Desert Estate Planning Law Blog : Palm Springs Estate Planning Lawyer & Attorney : Daryl Binkley Law Firm : Palm Desert, Indian Wells, Southern California

Very frequently I receive calls from people who are trying to locate a will or trust of their parent or loved one(s) who just passed away. They are not able to locate any trust documents or have any information about the attorney who created it. Once, after doing some research for a particular family, I found out that the attorney who created a trust had passed away before his client (then there was the job of finding where the deceased attorney's files went).

There are numerous cases of "lost wills." My personal favorite is digging around a person's property after they passed away, looking for a will that was supposedly buried in a container. Maybe a myth or legend, but it sets a graphic image.

Just this week I have a received a few phone calls about this exact issue. Families were trying to locate local attorneys who worked on trusts for loved ones by calling every attorney in the area. These random inquiries from other lawyers or loved ones make me think this is a problem for many people, or it might be down the road.

So what are some possible solutions for this problem? The following are tips to ensure that you or your loved ones do not fall into the abyss of lost documents:

Tips for Couples or Individuals Creating a Trust

• Give basic information that you created a trust to at least one or some of your loved ones. If you feel comfortable you might want to let them know of your wishes, desires and reasons why you made specific decisions about your assets.
   
• If your beneficiaries are also trustees, provide them with information on where the trust is located (especially if it is locked in the safety deposit box) and information on what they need to do if something is to happen to them. Also provide them with the contact information or business card to your attorney that drafted the trust. You might want to give a copy set to your trustee so they know all the details. Attorneys will have copies of client trusts in their files as well.

• If you don’t want your kids or beneficiaries to know the exact location of your trust or what the contents of the trust are, at least ensure they have contact information for the attorney that created the trust. Without this basic information, your kids /beneficiaries might be calling every attorney in the area trying to find this information. Or worse, they may need to pay another attorney to help them with this search.

Tips for Beneficiaries/Trustees of a Trust:

• Have a heart-to-heart talk with your parents or loved ones about their wishes and desires on how things should be handled in the case they are not around. If your parents don’t have any legal documents set up about their health care decisions and assets, you may want to suggest that they seek an estate planning attorney. Ask your friends and/or professional advisors for references or recommendations.

• If you know that your parent(s), loved one(s), or partner(s) have created a trust and that you are a beneficiary, ask them for the attorney contact information.

• If your loved ones are comfortable with it, they might even tell you where their estate planning documents are stored or even give you a copy of it.

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Are there any essential legal documents everyone should have regardless of how much money or assets they have?  Answer is, definite yes.  These documents clarify who will be in charge in case of your incapacity, and what will happen after your death.  Also if you a parent, having a guardian instructions is very important.  Here is the quick list of documents that you should consider.

· Power of Attorney: In case of your incapacity, you can assign someone to act on your behalf for your financial or other accounts. This document can authorize someone you trust to pay your bills, take care of your utilities and any other financial affairs.

· Healthcare documents: These documents designate your wishes for the end of life procedures (think of the Terri Schiavo case). Also, these designate who gets your healthcare documents, or who can make health decisions for you. These documents include:

1. California Advance Healthcare
2. Living Will
3. HIPAA

· Will and/or Trust: In case something happens to you, a Will or Trust designates who will be an executor or trustee of the estate, and how your assets are distributed. Talk to your attorney to find out whether a Will or Trust best suits your needs. I am a big proponent of a Trust as it avoids probate (you can read more about this topic here). A Trust Package plan should also include a Pour-over-Will and all of the other documents mentioned. It is best to discuss your personal situation with a trusted attorney.

· Guardian Instructions: If you are the parent of a child under 18 years old, creating guardian instructions is very important to ensure people you trust to take care of your child in case something happens to you. You can also include specific instructions about your views on education, religion or any other matters, such as medical conditions or food allergies.

Additional Items to Review:

It is a great idea to review beneficiary designation forms from time to time to be sure they reflect your current wishes. If you were recently married, divorced or had more children, look into the following policies/plans to verify they reflect your wishes.

