Say a Little Prayer: Aretha Franklin Had No Will, and a Child With Special Needs

According to court documents, legendary singer Aretha Franklin did not have a will when she died, despite reportedly having a son with special needs. The lack of a will opens up the intensely private singer’s estate to public scrutiny and unnecessary costs, and means that there are no specific provisions to protect her son.

Franklin, who died in Michigan at age 76, left behind four sons, but no guidance on how to distribute her estimated $80 million estate. The eldest son, Clarence, age 63, has unspecified special needs and requires “financial and other forms of support for his entire life,” according to the entertainment news site TMZ.

When someone dies without a will – called dying “intestate” — the estate is divided according to state law. Under Michigan law, an unmarried decedent's estate is distributed to his or her children. (Franklin had been married twice but long since divorced.)

Even if the “Queen of Soul” had wanted her estate to go solely to her children, by not having a will or trust, her estate will have to go through a long public probate process, which will likely cost her estate considerable money. If Franklin had created an estate plan that included a will and a trust, she could have avoided probate and kept the details of her financial circumstances private.

But perhaps even more importantly, that estate plan could have made special provisions to ensure that Clarence would receive proper care for the rest of his life. Franklin could have established a special needs trust to preserve any public benefits Clarence may be receiving, or perhaps allocated him a larger share of her estate. She also could have accompanied a financial plan for him with a Memorandum of Intent (also called a “Letter of Intent”) to serve as the primary source of information about her son’s care, providing a roadmap for the courts, guardians, caregivers and others involved in his life.

Clarence could also be harmed by the absence of a will because it opens up an estate to potential challenges that could drag out the probate process. Without a will to clearly state the decedent's intent, litigation resulting from family conflicts often eats into estates.

Finally, Franklin’s estate will be subject to unnecessary estate taxation, leaving even less for Clarence and her other sons. Although she may not have been able to avoid estate tax entirely, there are steps she could have taken to reduce the amount her estate will have to pay.

“I was after her for a number of years to do a trust,” attorney Don Wilson, who represented Franklin in entertainment matters for the past 28 years, told the Detroit Free Press. “It would have expedited things and kept them out of probate, and kept things private.”

Estate planning is important even if you don't have Aretha Franklin's assets, and it’s doubly crucial if you have a child with special needs as she did. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want, and to create special protections for the child with special needs before it’s too late. You don’t want your plan for your loved ones to simply be “I Say a Little Prayer.”

Contact your special needs planner to begin working on your estate plan now.


The Estate Planning Discussion We Keep Putting Off

Estate Planning.  Talking about death and dying is not high on the list of conversations we are comfortable having.  If this describes you, you are not alone.  According to AARP, approximately 60% of Americans do not have a Will. Without a Will, your probate property will be distributed according to the laws of the State that you live in. In addition, a Probate Judge will appoint your executor/personal representative and decide who will be the guardian of your minor children.

Essential estate plan documents that everyone should have include a Will, durable power of attorney and health care proxy.  These documents allow you to make critical decisions regarding your property, family and health. These are decisions that we should be making, not a Probate Court Judge.

As important as a Will is, an estate plan is not complete after you sign your Will.  In the event you are unable to make decisions for yourself, consideration should be given as to who will step in to make those decisions for you.  A durable power of attorney addresses any financial decisions that need to be made, and a health care proxy covers medical decisions that need to be made if you are unable to make those decisions yourself. Without these documents, a petition would need to be filed requesting guardianship and/or conservatorship. As with any legal proceeding, this process is usually time consuming, costly and public.

As note above, everyone needs a basic estate plan. Additional questions that should be discussed during the planning process include:

  • Should you avoid the probate process (estate administration)?
  • Do you have family with special needs?
  • Do you have family with addiction, gambling or spendthrift issues?
  • Do you have family that have pending or potential divorce or bankruptcy issues?
  • Are you in a subsequent marriage or have children from a prior marriage?
  • Do you have assets that you would like to preserve for family in the event you require long-term care?

If you answered yes (or don’t know the answer) to the questions above, then additional estate planning strategies should be discussed.  Please call our office to request a free resource to help you begin the planning process.

 

Three facts about estate planning in Massachusetts that you should know

Estate planning in general means that you are engaging in financial planning focused on the laws of property, wills, and trusts. Here are three facts about Massachusetts law that you should know.

Estate Tax. Federal taxes levied against the deceased’s estate in Massachusetts are extremely high. The rate can be as steep as as 55%. Moreover, these taxes must be paid in cash. They must also generally be paid within nine months subsequent to the date of death.

However, preplanning your estate can lessen or even dismiss these taxes. Both the federal government and Massachusetts allow a certain amount—up to $1 million–to be tax free. The creation of an estate plan means that one can use allowed exemptions to reduce or eliminate large estate taxes, and protect one’s family from having to use cash and assets they have inherited to pay the tax. [Read more…]

How Elder Law Attorneys Assist Senior Citizens

As you and your loved ones get older, new situations will be encountered  that involve issues due to aging. You are not quite sure how to solve these problems. Where can you get advice? A good starting place is going to an attorney that specializes in elder law.

What is Elder Law?
Elder Law is a rapidly growing legal practice that assists senior citizens needing help and guidance with legal matters. It specifically focuses on older adults in areas such as estate planning, long-term care, medical directives, nursing home issues, and Medicaid.

Estate Planning
Your parents are aging. You want to encourage them to develop an estate plan. This is a type of advance planning to organize property and financial assets and put in writing what a person’s wishes are for their assets after they are deceased. It is a hard conversation to have with your parents, but will be very useful after they have passed.

