How to Choose the Right Agents for Your Incapacity Plan

2024-04-08 by Sue Hunt


Many people believe that estate planning is only about planning for their death. But planning for what happens after you die is only one piece of the estate-planning puzzle. It is just as important to plan for what happens if you become unable to manage your own financial or medical affairs while you are alive (in other words, if you become incapacitated).

What happens without an incapacity plan?

Without a comprehensive incapacity plan, if you become incapacitated and unable to manage your own affairs, a judge will need to appoint someone to take control of your money and property (known as a guardian of the estate) and to make all personal and medical decisions for you (known as a guardian of the person) under court-supervised guardianship proceedings. The guardian may be the same person, or there may be two different people appointed to these roles. Depending on state requirements, the guardian may have to report all financial transactions to the court annually, or at least every few years. The guardian is also typically required to obtain court permission before entering into certain financial transactions (such as mortgaging or selling real estate). Similarly, the guardian may be required to obtain court permission before making life-sustaining or life-ending medical decisions. Court-supervised guardianship is effective until you either regain the ability to make your own decisions or you pass away.

Who should you choose as your financial agent and healthcare agent?

Guardianship statutes are the state's default plan for appointing the person or people who will make decisions for you if you cannot make them for yourself. This default plan, however, may not align with the plan you would have put into place on your own. Most importantly, state statutes may give priority to someone to act as your guardian who is not the person you would have selected had you engaged in proactive planning.

Rather than having a judge appoint these important decision-makers for you, your incapacity plan allows you to appoint the trusted individuals you want to carry out your wishes. There are two very important decisions you must make when putting together your incapacity plan:

  1. Who will be in charge of managing your finances if you become incapacitated (your financial agent)?
  2. Who will be in charge of making medical decisions on your behalf if you become incapacitated (your healthcare agent)?

The following factors should be considered when deciding who to name as your financial agent and healthcare agent:

  • Where does the agent live? With modern technology, the distance between you and your agent may not matter. Nonetheless, someone who lives nearby may be a better choice than someone who lives in another state or country, especially for healthcare decisions.
  • How organized is the agent? Your agent will need to be well-organized to manage your healthcare needs, keep track of your accounts and property, pay your bills, and balance your checkbook, all on top of managing their own finances and family obligations. While you may trust many of your loved ones to act on your behalf, not all of them will have the capabilities and organizational skills desired for this position.
  • How busy is the agent? If the agent has a demanding job or travels frequently for work, then the agent may not have the time required to take care of your finances and medical needs.
  • Does the agent have expertise in managing finances or the healthcare field? An agent with work experience in finance or medicine may be a better choice than an agent without it. Keep in mind that you can appoint different people for these different roles.

What should you do?

If you do not proactively plan for incapacity before you become incapacitated, your loved ones will likely have to go to probate court to have a guardian appointed. This would be a hassle, taking time and costing money during what is already likely to be a very stressful and emotional time.

Part of creating an effective incapacity plan means carefully considering who you want as your financial and medical agents. You should also discuss your choice with the person you select to confirm that they are willing and able to serve. This would also be a great opportunity to discuss with them your wishes as to the medical and financial issues that are most important to you.

Our firm is ready to answer your questions about incapacity planning and assist you with choosing the right agents for your plan.

Key Milestones For Planning Your Retirement

2022-06-06 by susanhuntlaw


The road to retirement is a long one, and, like any journey, it can help to have a few key milestones along the way to gauge progress. While individual retirement plans and goals are unique, based on income, family situation, and desired lifestyle, most follow a common path with similar markers. Retirement milestones are based on age, as well as important dates and deadlines related to Social Security benefits, Medicare, and tax-advantaged retirement plans.

Side note: if you are a business owner, your primary investments are going to be in your business and you can turn it into a self-generating machine, running without you for extended amounts of time. At first, this may be just to take vacations or handle emergencies, but eventually you'll want to have the freedom to retire entirely, sell the company, or transfer it to the next generation. If this is your situation, your retirement milestones will be different than those shared here.

However, for those who work for someone else, or whose income is otherwise dependent on being employed, consider these milestones on your road to retirement.


Age 21 to 49: Make savings a habit

The key to having a comfortable retirement is by saving as much as possible as early in your career as you can. Time, tax breaks, and compounding interest all add up; by getting into the habit of saving when you are young, it will be exponentially easier to reach vital retirement goals as you get older.

