My wife has told me very clearly, “Now listen, when I die, I don’t want to be eaten by bugs. So, I want you to cremate me. I want you to put my ashes in a box and then into a columbarium where the family can come visit me.”
I am glad she has told me this—and I take her words very seriously.
It’s not easy to talk to your husband, much less your child about your possible illness and death. Usually, the children say, “Oh, Mom and Dad, you’re going to live forever! We don’t want to talk about that stuff.” To them, it’s almost as if talking about death might make it happen sooner.
But talk about death you must. Your estate plan should include instructions for your funeral and final disposition of remains. Instructions may include authorization for use of your body for organ donation, medical training, or research. You can also specify the nature of your funeral, and perhaps most importantly, who will make the decisions about your funeral.
Once again, failure to give instructions about funerals can lead to confusion and strife within a family.
Take the case of a woman I know who died with no plan, and five kids that hate each other. She had no durable power of attorney for healthcare, nor a living will with instructions for disposition of her remains. Her five children, of course, could not agree, so the funeral home cremated the body and divided the ashes into five separate urns—one for each of them to do with as they pleased. No kidding.
Remember, however, that writing a document is not a substitute for discussing the details with your loved ones in advance. When you become seriously ill or die, decisions will have to be made very rapidly, and the documents may not be available.
DON’T FORGET THE POSSIBILITY OF PRE-NEED PLANNING
Your preparations may include pre-need planning, which I strongly recommend. With these arrangements, you go to a funeral home and pick everything out from the red carnations to the Studebaker-themed casket. Not to mention the white cake with strawberries and French crème filling to be served at the memorial service.
You can plan it all ahead and pay for it ahead of time. But you don’t pay any monies directly to the funeral home— what if they are not around when the time comes? Instead, the money goes to an insurance company, which pays out a death benefit to cover these expenses at guaranteed rates.
Pre-need offers a pretty good deal, saves additional heartache, and makes the to-do list that much shorter when someone dies.
THE ROLE OF THE LIVING TRUST IN INCAPACITY
As we saw in the case of Jack, a living trust may be even more important during your incapacity than it will be after you die.
Let’s again begin by distinguishing between a will and a living trust. A will is only valid at death. Before a death, a will is only a piece of paper.
A living trust, on the other hand, is a living document which has binding legal effects from the moment it is signed. It lives with you and helps you and your family throughout your lifetime. Then, it continues to protect your estate and your loved ones after you die.
In Mistakes #10 and #9, we learned a lot about living trusts. If needed, go back and read those chapters now to see how a living trust creates a bucket for your assets, which can efficiently be passed into the control of others. You are the grantor of the trust, which exists for you as the beneficiary. While you are alive and capable, you are also the trustee, controlling the trust.
But in your living trust, you will designate a series of fallback trustees to take over when you die or become incapacitated. We lawyers call these people “successor trustees.” The moment you are incapable of acting as trustee, someone else can immediately take over—whether it’s your spouse, a child, a lawyer, a bank, or whoever you choose. Using their powers as trustee, coordinated with the power of attorney for property you have granted to them or to others, this person can pay your bills, manage your investments, or whatever else needs to be done.
While you are alive, your trustee can do this work only for your benefit. Why? Because even though you are lying unconscious in a hospital, you are still the legal beneficiary of the trust.
I should mention at this point that for a variety of legal and tax reasons, a living trust is not the appropriate bucket for certain kinds of assets, including annuities, IRAs, 401(k)s, 403(b)s, and TSA investments. Other vehicles are needed for those assets, and we will deal with them under Mistake #5. For now, however, you just need to know that a proper durable power of attorney for property can give the same person similar control over these other kinds of retirement plans and investments. That’s why both kinds of documents must exist, and must be designed to work together.
Your attorney can also advise you on the use of an irrevocable trust as part of a strategy to obtain public assistance benefits such as Medicaid and Veterans Administration aid to help pay for long-term care and nursing home bills.
Our knowledgeable attorneys can help you with all your living trust needs. Attend one of our seminars for a FREE consultation.
