that if you don’t know the consequences of the answers to the program’s prompts, you won’t get a proper result.

Florida law is rife with peculiar specifics. Take, for example, the law surrounding the devise of your homestead. If you are survived by a spouse or a minor child Florida law declares a bequest of your homestead to a testamentary (after-death) trust as invalid. This is true even if that testamentary trust benefits the surviving spouse. I see this commonly with trusts that are not only web-based, but those that were prepared by an attorney in a northern state but have not been updated.

Recently I read a self-prepared, web-based will that directed for a $2,000/month distribution to a surviving spouse for the rest of her life. The problem was that the document did not carve out amounts from which to generate the income, nor did it provide for the correct administrative provisions necessary to carry out the decedent’s intent. Without the “carve out” it was impossible to determine how much to distribute to the other beneficiaries. That estate plan ended up in court, with the beneficiaries fighting it out over what the decedent would have wanted.

You can bet the farm that the attorney’s fees spent on fighting out the ambiguity far exceeded what it would have cost to have a qualified estate planning attorney prepare the plan.

In yet another web-prepared plan I noticed that the decedent named five individuals to all serve concurrently as the personal representative (executor) under the will as well as the trustee of the trust. The document did not indicate whether a unanimous consent to conduct trust business was necessary or whether a simple majority ruled.

The banks and financial service firms where the accounts were located were rightly afraid for their own liability. What happened if one of the trustees directed for a distribution, but another objected? What happened next was inevitable. The banks and financial services firms sent the matter up to their in-house legal department, resulting in frozen accounts for several months. The family had to pay out of pocket not only for legal fees to rectify the situation, but to pay bills until the accounts became available for use again.

The new tax act recently signed into law by President Trump pushes the federal estate tax threshold to amounts where only the wealthiest will have to plan to minimize or avoid the tax. It’s likely that with the threshold so high, many will be lured into creating inexpensive web-based plans.

But there are many other traps found in this law for the unwary when planning one’s estate.  Income taxes will continue to be an issue in almost everyone’s estate. Everything from taking advantage of the increase in the step-up in tax cost basis at one’s passing to qualified retirement account (IRA, 401(k)) issues to protect the inheritance, defer the income tax as long as possible and achieve tax deferred growth will remain huge issues to anyone with any degree of net worth.

I’ll be exploring those issues in greater detail, including the effects of the new tax act, in upcoming columns.

Stay tuned!

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2018 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Assisted Suicide Machine Lets You Kill Yourself Anywhere

As an estate planning attorney, end of life decisions are part of the process of creating legal documents such as the living will. But the living will only goes so far, as it legally allows the process of dying to take place uninhibited by otherwise life-prolonging procedures. The legal document does not call or allow for euthanasia. Many, however, assert that the right to die should go beyond refusing medical care and allow for assisted suicide.

Dr. Philip Nitschke considers himself the Elon Musk of assisted suicide and his latest death machine, the Sarco, is his Tesla. Nitschke performed his first assisted death in 1996 in Australia–when it was briefly legal–only to be outlawed for two decades before recently becoming legal there again.

As a young medical school graduate, Nitschke found himself drawn to the world of euthanasia and the work of Dr. Jack Kevorkian, the most famous euthanasia proponent in the United States. Inspired by Kevorkian’s death machine, Nitschke set out to create an updated version that he called “The Deliverance”. The machine was rudimentary, comprising only of a laptop hooked into an IV system, but it worked. A computer program would confirm a patient’s intent to die and then trigger a lethal injection of barbiturates. It successfully ended four lives before Australia repealed the euthanasia bill in 1997.

The repeal of the euthanasia bill didn’t dissuade Nitschke. He has aided in hundreds of what he refers to as “rational suicides”. He founded a non-profit in 1997 by the name of Exit International, and in 2006 he published The Peaceful Pill Handbook, which instructs on the most painless and efficient ways to commit suicide.

Meanwhile, Nitschke continued to invent death devices. He created an “exit bag”–a breathing mask that replaced oxygen with carbon monoxide. The bag was highly effective but unappealing, as it was akin to dying in a plastic bag. People didn’t want to leave the world in such an aesthetically displeasing way.