One of the most important things you can do at this age is to take full advantage of employer-sponsored retirement accounts, such as 401(k)s, 403(b)s, IRAs and other tax-advantaged plans, especially if your employer offers a match. A common rule of thumb is that you should save at least 15% of your pre-tax income each year. If that's not possible, then save as much as you can, and at least enough to get the full benefit of your employer's matching contribution if one is offered.

For 2022, you can contribute up to $20,500 to your 401(k) or 403(b) plan, while the contribution limit for both traditional IRA and Roth IRAs is $6,000. Since you are likely to be in the workforce for several decades, you'll have a higher tolerance for market volatility and risk, so you may want to consider investing with a focus on maximizing growth, rather than taking a more conservative approach.

Age 50: Catch-up contributions begin

Once you reach 50, you are likely in your peak earning years. This means you should be taking advantage of the extra income and maxing out your contributions to tax-advantaged retirement accounts. The IRS even helps out here, allowing those age 50 and older to make an extra annual "catch-up" contribution.

In 2022, the catch-up contribution limit for a 401(k) or 403(b) is $6,500, which gives you a total contribution limit of $27,000 annually. For traditional IRAs and Roth IRAs, the catch-up contribution is capped at $1,000, equaling a total limit of $7,000 annually.

At this point, you are likely nearing retirement age and will have less tolerance for risk. You may want to consider revisiting your retirement portfolio — it may be the right time to start shifting away from investing for growth, focusing instead on a more conservative strategy. And, If you haven't already, it is probably time to find a financial advisor who can support you in planning for and reaching your retirement savings goals.

Age 55: 401(k) withdrawals possible under the Rule of 55

Although you generally must wait until age 59 ½ to make withdrawals from your 401(k) without incurring a 10% penalty, the IRS allows for a "separation of service" exception for certain workers. Also known as the Rule of 55, if you quit, were laid off, or otherwise terminated from your job during or after the year you turn 55, you can take withdrawals from your 401(k) or 403(b) penalty-free from the account associated with that job.

You are still required to pay income taxes on any withdrawals from your 401(k) or 403(b) in the year they are taken. IRAs are also not eligible for this exception — for those accounts, you must still wait until age 59 ½ to take withdrawals without any penalty.

Age 59 1/2: Penalty-free retirement account withdrawals begin

Outside of the "separation of service" exception, this is the age when you can begin taking withdrawals from your retirement account without the 10% early withdrawal penalty. These are the years of freedom - you are welcome to make penalty-free withdrawals from your retirement account starting at this age, but you are not yet required to.

Though not subject to a 10% penalty, all withdrawals from your retirement accounts are subject to federal income taxes in the year you make them. You may want to plan ahead, setting aside some of the withdrawal to pay taxes.

Age 62: Social Security eligibility begins

62 is the earliest age you can begin claiming Social Security retirement benefits. However, the earlier you claim your Social Security, the more reduced your monthly payment may be. Depending on your date of birth, your monthly benefit can be reduced by as much as 30% if you begin taking it immediately. Conversely, your benefit amount increases each year that you wait to claim your benefits up until you turn 70.

The age at which you are eligible for 100% of your Social Security benefit is known as your full retirement age. The full retirement age used to be 65, but in 1983, the law changed and gradually pushed the full retirement age up to 67, depending on the year you were born. The dates below show your full retirement based on your birth year.

Year of birth: Age to receive full Social Security benefits

  • 1943-1954: 66
  • 1955: 66 and 2 months
  • 1956: 66 and 4 months
  • 1957: 66 and 6 months
  • 1958: 66 and 8 months
  • 1959: 66 and 10 months
  • 1960 or later: 67

Age 64 3/4: You can enroll in Medicare

You can enroll in Medicare at any point during the seven-month period that begins three months before the month you turn 65. Medicare is our government's basic health insurance program for those age 65 or older.

Unless you are still covered by the health insurance of your employer or your spouse's employer, you should consider enrolling in Medicare during this seven-month window to cover expenses related to inpatient hospital care, doctor visits, outpatient care, and prescription drugs. If you do not enroll during this initial window, you may have to pay higher premiums should you choose to enroll later on.

