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We're going to conclude our week-long discussion of wills by taking a little survey.

Have you created a will? Please let us know in the comments section.

If you have created a will, what motivated you to finally do it? Did you work with an attorney to write your will, or did you use an online legal service? What was your experience of creating a will like?

If you have not created a will, why not? We'd like to encourage you to write a will—for yourself, your family, and your children. Need help getting started? Use our Writing a Will Checklist.

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In Huguette Clark's wills she included lots (and lots) of money, a Monet "Water Lilies" painting, her Santa Barbara, CA estate, and her doll collection. Based on this wide range of items, it would seem like a person can include nearly anything in her will. This is pretty much the case…but not entirely. There are certain types of property that you can include in your will, and certain types of property that you can't include in your will. Welcome to today's installment in our Wills Week series.

There are 5 main types of property that can be included in a will.

1. Real property. Real property, as opposed to personal property, includes property such as real estate (houses and apartments, time-shares), land, and buildings.

2. Cash. Not just the cold hard kind, the category of cash can including money in checking accounts, savings accounts, and money market accounts, in addition to the bills hidden in the mattress.

3. Intangible personal property. Intangible personal property makes the jump from things you own that you can hold in your hand or touch (a house, a doll collection) to things you own that exist pretty much as ideas, such as stocks, bonds, LLCs, and other forms of business ownership. Also included in this category is intellectual property, like royalties, patents, and copyrights.

4. Personal property. This is the stuff you own that you can hold in your hand. This category of property includes valuable objects like cars, artwork, jewelry, and furniture. Or a doll collection.

5. Residuary estate. Your residuary estate refers to any assets that you don't specifically leave to anyone. You can name a beneficiary to your residuary estate, known as the “residuary beneficiary,” and this person will inherit all your remaining assets that haven't been specifically left to other beneficiaries.

Seems to cover everything, right? Nope. There are certain things you cannot include in a will. The things you can't include in your will generally include things you don't own (well, duh) or things you don't own in their entirety (i.e., things you own jointly with someone else), and things that already have a named beneficiary. Here are some examples:

• Your will can't include property that is held in joint tenancy (meaning you own it  equally with someone else), such as a house that you own equally with your spouse. Property held in joint tenancy will automatically transfer to the surviving owner, which means you can't leave it to anyone else.

• Any trusts, retirement plans, or insurance policies that already have a beneficiary,  and any stocks or bonds for which a beneficiary has already been named can't be included in your will, since you've already named a beneficiary for those items.

And now we come to the topic of digital property. We're talking about your email account, and your Facebook, Twitter, Pinterest, Instagram, personal blogs, and World of Warcraft accounts. While many people consider digital accounts to be property, the law has not yet caught up with this reality. According to those Terms of Service agreements most of us never read, most online companies are legally forbidden from giving the content of your account or access to your account to someone else. In some states (CT, RI IN, ID, OK) you can include login and password information in your will, and your executor will be able to access those accounts. In other states, even if you include the information in your will, your executor won't be able to access your accounts. This is a good reason to write down and store your digital accounts information somewhere safe so that your family can easily access and close your accounts.

If you are writing your will, we'd like to congratulate you. And we'd also like to suggest that if you have any complicated or tricky assets, or if there's anything you're unsure of, you consult a licensed estate attorney in your state. All of this stuff his highly legislated and laws vary from state to state. We'd hate to see you end up in a situation like Ms. Clark's.

One of the reasons that Huguette Clark's family is contesting the validity of her will is because of the stark differences in the content of the last two wills she wrote. Not only were the wills written and signed only six weeks apart, they offer wildly different visions of how Ms. Clark wanted her assets distributed. Today, we're going to talk about how assets can be distributed in a will. Yes, we'll be using pie charts.

When creating a will, you have the right to give your assets—money, real estate, art, jewelry, your car, etc.—to whomever you choose: family members, friends, organizations, or institutions. The only people you may not name as a beneficiaries in your will are the people who serve as witnesses to the signing of the will.