His latest machine, the Sarco, is the answer to the problem. It is sleek and appears luxurious. It resembles a spaceship and is intended to convince its user that he or she is journeying to the great beyond. Its base contains canisters of liquid nitrogen and a removable capsule compartment that can be repurposed as a casket. The whole operation can be 3-D printed anywhere in the world.

Potential users fill out an online test of mental fitness, and if they pass, they receive an access code that works for 24 hours. After the code is entered and additional information is provided, the Sarco capsule will replace the oxygen with the liquid nitrogen. The user passes out once the oxygen level falls to 5 percent or below, and a few minutes later, death occurs.

The machine cannot be operated from the outside. The canisters are activated by a button from the inside. A user who has second thoughts can also hit an escape button opening the machine and allowing oxygen to take over all the way up to the time that he or she passes out.

Nitschke indicates that the user feels a sensation similar to being drunk or high before passing out and that the death is relatively painless. There is no asphyxiation as the user breathes easily, comparing it to an airplane cabin depressurizing. Suicide clinics in Switzerland are expected to license the machine sometime in 2018.

Nitschke believes that the right to die is a human right and not a medical or legal privilege. He states that no one should be subject to rules about whether a person is sick enough to choose to die. Not everyone agrees. “I think it is bad medicine, ethics, and bad public policy,” Dr. Daniel Sulmasy, a Georgetown University professor of biomedical ethics says. “It converts killing into a form of healing and doesn’t acknowledge that we can now do more for symptoms through palliative care than ever before.”

Sulmasy believes that assisted suicide violates the bedrock of all ethical thinking, which is that people have value simply by being human. He argues that assisted suicide sends a message to disabled and dying individuals that society urges them to choose death if they become too much of a burden. He also worries about the contagious effect that suicide can have on a population, pointing to various episodes in human history.

Sulmasky also points to the process called the double rule effect, which allows doctors to ethically help patients find the ultimate relief in their final days. The rules says that if a patient agrees to the risks, a physician is allowed to keep increasing the dosage of pain medication until the pain is completely under control, which may mean administering enough to render the patient unconscious or kill them.

The counter argument to this, Nitschke says, is that palliative care isn’t for everybody, and that some can’t direct more morphine be administered because of their end-of-life condition. He also says that even healthy individuals should have the option of ending life when they believe the time is right, so long as they are old enough to make that choice.

The ethical issues are numerous. I know many, myself included, who struggle with these issues after watching someone die a particularly painful end. As medical advances allow for longer life, we also have to think about how medical technology also brings into question the end of life. I don’t know what the answers are, but it appears that we now have more questions to consider.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

When You Don’t Avoid Probate with a Trust

A couple of years ago, a very nice couple visited with me in my office. They had moved from Wisconsin, where their attorney was also licensed in Florida and had just completed a revision of their revocable trusts and related pour-over will, durable powers of attorney, health care surrogates and living wills.

They wanted me to represent them now that they had become permanent Florida residents, but they were quick to say that they had the utmost of confidence in their Wisconsin attorney who they assured me had taken the necessary steps to update their documents to Florida law. This couple merely wanted to meet with me and to seek my assistance when something happened to either of them.

“Normally, I would review your documents and your assets to ensure that your plan is up to date and congruent with your intent now that you live here,” I said.

“No, thank you. We’ll call you when we need you,” the husband replied.

That was the last I heard until recently, when the wife called me to tell me of her husband’s passing.  I asked her to provide me current deeds and financial statements so that we could implement the testamentary trusts found within their revocable trusts.

That’s when we discovered that nothing had ever actually been transferred into either her trust or his trust. “The assets in your husband’s name alone will be subject to a probate proceeding in order to get them into the trust for you,” I advised.

“But we were told that our trust avoids the probate process,” she said.

“It does.  But only when the accounts and properties are actually titled into the trust name,” I continued.  “Here, there are accounts in your husband’s name. So his pour-over will catches those assets and deposits them into his revocable trust, but only through a probate process.”