If you plan to continue working after age 65 and are covered by your employer's health insurance plan (or your spouse's), speak with the employer and your benefits coordinator to see how signing up for Medicare would affect that coverage. Depending on the size of the employer, you may be entitled to a special enrollment period of up to eight months after the employer-tied coverage ends to sign up for Medicare with incurring a penalty.

Age 70: File for Social Security, if you haven't already

As previously mentioned, the longer you wait to claim Social Security between your full retirement age and age 70, the higher your benefits will be. In fact, your benefits increase by 8% for each year you wait between your full retirement age and 70. But once you reach 70, your benefits no longer increase, so don't put off filing for Social Security past this age.

Age 72: Required minimum distributions (RMDs) begin

Once you reach age 72, you are required by law to begin taking distributions from tax-deferred retirement accounts, such as a 401(k), 403(b), and traditional IRA. These are known as required minimum distributions (RMDs), and your first distribution must be taken by April 1 of the year you turn 72. Thereafter, annual withdrawals must be taken by December 31 of each year. Note: RMDs don't apply to Roth IRAs, because contributions to these accounts are made with after-tax dollars.


It's extremely important to stay on top of your RMDs — if you miss one, you could owe a penalty of up to 50% of the amount you should have withdrawn. The amount you're required to withdraw will depend on the balance in your account and your life expectancy as defined by the IRS.

To calculate your RMD, visit the IRS website and refer to the table in IRS Publication 590-B. From there, locate your age in the table, and find the "life expectancy factor" that corresponds to your age. Then divide your retirement account balance (as of December 31st of the previous year) by your current life expectancy factor. This should give you the amount of your RMD.

Consider What's At Stake

When preparing for your senior years, it's not enough to simply hope for the best. You should treat retirement planning as if your life depended on it—because it does. Without an effective plan, you risk a future of financial struggle, limited options, dependence and stress. The stakes could hardly be higher.

The best way to ensure a comfortable retirement is to start planning and saving as soon as possible. It is also critical to seek the guidance and support of professionals who can help you develop strategies to maximize your investments and savings, while minimizing taxes and avoiding common pitfalls. If you need help finding a financial advisor, just ask — we can introduce you to the experienced professionals we trust most. With their support and ours, you will have peace of mind that you and your family will be well-protected and well-planned for no matter what. Contact us today to get started.

Planning for the Unthinkable: Essential Tools for Parents of Minor Children

2025-04-02 by Sue Hunt


Approximately three-fourths of Americans do not have a basic will.[1] Many of the same people also have children under the age of 18, which underscores a major misunderstanding about estate plans: They can accomplish much more than just handling financial assets (money, accounts, and property).

One of the most important estate plan functions for parents of minor children is the ability to provide specific guidance about how their children will be cared for and who will care for them in case something happens to the parents.

To account for all emergency contingencies concerning you and your children, your estate plan should form a comprehensive safety net that addresses your children's care needs and protects them from the unthinkable.

Three Tools You Need If You Have Minor Children

As parents, we instinctively strive to shield our children from harm and set them up for success, now and in the future.

While we cannot predict the future, we can prepare for it. Estate planning is a crucial step in this preparation, especially when minor children are involved. It is not only about distributing your money and property after your death; it is also about establishing ways to care for your children if you no longer can.

Your death or incapacity (inability to manage your affairs) from a sudden illness or accident is a situation that you would likely rather not think about but must consider in preparing for worst-case scenarios that could lead to a court deciding who cares for your child.

Data on parental mortality is sobering: More than 4 percent of minor children have lost at least one parent.[2] If you wait too long to create your estate plan, it could be too late. More than any other reason, Americans cite procrastination as the reason they do not have an estate plan.[3] Procrastinating on creating your estate plan could mean it will not be there when you—and your children—need it.

To safeguard your children's future, three estate planning tools are particularly important: a will, a power of attorney for minors, and a standalone nomination of guardian.