Many people name only one beneficiary in their will, such as a spouse. (Huguette Clark's first will named only one beneficiary: her mother.) If you name only one beneficiary, the distribution of your assets would look like this:

Many people also name multiple beneficiaries, such as all their children. (Ms. Clark's second and third wills both named multiple beneficiaries: her nurse, her extended family, her lawyer, accountant, personal assistant, Beth Israel Hospital, etc.) If you name multiple beneficiaries, you'll need to decide how your assets will be distributed among these beneficiaries. One common method of distribution is to distribute assets equally among beneficiaries, which would look like this:

Another common way of distributing assets among multiple beneficiaries is to distribute assets unequally. In this case, you'd need to specify in your will how much or what percentage of your estate should go to whom. An uneven distribution can specify how much—in a dollar amount or percentage—each party should get, such as "Huey shall receive 50% of Scrooge McDuck's estate, and Dewey and Louis shall each receive 25%," which would look like this:

You can also leave a portion of your estate to be divided equally or specifically among a group of people, and also specify that the remainder be distributed equally or specifically to other people or organizations. An example of this type of distribution arrangement would be "Scrooge McDuck's estate is valued at $1,000,000.00. One quarter of the estate will be divided equally between the Phooey Foundation and McDuck College. Of the remaining assets, Huey shall receive $100,000.00, Dewey shall receive $200,000.00, and Louie shall receive $450,000.00," which would look like this:

In addition, you can specify that all your assets be sold and the profits from those sales be distributed equally or unequally among beneficiaries. Or you can decide that certain people should get certain items (Ms. Clark left her nurse, Ms. Peri, her valuable doll collection).

However you choose to distribute your assets in your will, it's important to remember that, even if you don't have $306,489,687.23 like Ms. Clark, you are communicating a legacy. Though you're under no obligation to inform your beneficiaries of how you've divvied up your assets, communicating your plans can save your family the stress and anxiety of not-knowing, confusion, and even (as in the case of Ms. Clark) doubt.

Today we're focusing on one of the foundational elements of the Huguette Clark story: contesting a will. The contentious case surrounding Ms. Clark's estate lies in the dispute over which of the three wills she wrote is the valid will. As we laid out yesterday, Ms. Clark wrote three wills: one in 1929, one in March 2005, and one in April 2005. Though the second and third wills were written within only 6 weeks of each other, and their contents varied greatly, it is clear that Ms. Clark did re-write her will in April 2005. So where's the argument?

When a will is submitted to probate, the court is charged with determining whether or not the will is a valid legal document—that is, whether or not the will is legally binding and was in fact created by the person who it represents (known as the "testator"). This is usually done by a judge simply looking at the document and determining whether or not it meets the state's requirements for a legal will.

But a will can be contested. Even if the judge says that the will looks good, the validity of the will can be challenged.

There are two types of people who can contest a will: people who are named as beneficiaries in the will and people who would be beneficiaries if the will was invalid.

And there are four reasons a will may be argued (and found) to be invalid:

1. The will was incorrectly executed. In other words, the will was not signed according to the legal standards in the state in which it was created. Though each state has its own specific laws detailing the execution (signing) of a will, what this generally means is that the will was either not signed in the presence of two witnesses or was not properly notarized.

2. The will was fraudulently signed. The testator must be aware that she is signing her will when she signs the document. If the testator thought she was signing a check or a new car lease, but was actually signing her will, this would be a case of fraud. Unfortunately, at this point, the testator cannot confirm or deny whether or not she knew she was signing her will, and not some other document. The witnesses to the signing of the will must offer their opinion, and the court will decide based on their testimony.

3. The testator lacked the "testamentary capacity" to sign the will. In order for a will to be valid, the testator must understand the meaning and effect of signing a will. This breaks down into three main understandings: an understanding of the types and amount of assets she has, an understanding of the people who will receive those assets (the beneficiaries), and an understanding of the way that the will distributes those assets to beneficiaries. If the testator did not have the mental capacity to understand these three things, the will may be deemed invalid. The catch here is that simply because someone suffers from mental illness or deterioration (such as dementia), she is not necessarily lacking in testamentary capacity. The court will have to look at the testator's medical records and the testimony of those people who witnessed the signing of the will, and will decide on the testator's mental capacity based on that information.

4. The will was signed under "undue influence." If someone—a friend, caretaker, family member, professional advisor, or beneficiary named in the will—pressured the testator into changing the will, it can be argued that the testator did not freely sign the will. This pressure can take the form of physical intimidation or abuse, or emotional manipulation or abuse. In order to prove this abuse of power, however, the person contesting the will must show evidence of this pressure, such as the presence of the beneficiary influencer at the signing of the will, any role the influencer had in drafting the will, and if the influencer paid for or stored the will for the testator.

Aside from incorrect execution, none of these scenarios are simple to prove in court—given the fact that the testator cannot speak for herself, it is up to the living to speculate and provide supporting evidence. In the case of Ms. Clark's will, her extended family is likely arguing that her attorney, accountant, and nurse exerted undue influence over her, and forced her to sign a will that would benefit them. As the attorney, accountant, and nurse fiercely deny this claim, it will be interesting to see how the family attempts to prove the invalidity of Ms. Clark's will.

