Quite often, a person who calls into our office starts the conversation with something along the lines of “I just need a simple Will leaving everything to my son.” Sometimes they do, but, more often than not, their situation really isn’t “simple,” and their current “plan” is a time bomb waiting to destroy their family.
During our conversation, I discover that the caller is 78 years old, divorced, and in poor health due to a chronic disease. She has three adult children, about $300,000 in assets including her home, and has added the oldest son as a joint owner on her bank accounts, safe deposit box, and her home. She has no long-term care insurance, Durable Power of Attorney, Designation of Health Care Surrogate, or Living Will. She’s calling about a Will because a friend told her that she needs a Will to avoid probate when she dies.
First, I explain that her well-meaning friend was incorrect – a Will actually mandates probate. A Will tells the probate judge who gets the assets that are subject to probate after the court proceeding is done in 6-9 months. Probate can be avoided by other strategies, but those strategies also have some drawbacks that need to be evaluated for each situation.
Then I ask why she’s disinheriting her other children. “Oh, no,” she says. “I’m not disinheriting my other children. I love them. I’m leaving everything to my son because that’s much simpler for me, and he’ll share with his siblings.”
Maybe he will, maybe he won’t. The fact is, most of the time, he won’t. I know, because I get those calls, too, from the siblings who didn’t know their brother would inherit everything and they’re legally entitled to nothing. Mom’s wishes are just that – wishes.
I explain that by naming her son as her sole beneficiary in her Will and as joint owner on her bank accounts and home, her other children will be legally entitled to nothing. Her son will have absolutely no legal obligation to share one cent with anyone when she dies. He will be the sole legal owner. Siblings are notorious for spats and rivalry. The fact that she left everything to him – no matter what her thoughts and wishes were – will deeply hurt her other children and could permanently ruin their relationship with their brother and tarnish their memory of their mother.
In addition, while she’s alive, her bank account and home are wide open to her son’s creditors – including accident victims, the IRS, and a divorcing spouse. Not only that, but by adding him as a joint owner on her home that she’s owned for 30 years, he’s stuck with her low cost basis in the home and he’ll likely end up paying capital gains taxes when he sells it at her death. But if her children inherited the home at her death, they’d inherit it at the higher fair market value as of her date of death, and likely owe no capital gains taxes if they sell it immediately.
Then I ask why she doesn’t have a Durable Power of Attorney, which names the people who would have the legal right to act on her behalf for financial or legal matters – pay her bills, sign contracts, sue, sell property, open and close bank accounts, talk to the IRS, apply for Medicaid, etc. She says, “But I don’t need that. My son is on my bank accounts and house, so he can handle anything that needs to be done with those.” I explain that no, he can’t. Yes, he can sign checks, but he can’t legally speak for or sign anything on her behalf. He can’t sell or mortgage the house by himself. And even worse, if her health gets to the point where a nursing home is needed, he can’t hire an elder law attorney to get her qualified for Medicaid unless he goes to guardianship court.
She never heard of a Designation of Health Care Surrogate. She assumed her son would easily be able to make medical decisions for her because he’s her son. I explain, that yes, under Florida law, since she’s not married, her children are authorized under our statute to make medical decisions for her. But the statute doesn’t say which child – all the children have equal status. So, which child should the doctors listen to? What if the children disagree about something or one beats the others to the punch when a decision has to be made? A Designation of Health Care Surrogate solves those problems.
I then ask whether she’s ever discussed her end-of-life wishes with her children. “No,” she says. “Every time I bring it up, they don’t want to listen and change the subject.” So, her children could end up arguing over whether or not they should “pull the plug.” No matter what they decide, if they love her, they may have lifelong guilt because they’ll fear they made the wrong decision. I explain that a Living Will allows her to state her desire to die a natural death – not be hooked up to nutrition, hydration or respiration – when there’s no reasonable hope for recovery, and her Health Care Surrogate must enforce that on her behalf. This simple document takes that awful decision-making burden off her children’s shoulders.
At the end of our conversation, she may or may not decide to change her plan to make it more family-friendly, but at least now she has a better understanding of what her choices mean for her family.