Last Will and Testament

A last will and testament (also known as a will) is a cornerstone of any estate plan, but it takes on added importance when you have minor children. Your will outlines your wishes regarding the distribution of your money and property after your death. It also allows you to do the following:

  • Name a guardian. A guardian is the person you want to raise your children if you and the other legal parent are deceased. The most common choice of guardian is a close family member, such as grandparents or siblings, or a close family friend.
  • Establish an inheritance for your children. Because minors cannot directly inherit money and property over a certain limit set by state law, there needs to be a way to handle their inheritance for them until they reach legal adulthood. A testamentary trust (one that is created in a will) is a safe way to set aside money and property for your minor children. The terms of the testamentary trust allow you to name a trustee to oversee the inheritance. Another benefit of a trust is that you can determine when the children receive their inheritance and how they will receive it.
  • Name an executor. An executor (or personal representative) is the person you designate to carry out the instructions in your will, including managing your estate and distributing your money and property. They might work closely with the guardian and the trustee to ensure that your instructions are executed smoothly and according to plan. The same person may serve in more than one role in your estate plan (e.g., guardian and trustee, guardian and executor).

Power of Attorney for Minors

A power of attorney for minors, sometimes called a designation of standby guardian or something similar depending on the state, is a legal document that empowers a chosen individual (your agent or attorney-in-fact) to act for your minor child on your behalf. This person steps in to make decisions regarding your child's care if you become incapacitated or unavailable.

The power of attorney can grant the agent broad authority to handle various aspects of your child's life, including the following:

  • Healthcare: making medical decisions, consenting to treatments, and accessing medical records
  • Education: enrolling your child in school, making educational choices, and attending school meetings
  • Finances: managing your child's finances, including accessing bank accounts, applying for benefits, and handling their inheritance
  • Legal matters: representing your child's legal interests in matters such as a custody dispute, personal injury claim, or inheritance matter
  • Daily care: meeting your child's food, shelter, clothing, and other basic needs

Although the power of attorney grants the agent significant authority, there are limits to what it permits. The agent cannot consent to the child's marriage or adoption. In addition, many state laws impose expiration dates on these documents (e.g., six months, one year), so it is important to review and update them regularly to ensure that they remain valid.

Revocable Living Trust

In addition to a power of attorney, nomination of guardian, and will, the parents of minor children might consider a revocable living trust that holds their accounts and property during their lifetime and distributes them after their death.

You (the parent) maintain control of the accounts and property in the trust while you are alive as the current trustee. You can change the trust's terms as needed because you are the trustmaker, and this type of trust is revocable. A revocable living trust can help avoid probate and give your children faster access to the resources they need. You can also specify how and when your children receive their inheritance, name a successor trustee to continue management of the trust if you suffer incapacity, and provide financial support for the guardian, further synergizing your estate plan.

How These Tools Work Together—and What Can Happen If You Do Not Plan

These three estate planning tools are not interchangeable; they are complementary and designed to work together to address immediate and long-term needs in a range of potential scenarios.

Imagine a scenario where both parents are in a car accident. One parent dies, and the other is severely injured and temporarily incapacitated. The agent named in the temporary power of attorney or delegation of standby guardian immediately steps in to temporarily care for the children.

If the injured parent passes away, the designated guardian (who may be the same person as the agent under the temporary power of attorney) named in the will or standalone document can provide the children with a stable permanent home. The will can be structured so that the children's inheritance is managed through a trust that specifies how and when their inheritances should be spent and distributed.

Failure to have any one of these estate planning tools can lead to complications and unintended consequences for your minor children. For example:

  • A missing temporary power of attorney could lead to delays in, or the inability to, make emergency decisions about medical treatment.
  • A missing guardian nomination document could lead to a court choosing a guardian you would not have chosen. Ostensibly, the choice a judge makes will be in the child's best interest, but do they really know your child and family dynamics well enough to make this choice?
  • A missing will can also lead to a court appointing a guardian who is someone other than your first choice. In addition, your children may not receive the inheritance you intended in the way that you intended, and you lose the ability to specify how your money and property are used for their benefit. Further, they will end up getting what is left of their inheritance outright when they reach the age of majority (18 or 21, depending on the state).

Other Planning Tools and Tips for Parents

Parents should understand that they can only nominate a guardian for their child, not legally appoint one; the court has the final authority to decide, though it gives significant weight to the parents' nomination.

If there is evidence that your chosen guardian is unfit or unable to provide proper care, the court may appoint a different guardian in the child's best interest, even if it goes against your wishes. There is also the chance that a family member could contest your guardianship choice or your first choice of guardian is unavailable.

These outcomes are unlikely, but since they could undermine your wishes, there are additional steps you can take to minimize the risk and strengthen your case.

