DIY Estate Plans? Scarier than Halloween!

Over the past few years, DIY estate plans have gained in popularity.  Just fill in the blanks and out pops a will, a trust, or even powers of attorney.  Have you carefully considered whether these documents:

  • Conform to state law; 
  • Could contain inaccurate, incomplete or contradictory information; or
  • Account for changing life circumstances such as new children/grandchildren, marriages, or divorce.

I was asked to look over a DIY will.  Upon review, I asked this new client if he ever lived in Utah?  No.  Did he plan to move to Utah?  No.  Did he own property in Utah?  No.  Why all the questions about Utah, he asked.  Because he selected Utah instead of Tennessee as the controlling law for his will.  I am not so certain that his family would have enjoyed traveling to Utah to probate his estate after he passed.

The list of horror stories associated with DIY estate plans would frighten ghouls and ghosts at Halloween.  A faulty DIY estate plan could very well result in a judge in Probate Court, and not you or your family, deciding who inherits what assets.  You may find that DIY healthcare directives and financial powers of attorney may not be accepted at precisely the time you need them to operate without challenge.  Your family and loved ones will be left wondering who will be in charge of making critical healthcare and financial decisions for you.  Instead of caring for you and following your instructions, they might be forced to request a judge to appoint someone to make decisions for you – perhaps even a total stranger to you and your family.

If you have a DIY will, trust or other estate plan documents, invest in a thorough review by an estate plan professional.  Avoid uncertainty.  Avoid anxiety.  Avoid will contests.  Contact Michael Geiger at Geiger Law for assistance with all your estate planning needs.

Stingy Jack

A good number of years ago in Ireland, a fellow known as Stingy Jack maintained less than a stellar reputation.  Stingy Jack derived tremendous pleasure in playing tricks on all.  He fooled villagers and travelers alike.  He tricked his family members.  On occasion, he even pranked his own mother.  Few enjoyed the company of Stingy Jack who appeared deficient on goodwill toward his fellow man rather than stingy with his purse.

Adding to this charming persona, Stingy Jack was a drunkard who spent most of his free time at the local pub.  While at the pub with the Devil himself, Stingy Jack took the Devil up on an offer for drinks.  Stingy Jack only had to agree to give his soul to the Devil for the drinks.  Stingy Jack asked how the Devil would pay for the drinks.  The Devil changed himself into a coin to pay for the drinks.  Stingy Jack, always the trickster, placed the coin in his pocket next to a cross.  Being stuck beside a cross, the Devil lost his powers and remained a coin in Stingy Jack’s slacks.

The Devil pleaded for his freedom and offered not to take Stingy Jack’s soul at least not until Stingy Jack died.  Stingy Jack freed the Devil, only to encounter the Devil years later in an apple orchard.  The Devil sought payment of Stingy Jack’s soul.  Stingy Jack said he was ready, but requested an apple from a nearby tree as his last wish.  The Devil climbed the apple tree to retrieve an apple.  Stingy Jack quickly carved a cross into the tree thereby once again trapping the Devil high up in the apple tree.  

Apparently with a little self-reflection on his life until that moment, Stingy Jack demanded that his soul would never pass into Hell after Stingy Jack died.  It appears that Stingy Jack recognized his immortal need for insurance.  The Devil agreed in order to secure his freedom.  

Years later, Stingy Jack died and traveled to the Pearly Gates of Heaven.  Saint Peter greeted Stingy Jack advising that there would be no admittance to Heaven as Stingy Jack spent his life miserably and in a cruel fashion.  Stingy Jack wasted his life and his worthless nature did not merit entrance to Heaven.  Not knowing where to turn, Stingy Jack showed up at the gates of Hell.  The Devil, true to his word, denied Stingy Jack entrance to Hell, although the Devil certainly believed that Stingy Jack belonged there.

Stingy Jack shrewdly avoided eternal damnation in Hell.  Yet, he ignored the other half of the equation and continued with his less than heavenly approach to life while on Earth.  