· Beneficiary designation(s) on your life insurance policy

· Beneficiary designation(s) on your retirement plans

· Beneficiary designation(s) on your investments accounts

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October is here and and this year has been busy, busy, busy.   

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Busy, busy month…. While I may have not been able to blog each week, I have still been reading a book every week. In this blog, I have decided to cover three books, ….great for anyone wanting to improve productivity and habits. 

“Self Leadership and the One Minute Manager” by Ken Blanchard

Ken Blanchard uses a fictional story telling format in this book to make his points and to make the content more palatable to a broader audience that might like a fictional story, loosely hiding its educational points. The story begins with its main character pitching an important client and failing in this task. Immediately afterward, he questions his managing abilities. About the time he believes all his lost, he sees a children’s magician—and ultimately, the two start a mentor/mentee relationship, in which she brings him back from the brink. She takes him through tasks that force him to discover ,for himself, how to become a better manager.

This book is an enjoyable quick read, and ideally suited for managers of any size organization.   I don’t know that it is essential for a start-up entrepreneur, but as any organization grows, those that manage others will benefit from the lessons of this book. I think my favorite part of the book is the “discovery” of the “development continuum” which “is simply a model of four stages people usually experience when they are learning to master something.”   The magician and manager relationship reminded me of the Jedi/Student relationship in the Star Wars movies.

“Getting Things Done: The Art of Stress-Free Productivity” by David Allen

David Allen opens his book with an ambitious offer: “Welcome to a gold mine of insights into strategies for how to have more energy, be more relaxed, and get a lot more accomplished with much less effort.” He also states his reason for this book: “Teaching you how to be maximally efficient and relaxed, whenever you need or want to be.”

I believe he delivers on his promise, and for the most part he is not dependent (or dare I say an advocate) of overly technical solutions to project/life management. An example is the following: “If I had to set up an emergency workstation in just a few minutes, I would buy a door, put It on two two-drawer filing cabinets (one at each end), place three stack-baskets on it and add a legal pad and pen. That would be my home base (if I had time to sit down, I’d also buy a stool!). Believe it or not, I’ve been in several executive offices that wouldn’t be as functional.” 

Ultimately, everyone, everyday is bombarded with numerous tasks, jobs, distractions, and/or action items, and his ideas create methods to bring order to chaos—and to organize “stuff” (see definition in his book) in the most efficient and practical way. 

Warning: He acknowledges that his first step of the “collection process” can take six hours or more. For many entrepreneurs, it probably could take easily, two full days. 

Initially I thought this book might be about comprehensive to-do lists, and interestingly enough, Mr. Allen does not really advocate to-do lists per se (I had the same thought about the book I read a few weeks ago, Checklist Manifesto, which is not about to-do list either).  

I highly recommend this book and will be reading it again (hopefully, my wife will read also). As a family, we can then fully implement all of its strategies in our business and personal lives.

“The Power of Habit: Why We Do What We Do in Life and Business” by Charles Duhigg.

 After reading the book, I definitely have a better understanding of how habits work, and as the author believes: “simply understanding how habits work—learning the structure of the habit loop—makes them easier to control. Once you break a habit into its components, you can fiddle with the gears.”

This book provides many interesting insights into habits. For example, “Habits never really disappear. They’re encoded into the structure of our brain.” In fact, this truth inspires the author to state the following: “The Golden Rule of Habit Change: You Can’t Extinguish a Bad Habit, You can Only Change It.”

As controlling as habits are, the structure of the “habit loop” is relatively simple: you have a cue, followed by a routine, and then a reward. It is a loop because when the cue occurs again, it will then trigger the same routine and reward.  The book goes over many different examples of these habit loops, and while the activities involved can be complex, the basic structure of the habit loop is, as stated, relatively simple.

I think the book would be well served to include some expanded chapters on how to deal with (or change) specific habits (maybe smoking, overeating, etc)—which would provide insight into all types of ways to change habits. But, maybe that will be the next edition. 

