Jessica Cannella: Hey, there. I hope you’ve enjoyed this series so far as we’ve been discussing at sometimes scary topic of what you should do if you’re facing losing your spouse, or if you’ve already lost your spouse, especially as it relates to your financial well-being.
Like we have said in previous videos, there’s no doubt that this will be one of the hardest and most challenging things you’ll face in your lifetime. That’s why we are here at Oak Harvest Financial Group, we want to help you feel equipped with the information that you need in order to plan ahead or help you if you’re right in the middle of this major life crisis.
My name is Jessica Cannella, President and Co-Founder of Oak Harvest Financial Group. If you haven’t had a chance to watch our previous videos, please jump back in the series and watch our first two videos, it’s going to really lay the foundation for you and provide some background information for our video today. On today’s video, we have a very special guest, Amy Zamikovsky. Amy is an estate attorney. Amy has her own estate planning practice.
I’ve requested that Amy come on our channel today and discuss with us just the importance of having an estate planning in place. Ideally, proactively, preemptively before your spouse passes away, it can really eliminate a lot of the challenges that we see many of our clients who don’t have an estate plan in place have to scramble with once they are in the midst of a major life change such as losing a spouse.
We all know that with the exception of being financial planners, as you and I are, that for a lot of people, planning ahead is not easy. It takes a ton of time, effort, discipline, and sometimes money to get things in a place where you feel secure about your financial well-being, especially as it relates to your estate, but it is more than worth it. I solemnly believe that.
The reason is, you are doing this for the sake of your surviving spouse. By doing a little bit of estate planning, you’re able to help prepare your spouse to be able to deal with what’s really important, which is the grieving process, and navigating murky waters as we deal with family if you have adult kids and now their parent is deceased, and really having the time that is needed to let the full gravity of that situation pass.
We know that that can take a lot of time, and in the interim, if your financial well-being is not being addressed, time tends to compound issues as it relates to estate and financial planning. Being proactive is going to be your biggest asset when it comes to planning is to approach the topic that can be uncomfortable. We’re talking about our own mortality, the death of our spouse, the death of our child’s parent and it’s not easy to have the conversation.
By not having the conversation, it surely won’t make it easier once you’re in the midst of that emotional state because now we’ve got all of these other aspects at play and we know that, maybe you don’t know, but I’m here to tell you that you should never make a giant financial decision when you are under emotional duress.
We’ve seen that go awry when people just feel panicked and emotional, and then next thing you know, they’re buying a Corvette or selling a house, and they’re not leaning on professionals to help get them through the life crisis.
If you can be proactive about your approach when it comes to financial planning and estate planning, you’re going to remember that you have a plan and that’s going to afford you the time, again, to take care of the things that really matter when such a life crisis happens to your family.
I think we’ve heard enough from me. I really want to have Amy speak to where she can add some value around the estate planning conversation. Let’s kick it off and I’d like to formally introduce you to our Texas Attorney who specializes in estate planning, Amy Zamikovsky. Amy, thank you so much for coming on film with me and being a part of our YouTube channel. We’re so excited to hear the information that you have to share today.
Amy Zamikovsky: Thanks so much for having me. I’m excited to be here.
Jessica Cannella: All right, Amy. Can you first walk us through a high level of what estate planning is?
Amy Zamikovsky: Estate planning is the process of anticipating and arranging the management and disposal of a person’s estate during their life in anticipation of death or incapacitation.
Jessica Cannella: All right, Amy. What I heard, I’m going to translate for Amy today, not because you’re difficult to understand, but because sometimes I think that there’s an intimidation with Attorneys in general and financial planners, very common. Professionals that know their craft, think doctors, attorneys, financial planners, and they tend to speak so high level that it gets a little bit mixed in translation of what is actually the viewers need to hear.
Correct me as we go throughout if I’m not on the right page, but what I just heard you say is that, in a nutshell, estate planning is really the process of getting all of your affairs in order. That is in anticipation that one day you won’t be here, one day your spouse won’t be here, or your elderly parents is another consideration. Estate planning goes a long way financially speaking in that regard.
I love what you said about incapacitation because I think that that gets overlooked. Not only do we want to not think about our own demise, but I don’t know that it’s an occurring thought unless you’re buying disability insurance and you’re in the moment in your working years that you would think, “Oh my goodness, one day I might lose mental capacity to continue to manage the assets.” You could see how that would be. You’ve seen it in your practice how that could be very dangerous for the surviving spouse, especially if you’re not the one that’s involved with managing your finances.
Amy Zamikovsky: Exactly.