  • In a separate letter, sometimes referred to as a letter of intent, clearly state your choice of guardian and provide a detailed explanation of why you believe this person is the best fit. Speak to their qualifications, relationship with your children, and ability to provide a stable and loving home.
  • Name alternative guardians in case your first choice is unable or unwilling to serve.
  • To prevent misunderstandings and reduce the likelihood of a challenge, have open and honest conversations with family members about your guardianship decision. Explain your reasoning and address any questions or concerns they may have.
  • Have your will properly executed according to your state's laws. To be legally binding, they may need to be witnessed and notarized and meet other requirements.

Fitting Together the Pieces of Your Estate Plan

Each part of an estate plan has a role to play, but they work best when considered as parts of a larger plan that addresses big issues such as the well-being of your minor children.

A will, temporary power of attorney, and standalone guardian document are not interchangeable; they are complementary. Incorporating all three into your plan, alongside other strategies such as a revocable living trust and a letter of intent, addresses the immediate and long-term needs of your minor children in any eventuality.

If you have minor children, estate planning is a necessity. Do not leave your children's future to chance. Consult with us to create a multipoint plan that protects you and your family.

[1] Victoria Lurie, 2025 Wills and Estate Planning Study, Caring (Feb. 18, 2025), https://www.caring.com/caregivers/estate-planning/wills-survey.

[2] George M. Hayward, New 2021 Data Visualization Shows Parent Mortality: 44.2% Had Lost at Least One Parent, U.S. Census Bureau (Mar. 21, 2023), https://www.census.gov/library/stories/2023/03/losing-our-parents.html.

[3] Lurie, supra note 1.

If I Have A Will, Does It Still Go Through Probate?

2024-04-04 by Sue Hunt


What is Probate?

Probate is the court-supervised process of either (a) carrying out the instructions laid out in the deceased's will or (b) applying state law to distribute a deceased's accounts and property to their family members if the deceased did not have a will. The main purpose of the probate process is to distribute the deceased's money and property in accordance with the will or state law. Not all wills, and not all accounts and property, need to go through probate court. And just because a will is filed with the probate court does not mean a probate needs to be opened. But whether or not probate is necessary, most state laws require that a will be filed when the creator of the will (testator) passes away.

Understanding Probate, Wills, and Estates

Estates, wills, and probate are distinct, yet interrelated, estate planning concepts.

  • An estate consists of everything that a person owns—including their personal possessions, real estate, financial accounts, and insurance policies. Virtually everyone leaves an estate when they die.
  • A will is the legally valid written instructions that a person creates describing how they want their money and property distributed upon their death. Wills are highly recommended, but there is no legal requirement to have one. To make a will legally valid, it must be properly executed in accordance with state law. Executing a will involves signing the document in front of witnesses. Additionally, at the time of signing, the creator must have capacity (i.e., be of sound mind).
  • Probate is the legal process that formally distributes the accounts and property that are in the decedent's sole name, do not have a beneficiary designated, and have not been placed into a living trust prior to the decedent's death (sometimes referred to as probate assets). During probate, a decedent's probate assets are identified and gathered, their debts are paid, and the probate assets are distributed to beneficiaries named in the will or their heirs as determined by state statute if there was no will.

Probate with a Will

Assuming that a decedent does have a will, here is how probate typically proceeds:

  • The person nominated in the will to act as executor (sometimes called the personal representative) files a copy of the death certificate, the original will, and any required documents or pleadings with the probate court. If the person nominated in the will does not file these documents with the court, state statute will determine who else has priority to make such filings (possibly another family member, an attorney, or even a creditor of the decedent).
  • The court examines the will and other documents filed to confirm their validity and gives the named executor the legal authority to carry out the decedent's wishes, as specified in their will. This legal authority is conferred in a court-issued document called letters of authority, letters testamentary, letters of administration, or another similar name.
  • The individual appointed as executor inventories and values the decedent's estate assets and identifies any outstanding debts of the estate, such as loans and credit card debt.
  • Once estate debts are paid, the remaining accounts and property are distributed to named beneficiaries and the estate is closed, ending the probate process.

The length of a probate can vary depending on many factors, including the size of the estate, state laws, and whether the will is deemed invalid or contested.