Stingy Jack asked what would happen to him with the Devil replying that Stingy Jack must eternally wander the Netherworld between Heaven and Hell.  Stingy Jack complained that the Netherworld presented total darkness and Stingy Jack could not see his way.  The Devil tossed Stingy Jack an ember from the fires of Hell to light Stingy Jack’s way.  Stingy Jack carved out a rutabaga and placed the eternal ember in the hollow root vegetable to light his path.  From that day forward, Stingy Jack would forever roam the Earth without a resting place with his dimly lit rutabaga as his only light.

The Irish thereafter called Stingy Jack “Jack of the Lantern” which, when shortened, became “Jack O’Lantern”.

On All Hallow’s Eve, the Irish would carve out rutabagas, turnips or gourds and place a lit candle inside the vegetable to ward off Stingy Jack and other evil spirits.  This tradition continued for centuries with a slight change in the mid-1800s.  The new Irish immigrants to the United States quickly recognize that pumpkins much better fit the bill for carving at Halloween than rutabagas and turnips.  The Irish back in the homeland did not use pumpkins as no pumpkins were grown in Ireland.  The modern Jack O’Lantern became a staple of the Halloween celebration.

But how did Stingy Jack become associated with Halloween itself?  His story stands apart from All Hallow’s Eve.  The lessons we may learn from his life do not readily tie into Halloween.  The “scary” side of Halloween’s history may shed more light on the Stingy Jack’s eternal wandering, at least more light than a dimly lit rutabaga.

The Celtic pagan ritual of Samhain celebrated each October 31, recognizes the end of summer and beginning of the darker months ahead.  At this time between seasons, the spirit world among us becomes visible.  Spirits could freely travel with us and cause supernatural mischief.  The spirits needed to be appeased and avoided.  The tradition of leaving food, wine and treats for the deceased spirits arose as a bribe for the spirits to leave us alone.  Soul cakes, the precursor to candy treats, would be prepared and left out.  But more would be needed to ensure our own well-being.

Disguises in the form of masks and frightening costumes would fool the spirits.  The spirits would avoid anyone so dressed up as they would falsely believe them to be just another spirit.  The scarier the costume, the better the odds of surviving All Hallow’s Eve.  

In these traditions, an old guy eternally walking the Earth carrying a rutabaga with an ember from Hell as his lantern found a home.  Stingy Jack may not be welcome in Heaven and may be precluded from Hell, but he fit right in with the Samhain crowd, at least one night a year.

In honoring Stingy Jack and perhaps even more as an effort to keep him at distance, we carve pumpkins into Jack O’Lanterns.  Those perfectly stenciled pumpkin carvings with intricate patterns and detail may nicely shine on walkways.  Yet, it strikes me that such Jack O’Lanterns may be ineffective in dealing with Stingy Jack.  Going forward, I am in the camp of those poorly carved, can you tell if it is even a face, Jack O’Lanterns.  A Jack O’Lantern should be the result of a child envisioning a perfectly scary face then butchering a pumpkin to the point that the eyes are uneven, an off-center hole is the nose, and the mouth has but one large tooth.  That type of Jack O’Lantern would be Stingy Jack worthy!

In Estate Planning, when considering disinheritance of someone, we may encounter the Stingy Jack client.  That client starts off with a firm position that one child must be disinherited.  I never ask for details regarding such relationships and instead focus on the methods of disinheritance and risks presented to estate plan documents if not done properly.  Nonetheless, these clients feel it imperative to explain the reasons for disinheritance.  My office  becomes a confessional.  

As the planning process unfolds and that Stingy Jack client ponders these actions more deeply and prepares to set forth that disinheritance position in stone (or at least on paper in a trust), a little self-reflection may soften the rough edges.  A number of these clients come back to a less than full disinheritance position.  Nothing has changed between the client and the estranged family member.  No reconciliation has taken place.  Yet, something fundamental changed.  Perhaps these clients have their own Stingy Jack moment where they think they need some insurance against a drastic decision.  I would like to believe that the change is made out of affection for the wayward family member rather than securing a Stay Out of Hell card.