Jessica Cannella: Back to you, Amy, walk us through why is it so important to have these plans in place.
Amy Zamikovsky: Estate planning is important for a multitude of reasons. Many people hear “estate planning”, and they think, “Oh, it’s just for rich people.”
Jessica Cannella: So true.
Amy Zamikovsky: Unless we really don’t have any assets at all, estate planning is for everyone. Each and every one of us has an estate that will eventually have to be probated. Yes, estate planning applies to everyone no matter how much money we have.
Jessica Cannella: Yes, I think that word estate is where the rich people thought is coming, “Oh, it’s my estate,” but it is. A simple definition of an estate is that it’s everything that you own. It’s your investment accounts, it’s your bank account, checking account, your property, your family members that are going to reap the rewards of your estate or be stuck with a horrible situation. We’ve seen it work out that way too.
Again, having these plans in place, and really being proactive about meeting with an estate attorney is the secret sauce, I believe, to avoiding some of the turmoil that can happen when you don’t have a plan in place no matter the size of your estate.
Amy Zamikovsky: Unfortunately, many people don’t understand that even if they haven’t personally done any estate planning, they already have an estate plan in place and that’s been provided for them by their state’s legislature.
Jessica Cannella: That’s terrifying.
Amy Zamikovsky: It really is because only we know where our assets should go and who we want to take care of us, and– [crosstalk]
Jessica Cannella: States like California, when you hear about all these celebrities– and guys, this is very important, but across state borders, estate planning really needs to be handled with your local estate attorneys. Amy can provide references, she is highly networked but Amy’s services are available only here in our home state of Texas.
Amy, I’ve given you a shameless plug and mentioned that you can help viewers that are not lawful to Texas find other attorneys and, of course, that if you’re lawful to Texas and you like what Amy’s had to say, and she is still taking new clients, so why don’t you tell our viewers where they can find more of you?
Amy Zamikovsky: Yes, you guys can reach me at my website. It’s www.estateplansoftexas.com and I’m super happy to answer questions. I also offer free consultations and I love meeting new people.
Jessica Cannella: I’ll be sure to link that in the description box so that you have easy access to Amy’s website. Because the laws are different in every single state and that’s why I’m giving the example of California, most people would be in a much-preferred situation if they had their own estate plan and had a say in what their wishes were for their property, their belongings, or investments, and their assets versus leave that up to the state law.
That sounds terrifying to me. What more than often can happen is that the state becomes one of your major beneficiaries to your estate if you don’t have this preemptively taken care of. I’ll take this opportunity to just really highlight that estate planning is handled on a state level. Amy provides services here in our home state of Texas and she is very well-networked. We have a large following. We service clients outside of the state of Texas but specifically for estate planning under Amy Estate Planning Practice, and really any estate attorney, you have to find somebody local to your own state because the laws are going to be different.
Amy Zamikovsky: For instance, in Texas, we look to the different types of property in someone’s estate and whether it’s personal property or real property. Under Texas law, personal property passes very differently from real property, so the kind of property you have is very important.
Jessica Cannella: Is an example of real property like land?
Amy Zamikovsky: Yes. Real estate.
Jessica Cannella: Real estate. Then personal property would be more of like your assets?
Amy Zamikovsky: Yes, your things.
Jessica Cannella: Perfect. Would investment accounts qualify under that?
Amy Zamikovsky: Yes.
Jessica Cannella: So any monies that you have, vehicles, belongings, any personal assets is a great way to make the distinguishment between personal and real property. Real property is land, your home.
Amy Zamikovsky: Exactly.
Jessica Cannella: What about like– boats would be personal property?
Amy Zamikovsky: Personal property.
Jessica Cannella: Perfect. Thank you. I imagine when we’re having this conversation about real property, personal assets, that part of your estate plan needs to really distinguish, are you married, do you have children, are you single? Walk me through, how does that relate to the estate planning process, like your marital status?
Amy Zamikovsky: Yes, so if you have your own estate plan and it’s a custom estate plan, you are going to be able to name in your estate planning documents exactly who and what should go where and how. If you don’t have your own estate plan and you have to fall back on the Texas laws, they’re going to look into what kind of property it is, and even based on what kind of property is, then there’s another level that we look at, which is whether you’re single, whether you’re married, whether you have children, whether you have children only by your spouse.
Even if you have children with your spouse, but you have also another child that’s not of the same spouse, if you don’t have your own estate plan and you’re going through the courts, through the probate process, that’s something that would change the distribution of your assets. It’s very important to have a plan in place because Texas law’s weird and unique and it’s not usually what people would think.
