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By: Olivia R. Holcombe-Volke, olivia@elvilleassociates.com Estate planning documents frequently contain vocabulary that is specific to the field of estate planning, and not commonly used by the world at large. The following list, while not comprehensive of all of the confusing or unfamiliar terms within the estate planning context, are some of the words or concepts on which I have heard the most frequent questions: HIPAA: Health Insurance Portability and Accountability Act of 1996. This law, in part, is the privacy law that prevents healthcare workers or facilities from (among other things) sharing information contained in any part of your medical record or payment history with anyone else (with a few exceptions). This term arises in estate planning in the context of an Advance Medical Directive, where you are given the option of waiving the HIPAA privacy protections as to any person you name as a potential Agent. Power of Attorney vs. Attorney-in-Fact: A Power of Attorney is a document, where you, as the Principal, give power of attorney to your Attorney-in-Fact (also known as your Agent). Dispositive: Most commonly used in the phrase “dispositive provisions,” this word is the adjective form of the verb “dispose” (and of the noun “disposition”). It means that the language after it is dealing with how you wish to dispose of whatever it is you are referring to – so, in the context of a Will or Trust, how you wish to dispose of your property. Ademption: If your Will or Trust says that at your death, you wish for your diamond tennis bracelet to go to your Aunt Sue, and, at your death, there is no diamond tennis bracelet in your ownership/estate, the gift to Aunt Sue “adeems,” and Aunt Sue can’t come after your estate with any sort of claim of wrongdoing. Remote Contingent Distribution: Where does your estate go if all of the people you’ve named to receive it are gone at your death – if they have all predeceased you? This is a highly unlikely – a “remote” possibility – and one that will only occur IF all of your named beneficiaries are gone (it is “contingent” upon that) – but it is a remote contingent possibility that should be addressed in your Will or Trust, just in case. Personal Representative: A Personal Representative is also known as an Executor. This is the title of the person (or corporate fiduciary) who will administer an estate under a Will. Trustee: This is the title of the person (or corporate fiduciary) who will administer a Trust. Interested vs. Independent trustee: An Interested Trustee is, in the simplest terms, a related or subordinate party to the beneficiary of the Trust, or to the grantor of the Trust. An Independent Trustee is not an Interested Trustee. Well-written estate planning documents will often contain a section for definitions, given the reality of there being so many terms of art. Regardless, a good estate planning attorney should be your primary and best resource for understanding what it is that your estate planning documents actually say, so that you will know that your dispositive provisions are going to be properly administered by your Personal Representative or Trustee even in the event of a Remote Contingent Distribution. For more information, please call 443-393-7696 or complete the form below.

By: Olivia R. Holcombe-Volke, Esq. olivia@elvilleassociates.com In a well-drafted Last Will and Testament or Revocable Living Trust for a single person, there will be at least one provision that addresses how long a beneficiary must survive the testator to be deemed to have survived the testator, and, thereby, to be able to inherit under the Will or Trust. In a well-drafted Last Will and Testament or Revocable Living Trust for a married person, there will be at least two provisions that address situations in which the order of death (or survivorship) matters – the one that deals with a beneficiary’s ability to inherit, as mentioned above, as well as a provision that deals specifically with a simultaneous death scenario, whereby both spouses die simultaneously. Why does it matter? In the case of addressing how long a beneficiary must survive the testator in order to receive their inheritance, the reasoning is two-fold. For one thing, it is usually the testator’s intention that the particular beneficiary receive the use and enjoyment of the inherited property – not the beneficiaries of the beneficiary’s estate. Therefore, one way to avoid a situation where X leaves property to Y, and Y dies one week after X, leaving Y’s property to Z, and now Z gets to enjoy X’s property – property that X intended for Y – is to have a survivorship requirement built in, such that Y doesn’t inherit unless Y survives X for a certain amount of time. It doesn’t avoid the risk completely, but it at least helps to minimize it. The other reason for setting forth a survivorship requirement (customarily 60-90 days) is to avoid the expense and effort that would be necessary to figure out who gets what in a circumstance where there aren’t clearly LIVING beneficiaries to inherit. In the case of addressing the simultaneous death scenario, whereby both spouses die in a common accident, the reasoning is again two-fold. First, there is the desire to avoid the need to probate two estates simultaneously within one marriage. Second, there is the opportunity to dictate that the less wealthy spouse survived the wealthier spouse, which may be beneficial for tax purposes and other financial considerations. The method for achieving this is simply to include a provision that says if both spouses die simultaneously, spouse X will be deemed to have survived spouse Y. The inclusion of survivorship language in a testamentary document is not meant by the testator to be harsh or restrictive. Its purposes are for dictating what happens in the event of certain rare, unpredictable situations – for maintaining control over what happens to one’s estate in the face of an unlikely situation. For more information, please call 443-393-7696 or complete the form below.