This Halloween, in addition to rooting for the poorly carved, scary looking pumpkins, I also will cheer for the more authentic costumes.  Our doorstep has been visited by way too many Spidermen and princesses the past few years.  Those kids are cute, for sure, but those lame costumes will not frighten away the mischievous spirits.  I say, any kid who shows up with a scary mask and frightening costume gets an extra piece of candy.  If a daring child knocks on our door dressed as an old man toting a carved out dimly lit rutabaga, that kid should get all the candy.  Enjoy your own Trick or Treating. 

Charles Dickens Was Right!

Jarndyce v. Jarndyce.  Fans of Charles Dickens understand well this legal case.  The Jarndyce will contest lawsuit continued for years in the background of Dickens’ novel Bleak House.  It was only after the Jarndyce estate was drained of all of its money in order to pay the lawyers did it come to an end.  Every character associated with the Jarndyce case suffered an ill fate.

As usual, Dickens accurately portrayed another societal ill through Jarndyce.  Litigation is costly and sometimes only the lawyers win.  Legal challenges to wills or trusts are not simply costly, they also forever alter family dynamics and eviscerate even the hope for family harmony. Proper estate planning anticipates legal challenges to wills or trusts in order to preserve assets and better ensure that your wishes are honored.

But who might challenge your will or trust and why?  A family member, friend, or complete outsider could initiate such a lawsuit because they feel wronged by the amount or absence of inheritance; they believe the will or trust does not reflect your wishes; or the will or trust fails to meet necessary legal standards.

Proper estate planning would incorporate a Contest Clause.  If anyone challenges the document, the Contest Clause directs that the challenging party is to receive nothing from the estate even if the lawsuit succeeds.  Other tools exist for the estate planner to protect your wishes.  Detailed Statements of Intent can explain the “why” behind a gift or absence of inheritance.  Expressly disinheriting some or leaving a nominal amount could signal true feelings.   Such measures may assist those left behind as well as a judge who is called upon to interpret your intent.

Avoid the fate of Jarndyce v. Jarndyce and avoid will contests.  Contact Michael Geiger at Geiger Law for assistance with these matters and all your estate planning needs.

Goddesses Frigga and Taylor Swift

Congratulations!  If you are reading this article, you survived the one and only Friday the 13th which landed last Friday in this year’s calendar.  Friggatriskaidekaphobia, or fear of Friday the 13th, impacts an estimated 17 – 21 million people in the United States.  These folks alter their lifestyles and routines on any Friday the 13th.  They try not to travel, most especially air travel.  They refuse to conduct business.  Some do not even get out of bed on this most feared day and date.  Hopefully, you got past last Friday with nothing more than noting the date and exclaiming: “Oh, it’s Friday the 13th.  I hope I have no bad luck.”

Friday the 13th consists of two elements:  the day of the week and the number on the calendar.  A history, of sorts, exists for both aspects and, surprisingly, not all bad.  And yet, it is the confluence of both pieces of the bad luck puzzle which must combine to create disruption to ordinary affairs.  No one trembles on Wednesday the 13th.  Standing alone, Friday is not a harbinger of bad things to come your way.  Indeed, Friday is quite often welcomed as the beginning of the weekend and end of the work week, it may even be payday.  The marriage of the day Friday and the 13th day of the month results in this phobia for millions.

Historical events treat the number 13 poorly.  Part of this perception arises from the good fortune associated with 13’s next door neighbor, the number 12.  A sense of completeness rests with the number 12 in culture.  There exists 12 Days of Christmas.  12 months are in a calendar year.  There are 12 zodiac signs.  We find twelve tribes of Israel.  The number of gods of Olympus: 12.