Jessica Cannella: Yes, and you’re totally leaving it up to the jurisdiction of the state to determine how your assets get divided, and maybe– I’ve had clients who are estranged from their adult children, and they in no way want part of their estate to go to them and not to mention the conflict that that could create.
We have a saying in the financial industry that money makes people funny and I have plenty of examples of siblings getting into it over not having a very clear estate plan. Now, if we have three siblings who knows who’s fiscally responsible or not, their opinion of their own fiscal responsibility could be very different from the other siblings. That I encounter a lot when I have conversations with my clients about their adult children.
Also you brought up Texas, which is a community property state and there’s some like really hairy gray areas around if you live with a person, are they your spouse or aren’t they your spouse? That’s correct. There’s just some– it’s not cut and dry. Is it difficult, for instance, to prove a common-law marriage in Texas?
Amy Zamikovsky: It is.
Jessica Cannella: Okay.
Amy Zamikovsky: It is. It’s a very high threshold to prove a common-law marriage. A lot of people stress out about whether or not they’re common law married because we have a lot more people cohabitating and partnering up than we used to before marriage. In reality, there are three elements that have to be met, and the history of common law marriage was designed so people back in the 1800s when they lived very far away from a courthouse could meet these three elements and be able to establish that they were married. Now that it’s 2022, we just have moved forward and it’s a lot easier to really get married. It’s a pretty high threshold to meet the common law marriage threshold.
Jessica Cannella: Awesome. I think there were three elements that we talked about earlier and one was like you have to present yourself as publicly married or married to the public. Calling each other husband and wife, and then, this is so great, you have to agree that you’re married.
Amy Zamikovsky: Yes. You have to agree amongst each other that you’re married. You would say, “So we’re married, right?” “Yes.” “Okay.” [laughs]
Jessica Cannella: Yes. Then you get in a fight and then you change your mind on that, and I can see why–
Amy Zamikovsky: That’s why common law marriage is so hard to prove.
Jessica Cannella: Yes. That’s just really one aspect of the difficulty in not having precomposed planning done on your behalf because, let’s say that you were fully intended, you have a life partner and you’ve lived with them for 30 years, and for all intents and purposes you are married, not only can you not prove that once you’re deceased, but your assets are going to go to your next of kin generally. I mean, I know it depends on the state, but that could be your sister you haven’t talked to in 20 years.
Amy Zamikovsky: Absolutely. Your blood family takes precedent over your life partner.
Jessica Cannella: Yes.
Amy Zamikovsky: According to the state laws.
Jessica Cannella: I know there’s four basic documents that we always talk about when we’re going through our timeline to keep our clients accountable to all of their financial needs. We do holistic financial planning involving a financial consultant, estate attorneys like Amy, also tax professionals and we build on the timeline that if someone doesn’t have their four basic documents, which is like at a bare minimum what you need for estate planning to avoid some of the things that we’re talking about today, we build it into our process of keeping our clients accountable so that that doesn’t get overlooked. Because really you should be– I know the standard at Oak Harvest’s Financial Group is that we are asking our clients if they’ve updated their documents about every three to five years.
Amy Zamikovsky: Yes. That’s a great timeframe.
Jessica Cannella: Because things change.
Amy Zamikovsky: Absolutely.
Jessica Cannella: Speak to me a little bit about what those four basic documents are. Everyone out there, safe to say, has heard of a will, and I’m not talking about the neighbor that lives next door to you named William. I’m talking about the document that expressly writes out how you want your estate to be left. That’s what I think the common person how they view a will but, Amy, would you speak to, being directly in the industry as an estate attorney, what your definition of a will is and why it is important as one of the four basic documents that we need to have to start our estate planning process?
Amy Zamikovsky: Yes. A will is just your basic document. It’s going to have to have minimum things that comply with state law to make it a valid will, so that’s why we advise against downloading legal forms online and filling them in because there are just so many ways that that can go wrong. A will is your basic flagship estate planning document that will help a court understand what your wishes were about your belongings and your estate and who and how you wanted it distributed to upon your death.
Jessica Cannella: Is a will a really good place to start?
Amy Zamikovsky: Yes, a will is a good place to start, but I wouldn’t execute a will and pat myself on the back and feel good like I had a full estate plan in place. There are some very other important documents that are not majorly complicated or expensive to get completed, but they make a huge impact in our lives and our quality of life while we’re still alive because they determine who can take care of us and what we want while we’re still alive.
Jessica Cannella: That’s pretty important stuff.
Amy Zamikovsky: Very important stuff.