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So much progress has been made in healthcare and medical industry that now people live longer and longer. But living longer is not the same as living better. As Peter Saul points out in this TED talk, it is more important now to make those life-end decisions so our opinions matter when, in those last months or days, we can no longer make them for ourselves. By making these decisions, we are defining, for ourselves and others, what meaningful life represents to us and letting those around us know how we feel emotionally, mentally, spiritually.   

Over year ago, I heard Bill Bradley’s speech at the Desert Town Hall in Indian Wells and among many interesting things he mentioned that night, one fact stayed with me. He said, states would save between $35-$65K/per person if everyone would make some of these life-end decisions ahead of time specifically, by creating a Living Will and Advance Health Care Directive.

If you currently do not have these documents in place, I strongly encourage you to consider them. The following Healthcare documents designate your wishes for the end of life procedures (think of the Terri Schiavo case). Also, these designate who gets your healthcare documents, or who can make health decisions for you. These documents include:

1. CA Advance Healthcare  (Healthcare Power of Attorney)
2. Living Will
3. HIPAA

In addition to these directives, you may also consider other essential legal documents listed below:

·     Power of Attorney: In case of your incapacity, you can assign someone to act on your behalf for your financial or other accounts.  This document can authorize someone you trust to pay your bills, take care of your utilities and any other financial affairs.

·     Will and/or Trust: In case something happens to you, a Will or Trust designates who will be an executor or trustee of the estate, and how your assets are distributed. Talk to your attorney to find out whether a Will or Trust best suits your needs.  I am a big proponent of a Trust, as it avoids probate (read more about this topic here). A Trust should also include a Pour-Over-Will, and all of the other documents mentioned above. It is best to discuss your personal situation with a trusted and reliable attorney.

·     Guardian Instructions: If you are the parent of a child under 18 years old, creating guardian instructions is very important. This ensures people you trust to take care of your child in case something happens to you. You can also include specific instructions about your views on education, religion or any other matters, such as medical conditions or food allergies. 

It is often tough to think about these decisions, but I encourage you to do so. As Peter Saul points out, making these decisions shows that you matter, that your life matters.  

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I give “Quiet” a loud recommendation as a Must-Read for parents of an introvert

The full title of this week’s book by author Susan Cain is: “Quiet: The Power of Introverts in a World that Can’t Stop Talking.” This book delves deeply into the various traits, characteristics, behaviors, successes and anything else you can imagine about introverts, and introversion more generally. The author proclaims: "today introversion and extroversion are two of the most exhaustively researched subjects in personality psychology, arousing the curiosity of hundreds of scientists.” 

Reading this book reminded me of my undergraduate classes in social psychology at UC Berkeley, and I thoroughly enjoyed how Susan Cain has brought the academics of introversion/extroversion to real-life experiences focusing her attention on many of the ways introverts succeed in all walks of life (even when extroversion became the “cultural ideal” of modern America).

The author relates how Dale Carnegie, the author of the book “Public Speaking: How to Win Friends and Influence Others” had a “metamorphosis from farmboy to salesman to public-speaking icon is also the story of the rise of the Extrovert Ideal.” Essentially, the industrial revolution that started in the early 1900’s and continued through much of the century created this American culture of the “Extrovert Ideal,” whereby “Americans responded to these pressures by trying to become salesman who could sell not only their company’s latest gizmo but also themselves.” 

The author found that at Harvard Business School, extroversion is almost at the base or foundation of the institution. Where one Harvard Business School Grad terms the school the “Spiritual Capital of Extroversion” and another student saying to the author: “Good luck finding an introvert around here…” and yet another saying “This school is predicated on extroversion…Your grades and social status depends on it. It’s just the norm here.”

Without spending too much time on this part of the book, suffice it to say that “Contrary to the Harvard Business School model of vocal leadership, the ranks of effective CEOs turn out to be filled with introverts: including Charles Schwab; Brenda Barnes, CEO of Sara Lee; and James Copeland, former CEO of Deloitte Touche Tohmatsu.” She continues on this theme by discussing Jim Collin’s “Level 5 Leaders” from the book “Good to Great”—another book I highly recommend and plan to read again later this year.