Looking through the trust instrument carefully, I noticed another problem. “The disposition of your home inside of your husband’s trust is an invalid devise,” I counseled.

“What does that mean?” wife asked.

“Well, Florida law contains unique and peculiar homestead provisions.  This doesn’t really have anything to do with your homestead property tax exemption nor your ‘Save Our Homes’ property tax assessment cap. Instead, the law centers on to whom you can leave your primary residence. When you are survived by a spouse, you need to leave it outright to him or her, or else you have an invalid devise.”

“Well, isn’t his trust mine now?”

“Yes and no.  You are the trustee of his trust and you are the primary beneficiary of the credit-shelter trust created for estate tax purposes. But despite these facts, the home as a part of his trust creates an invalid devise.”

“So what happens?” she asked.

“Well, you get to share the home with the children. You can either choose a one-half interest in the home or you could choose a life estate and they would get a current vested remainder interest.” I said.

“That doesn’t sound so bad.” She said.

“It might not be, unless you go to sell the home and you need the children’s permission, their agreement on the sales price, and they get a portion of the sales proceeds. Hopefully none of the children have any divorces or creditor problems going on now as that might affect the title as well.”

Needless to say, the wife wasn’t very happy with all of the obstacles that appeared before her in a most difficult time – after the loss of her husband. All of these problems could have been avoided with a review of the trust and the assets and corresponding action taken before anything happened to the husband.

While you might point out that the Wisconsin attorney could have done more, one doesn’t know the extent and scope of his representation. Perhaps he wasn’t engaged to also help transfer the assets to the trusts that he created. As far as the homestead laws, those are very particular to Florida. While the Wisconsin attorney indicated that he was licensed to practice law in Florida, he may not have had many clients here and may have been unaware as to the issues involved in the disposition of Florida homestead. Or it could have been that the clients assured him that the home was owned differently than it really was. It all could have been an innocent misunderstanding or a lack of depth of the engagement itself.

In any event, the morale of the story is clear. Even if you have a trust you might not avoid the probate process if all of your assets were never actually transferred into the trust, and when moving to a new state, beware of how your new home state’s laws affect your estate planning.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Son Using Father’s Trust for Son’s Personal Advantage?

When you’re named as a trustee to a trust, especially a trust in which you are also a beneficiary, you are subjecting yourself to several legal responsibilities of which you need to be keenly aware. The foremost of those responsibilities is the potential conflict of interest that you may have in conducting any aspect of trust business.

Suppose, for example, that Son is the trustee of Father’s trust, as Father has become incompetent.  Son was named as the successor trustee.  Father went so far as to tell his estate attorney that he named son to fill that role because of Son’s business acumen. When Father dies, Son and Daughter are the beneficiaries of the trust.

Assume further that Son is a real estate developer working on a project that needs a cash infusion. The project could result in millions of dollars in profits, but it could also go bust.  Son is the confident sort who never expects one of his ventures to fail. Upon examination, the trustee powers contained in the trust document include the power to invest in stocks, bonds, mutual funds, real estate and business ventures.

So is that enough for Son to take Dad’s trust assets and invest in the venture? Does it matter if Son invests Father’s trust as an equity partner – buying shares in the venture or if Son loans money from Father’s trust, effectively making it a creditor of the venture?

What should Son do?  Or should Son just keep Father’s trust’s existing asset mix?

It’s not such a simple question, right or wrong. Son was correct by first determining whether the trust instrument to determine if he even had the power to act as trustee to make such an investment. But the power alone is not enough.

Assume, for example, that Son intends to invest $750,000 of Father’s trust into the real estate venture. If the total value of Father’s trust approximates $1.5 million, then Son would be investing an unusually large percentage of the whole into a risky venture. This would probably fall outside of the “prudent investor rules” that Son should follow as trustee.

The “prudent investor rules” (Chapter 518 of the Florida Statutes) indicate that a Trustee should act reasonably given the risk tolerance of the beneficiaries, the investment portfolio mix and the goals of the trust. To take such a large amount of Father’s trust to put into a risky real estate venture would likely fall outside of the prudent investor rules.