Jessica Cannella: We talked a little bit earlier that if you don’t have this pre-executed, and we’ll get into what those documents are, then you’re leaving just a lot up to chance and we’re talking about your health, we’re talking about life or death, which will bring us to the first document. I’m thinking like if somebody’s on their deathbed, and we’ve all heard somebody who’s had to make the choice. Pull the plug is the common terminology, or I guess, leave it plugged into the outlet. It’s deciding to end somebody’s life or to continue their life in maybe a vegetative state or where there’s not brain function happening which is a huge decision, and so not having this paperwork preemptively prepared that says here are their wishes.
We’re talking about people having to make major decisions that they might feel ill-equipped to make, and so what is the document that would be able to prepare– Is that part of the will, or is that one of the other documents you’re referring to?
Amy Zamikovsky: That is one of the other documents. It’s called an advance directive or directive to physicians. It lets us put down on paper what our wishes would be when we can no longer make those decisions for ourselves, and it’s if we’re in a terminal or irreversible condition.
Jessica Cannella: That line directive to physicians translation, instructions for the doctor, taking the onus off of your family members to have to make that decision, or I imagine you could nominate somebody like your husband or wife and have that in this document.
Amy Zamikovsky: Well, that would be in your medical power of attorney.
Jessica Cannella: So that’s a separate document?
Amy Zamikovsky: That’s one of the other four, yes.
Jessica Cannella: This is so valuable because I think that many people out there, again, to your point earlier, they think estate planning is for rich people. No, estate planning is for living people. We’ve covered a will high level is the document that is expressly written writing out how you want your estate to be distributed, administered to your beneficiaries.
Amy Zamikovsky: Yes.
Jessica Cannella: Which can also be charitable organizations?
Amy Zamikovsky: We love that.
Jessica Cannella: We do a lot of that especially when clients of ours do not have heirs, and they’ve done a wonderful job of accumulating wealth. They’re not looking forward to blessing the IRS and Uncle Sam, and so we provide other opportunities that can be of great benefit from a tax planning standpoint on the financial planning side of things where you can donate to charities while you’re both living and upon your death.
Getting back to the documents that we were discussing, we’ve covered will, you’ve talked about the importance of having that medical power of attorney as an ancillary document to the will, I think that it just clicked for me what the living will and will are.
The living will is basically the instruction manual, in English terms, that is going to determine if you’re still living, again, our example of you being on life support or being plugged in, what is the end result, while if you are still living, how do you want to instruct your medical power of attorney, your family members, whoever you’ve nominated to make this type of decision including the doctors.
Amy Zamikovsky: Yes.
Jessica Cannella: Okay, awesome. Thank you for the explanation there. We’ve covered a lot of information so far, and I think there was one more document that we have not addressed.
Amy Zamikovsky: Yes.
Jessica Cannella: Talk to us about that.
Amy Zamikovsky: In my opinion, this is one of the most important documents because it determines what happens to us and who takes care of us when we’re still alive and we lose capacity. In Texas, we call it a declaration of guardian form, and Texas looks at your personhood as two halves. You are a person, but you also have an estate.
Thankfully, Texas has allowed us to break down guardianship into two halves. You could name two different people to be your guardians. You could name one person to be the guardian of your person and a completely different person to be the guardian of your estate or you could name the same person, but oftentimes it’s not the same person who’s your loving caretaker who’s also very good with money or that you would trust with your financial affairs.
Just depending on who’s in your life and who’s qualified to do what, Texas really has kind of nailed it in breaking it down and letting us decide who we want in those different roles.
Jessica Cannella: Wonderful. Thanks for explaining that. A good example of that is maybe somebody that has Alzheimer’s and becomes no longer able or is deemed mentally incapable of making financial decisions, of completing maybe daily activities of life to include bathing themselves, feeding themselves. That would be your example of the divide– I’ve never even heard the term personhood before. That sounds very legal, but that would be your actual physical person.
Amy Zamikovsky: Yes.
Jessica Cannella: Is who do you want to make those type of decisions? Then the second half of that is, like you said, you might not want your caretaker to also make the checks out to pay in-home healthcare nurses to come in or to gift money to your favorite charitables or to–
Amy Zamikovsky: Place stock trades.
Jessica Cannella: Yes.
Amy Zamikovsky: It could be anything.
Jessica Cannella: Yes. Make sure that your R&D, your requirement and distribution, which has a 50% tax penalty, by the way, if you forget to send that check out on your qualified accounts or your retirement monies, your IRAs. You’re saying that with this document while you’re still living, it allows for somebody to take guardianship of not only your physical body but also your financial personhood.
Amy Zamikovsky: Yes. We call it the guardian of your estate.
