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

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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I have read that approximately 60% of people never do any estate planning-no Will, no Trust, no healthcare directive. Just think about the Terri Schiavo case, and how the lack of any healthcare directive can cause confusion and conflict in a family. Various statistics say that people spend more time planning a vacation or birthday party and definitely more time watching television, than thinking about what would happen if they are incapacitated or worse, not around anymore. Thinking about our own mortality is not fun (for most of us at least), and decisions about your own affairs can be very daunting. Also, if you are in the small group of people who are self-employed, there is another layer of complexity—what happens to your business if you die? 

Are things set-up so your business can operate without you? Are managers in place to operate your company?  Are they aware of your wishes as to how the company should go on? Do you care if your business is immediately sold, or do you want your company and legacy to continue on?

Business can, at times, be the most valuable and the most vulnerable asset you leave for you loved ones-therefore the hardest one to manage and maintain. 

One of the major breaking news stories yesterday, was the merger between two local television stations, KPSP Local 2 and KSEQ 3.  

In a statement posted to KESQ's website, Jim Houston said, "KPSP was a labor of love for my wife Jackie Lee Houston. In addition to its excellent local news commitment, the station has made a tremendous contribution to the non-profit community of the Coachella Valley. With her passing, we have now made the difficult decision to find a new owner for our television operation. While a number of options were carefully considered, a merger with the Bradley family, owners of Gulf-California (KESQ-TV) was ultimately chosen as the best opportunity.”

From the statement above, it is clear that Mrs. Houston’s passing played a role in KPSP Local 2 being sold at this time. From my understanding, KPSP will operate as a separate station, but due to this merger, structural changes have been made and many people have lost their jobs. 

Clearly, some decisions will need to be made about your business, if you are not around, so here are some things to consider long-term:

·         Can your business operate without you at this very moment? Can it ever operate without you? If yes, who can run it for you?

·         Who would you assign as manager? What direction(s) would that person need in order to run the company as you do?

·         Are you opposed to mergers or your company being liquidated? If yes, what would you like to occur?

For many entrepreneurs, their business is their baby. In that case, considering a few of these questions is a worthy pursuit.

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