What does real estate and estate planning and death have in common?  We all will die eventually.  And a substantial percentage of us will have serious health issues before we die, including diabetes, heart disease, liver failure, Alzheimer’s, and so on.  The truth is we  all eventually grow old and the strength and vibrant youth we once knew fades.

If you own a home, and other possessions, you fall into one of two classes of people.  The first group makes up about 70% of the American population who have not done any estate planning.  When they die, or become incompetent to handle their affairs, the estate is a legal disaster for them and their children.

The second group is made up of the 30% of Americans who have taken the time and money to think through and complete their estate planning so that in their elder years they and their children will have order, not chaos, good tax planning and an orderly distribution of assets.  Here is a true life example of chaos from lack of planning, and this chaos has caused great problems for the entire family.  It has also put an elderly man into what he feels is a living hell.

The story begins with an elderly couple who lived in rural Alaska.  They raised their family and lived a very humble lifestyle, mostly because the father made very little money in his contracting business.  Contracting in Alaska is a feast or famine business, and that is especially true in the “bush” communities of Alaska.  One of the children moved to Sequim where he raised his own children.

The father was a typical Alaskan, conservative, rugged, independent, and spontaneous.  Despite having conversations with his adult children about the importance of estate planning (i.e., a basic will or a revocable living trust), and agreeing he needed to take care of his legal affairs, he never had any estate planning done.  He procrastinated for almost 50 years until it was too late.  In 2009 his wife passed away after struggling with cancer for many years.  She had written her own will, which was invalid because it did not comply with state law, but it didn’t matter as she had nothing of substance to leave.

Within a couple of months of her passing, the father was rushed to Anchorage Providence Hospital where the doctors told him that he must be on dialysis for the rest of his life, and since his little town clinic did not have expensive dialysis equipment, he could never go home.  At 75 years old and now completely blind, not being able to go back home where he had lived for 48 years was nearly a death sentence.  Alone in a hospital in a room with someone else who was incapable of conversation and far from family who could not afford to visit regularly, life went from difficult to hellish.

Because there was a lack of estate planning for such a scenario, applications for federal assistance through medicare/medicaid programs have become paperwork nightmares of denial after denial.  Before a Fairbanks facility is willing to take the father in, where he could be closer to some of the adult children and grandchildren, the facility is demanding that he sign a lien or deed giving up his house.  Income and asset limitations have created an impossible scenario.  The father has essentially lost everything he ever owned, feels like a prisoner in a room, and being blind has eliminated what little independence he had left.   In addition, he has nothing to leave his children as an inheritance since it will now all be taken for medical bills.

Good estate planning could have avoided much of this chaos.  Of course, health issues are beyond estate planning, hence the need for good estate planning.  But for those who neglect good nutrition and regular exercise for a lifetime, you know that you substantially increase the risk of serious sickness or disease when you get old.

If you own a home, you have an important asset that ought to be handled for estate and tax purposes, for health and welfare purposes, and as an expression of love and care for your children.  By the way, the child who moved to Sequim  . . .  is me.  The photo above is of me, my father and my late mother.

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• Real Estate and the Probate Process

A majority (70%) of homeowners have NO estate plan, except the state’s statutory default plan. Almost as bad, the majority of those who do have an estate plan have a Last Will and Testament. Both have to be probated. So, what’s the big deal?

Perhaps a true story will make the point best. A couple take care of the husband’s elderly mother until one day she passes away. In those last months, the couple care for her with love and great personal sacrifice, even great financial sacrifice.

The mother left a sizable estate, and her written will divided her substantial estate equally among the four adult children. Seems simple enough, right? Every once in a while, and far too often, there is an adult black sheep in the family who is so dysfunctional, he or she will hire attorneys to get more than his or her fair share. So determined is such a person, he or she will intentionally seek to hurt and destroy the other siblings to get what he wants, which is more than the money. Usually such a person is full of hate deep down, unexplainable hate that motivates them to behave incorrigibly toward their siblings.

Greed is alive and well in the world today, and it finds fertile soil in a probate process that is subject to a defective judicial process, fostered by attorneys with their own agendas and judges who wouldn’t know what Solomon’s wisdom was if it bit them in the nose. It is in this fertile soil that the black sheep finds a support system to do his or her evil.

This probate lasted five (5) years, and the siblings’ inheritance was eaten by attorney’s fees and costs, and interestingly enough, by the black sheep’s theft of much of the estate prior to their mother’s death. That’s too long a story to tell here.

There is no question that if the deceased mother had known what her adult child would do to her other children, and that that child would completely annul her Last Will and Testament, she would be rolling over in her grave. You can bet if she had know that her children’s inheritance would go to attorneys, she would have burned the money first, or more likely, she would have set up an indestructible estate plan.

There are intelligent ways to make sure this never happens to your estate, but you have to create an effective and intelligent plan while you are yet alive. Avoid probate at all costs! Attorneys are quite famous for stacking up massive attorney’s fees, and then they get paid first out of the estate funds. And while the average probate takes as much as 18 months, many take much longer.

Use techniques that avoid probate, such as the revocable living trust, the irrevocable life insurance trust, payable on death instruments, the right of survivorship (in appropriate cases), insurance benefits (life insurance payoffs are tax free), and there are many more.

Be sure that the title to your real estate is vested appropriately to accomplish your estate plan, and if you own a business, incorporate a business succession plan into your comprehensive plan. Create an indestructible estate plan, and do it today.

Not motivated to take action yet? Okay, let’s try another approach. Think of the one attorney you dislike the most. Imagine buying him or her a brand new Lexus or Corvette with your money, the money you intend to leave to your own children. Wait, it gets even better. Imagine buying a Cadillac for your attorney, a Cadillac for the opposing attorney representing the black sheep, and a Cadillac for the estate attorney (yes, the estate as an entity gets an attorney too). Motivated yet?

Chuck Marunde, J.D.
Retired Real Estate Attorney
Owner/Broker/Realtor
Sequim & Port Angeles Real Estate, LLC
SequimPortAngeles.com

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