Case Study: Paternity and Heirship

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A recent Indiana court case addressed the issue of paternity related to heirship. In the case, Kimberly was born to Linda who was unmarried at the time. Kimberly’s birth certificate did not list a father. Linda married Lloyd in 1974, who executed two affidavits: one an Affidavit of Legitimation, in which he attested that he was Kimberly’s natural father, and two an Affidavit Requesting Amendment, in which he requested that his name be placed on Kimberly’s birth certificate as her father. Lloyd and Linda divorced two years later. Linda did not participate in the proceeding other than to sign a document stating that there were no children born of the marriage.

Several years later, Lloyd died intestate (without a Will). Kimberly and Lloyd’s two sisters filed competing petitions for the issuance of letters of administration in Lloyd’s estate. The sisters also filed a petition to determine heirship and a petition for genetic testing. The trial court denied the petition for genetic testing and, after bench trial on heirship, entered judgment in favor of Kimberly as the sole heir of Lloyd’s estate.

The sisters appealed but the Appellate Court upheld the trial court’s decision. First, the Court noted that an order requiring genetic testing is only part of a paternity action. Because the sisters were not seeking to establish paternity, they had no right to petition the trial court to order genetic testing. Rather, the sisters were seeking to contest Kimberly’s claim of heirship. This claim is governed by an Indiana statute that provides for two conditions: 1. the presumed father marries the mother of the child, and 2. the presumed father acknowledges the child to be his own. The burden of proof rests on the child seeking to inherit from the presumed father to prove these conditions. The record was replete with evidence supporting the trial court’s judgment in favor of Kimberly. Lloyd had married Linda, the mother of Kimberly and he had filed two affidavits attesting that he was Kimberly’s natural father. Therefore, the Appellate Court upheld the trial court’s decision to enter judgment in favor of Kimberly.

Who Makes the Funeral Arrangements?

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The Senate Enrolled Act 371 has recently amended the priority statute on funeral planning and disposition of a decedent’s body. The following people, in the order of priority listed, have authority to designate the manner, type, and selection of the final disposition of human remains, to make arrangements for funeral services, and to make other ceremonial arrangements after a person’s death:

  1. A person granted the authority in a Funeral Planning Declaration or in a “Record of Emergency Data” form if the individual died while serving any branch of the U.S. Armed Forces
  2. A person granted the authority in a Power of Attorney or Health Care Power of Attorney
  3. A spouse (that was not separated or seeking a divorce)
  4. The surviving adult child(ren) (by majority if more than one child)
  5. The surviving parent(s)
  6. The surviving sibling(s) (by majority if more than one sibling)
  7. The individual in the next degree of kinship
  8. The surviving stepchild(ren) (by majority if more than one stepchild)
  9. The person appointed to administer the decedent’s estate

This Act amends the previous priority statute to now include stepchildren and a Personal Representative.

 

Facebook After You Die

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Facebook is the most popular social media site in the world. It boasts over 1.79 billion monthly active users and five new profiles are created every second. Likely you have a Facebook account yourself. What happens to your account when you die? You can tell Facebook in advance whether you want your account permanently deleted or memorialized. If you want it permanently deleted at your death, you can choose this in your settings. Under Security, you go to Legacy Contact and check the box below Account Deletion. Then follow the on-screen instructions.

You can also have your account memorialized after you die. A memorialized account is a place for family and friends to gather and share memories after you die. The word “remembering” will appear next to your name on your profile. Your content (i.e. photos, posts, and profile) remains on Facebook and is visible to the audience with whom it was shared. No one can remove content from a memorialized account. Depending on privacy settings, your friends may share memories on your Timeline. Memorialized profiles will not appear in public spaces, such as suggestions for people you may know, ads, or birthday reminders. No one can log in to a memorialized account and only the legacy contact (discussed below) can change the account. Friends and family can request that your account be memorialized after you pass.

You can choose to name a legacy contact to manage your memorialized Facebook account after you die. (You must be eighteen or older to name a legacy contact). Your legacy contact can write a pinned post for your profile (e.g. share a final message on your behalf or provide memorial service information), respond to new friend requests, and update your profile picture and cover photo. Your legacy contact cannot login to your account, remove or change past posts, read your messages, or remove any of your friends. In your legacy settings, you can allow a legacy contact to download an archive of information you’ve shared after your account is memorialized. In this download, your legacy contact will receive photos, videos, wall posts, profile, contact info, events, and friend list. The legacy contact will not receive messages, ads you clicked, pokes, security and settings info, and photos you synced but did not post. Facebook will provide access to this type of information if a valid Will or other legal document expresses your clear consent.