Without giving away everything, I will just say that I was intrigued at why “introverts are uniquely good at leading initiative takers” whereas extroverted leaders may need to adopt a style that is more reserved—to achieve the best results with employees that are initiative takers.

There are so many great stories in this book, and I believe it is especially good for parents, regardless of whether they believe their child/children may be introverted or extroverted—and I would say a MUST READ for parents that know they have a child (or children) that are introverted. Some researchers have an “Orchid Child” hypothesis whereby they believe introvert children may require a somewhat more complex and supportive family environment (think the delicate nature of the orchid), but the results of this upbringing may create a caring, compassionate and “Thinking” person (and sometimes more immune to colds and respiratory illnesses) that is nothing short of an amazing person (think the exotic beauty that is the orchid).

Initially I was a bit skeptical when I downloaded this book. I didn’t know anything about it—I thought I could be in for a real boring read—introverts and “Quiet”! However I found this book to be a fascinating read. Now a quick disclaimer: I don’t know if extroverts will really enjoy it as much as an introvert (remember that introversion/extroversion is really just a spectrum of behavior on a single continuum), but given its broad range of topics (including the ability of Introverts to “act” like Extroverts under the terminology of “Free Trait” behavior)—I believe that anyone, regardless of where they are on the introvert/extrovert spectrum, will learn something from this book, and hopefully truly enjoy reading it, too.

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One of the most frequently asked questions I get is this one:

"I had my estate plan done many years ago, so when and how often should I update it?" This is a great question!

I say great question because like you, your trust documents should change as you grow, and as your life circumstances change. You should think of your trust documents as living documents that should reflect you and your life as you age. You may have more children, grand-children, get divorced, re-married, buy more real estate, start a business or win the lottery (one of my clients won, so it happens)!

As you age, your wishes as to who you want to receive your house, your beloved art collection, etc., might change as well.

 The following are guidelines as to whether your estate plan needs updating:

• Did you or any of your beneficiaries get married, divorced, have more children, etc.? In other words, did your life circumstances change?
• Did you recently retire? Or did you have any health disability or issues?
• Did you move from one state to another, or acquire real estate in a new state where you plan to live part-time?
• Did your assets or income change? For example, did you acquire or sell new real property, become beneficiary of a large inheritance, etc.?
• Did you start a new business? And are others involved?

In any case, a good rule of thumb is to touch base with your estate planning attorney every few years to see if a little updating of your trust is in order. 

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Graphic, compelling story-telling format of the “The Checklist Manifesto” will make you pause and reflect on how you can use the power of checklists in your business and professional life. At least, that is the effect this book had on me: examine and pause.

Given Atul Gawande, the author of “The Checklist Manifesto,” is a surgeon, I should have been better prepared for some of the medical “war stories” that he covers in his book. His stories involving patients whose hearts have stopped will leave you a little breathless (and for me, squeamish), unless you are not affected by graphic operating room stories.

(Pictured below: Dr. Atul Gawande; Photo by: Fred Field).

However, this vivid and compelling story-telling format makes the reader stand-up and think about the point of “The Checklist Manifesto,” which for me is this, the use of checklists can improve patient survivability rates, improve business performance, airplane safety, and even improve outcomes in legal matters. For example the statistics related to medical issues are quite dramatic, he states that in 2006 it was less than a 50 percent chance that heart attack patients would receive the appropriate testing, diagnosis and medical plan within 90 minutes of arriving at the hospital (a timeframe that would increase the survivability of such patients). He also states that “Studies have found that at least 30 percent of patients with stroke receive incomplete or inappropriate care from their doctors, as do 45 percent of patients with pneumonia. Getting the steps right is proving brutally hard even if you know them.” He believes—and implementation has proved—that checklists provide shortcuts to solve complex problems (and in the realm of air travel safety—emergency problems) in an abbreviated time frame.

