July 15, 2021

3: After the First Days - Your Will

3: After the First Days - Your Will

What can a Will convey - and when is it not enough?
Discussed in this episode:
Wills
Estate Planning with a lawyer
Time and costs of Probate Court
Thresholds for automatic Probate
Beneficiary Designations
Interview w/ Miguel Torres, MilesTorresLaw.com
Po...


What can a Will convey - and when is it not enough?

Discussed in this episode:

  • Wills
  • Estate Planning with a lawyer
  • Time and costs of Probate Court
  • Thresholds for automatic Probate
  • Beneficiary Designations

Interview w/ Miguel Torres, MilesTorresLaw.com

Poem: New Orleans Limbo by Andrei Codrescu

from Death Poems, ed. Russ Kick

 

 

Transcript

Did you see the movie, “Knives Out”? If you haven’t, don’t worry, I’m not going to spoil anything. I’m thinking about a scene in it that shows up often in fiction: the reading of the Will. Maybe you recall Will readings from The Grand Budapest Hotel or that classic show Dallas.

Here’s the scenario: Someone important and wealthy dies. Everyone gathers together. There might be some bickering, some showy tears, maybe a rivalry. The lawyer dramatically opens an envelope or plays a video or something like that and bam! There’s a surprise! This is not how people thought it would go! It’s such a classic scene. What a great way to introduce tension and move the plot along. But …

 

Mmm… That's not the case. Usually, it's, you know, that you have to go through the court system. It takes a long time is very expensive, and it's just really cumbersome.

 

[music]

Hello, and welcome to Dying Kindness, I'm Cianna Stewart, and I'm going to die someday. You will too. So let's all learn what we need to do and make some key decisions before we die, in order to be kinder to those we'll leave behind.

[music out]

 

Thank you for joining me here today! Since this is only episode 3, I’m still focusing on giving you an overview of the kinds of things you’ll need to think about and work on in order to help minimize the pain your death will cause to the ones you’ll leave behind. These episodes are a bit of stage-setting or expectation-setting, if you will. 

In the future I’ll be doing more deep dives into everything I’m touching on in these initial episodes. For now I mainly want you to be able to picture the insane number of things that your loved ones will have to deal with, to get a sense of how complicated this all can get, and what a mess it can be if you don’t do this work in advance. I’ve been through it multiple times in various ways and I have to say that the level of mess and chaos can feel thoughtless and uncaring, especially if you have reason to expect your death within the next year or so. 

Now, I know we have to design our worlds to support how we actually live while we’re alive. And I know that it can be really hard to think about our own deaths. But if you’ve ever been through the process of cleaning up after someone, you know that it can range from next-level tough to deal with if they were simply disorganized, or fully impossible if they died leaving behind a legal or financial tangle. And that mess can go on for months or (more often) years. And so: Thank you for joining me in this effort to bring some kindness into the death process.

Before I get any further, I have to take care of a little business. I’ve been told that on my website it’s hard to find the lists I referenced in the first two episodes. I’ll work on making that more clear. For know: What I cover for each episode is in the show notes, and if you sign up, you can get the full list of contents for your Death Binder for free. That’s the binder that contains all your key decisions and information so that when you die, your loved ones will just have to open the Death Binder to get answers instead of scrambling through random boxes and emails and whatnot. Just go to DyingKindness.com to get more info. 

Also on the website: if you have questions or feedback, you can leave me an audio message by clicking on the microphone link in the bottom right corner. I would love to hear your voice! And if you want to support this show, you can do that there, too. Just click the coffee cup on the bottom left for the Buy Me A Coffee link. Thank you so much to everyone who’s already joined. It lets me know you like what I’m doing and you want it to continue. That give me a real boost. Thanks! OK, now back to talking about your death. 

In the past two episodes, I described what your loved ones will need in the first hours and days of your death. If your death is unexpected, that’s the time that they’ll be in the most acute shock. Even if your death is expected, they will be feeling grief and that carries with it many of the neurological traits of shock. I’m focusing on that because when we’re in shock, we have a hard time tracking details and remembering things. We get easily overwhelmed. We might feel more tired or checked out. This is why you and I should plan ahead, to spare them at least some of that pain.

