Estate Planning

As much as I dislike using arcane Latin terms, I find “per stripes” quite useful. Literally, “per stripes” means “through the root”. It’s opposite is “per capita” literally through the head”. Kentucky law’s default position is “per capita” or through the head. Unless you choose to change that, your beneficiaries will receive their gifts “per capita”. I recommend you plan your estate mindful of the practical differences for your loved ones.

If you have two children, Cain and Able, and you want to split your assets evenly you can simply say that. If everything goes according to plan, and they both outlive you, no problem, they each take half of your assets, share and share alike. But, if Cain and Able both grow up, and have two children, and say for instance, Able dies before you do, then, without specifying any different, Kentucky law’s default provision goes into effect and Cain receives 100% of your assets. Your two grandchildren from Able receive $0.

On the other hand, if you had simply added the Latin term, “per stirpes” to your will or trust, it divides your assets differently. Maybe more in the way you had in mind in the first place. Cain receives half of everything. Able’s surviving children each receive half of the remaining assets. Which do you think you would prefer?

Estate planning documents may include a Will, Power of Attorney, Living Will or Nomination of Health Care Surrogate, Nomination of Guardian, and a Trust. Usually a trust is more involved than the other documents. You can identify the trust as the beneficiary of your will, retirement fund(s), insurance policy(ies) and the like.

Q. When should I plan my estate? I try to help people plan their estates once and for all, first at age 18, when you are first able, If nothing else, you should designate someone to have durable power of attorney. But, I still recommend everyone get a checkup [less painful than the dentist] on their estate plan at least every five years [10 times less often than the dentist]. And more often on the occasion of life-changing events, of themselves or intended beneficiaries, like: - upon marriage, - upon divorce, - when you move from one state to another, - when you buy, or sell a home, - when you receive assets/benefits from someone else’s estate - when you retire, - and of course with each $1 million you earn

Will – a “will” directs your assets after your death. It gives the probate Judge direction about how you wanted your estates distributed, who you want to inventory, value and distribute them and whether the Court should require that representative of your estate to post a bond, or pay money as insurance that no abuses happen.

Power of Attorney – a “Power of Attorney” identifies a personal representative to act on your behalf while you are alive. A power of attorney is like creating an identical twin for legal purposes. Did you ever wish you could be in two places at once? A power of Attorney is the legal tool that allows you to accomplish being in two places at once, by using your personal representative, or “attorney in fact”. Powers of Attorney may be general or specified. A general power of attorney is designed to allow your personal representative to do any legal act you can do while you are alive. A special power of attorney is designed to allow your personal representative only to do some limited act[s]. These acts may be to transfer title of your car, or deed to your house, or parent your children for two weeks while you are in Hawaii. But, nothing else. They may be durable or non-durable. “Durability” refers to the power’s ability to survive your incapacity. Unless you specify you want your personal representative to be able to act while you are unable to, she cannot. So if you want your personal representative to be able to collect your paycheck, or your disability check and pay your car payment, house payment, or insurance deductable while you are in a coma, you had better specify you want your power of attorney to be durable, or to endure your incapacity.

Living Will or Nomination of Health Care Surrogate, if you want the person, who will make your healthcare decisions to be different than the person who holds your power of attorney, you want a Living Will or Nomination of Healthcare. After all, sometimes, or in some families the person who is best with money, or assets is not always the person who is best with medical terms and policy.

Nomination of Guardian – identifies who you want to raise your children if you are unavailable to do so. Trust – identifies a personal representative, a gift, or set of gifts to the trust, and a purpose for which those gifts should be held, used, or spent. It can limit or pace the amount of gifts a beneficiary can spend to protect the trust from creditors of the beneficiary, and the beneficiary from the pitfalls of windfall money. You can use it to encourage your children to continue, or graduate from school even after you die. If you have minor children you can identify who should hold, or administer gifts you want to benefit your children. Sometimes the person best with children is not best with money. How many divorced people do you know who would be comfortable with their ex-spouse receiving all the assets they have earned to administer to minor children? Would they be more comfortable with someone they choose, after divorce, specifically to do that? What do you think the default position of Kentucky Law is for people with minor children in common, when one parent dies?

If you would like more information, please call
MICHAEL A. O'HARA, PLLC
PHONE: 859-746-0500