Facebook cannot provide login information to your account after you die because it is against Facebook policy. In rare cases, Facebook will consider requests for additional account information or content. Facebook requires proof of authorization and a Court Order. There is no guarantee that Facebook will provide the requested information. Also, verified immediate family members (or the executor) can request that your account be removed after you die. The fastest way to process a request for removal is to provide a scan or photo of your death certificate. If this is not available, the person can send in a document to prove authority (e.g. Power of Attorney, birth certificate, Last Will and Testament, or estate letter) and a document to prove your death (e.g. obituary or memorial card).

7 Signs That Your Elderly Parent Should Stop Driving

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As your parents get older, their physical and/or mental abilities may begin declining. These abilities may decline so much so that they can no longer safely operate a vehicle. If you have an aging parent and notice any of the signs below, it may be time for him or her to stop driving.

  1. Accident. Some accidents may not be caused by your elderly parent, such as being rear-ended by another driver. However, if the accident is the elder’s fault, you may need to take his keys away. He may be at a higher risk of causing another accident.
  2. Traffic tickets. Elderly do not tend to drive aggressively. So if your elder parent receives a traffic ticket, it may be caused by inattentiveness, rather than aggression. He or she may be having trouble with traffic signs and standard driving rules.
  3. Jump in car insurance rates. Your elderly parent may not mention to you any accidents or tickets. However, he or she might complain about a jump in insurance rates. There can be other reasons why an insurance company raises premiums but check to see if he or she was in an accident or got any tickets first.
  4. Damage to the vehicle. Damage to your parent’s car could be from minor collision he or she didn’t tell you about. Ask your parent about any scrapes or dents on the car. Look at any fences or mailboxes near the driveway to check for damage there. It may be that your parent is struggling to back up or turn into the driveway.
  5. Marks along driveway. Tire marks alongside your parent’s driveway may mean he or she is having trouble pulling into and backing out of the driveway. If the tire marks continue regularly, it may be that your parent is struggling with basic driving tasks.
  6. Anxiousness about driving. Your elderly parent may become anxious about driving for good reason. He or she may be anxious about driving in general or only anxious during certain times of the day or certain weather conditions. If your parent is anxious only at certain times, then he or she may limit driving to daylight hours or good road conditions. However, if your parent is anxious about driving all the time, then it may be that your parent realizes he or she can no longer drive safely and should stop driving.
  7. Delayed reactions. Go for a ride with your elderly parent driving. Older drivers should still react fairly quickly to changing road conditions. If you notice he or she is having delayed reactions, it may be because he or she is having trouble seeing, hearing, or simply paying attention to the road.

If you notice any of these signs, it may be time for a serious conversation with your elderly parent. Being alert to how they are driving can be a matter of life and death. However, telling your parent that he or she needs to stop driving is a difficult task. Read some tips and suggestions to help you at “How to Get an Elderly Parent to Stop Driving.”

What Makes a Will Legally Valid

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In Indiana, any person of sound mind who is 18 years or older may make a Last Will and Testament. Sound mind means you have an understanding of what you own and can identify who will be receiving those assets from your estate. Every Will must be in writing (except nuncupative, discussed below), signed by the testator, and witnessed by two competent and disinterested witnesses. A disinterested witness means he/she does not have a personal or beneficial interest under the Will. (A person named as an executor, trustee, or guardian does not make that person an interested party.)  If a testator were unable to sign his/her own name, he/she could direct someone to sign it for him/her while present. A Will that is handwritten and not signed by at least two witnesses is called a holographic Will. Indiana does not recognize holographic Wills as legally valid.

If the Will has been properly signed and attested by witnesses, Indiana allows the Will to be made self-proving by use of a self-proving clause within the Will or attached to it. The self-proving clause states that the testator executed the instrument as his/her Will, that the testator signed the Will in the presence of two witnesses, that the execution was a free and voluntary act, that the witnesses are signing as witnesses in front of each other and the testator, that the testator was of sound mind, and that the witnesses and testator are at least eighteen years of age. Self-proving clauses allow for a smoother administration when the testator dies.