Assume, instead, that Father’s Trust is worth $5 million and that Father made his money in real estate ventures before turning the family business over to Son.  Now it would appear that a $750,000 venture may not fall so blatantly outside of the prudent investor statutes.

But what if Daughter is uncomfortable with the decision to so invest? Could that change our conclusion?  As trustee, Son not only has a duty to Father to ensure that the trust is properly used for Father’s benefit for the rest of his life, but Son also has a duty to the remainder beneficiaries – including Daughter.  Daughter’s risk tolerance should also be considered when making trust and investment decisions.

In addition to the prudent investor rules, Son has the obligation to account to all “qualified beneficiaries” of the Trust. In my example, Son himself and Daughter are “qualified beneficiaries” even though they are not vested, meaning that their interest in the trust property is not certain until Father’s death. The accounting not only must report the income, capital gains, losses and expenses of the trust, but must also report material transactions. The material transaction would likely include the real estate venture.

What if Daughter objects to the transaction? Can she block it?  Since Son is the trustee, he is the one who decides where to invest the trust assets. If Daughter has enough lead time she could conceivably file a Court action to stop the investment. Usually, however, the trustee has already made the investment. In this case, if the deal doesn’t work out then Son would likely have personal liability to Daughter should she sue based on breach of fiduciary responsibilities.

Finally, let’s take the worst case scenario where Son simply takes Father’s trust money for his own use and never reports it to Daughter.  When a beneficiary suspects that the Trustee is using the Trust property and assets for his own use and not for the express purposes of the trust, the proper course of action is to file an action to remove the trustee.

From time to time I’ll receive a call from a beneficiary of a trust complaining that they don’t have enough information to even determine whether their suspicions of improper activity are taking place. In these instances the beneficiary should demand an accounting, as is their right under Florida law and most other state’s laws. The accounting should indicate whether the beneficiary’s suspicions are true or not. If true, then the next steps of removing the trustee and seeking retribution payments back to the trust would be appropriate.

One can now see how important the selection of a trustee is.  Don’t take this choice lightly, as a high degree of wisdom, integrity and judgment is constantly necessary when making daily decisions. I’ve written a book entitled Selecting Your Trustee addressing this and a host of other issues that you want to consider when naming someone to follow you in your estate plan. You can have the best plan in the world drafted, but if you select the wrong individual or entity to serve as your trustee then your plan could fail. If you’re interested in obtaining a complimentary copy call my office at 239.334.1141.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Rings in Peanut Butter and Buried Treasures

Children of a recently deceased client learned an expensive lesson not too long ago after their mother’s passing. To prepare mother’s residence for sale, her adult children spent the better part of a day throwing freezer-burned food in the dumpster and cleaning out perishables from the pantry. It was late in the day when a granddaughter decided to make herself a peanut butter and jelly sandwich.

“Oh my God!” she exclaimed. “There’s a diamond ring here in the peanut butter!” Obviously this was not at all like the surprise that one finds in a box of Cracker Jacks at the ballgame.

Apparently the dearly departed decided to fool potential burglars by hiding expensive jewelry inside of foodstuffs and containers. At this point in the day several industrial size garbage bags had been thrown into the complex’s dumpster bin. The children had no choice but to climb into the dumpster to retrieve the trash, go through all of the old flour bags (complete with hatching insects), Ziploc bags of frozen perishables and a host of jars and other items to search for valuable keepsakes.

It’s my understanding they found several other items (care for a gold bracelet in a bag of frozen peas anyone?). But they also wondered how many were missed.

I would hope that most people choose not to hide valuables within real food packaging, but I’ve also seen online retailers offer containers for valuables that look like insect repellant, window cleaner and the like with the idea that you can place your jewelry (or even cash) inside of what appears to be an every-day household item, going completely unnoticed by thieves.

It isn’t therefore unreasonable to assume that those same household items might be considered valueless junk to be disposed of following your death by unknowing relatives. It was lucky in my client’s case that the granddaughter got hungry and decided to make a snack or else all of those valuables would have been lost.

Which brings to my mind another true account about a man that ran a largely cash business. This was not a client of mine, but was of another family member so I take his word on the veracity of this account. This particular business owner did not deposit all of the day’s cash proceeds into a bank account for reasons one can only conjecture. Instead, he buried it in and around his home.