Avoiding Probate

In some cases, avoiding probate altogether can cut down on the amount of time it takes to wind up a deceased person's affairs. There are also other reasons to avoid probate, such as keeping probate filings out of the public record and saving money on court costs and filing fees.

Beneficiary designations, joint ownership, trusts, and affidavits are common ways to avoid probate, but only if they are done correctly. Here are some examples of these probate-avoidance tools in action:

  • Pensions, retirement accounts like 401(k)s, and other accounts that allow for designated beneficiaries may not need to be probated. Transfer-on-death (TOD) and payable-on-death (POD) accounts are generally treated the same as accounts that have a beneficiary designation. However, you should never name a person who receives Medicaid or SSI, or a minor child, as a beneficiary or TOD/POD designee.
  • Accounts and property that are jointly owned and have a right of survivorship can bypass probate.
  • Accounts or property held in a trust may also bypass probate. But trusts are not without administrative and cost burdens. Also, if the deceased forgot to transfer ownership of an account or piece of property to the trust, a pour-over will may be needed to transfer those accounts and property to the trust through the probate process upon the trustmaker's death.
  • Some states have laws that allow probate to be skipped if the value of an estate is below a specified value and does not contain any real estate (often referred to as a small-estate exception). The threshold value for qualifying for this exception varies by state. For example, probate can be skipped in Arizona, Texas, and Florida for estates worth less than $75,000. In California, the threshold is $184,500; in New York, it is $30,000.

Filing a Will versus Opening Probate

Filing a will with the probate court and opening probate are separate actions. A will can be filed whether or not probate is needed. Remember that probate is needed only under certain circumstances, such as when the decedent passed away while owning probate assets. Further, not only can a will be filed with the court when a probate is not needed, some state laws actually require it. Some state laws require the person who has possession of a decedent's will to file it with the court within a reasonable time or a specified time after the date of the decedent's death. The consequences for failing to file a will vary by state but may include being held in contempt of court or payment of fines. Additionally, the person in possession of a will might also be subject to litigation by heirs who stand to benefit from the estate under the terms of the will. The latter also applies if the will-holder files a will but does not file for probate. Failing to file for probate (when probate is necessary) prevents inheritances from being properly distributed.

These legal consequences are usually imposed only on a will-holder who willfully refuses to file a will. If someone you love has passed away and you have their will in your possession, we recommend that you work with an experienced probate attorney who can assist you in determining whether a probate must be opened and whether the will needs to be filed.

Avoid Probate Issues When Drafting a Will

Probate avoidance may be one of your goals when creating an estate plan. You should also consider implementing tools in your estate plan to minimize issues that may arise if your estate does require probate.

Your will may have been written years ago and might not reflect current circumstances. You could have acquired significant new accounts or property, experienced a birth or death in the family, left instructions that are vague or generic, or chosen an executor who is no longer fit to serve. An outdated or unclear will can spell trouble when it is time to probate your estate, making it important to identify—and address—issues that could lead to problems, including will contests and disputes.

It is recommended that you update and review your estate plan every three to five years or whenever there is a significant life change or a change in federal or state law. You cannot be too careful when stating your final wishes. For help drafting an airtight will that avoids possible complications, please contact us.

What You Can Learn from the Leno Conservatorship Proceedings

2024-06-24 by Sue Hunt


When most people think about creating an estate plan, they usually focus on what will happen when they die. They typically do not consider what their wishes would be if they were alive but unable to manage their own affairs (in other words, if they are alive but incapacitated). In many cases, failing to plan for incapacity can result in families having to seek court involvement to manage a loved one's affairs. It does not matter who you are, how old you are, or how much you have—having a proper plan in place to address your incapacity or death is necessary for everyone. Recently, comedian and late night talk show host Jay Leno had to seek court involvement to handle his and his wife's estate planning needs due to his wife's incapacity.

What Is a Conservator?

A conservator is a court-appointed person who manages the financial affairs for a person who is unable to manage their affairs themselves (also known as the ward). The conservator is responsible for managing the ward's money and property and any other financial or legal matters that may arise. They are also required to periodically file information with the court to prove that they are abiding by their duties. To have a conservator appointed, an interested person must petition the court, attend a hearing, and be appointed by a judge. This can be very time-consuming, and there are court and attorney costs that must be paid along the way.