13 has not fared so well.  In Norse mythology, 12 gods attended a dinner party at Valhalla.  Loki, the trickster god, had not been invited and crashed the party bringing the number of gods in attendance to 13.  Loki then tricked the blind god, Hodr, to shoot an arrow with its tip poisoned with mistletoe at Hodr’s own brother, Balder.  The poison arrow instantly killed the god of joy, light, and goodness, Balder.  The Norse gods proclaimed that with Balder’s death, Earth got dark and mourned as it was a bad and unlucky day when 13 gods came together.

In Christianity, the Last Supper witnessed Jesus dining with his 12 disciples (totaling 13).  The most infamous guest to arrive was the thirteenth – Judas Iscariot.  Judas’ betrayal lead to the crucifixion of Jesus on Good Friday.  13 appeared a doomed number in culture thereafter.

Captain William Fowler, a New York socialite popular from the 1860s until 1880s, established the Thirteen Club in an effort to remove the persistent stigma associated with the number 13.  The Thirteen Club met for a 13 course dinner on the 13th of each month at the Knickerbocker Club.  13 guests dined in Room 13 each month.  Members of the club entered under a ladder below a banner which read “Morituri te Salutamus” (“Those of us about to die, we salute you.”).  Four U.S. Presidents joined the Thirteen Club at one point in their careers.  The Thirteen Club may have assisted the social standing of some, but appeared to have minimal impact on the poor reputation of 13.

As for Friday, it started off slightly better than 13.  Enter Norse goddess Frigga after whom Friday has been named.  Frigga, a goddess of marriage, also symbolized fertility, motherhood, love and sex.  Frigga provided protection to homes and families.  The Day of Frigga, or Friday, then stood for ancient family values and relationships.  So far, so good.  

As Christianity spread in the Middle Ages, no tolerance existed for pagan rituals or worship of pagan gods.  Frigga, the goddess who invoked sex and fertility, had no place at the new party.  Christian Church leaders worked to conflate the reputation of Frigga with the goddess Freyja.  Freyja, also a goddess of fertility and love, further could perform magic, predict the future, and determine who would would die in battle.  Freyja traveled by chariot drawn by two black cats.  With Freyja’s dark side reputation wearing off on Frigga, the Church fathers recast Frigga a witch banished to a mountain top.  In this new role, Frigga allegedly convened a gathering of eleven other witches plus the devil – for a total of thirteen – to plot fateful ill turns for each coming week.  This effort to throw a pagan goddess under the bus may be the first instance of quite literally combining Friday with the number 13.

Side note:  Norse god Balder’s association with the number 13 does not appear related to Norse goddess Frigga’s positive association with Friday.  However, Frigga and Balder remain related as mother and son in Norse mythology.  Each Friday the 13th stands as an eternal reunion for these Norse gods.

Casting Frigga away remained only part of the process to find fault with Friday.  Numerous Biblical references portray Friday as simply a bad day.  Eve tempted Adam with the forbidden fruit on a Friday.  Cain murdered his brother Abel on a Friday.  Friday witnessed the fall of the Temple of Solomon.  Noah’s Ark set sail on a Friday with the Great Flood.  Of course, the crucifixion of Jesus took place on Good Friday.  

Beyond the reference to Norse goddess Frigga conspiring with her group of thirteen, historical accounts attributing misfortunes to Friday the 13th remained few.  One notable Friday the 13th event took place on October 13, 1307.  King Philip IV of France arrested hundreds of Knights Templar, charging them with fairly vague offenses.  The Crown executed many of these Knights Templar in an apparent effort to reduce their power and confiscate their wealth.  Some historians credit this massacre as the source of associating bad luck with Friday the 13th.

Nonetheless, by the 19th century, Friday the 13th clearly became firmly entrenched as the date of bad luck.  A French play from 1834 included a character who claims that his birthdate of Friday, December 13, 1813 served as the event from which all his misfortune flowed.  An 1868 biography of Gioachino Rossini solidly tied together events on Friday the 13th.  According to the biography, Rossini considered Fridays as unlucky days and 13 an unlucky number.  Rossini died on Friday, the 13th of November.