One of the industries that has long used checklists and continues to use checklists as an everyday practice is air travel. In the book, he discusses the inaugural flight of the B-17 Bomber (in 1935) that was flown by one of the best pilots of that time period. The flight was tragic in that shortly after lift-off, as the plane approached 300 feet in the air, an engine stalled and the plane turned on its side and crashed. The plane was the most complex for its time period. The investigation showed that the accident was caused because of one “pilot error”; one simple step had been skipped among many actions a pilot had to do before and during the take-off. The fix was to use a checklist, and since then, the airplane pilots have a checklist for almost every possible scenario and routine checklists play a role in every single flight. I told the story about the B-17 bomber to a client (he was a pilot) and he was pretty shocked that I heard of it as he thought of it as an industry specific one, and he only met pilots that knew about that story. 

Gawande gives additional examples of modern-day checklists in flight safety with the famous “Miracle on the Hudson” landing by Sully and how pilots deal with fuel icing that causes engines to stall (an accident just in the past few years that allowed the creation of yet another checklist).  

Another industry that uses checklists to solve complex problems is the building industry, for example in the building of skyscrapers—a process that involves all sorts of complicated building processes that have to work together in a coordinated effort, even when there are numerous "change orders." 

Throughout the book he goes back to his native profession of surgery and how checklists improve the performance within the medical industry. He provides a strong argument that checklists can be useful in almost any field or industry where there are complex problems with numerous steps, and where the misstep of a single simple step can have dire consequences.

I would have to think that anyone can benefit from reading this book.  After reading the book, one would be well advised to begin dissecting their own tasks, or business protocols to see how checklists can create better outcomes and provide efficiency in one’s daily routines—or to be used when a random problem comes at you, and you need a systematic way to solve it.

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I was very excited to read Richard Branson’s “Screw Business As Usual” as it examines how entrepreneurs can be successful while still helping out causes for the greater good of mankind. Branson says: “I constantly meet a growing army of entrepreneurs around the world, and when they ask me if I have one single message which will help them, I tell them it’s this: doing good can help improve your prospects, your profits and your business; and it can change the world.” Throughout the book, Branson discusses a wide range of types of causes, such as environmental issues, human rights, poverty, cancer, and many more.

 Photo Credit: Victoria Dawe

 Branson believes that by the 1970's business were focused on maximizing profits, at any expense.   He states that he has:

“belief that people are basically good and, if you can only give them the opportunity to do the right thing they will. This applies to businesses as well. One of the more devastating theories of the 1970s was that no matter what it took to achieve it, the primary purpose of business was to maximize value for its shareholders. This principle has led to a variety of social ills where businesses discard employees (at the drop of a hat), pollute our air and waters, or create short-term gains that are unsustainable. It is important for people in business to recognize that long-term shareholder value is more likely to be created by companies that value their employees, act as good environmental stewards and think long term in general.” 

The above quote probably best sums up the underlying argument of the entire book, and the bulk of the book contains various examples of businesses that are doing well by doing good. 

It is great if large organizations (such as the hundreds of companies that Branson manages) can operate in ways that value employees, and look at ways the business can help the environment or proactively how they may help out charitable organizations.
He references certain companies that are built around positive principles, and have done very well financially, such as companies that make organic food products. 

He notes that GE and Walmart are proactively taking steps that will both be financially rewarding and help out the environment.

It is definitely a worthy goal for businesses to improve mankind, and at the same time generate enough profits to put food on the table for their families, and the families of their employees.  However, given the economic situation that so many of American businesses are experiencing right now—especially small businesses, I don’t know to what extent many of Branson’s larger than life projects/examples are relevant to small business owners. 

I would say the most important takeaway, and believe Branson would agree, no matter how big or small, it is important to make the attempt to “do better.” For my law office, my wife and I attempt to participate in local community events and charities, such as offering a scholarship to a local senior (the law office donated to a Palm Desert High School senior). We attend fundraising events and in general attempt to assist a handful of charities that we feel strongest to support.  I believe business owners can find ways to participate in their own communities-assisting with their time, money or knowledge.

Branson’s book provides an optimistic point of view of the future of entrepreneurship—mainly that businesses will naturally operate in ways that are more environmentally friendly, employee friendly, and in cooperation or benefit to communities.  However, being in California, I also recognize that sometimes the regulatory environment (in this state) can be stifling to businesses, and in the current economic climate that is not the best situation either.

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