Today I want to get you to think about what they’ll need after those first few days. Likely, they’ll start grappling with getting used to the idea of you being gone. Probably some of the support that they got in the acute phase of the first days will progressively get less as others need to return to their own lives. There’s still a ton to do, but the people you care about may have less help. This is when they’ll likely start dealing with your physical stuff. There will be more paperwork. More logistics.

And this is also when they’ll need the thing that most people think of when it comes to end-of-life planning: your Will.

What do you think of when I mention a Will? For many, it can feel dry or reductionist to think about all the stuff that you own and how to divvy that up after you’re gone. To make it easier on themselves, some people just say “give everything to [blank]” or “give 50% to this person and 25% to so-and-so.” This is certainly one way to do it, and it works well for things that are easily quantifiable, like bank accounts. But what does 25% of a house or jewelry mean? Or that collection of baseball cards? And how will this kind of division affect the people that we love? That’s hard to say - especially when emotion is involved.

I’d like to take a moment to wax philosophical about our Wills. Yes, Wills serve a legal function, and they also mean so much more. They contain both backwards looking legacy and forward looking dreams. They can contain love. Sometimes they contain hate. 

Writing your Will can be a key demonstration of how you care for your loved ones. The process of writing one can also reveal to you places where you have gaps in your wishes, things maybe you want to work toward to better provide for the people around you or to shape the memory of you.

I invite you to think about what they really mean, how they will impact the people that we love. The Will is often the main way that you’ll be addressing what to do with what you’ll be leaving behind other than your body. 

There can be so much wrapped up in a Will. They contain a reflection of what you’ve accumulated during your time here on earth. How you decide to distribute this accumulation can reflect who and what you cared about while you were here, and it can also reflect your hopes for the future - the future that will continue without you. 

This is why they have served as such good plot devices in the movies.

A little nuts and bolts about Wills: When I say that the reading of the Will in movies is unrealistic, I’m not only talking about the reading itself (which almost never happens, by the way). I’m talking about the part where they read the Will, the stuff is distributed and the plot moves on. 

 

A Will doesn’t allow you to bypass Probate. A Will just basically says these are the the people that I want to benefit. And that's that. But it is still has to go through the court system. 

 

That’s Miguel Torres, an estate lawyer in California. When I talked to him, I was under the impression that I wouldn’t have any need for an estate lawyer because I own almost nothing of significant value. I thought of “estate” with a capital E, meaning estate planning is for wealthy people. Like, people with a butler or at least more bedrooms than you need every night. I was wrong. 

 

If you have less than $166,500 in assets, all of your assets combined, then you don't have to go through probate. But if you have over $166,000 and even if you have a will, it has to be probated as well.

 

The reality in the United States is that if you own property or much of significance then your estate automatically goes to Probate Court if all you have is a Will.

“Estate” is just a fancy word for everything that you own. And estate planning covers more than just property.

 

We do everything from just setting up a simple will to doing the whole estate plan, which would include a Trust, Power of Attorney, Advanced Health Care Directive, Wills, transferring the property to the Trust, and other minor documents that we also use. 

 

Reminder: I’m not a lawyer. I’m learning all this along with you. I’ll be doing a full interview with Miguel and some other estate lawyers in the future - with a better microphone. 

Today I wanted to share with you that tidbit that I got on our initial Zoom call because it’s something I had no idea about. Turns out that in just about every state, if your total assets are over a particular threshold, then your estate would automatically go into Probate Court if you only had a Will. That threshold varies wildly by state - and it can change from year to year. In 2020, while California’s threshold was just over $166k, Oregon’s was $200,000 in real property, Delaware’s was $30,000, and to my extra surprise, New York set their threshold at $50,000. A lot of this is about the succession of property because there’s no regular beneficiary mechanism for that. Bottom line: If you own property, you should definitely be talking to a lawyer in your state. And if you own property in more than one state, you should consult estate lawyers in each. Also: Wow! Do you own a ranch? Can I come visit?

There are some important ways to avoid this that I’ll get into in a minute, but first I want to talk about why people make an effort to avoid probate. Simply put: time and money. I’ll throw in that this is also about sparing your people some extra pain and grief that they don’t need to go through. But when it comes to time and money, we’re talking about probate taking up a lot of both. 