In 1907, author Thomas W. Lawson published his instantly popular novel, Friday the Thirteenth, which chronicled an unscrupulous stock broker who prayed on the superstitions of investors surrounding Friday the 13th to orchestrate a crash of the stock market.  The conjunction of Friday and the number 13 became complete.

Need further proof that Friday the 13th is unlucky?  The following events took place on Friday the 13th:  The Germans bombed Buckingham Palace in WWII.  A cyclone killed more 300,000 in Bangladesh in 1970.  The Costa Concordia cruise ship crashed off the coast of Italy in 2012 killing 30.  And, the ultimate proof, rapper Tupac Shakur met his fate in 1996.

Can 13 or Friday be saved?  Frigga did well in establishing Friday as the day of fertility and family.  Even the Medieval Church could not get rid of the name Friday or Day of Frigga.  We may need a new goddess.  One who can single-handedly take down the recording industry.  One with immense popularity.  One who, as a slight woman, can boost NFL television ratings through the roof.  Of course, the modern goddess Taylor Swift.

Taylor Swift has been on a mission to salvage the number 13 in a way that Captain Fowler would take pride.  Swift fearlessly embraces the number 13.  In fact, for Swift, the number 13 is her good luck charm.  Swift gushed in an interview about the number 13:  “I was born on the 13th.  I turned 13 on Friday the 13th.  My first album went gold in 13 weeks.  My first number 1 song had a 13-second intro.  Every time I won an award, I’ve been seated in either the 13th seat, the 13th row, the 13th section or row M, which is the 13th letter.  Basically, whenever a 13 comes up in my life, it’s a good thing.”  Of course, her agents could rig the system by placing Swift in the 13th seat of the 13th row in the 13th section at every event.  That little detail matters little to Swift’s legions of fans.

In Estate Planning, we often need to tackle fears.  Many potential clients express fear of the Estate Planning process.  For some, consideration of issues to arise after they pass feels as though they must confront their own mortality.  We strive to show these clients the the decisions and issues are not about death, but rather how these choices can make everything both easier and certain for loved ones and friends.  As early as the initial meeting, I begin to demystify the process by explaining the purpose of each Estate Plan document and how it functions as a critical component of their plan.  The discussions gradually and organically become more business-like with focus on the necessary decisions to be made.

For couples in this process, I quite often end up drafting 26 documents in a Living Trust Estate Plan.  I know the number is 26 as I use tabs with letters A-Z in organizing, indexing and binding the final documents for the clients.  I now hope that these couples do not think too deeply to recognize that the process results in 13 documents per each person.  We do not want to add fear of the number 13 in the planning process.

You keep trying Taylor Swift.  You have much history to overcome battling against Friday the 13th.  You have upstaged Patrick Mahomes at Kansas City Chiefs football games.  So, who knows, perhaps you can be the cure for the 20 million suffering from friggatriskaidekaphobia.  

Who Needs an Estate Plan? Hint: YOU!

So many people think of a Last Will & Testament when they hear “Estate Plan”.  However, a good Estate Plan includes so much more and actually addresses potential needs arising during your life.  Unfortunately, the ongoing pandemic reminds us all that we need to prepare for when we can no longer address our own affairs.

First, do you need an Estate Plan?  Do you fit into any of the following groups:

ElderlyDivorcedParentFront Line WorkerTeacher
YoungSeparatedGrandparentMedical ProviderInvestment Banker
Middle-AgedPregnant Step-ParentHome OwnerTenant in Apartment
MarriedEngagedPet OwnerChief ExecutiveTrolley Operator
SingleOR, anyone 18 years of age or older with a pulse!

If so, you need an Estate Plan.  Make certain that your Estate Plan includes the following:

Document Purpose
Last Will & TestamentDirects distribution of Estate assets upon death
Revocable Living TrustTrust established for your lifetime plus directs distribution upon death
Health Care Power of AttorneyIf you become incapacitated, your representative can make medical decisions per your specific instructions
General Power of AttorneyIf you become incapacitated, your representative can manage your business affairs per your specific instructions
Living WillExpresses your end of life medical decisions
HIPPA AuthorizationAllows listed person access to your medical information

We can assist with your Estate Planning needs.  Contact Michael Geiger at Geiger Law.  Michael’s direct line is (901) 219-5549.