The story we're talking about today is fascinating, entertaining, and very complicated. So complicated, in fact, that we're using this story as a jumping-off point for a week-long discussion of Wills. There are so many issues raised in this story—multiple wills, inheritance rights, how and why to contest a will, and the sometimes fine line between eccentricity and incompetence—that we'll be breaking out the key points and discussing a different one every day this week. So stick around.


 

The cast of characters:

  • Huguette Clark, reclusive multi-millionaire heiress and philanthropist (1906-2011)
  • Wallace Bock, Ms. Clark's attorney
  • Irving Kamsler, Ms. Clark's accountant
  • Hadassah Peri, Ms. Clark's longtime private nurse
  • Beth Israel Medical Center in New York, where Ms. Clark lived for the last two decades of her life
  • The Corcoran Museum of Art, Washington, D.C., where Ms. Clark's father (the copper baron and U.S. senator from Montana, William A. Clark) served as trustee, and to which both Mr. Clark and Ms. Clark had donated significant amounts of money and art
  • Ms. Clark's extended family, including 21 half-grandchildren, half-great-grandchildren, and grand-half-nieces and nephew of Ms. Clark's half-sisters and half-brother

The key facts:

  • The value of Ms. Clark's estate at the time of her death: $306,489,687.23
  • The number of wills Ms. Clark wrote in her life: 3 (1929, March 2005, April 2005)
  • The year Ms. Clark was diagnosed with dementia: 2010
  • Ms. Clark's age at her death: 104

Huguette Clark was the daughter of William A. Clark, a copper baron who made his billion dollar fortune in the late 1800s. When he died in 1925, Ms. Clark inherited $500-700 million dollars. Mr. Clark donated his large (and very valuable) art collection to the Corcoran Museum of Art in Washington, D.C., where he had served as a trustee. Ms. Clark also inherited some of her father's art, and continued to collect art herself.

In 1928 Ms. Clark married, though she had no children and the marriage ended in divorce 2 years later. Ms. Clark penned her first will in 1929, as she contemplated divorce. In that first will she left everything she owned to her mother, Anna La Chapelle Clark. Ms. Clark's mother died in 1963; Ms. Clark did not draft a new will for another 75 years. (According to this first will, the Corcoran Museum would—by default—receive a $3 million trust created by Ms. Clark's mother.)

But 75 years later, in March 2005, Ms. Clark did write a new will. In this new will, $5 million would go to Ms. Clark's private nurse, Hadassah Peri, and the rest of her fortune would be distributed among her remaining extended family. The Corcoran Museum would receive nothing.

Then, only 6 weeks later, Ms. Clark wrote a third will. In this will,15% of the fortune would go to creating an arts foundation at her Santa Barbara, CA mansion, which would also be the recipient of all but one of her pieces of art. The Corcoran Museum would receive her Monet "Water Lilies" painting from 1907, valued at $25 million. $2.6 million would be divided among her doctor, her personal assistant, her lawyer Wallace Bock, her accountant Irving Kamsler, and Beth Israel Medical Center (the hospital where Ms. Clark resided for nearly 20 years). (Mr. Bock and Mr. Kamsler were also named as executors to Ms. Clark's estate, a job that would pay them roughly $8 million.) Sixty percent of her remaining estate and her extensive and valuable doll collection would go to her nurse, Ms. Peri. A goddaughter would receive 25% of the remaining estate. Ms. Clark's extended family would receive nothing.

Upon Ms. Clark's death on May 24, 2011, the April will was revealed. Then the March will was also revealed. Given the proximity of the dates that the March and April wills were signed, and given the stark differences in the wills instructions, there was cause for inquiry.

On the one side is Ms. Clark's extended family and the Corcoran Museum. The family argues that the third will was "improperly executed" and that Ms. Clark had been "taken advantage of by Mr. Bock, Mr. Kamsler, Ms. Peri, and others." The family believes that not only had Ms. Clark been coerced into writing and signing the April 2005 will, but also that Mr. Bock and Mr. Kamsler, her attorney and accountant, had mismanaged her affairs in her life, which resulted in unpaid taxes and forced her to sell numerous valuable paintings. The Museum has joined in supporting the family in their case; some are questioning the Museum's motives. (Ms. Peri's lawyer has suggested that the Museum "may be doing the bidding of family members when they should be doing the bidding of the beneficiaries of the Corcoran." The Museum says it must respect the “true intentions” of donors.)