Jay Leno's Petition to the Court

In January 2024, Jay Leno petitioned the court to be appointed as the conservator of the estate of his wife, Mavis Leno, so that he could have an estate plan prepared on her behalf and for her benefit. Unfortunately, Mrs. Leno has been diagnosed with dementia and has impaired memory.[1] Her impairment has made it impossible for her to create her own estate plan or participate in the couple's joint planning. According to court documents, Mr. Leno wanted to set up a living trust and other estate planning documents to ensure that his wife would have "managed assets sufficient to provide for her care" if he were to die before her.[2] Right now, Mr. Leno is managing the couple's finances, but he wanted to prepare for a time when he is no longer able to do so.

On April 9, 2024, the court granted Mr. Leno's petition. According to the court documents, the judge determined that a conservatorship was necessary and that Mr. Leno was "suitable and qualified" to be appointed as such. During the proceedings, the judge found "clear and convincing evidence that a Conservatorship of the Estate is necessary and appropriate."[3]

Although there was a favorable outcome in this particular case, it still took several months for Mr. Leno to be appointed by the court. In addition to the initial filings and court appearances, there will likely be ongoing court filing requirements to ensure that Mrs. Leno's money is being managed appropriately. Had they prepared an estate plan ahead of time, much of this time and hassle would likely have been avoided.

Important Takeaways

While many people may dismiss the Lenos' experience as something that applies only to the rich and famous, the truth is that you could find yourself in the same situation (although with a smaller amount of money and property at play) if you are not careful. Let's use this opportunity to learn from their mistakes.

  • Spouses are not automatically able to step in for each other in times of incapacity or death. Many people are under the impression that because they are married, their spouse can automatically step in for them upon their incapacity or death without any estate planning tools in place or the need for court involvement. The Lenos' story demonstrates that this is simply not the case. Once a person turns 18, no one (not even a spouse) can automatically step in to manage their finances or healthcare decisions without either the person's prior consent (usually in the form of estate planning documents) or court involvement.
  • Proper estate planning documents could have prevented this. If Mrs. Leno had had a proper financial power of attorney granting her husband the authority to create an estate plan for her, it is quite possible that Mr. Leno would not have had to petition the court to become her conservator, as he would have already possessed the authority through the financial power of attorney. Also, if she had had a financial power of attorney, she likely would have also had a last will and testament or revocable living trust created at the same time, which is what Mr. Leno was ultimately seeking to accomplish. Preparing these documents before her incapacity would have allowed Mrs. Leno to specify her wishes while she was able to communicate them.
  • While the intent is to avoid probate court, sometimes it is necessary. When an adult person does not have the ability to manage their own affairs, someone has to be able to step in on their behalf. But what happens if the person has not created an estate plan? State law will usually specify a process for ensuring that someone is appointed to manage an incapacitated person's affairs and that they are properly cared for. However, there are usually delays and additional costs associated with going through this court process as compared with using a financial power of attorney.
  • Having a plan in place is better than relying on a state's default rules. While the Lenos' situation seems to have been resolved positively, conflict can arise when relying on a state's rules. Multiple family members may want to manage their loved one's affairs, and any disagreements may need to be refereed by a judge. This infighting will become a matter of public record and can also delay the entire process. Also, if you do not have a close relationship with your family, relying on the state's laws relating to priority of appointment may give an estranged family member the authority to make decisions on your behalf even if that would not be the person you would have chosen. It is better to proactively create an estate plan so that you can be in control of appointing the person you want to act on your behalf.

We can help you and your loved ones regardless of where you find yourself in the estate planning process. Whether you are looking to proactively plan to ensure that your wishes are carried out during all phases of your life, or if you need assistance with a loved one who can no longer manage their own affairs, give us a call.

[1] Nardine Saad & Meg James, Jay Leno Clarifies Why He Set Up Conservatorship Amid Wife Mavis' Dementia Battle, L.A. Times (Jan. 30, 2024), https://www.latimes.com/entertainment-arts/tv/story/2024-01-30/jay-leno-conservatorship-mavis-leno-dementia-will.

[2] Id.

[3] Alli Rosenbloom, Jay Leno Granted Conservatorship of Wife Mavis Leno's Estate, CNN (Apr. 10, 2024), https://www.cnn.com/2024/04/09/entertainment/jay-leno-granted-conservatorship-of-wife-mavis-lenos-estate/index.html.