Long Term Care
As you age, you may begin thinking about the possibility that you might need assistance in everyday living when you get older. Or maybe your loved ones need that type of help now. There are several options. [Read more…]

Elder Law: The Importance of Planning

A recent Boston Globe article reveals as many as 60% of Massachusetts nursing homes are finding ways to skirt a 2012 dementia care law intended to prevent deceptive practices. The law requires that facilities advertising dementia care must meet specific criteria including dementia-specific training for staff, specialized activities, and security measures to prevent wandering.

This story is just one of many that illustrate how important it is to do your homework and advocate for your loved one through estate planning and long term care planning. Our firm assists clients with all of their elder law concerns. Areas within elder law include:

  • Nursing Home Issues – Sadly, as our population ages, we see increased cases of abuse, neglect, and exploitation in nursing homes. An elder law attorney can help secure return of assets in a case of financial exploitation or recover damages for injuries resulting from neglect or abuse.
  • Medical Directives – Should you become incapacitated and unable to communicate your wishes, it’s imperative that you have medical directives in place. In Massachusetts, you will need a living will and health care proxy. An attorney can help you through this delicate process.

[Read more…]

Estate Planning and Future Healthcare Planning in Massachusetts Law

Though many people have the notion that estate planning is only for the rich, anyone who has earned money and done a good job of investing it can benefit from careful estate planning. Without a comprehensive estate plan, all the things that you have worked so hard for can be lost or given to unintended beneficiaries. Since estate law varies from state to state, it is wise to consult with an attorney well-versed in Massachusetts law to make a solid plan for the future of your assets.

There are many ways to protect your assets for those you love by means of an effective estate plan. Your attorney can help you draft a will in which you can specify how your assets should be distributed at the time of your death.  Wills can also designate legal guardians for your children in the event they are still minors or are incompetent. Funeral and burial requests can also be included.  A Massachusetts attorney can help you draft a will that will stand even in the event that someone should contest the will in court. [Read more…]

Estate Planning Considerations for Singles and Massachusetts Law

Single persons without heirs have unique considerations when planning for the future. Unlike most married couples with spouses and/or children, they need to involve friends or other relatives in their financial, medical emergency and end of life arrangements.

Documents used to convey what should take place if a single person becomes incapacitated can include a durable power of attorney, springing power of attorney, a health care proxy advance care directive and an authorization under HIPAA. Employing one or more of these documents will authorize your agent to make medical and financial decisions on your behalf in the event you are not able.

The springing power of attorney only comes into effect upon an event such incapacitation or disability. In contrast, a durable power of attorney applies when it is signed.

Despite being childless, a single person may have dependents such as parents or siblings. Perhaps, there are valued charities and friends he or she wishes to endow. Setting up a revocable living trust or making a will is the way to make sure that his or her wishes take precedence.

If there is no Will, trust, or beneficiary designations in place, the estate of a single person may become subject to Massachusetts probate process and is disbursed under Massachusetts law.

For those without family, choosing the right person to carry out your wishes might be difficult.  In this case, working with an estate planner is beneficial.

When To Review Your Estate Plan

I read an interesting article recently in the Wall Street Journal regarding the importance of reviewing your estate plan.  Although beginning the process or  discussing your existing estate plan is not an enjoyable exercise, making sure that your loved ones are taken care of if you are no longer able to provide for them is a responsible task we all must plan for.  This article stresses that your estate plan is not something you sign once and forget about.  Many things change over your lifetime, and some of these events will affect your estate and financial plan.  It is recommended to review your estate plan annually.  You can read the full article in the Wall Street Journal.

Managing the Probate Process Through Careful Estate Planning

We all work hard throughout our lives with the expectation we will be able to leave an estate to our children and heirs. Too often however, we fail to take the necessary steps to preserve our wealth and our heirs are left to deal with Massachusetts probate. Fortunately, the Massachusetts law regarding probate has been simplified over the last few years but there are still some steps you can take to ensure your assets are divided up per your wishes and avoid probate.

Your retirement accounts

Fortunately, most financial institutions require retirement account owners to specify a beneficiary when they open their accounts. However, it is important to verify the beneficiary after a divorce, death of a spouse or other life changes.

Other financial assets

There are a number of ways you can ensure your assets are divided up per your wishes while you are still alive including:

  • Stocks/bonds/mutual funds – there are two options for transferring these assets to an heir upon your death. One way is to jointly register assets using joint tenants with rights of survivorship where the ownership automatically transfers upon your death. A second method is using what is known as a “transfer on death” option which will require the designee to provide a copy of a death certificate and a letter of instruction for the new registration. [Read more…]

Reviewing Your Estate Plan

Like any other part of your overall financial plan, your estate plan should be reviewed on an annual basis or sooner if there are any significant changes.  You file taxes and meet with a financial advisor on an annual basis, so reviewing your legal documents should be included in the process to ensure your wishes have not changed.  Areas to be reviewed include:

  • Asset ownership
  • Account balances
  • Beneficiary designation
  • Power of Attorney/Health Care Proxy agent appointments
  • Insurance coverage
  • Homestead protection
  • Funding of IRA/Roth IRA/401(k)
  • Discuss guardianship/trusts/UTMA accounts for minor children, if applicable
  • Long term care insurance
  • Financial aid/529 planning

There may be additional areas specific to your situation, but these areas should be a good starting point to begin your discussion.