On the other side, Ms. Clark's attorney and accountant claim that they served Ms. Clark well in her life, and her most recent will should be honored. Beth Israel Medical Center also believes that the April 2005 will should be upheld. In response to charges of the mismanagement of Ms. Clark's estate, Mr. Kamlser's attorney said, "He was doing the absolute best that he could looking out for her interests and complying with her wishes." Mr. Bock's attorney said of Ms. Clark, "She wanted to spend her money the way she wanted to spend it. [Bock] was hired to do what she wanted him to do." Beth Israel Hospital, which received money and a Manet painting (valued at $3.5 million), said in a statement, "We are disappointed at the attempt to take back charitable donations that Ms. Clark freely made to Beth Israel to express her gratitude for the hospital’s life-saving and compassionate care, and her recognition of the hospital’s important mission."

Considering how much money is at stake, it is obvious why so many parties have such strong feelings about which will should be honored. But who is right? Who can know what Ms. Clark intended? At this point, it is up to the Surrogate Court of New York to determine which of Ms. Clark's wills—her original will from 1929, her will from March 2005, or her will from April 2005—is the valid will. We'll just have to wait and see.

via the Washington Post

Mark Dimor founded The BioContinuum Group in 1993 after 15 years in healthcare advertising, communications, and medical education. Mark works to identify practical strategies for changing patient and practitioner behavior and improving patient care, and to implement those strategies using education and social media. In addition, he was his wife's primary caregiver as she fought cancer for three years and ultimately passed away. Which is to say, he understands the issues that Everplans is addressing both professionally and personally.

Yesterday on his blog, Mark wrote an incredibly flattering piece about Everplans. In the piece, he discusses Everplans' role, as he sees it, in opening the channels for conversation around tough end-of-life issues and supporting patients, caregivers, and families as they navigate these complicated areas. We're re-publishing the piece here today. Visit The BioContinuum Group's blog for more information and opinions on these topics, and follow Mark on Twitter @MarksPhone.


Those who follow me know my areas of interest. They revolve around a somewhat narrow constellation of topics. One area is adult learning and how it works to drive an educational strategy for patients and HCP (healthcare providers). Another area is social media and how we must think goals and strategy when we want to apply social media to solve a communications, education, marketing, or brand problem. Finally there is the topic of hospice and palliative medicine (HPM) and how important that service is for both patient and caregiver.

One organization that’s also looking at the practical aspects of HPM and EOL is a company I was recently introduced to called Everplans. Everplans is a website that addresses, in a new and practical way, the topics of end-of-life and death. (Yup: yet another bummer post by me.) But I must say that after having faced these issues with Donna’s passing 18 months ago, and now in the middle of organizing my own life, this website comes as a welcome resource. Dare I say a bit of light for my darkness?

The site is broken down into categories that apply to all of us: Long Before Death, Eldercare & End-of-Life, After a Death, and Be There for Someone. These buckets are further broken down into key components or steps. These steps are presented simply, clearly with articles and tools, links and explanations, designed to educate and take action. The site is a one-stop resource for anyone interested in planning or learning: those in their 20s and 30s, and those facing the passing of a loved one, post death realities, and what to do and how to do it when a friend or family member dies. I know that for me, I winged the practical considerations at Donna’s death and stumbled along the way—largely I was on autopilot and just pushed through those first few weeks. Everplans could have served as my checklist and backstop resource. It may have even helped me face the grief of doing this alone.

More than ease of use, this site and the practical steps it presents are part and parcel of my larger reference point: HPM gives so much to the patient and caregiver. HPM is about treating the entire patient clinically, emotionally, and spiritually, while considering the same gestalt of the family. This is especially critical during the end of life and after the death of a loved one. I believe when we bring the services Everplans offers into caregiving, when these issues and tools are part of a family discussion, it opens emotional receptors within us that connect us to our loved one. It not only takes the worry and struggle with these topics off the table; it opens the conversation to include topics we may not want to address. And in addressing these issues openly we free ourselves and our loved ones from struggling with them, especially when they are least able to. Everplans is part of HPM, part of how to better live our lives.

In my opinion HCP and HPM providers should be pointing patients and families to Everplans (or sites similar) in order to guide patients through their options and to ensure critical paperwork is completed and put into the electronic medical records. Eliminating a potentially emotional and difficult task will aid the continuity of care and the well being of the patient, the caregiver, and family. 