Jessica Cannella: Guardian of your estate. Interesting. Very quickly, in summary, can you just refresh us on what– We’ve talked extensively about the will, and I think that that’s more common knowledge for people. Really quickly, just name the other four documents that are ancillary to the will that we recommend that everybody have in place.
Amy Zamikovsky: Yes. It’s very important like we were just saying to have your guardianship declaration in place, you’re going to want to have your durable power of attorney in place with an agent that you implicitly trust to act on your behalf. You’re going to want to have a medical power of attorney in place. Just as important if not more important to have our agent that we really trust in that capacity as well, and then our advance directive to physicians about what our wishes would be if we were terminal or an irreversible condition.
Jessica Cannella: We’ve covered so much today and I so greatly appreciate your time. I think that we’ve created enough of a dialogue for people to start thinking about the question of, “Well, where do I begin with this?” Because it is so much information. It could be overwhelming for the consumer or client, maybe people that are not clients of Oak Harvest Financial Group and they’re not being held accountable with a timeline of when these type of conversations need to happen. What would be your recommendation to our viewers of where is a good starting point with estate planning? What is the action step that they could take?
Amy Zamikovsky: Sure. If someone already has an estate plan in place but they haven’t looked at it in a few years, I would say go over it again, consult another attorney and have them look it over, many attorneys offer free consultations. Just make sure that it’s still up to date and it matches your life circumstances.
If you don’t already have any estate planning documents in place, the first thing I would do is pat myself on the back for thinking about where am I going to begin with my estate plan because it is something that can be uncomfortable to think about, but we do have to because we do it to protect our loved ones.
I would say the first thing I would do is start thinking about the things that I own, my property, the bounty of my estate, and start thinking about the people in my life and their different personalities and their strengths, and then I would start figuring out, “Okay, who would I want to take care of this for me? Who would I want to take care of that for me?”
Of course, I would recommend contacting an attorney who specializes in estate planning to get started because that’s what they do for a living and they’re very good at counseling, they call us attorney and “counselors” at law for a reason. We can make the uncomfortable discussions more comfortable and natural but at the end of the day, I think just getting things going in your own mind because even if you meet with an estate planning attorney and they start the process, they’re still going to need the names from you of who you want in charge. It just all boils down to when you’re ready to make that decision, but definitely sooner rather than later because no one’s getting younger or healthier, unfortunately.
Jessica Cannella: Yes, and especially I think if you haven’t done it preemptively and you’re in retirement or you’re approaching retirement, that it’s urgent that you get your affairs in order once you’re in retirement because with all the different tax consequences of having retirement accounts, and how those are transferred upon death, and your adult children. We’ve raised our children to live their own productive, independent lives, burdening them with your lack of foresight or your unwillingness or just ignorance and ignorance is not knowing any better.
That’s why we’re doing these videos is because we really want for you to embrace that knowledge is power, and that attorneys go to school forever and work endless hours a week to be able to give you guidance on all these affairs. I believe that when you are– I’ve referenced it in previous videos, that you need a dream team in retirement to help you execute on your wishes.
Retirement is a completely different stratosphere as it relates to your affairs. You’ve stopped working, you’ve stopped having earned income, and now it is time to live your best life in the second chapter, and also make sure that all your ducks are in a row because in retirement, glad everyone is sitting down, but aging is a real component. We start to really think about our own mortality as we age, and we raise our children to be independent adults, and really tackling some of these estate planning documents, at least as a basis to start, is going to eliminate a lot of the burden on your adult kids.
When you lose your spouse, or your spouse loses you, having a dream team, financial advisor, an estate attorney, a tax professional, be it a tax attorney or a CPA, all working to the benefit of your family and upon your wishes and being in communication with this dream team is really going to alleviate a lot of the unnecessary overwhelm when we have a major life crisis like somebody becomes incapacitated and can no longer make decisions for themselves, or we lose our loved ones, or our own life end.
Amy, I just wanted to thank you so much for your time today. I’m sure that our viewers have a lot of follow-up questions. I think we’ve only scratched the tip of the iceberg, but–
Amy Zamikovsky: Thanks so much for having me.
Jessica Cannella: You’re welcome
Amy Zamikovsky: I really appreciate it.
Jessica Cannella: Guys, if you have any additional questions or follow-up questions on our discussion today, please drop a comment and your question, feedback in the comment section below. We would love to feature Amy again and pick her brain some more. If you’ve got any burning questions, please leave them. We take feedback very seriously, and we look forward to continuing this discussion on Survivorship. Thanks for joining and look forward to seeing you again.