Whenever he would have a carpenter, painter, plumber or other serviceman work in his house, his wife would sit in the room with the individual to make sure that no stash was uncovered and stolen. They had so much cash around the house that he said he forgot where it all was. Some of it was buried in the backyard.

When a sinkhole opened up in a neighbor’s backyard one evening, he panicked. He spent the better part of the next day and deep into that night digging up his cash in order to save it in case the sinkhole spread.

In so doing he suffered a heart attack.

The good news was that he survived the heart attack. The obvious bad news is that he had a real “cash flow” problem that had to be addressed.

I instructed my family member that if this individual ever died and the house went up for sale to buy it no matter the price! This was an asset that could very well “pay for itself”!

So if you’re engaging in similar clever activities such as hiding valuables in perishables or in what appear to be every day household containers, or should you act like Blackbeard burying hidden treasures in the yard, at least leave a map behind for those that follow you.

And a bottle of rum.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

World’s Oldest Man

On August 11, 2017 the world’s oldest man passed away, just a month short of his 114th birthday – making him one of the ten longest-lived men since modern record keeping began. If you knew nothing else about him than this fact, you would be justified in believing that he had led a peaceful life, spared of fear, grief and danger.

How else could such a man live so long?

The actual truth, however, is enlightening. The man in question was Yisrael Kristal, a Holocaust survivor. Born in 1903 Poland, he survived four years in the Lodz ghetto, and was then transported to Auschwitz. His two children died in the ghetto. In Auschwitz, his wife was killed. When Auschwitz was liberated, he was a walking skeleton weighing a mere 82 pounds. He was the only member of his family to survive.

Raised a religious Jew he kept the faith his entire life. When the war concluded and after his entire life was destroyed, he married again, this time to another Holocaust survivor. They had children. They moved to Israel, making “aliyah” it is called which means “the act of going up” which Jews say they accomplish when they move from diaspora lands to Israel.

In Haifa he began again in the confectionary business, as he had done in Poland before the war. He made chocolate and sweets, but he was also an innovator. If you have ever had an Israeli orange peel covered in chocolate, or liqueur chocolates shaped like little bottles covered with silver foil, you enjoyed one of the products he originated.

Those who knew him said he was a man with no bitterness in his soul. He wanted people to taste sweetness.

In 2016 at the age of 113 he celebrated his bar mitzvah, 100 years past the time when most young men (boys) accomplish the feat. When he was only 13 having a bar mitzvah couldn’t occur since his mother was dead and his father was fighting in the First World War.

So during his bar mitzvah service he gathered his children, grandchildren and great-grandchildren under his tallit (prayer shawl) and said, “Here’s one person, and look how many people he brought to life. As we’re all standing here under my tallit, I’m thinking of six million people. Imagine the world they would have built.”

His life stands to remind all of us that no matter our age or lot in life, there is always good that we can accomplish. Yisrael Kristal died in the week that in synagogues around the world the portion of the Torah (otherwise known as the Old Testament – the Five Books of Moses) that is read relates to God’s commandment in Deuteronomy to wear teffilin (parchment scrolls in leather boxes bound on the hands and arms during prayer) and to teach Torah to your children “so that you and your children may live long in the land that the Lord swore to your ancestors.”

How fitting was that portion for this man’s life event?

Whether or not you’re are Jewish or even religious, I hope that this world’s oldest man’s life story gives you hope for our future and for your personal future.

If you’ve ever spoken to a Holocaust survivor, you probably found as I did that many are among the strongest, life-affirming people that you’ll ever meet. Victor Frankl, a Jewish psychologist who survived Auschwitz and wrote “Man’s Search for Meaning,” is another whose work became an affirmation of all things good in life after enduring what can only be described as a living hell.

Too often I listen to retirees lament that their life’s work is complete and that they no longer have much to contribute to society. While it’s true that our society tends to accentuate the young, men such as Yisrael Kristal show us that living so deep into old age that there are none other like you offer opportunities to affirm life and to make a difference.