Special Needs Trusts The Very Basics: Part III:  Pooled Trusts

Pooled Trusts in the Special Needs Planning arena serve a critical need.  Pooled Trusts offer professional administrative services and the benefits of investments of combined, or pooled, assets.  In the Special Needs area, Pooled Trusts bring expertise in managing and protecting assets of the disabled person to best ensure that government benefits will not be compromised through trust administration.  

Assets which fund a Pooled Trust are combined with assets of other Pooled Trust participants, yet each beneficiary retains their own designated account for their asset contributions (the participant’s “Sub-Account”).  The Trustee manages the assets on behalf of the disabled person.  The Trust is non-profit.  The Trustee typically performs necessary administrative functions such as preparing tax documents such as the K-1 Tax form, as well as retaining necessary professionals such as attorneys and accountants.

The Pooled Trust Trustee further provides services directed for the care of the disabled person.  The Trustee may develop an individualized care plan for the beneficiary.  The Trustee will research the availability of government assistance programs for the beneficiary and then apply on the beneficiary’s behalf.  The Trustee shall ensure that distributions will not adversely impact these government benefits.  In sum, the Pooled Trust Trustee is a professional Trustee in managing the special needs of disabled persons.

To join a Pooled Trust, a medical payback requirement must be included in the Pooled Trust.  Assets remaining in a participant’s Sub-Account at death must first be used to pay back benefits received from government programs.  Pooled Trusts also include both set up and annual fees.  With these fees comes the professional and dedicated Trustee and knowledgeable staff in working with and representing disabled persons.  That expertise cannot readily be replicated.  

For assistance with these Special Needs Planning issues, including consideration of Pooled Trusts, contact Michael Geiger at Geiger Law.

Special Needs Trusts The Very Basics: Part II: SNT Distribution Standards

Part I in this series identified and explained the types of Special Needs Trusts, or SNTs.  Whether a First Party SNT, Supplemental Needs Trust or Pooled Trust, a basic goal remains to protect the government program benefits for the disabled beneficiary.  The trust assets cannot become an “available resource” for the beneficiary to best ensure that the beneficiary continues to qualify for benefits.

In crafting SNTs, care must be taken in selecting a distribution standard under the trust.  The Trustee provides for the beneficiary, but cannot do so in allowing assets to be deemed “available resources” for the beneficiary.  The clearest standard to protect both the beneficiary and Trustee is a pure supplemental trust standard.  A supplemental trust standard precludes any trust assets from supplementing or replacing public assistance benefits in any manner on any issue or need.  A distribution can be made only if it would not reduce any needs-based benefit.  There can be no SNT distribution for food or shelter.

The pure supplemental trust standard is the most protective for the beneficiary’s government benefits programs and perhaps easiest to administer for the Trustee.  Yet, it is also the most restrictive and could act to deny the beneficiary critically needed assets.

The alternative is to use a discretionary trust standard in a SNT.  Under a discretionary trust standard, the Trustee is directed to consider known income or resources available to the beneficiary, including public benefits and services in kind, but may make any distribution determined to be in the beneficiary’s best interest.  This standard discourages, but still permits, distributions which could cause a reduction or elimination of public benefits (including payments for food or shelter).  

The discretionary trust standard provides flexibility under a balancing test.  It may prove in the beneficiary’s best interest to forego certain benefits and use trust assets (e.g., costs of housing).  With this discretion comes a need to carefully administer the trust.  A Trustee well-versed in these matters may prove essential to carefully evaluate potential trade-offs in benefit programs with proper care for the beneficiary.  

To carefully consider your family’s own Special Needs Planning, contact Michael Geiger at Geiger Law.