I asked Miguel how much this usually costs:

 

A million home, sometimes  you can end up paying about $46,000 in fees.

 

I don’t know about you, but when I die I’d rather have that kind of money going to people I love, not to lawyers and the court. 

All this can also drag out the grieving process. Your people will not be able to move on from dealing with your death as long as they are still tangled up in the courts. 

I asked Miguel how long this can take:

 

So a minimum of a year, because you have to give six month window period to creditors to come in and make claims. And then you know, the whole every time there's a hearing it usually it's is takes about two months or so for a hearing to happen? And minimum of a year. But during COVID times? It's taking about a year and a half to two years. 

 

He then went on to make the same point that inspired this entire podcast:

 

But the crazy thing is that they're going to be doing at a time that they shouldn't be doing that. They're grieving. They should be allowed to grieve and not have to worry about all of this extra work that they need to do.

 

 

So that’s why so many people try to avoid going to probate. 

How can you avoid it? If you don’t own real estate, then I’m guessing that your largest assets are your retirement account, your stock portfolio, or your bank accounts. Stuff like that. If this is the case, you can try to legally avoid probate by lowering what gets calculated as part of that total net worth, as a total of what goes to that threshold. How? Well, these kinds of accounts allow you to designate a beneficiary. If you haven’t done this yet, check that out and be sure that you have someone (or several someones) named for each one. As I understand it, these accounts with a beneficiary designation are not calculated as part of the probate threshold. Of course, you’ll need to confirm that for your individual situation.

If you do own real estate, then you should look into creating a Trust. I am for sure going to do a full episode on that in the future. For right now I’ll just say again: Talk with your lawyer.

Oh man, I just listened back and this episode is already pretty dense and I want you to be able to remember all of it. I think I’m going to cut it off here. Your main takeaways should be: 

  • Just making a Will is often not enough,
  • estate planning is not just for fancy people who live in mansions,
  • probate is expensive and time-consuming and it’s not nice to make people go through it if you can avoid it,
  • be sure to designate beneficiaries for all your financial accounts,
  • and, (of course) talk to a lawyer.

There is still so much more that your loved ones are going to have to handle in the wake of your death! I’ll talk in the next episode about that, like about dealing with your physical and digital stuff and what we can do in advance to help our people with those decisions. If you want to get a jump on it, start looking around and thinking about what you have, what you’ll be leaving behind, what someone else will have to decide to keep or not after you’re gone.

 

[music]

Thank you for joining me on Dying Kindness. Thanks to Miguel Torres for talking with me. You can find out more about him at MilesTorresLaw.com

 

The music is by Blue Dot Sessions, and everything else was done by me. Please visit my website, DyingKindness.com, for more information about all of this, to leave any questions, and to support the show.

 

Until next time, I'm Cianna Stewart, and I'm going to die someday - but hopefully not before I get to see the lemurs in Madagascar. 

[music ends]

 

 

Today’s death poem is: 

New Orleans Limbo by Andrei Codrescu

From the anthology Death Poems edited by Russ Kick.

 

When it happens all of a sudden

It takes a while to realize you’re dead

You keep eating that etoufee

Wondering why it don’t get any smaller

You keep talking to your friends

Amused by their look of instant horror

You keep running that commercial

Urging folks to make their reservations

Come early and stay late

You keep posting all those deals

This is the best real estate

The best for all eternity

It takes a while to realize you’re dead

This is eternity

When it happens just like that

Miguel Torres Profile Photo

Miguel Torres

Estate Planning Attorney

Mr. Torres has been practicing law in California as a licensed attorney for 13 years. He has practiced in a variety of areas including labor and employment, construction defect, patent litigation, breach of contract, and estate planning. He represented unions and workers in wage and hour class actions and worked for Google on patent litigation, antitrust investigations and company compliance. Prior to forming Miles & Torres Associates, Mr. Torres was active in the Estate Planning arena as a solo practitioner. He has volunteered for the Lawyers Committee for Civil Rights, San Francisco Day Labor Program and Jewish Community Services. Mr. Torres is a member of Lambda Legal Organization and Balif Bar Association. Mr. Torres is also fluent in Spanish and French and has enjoyed extensive travel worldwide.