Once you run out of goals you no longer have a future.

Don’t give up on your goals, no matter what they are or what your age might be.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.

Homebrewed Amendments

What happens when a man dies with a will or a revocable trust that was originally created by an attorney, but later that man apparently removed some of the pages and replaced them with new pages containing different provisions? Those pages have handwritten changes scratched through them in several places, and were not witnessed in accordance with the statutory requirements.

I’ll tell you what happens. The estate becomes a bloody mess.

Believe it or not, I’ve seen this scenario play out several times. I can only guess that when people try to self-amend their legal documents, they think that it’s easy to do and that there’s no reason to pay a qualified lawyer to get it done properly.

In order for a will or trust (or an amendment to a will or trust) to be legal, the testator must sign it at the end, and the testator’s signature must be witnessed by two individuals who sign in the presence of the testator and in each other’s presence. So when a man rips out a page of his trust, and types a new page to insert instead, he has not complied with the statutory legal requirements to properly amend his trust.

This makes sense when you think about it. How does anyone know whether the pages that were removed and replaced really those of the testator? That’s why we have laws governing the signing of testamentary documents.

So what happens when pages are replaced? That’s when litigation commonly arises between beneficiaries. Assuming that the original pages of the trust (or will) – or copies of them – can be found, the beneficiary who would most benefit from the old provisions (before they were ripped out and replaced) will argue before a court that since the new amendment was invalidly executed, the old provisions should be resurrected and enforced.

Another beneficiary may argue that since the testator ripped out the old page, he intended to revoke that provision and that the document should be read as if the old provisions weren’t ever included. Since the new provisions inserted weren’t validly executed, they’ll look to the rest of the document to see who should get what.

But let’s say that in so examining the documents that there is a gaping hole.  Assume for example that the man ripped out the provision that says to leave 25% of his estate to his sister.  He replaced that provision with one that directs a 25% bequest to his church, but the new provisions weren’t validly executed.

The provisions he left alone direct a 25% bequest to his son and a 50% bequest to his wife.

So if we assume that he intended to revoke the 25% gift to his sister, but that the 25% gift to the church wasn’t signed correctly, who is entitled to that 25%?

Here there are a number of legal theories that may apply. One is called the doctrine of dependent relative revocation. Under this theory, the man intended for his sister to reclaim the 25% if the provision for the church was found to be invalid, as it likely will be.

This Court may follow this theory if the trust or will prior to the one he destroyed gave his sister 25% as well. But let’s assume that his sister did not appear in any prior version of his will or trust. In that case, there are at least two alternative solutions a Court may find.

The first solution would be to declare the man to have died intestate (without a will) as to the 25%.  Here, the Florida intestacy statutes would say who is to receive the 25%. If the man was survived by his spouse and not by any minor children, and if his children are the children of his spouse, then his spouse would likely receive the 25%. But let’s say that the man’s prior trust gave the 25% to his brother. Here, the brother may use the doctrine of dependent relative revocation to claim the amounts as his.

Depending upon the son’s relation to the man’s spouse, the son may also have a claim to some or all of the 25%.

You can clearly see where all of this is going. The church is likely to hire a lawyer to argue their rights to the share, although it would have the least likely chance of prevailing. The spouse, brother, sister and son would also have a potential claim to at least some portion of the 25% in question under various legal theories, so each of them would likely hire a lawyer to argue their case before the judge. Under Florida law, the estate would likely be obligated to pay all of these legal fees from the various claimants.

The poor judge has one big headache. The lawyers have a lot of work to do (and hence a lot of fees to collect from the estate) including reviewing prior wills and trusts, and taking depositions of family members and of the lawyers who drew the trusts. Each lawyer will try to build a case that would prove the man’s intent as benefitting that lawyer’s client. This courtroom drama could drag on for years before being settled or resolved.

As I’m sure one can now see, the man would have saved his family and his estate a great deal of aggravation and expense if he had only hired a qualified lawyer to help him amend his legal documents in the first place.

The Sheppard Law Firm is located in Fort Myers and Naples by appointment.

© 2017 Craig R. Hersch. Originally published in the Sanibel Island Sun.