After David S. Kime Jr.'s funeral, as his family and friends made their way to the cemetery, they made a pit stop in Kime's name: to a Burger King drive-through. Kime, a WWII veteran who died at age 88 on January 20 in York, PA, was a long-time fan of the Whopper Jr., and his family chose to honor him by purchasing his favorite sandwich.

Kime's daughter Linda placed the burger atop the spray of flowers on the casket at the cemetery, and said that the tribute was a way of honoring her father through "the things that brought him joy."

We think this is a wonderfully unique way of remembering someone who has died, and we're interested to hear your thoughts. Have you ever been a part of an unusual tribute like this one? What is your idea of a special tribute?

via York Daily Record

In the Huffington Post today, religion reporter Jaweed Kaleem looks at the rise in home funerals, and offers a number of compelling stories of families caring for their own after a death. (A warning: the personal stories Kaleem reports on are both inspirational and also truly heartbreaking.)

While most American funerals are arranged by funeral homes, there is a growing movement toward home funerals: ceremonies that a family organizes themselves, often taking place in the family's home, with the family responsible for preparing and sometimes burying the body. Most states have made home funerals legal, and many states do not require the engagement of a funeral director after a death.

Elizabeth Knox, vice president of the National Home Funeral Alliance, is a proponent of home funerals:

"A lot of people don't want to do anything with touching dead bodies. They consider it creepy. But it can actually be the first step to healing and acceptance of death. Slowing down the process allows all involved to absorb the loss at their own pace. It's an organic emotional and spiritual healing not available from limited calling hours at a remote location."

Kaleem reports that while home funerals are legal in most states, they can still be difficult to orchestrate. And in places where they're hard to organize, funeral homes can actually serve as helpful partners in coordination.

"It's nearly impossible to do a home funeral in some places, but funeral homes and home funerals can often coordinate activities to get around that hurdle…newer generations of less traditional funeral directors are more likely to be interested in helping make arrangements for home services."

If you're interested in learning more about home funerals, see our article Choosing to Have a Home Funeral Service. The other resources we recommend are the National Home Funeral Alliance, the Funeral Consumers Alliance, and the Home Funeral Directory.

via Huffington Post

Do doctors die differently than the rest of us? Maybe.

Yesterday over at BoingBoing, editor Xeni Jardin shared an essay about the approach many doctors take toward end-of-life care. The article, by Dr. Ken Murray (a Clinical Assistant Professor of Family Medicine at USC), looks at the widespread delivery of overtreatment, or "futile care," to patients at the end of life, and how many doctors choose not to undergo these types of final—and often ineffective—treatments themselves. Dr. Murray writes:

It’s not a frequent topic of discussion, but doctors die, too. And they don’t die like the rest of us. What’s unusual about them is not how much treatment they get compared to most Americans, but how little. For all the time they spend fending off the deaths of others, they tend to be fairly serene when faced with death themselves. They know exactly what is going to happen, they know the choices, and they generally have access to any sort of medical care they could want. But they go gently.

Why don't we all "go gently," following in the course that many doctors themselves believe in? "The trouble is that even doctors who hate to administer futile care must find a way to address the wishes of patients and families," Dr. Murray writes.

So what can we do to die more like our doctors? We can think about the types of end-of-life treatments available to us, create the legally binding documents to ensure we receive the treatment we want, and communicate with our families about our decisions. Dr. Murray's advice: "If there is a state of the art of end-of-life care, it is this: death with dignity. As for me, my physician has my choices. They were easy to make, as they are for most physicians. There will be no heroics, and I will go gentle into that good night."

via BoingBoing (via Zócalo Public Square)

Following last weekend's piece by Ron Lieber about getting your sh*t together, which we blogged about, the NYT has published an opinion piece by Tim Krieder, "You Are Going to Die." Mr. Krieder recounts how he and his sister recently toured a retirement community for his mother, how impressed he was with the facility (yet how sad he was at the fact he was there), and how it made him realize just how little there is he can do about the fact that his mom is getting older, is now at the point in her life where she is moving into a long-term care facility, and at some point, will die. 

"You are older at this moment than you’ve ever been before, and it’s the youngest you’re ever going to get… Pretending death can be indefinitely evaded with hot yoga or a gluten-free diet or antioxidants or just by refusing to look is craven denial."

We're on the same page here at Everplans; we know that no one wants to think about death, or deal with it. It's so hard. And we also agree with Tim (and the universe) that death is inevitable. And that's the reason for our whole mission here at Everplans. Even a little bit of decision-making and planning ahead can make a huge difference at the end - both for the person who is passing and for their families.