A nuncupative Will is an oral Will that is made by the testator just prior to the time of death. Not all states recognize these kind of Wills. In Indiana, an oral Will can be made by a person in imminent peril of death, whether illness or otherwise, and is only valid if the testator dies as a result of the impending peril. Also, the nuncupative Will must be declared to before two witnesses, reduced to writing by or under the direction of one of the witnesses within thirty days after such a declaration, and submitted for probate within six months after the death of the testator. Further, the oral Will is limited to the disposal of personal property and to an aggregate value not more than $1,000. It also cannot revoke an existing written Will.

There are constant changes to life that might motivate a person to update or change his/her Will. If it is a change to one provision or a simple addition, a person can make use of a codicil. A codicil is a separate document that is kept with the existing Will. It must also be signed by the testator and two witnesses and be designated as a codicil to the person’s Will. If there are contradicting codicils, the most recently signed and dated one is considered valid. If a person has several changes to his/her Will, it is usually best to update by creating a new Will.

Our attorneys would be happy to help you create a Will or change your old one to bring it up to date.

How to Get an Elderly Parent to Stop Driving

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Driving allows older adults stay mobile and independent. However, as they age, the risk of being injured or killed in a motor vehicle increases. According to the Centers for Disease Control and Prevention, more than 5,560 older adults were killed and more than 214,000 injured in motor vehicle crashes in 2012. This amounts to 15 older adults killed and 586 injured in crashes on average every day. Fatal crash rates increase noticeably starting at ages 70-74 and are highest among drives age 85 and older. This is largely due to an increased susceptibility to injury and medical complications. Also, age-related declines in vision and cognitive function can affect an older adult’s driving abilities. You may notice that your elderly parents’ driving abilities are on the decline. It can be very difficult to approach this subject with your parents so they can give up the keys and stop driving.

If the situation is critical, you need to act immediately. Addressing your elder promptly could be a matter of life and death. If the situation is not critical, then take time to consider how the situation looks from your elder’s point of view and what driving means to him. Keep your expectations realistic. It may be good to have a preliminary discussion to get the issue out on the table so it can be dealt with openly. It can be awkward and painful to inform an older adult that he is not capable of doing something as basic and essential as driving a car. For an elder, this can be a humiliating reminder of his growing inability to take care of himself and manage the tasks of daily life. It would be a good idea to give some thought to the emotional and practical issues he will face when he gives up driving. This will help you be more empathetic when discussing the issue with your elder. Plan the discussion for a quiet time of day, when you and your elder are both relaxed and rested and can take the time to discuss the issue thoroughly. Try to avoid coming on too strong. Remember that if you’ve noticed his driving has grown erratic and sloppy, then he is probably aware of it as well. If he becomes angry when you try to talk about driving or if he refuses to discuss it, it may be a good idea to temporarily drop the issue. Arguing might make your elder more resistant. Give the matter some time and bring it up again in a week or so. It may take some time for your elder to grow used to the idea of not driving.

You can be most helpful by helping him express himself and work through his own concerns. Encourage him to discuss his concerns without immediately jumping in with solutions. Such solutions may offer temporary comfort but won’t help you or him explore the larger issues involved. Listen well to convey your support and encouragement. When having this conversation about his driving, he may begin talking about the past. Resist the temptation to interrupt and get him back on track. Instead, encourage him to reminisce. These memories may help him come to term with this life transition and gradually accept the fact that he’ll soon have to give up the driving. The discussion will be more productive and positive if you approach it with the genuine desire to learn more about his experiences, ideas, and concerns. You can discuss the pros and cons of giving up driving, which can help him realize there are actually benefits to not driving, such as savings on insurance, maintenance, and gasoline. It can also help him focus on the stark consequences, such as a fatal accident, that could result from continuing to drive.

Find out if medical problems are causing driving issues. Have a doctor check his eyes and reflexes. Ask about medication, side effects, and drug interactions. It’s possible that the problem can be remedied with a change in medication or a stronger pair of glasses. Make sure his car is suited to his needs and physical abilities and ask the doctor if assistive devices might help. The physician might suggest that he limit driving to daylight hours or essential errands. It could also be a good idea to brush up on his driving skills and the traffic laws. You may want to revisit the situation every few months to reevaluate his driving skills. If he shouldn’t be driving anymore, you can confidentially ask the physician for a letter to take to the Department of Motor Vehicles (DMV). The DMV can give your elder an eye exam, which may result in his license being taken away.

Arrange for alternative transportation so that your elder does not have to give up all his freedom and activities. You can help your elder become familiar with other transportation options, such as taking the bus with him. Help him find out more about local senior transportation services and encourage him to carpool with friends. Also, you can explain that if you sell the car, the money saved on insurance and maintenance can be used for transportation or medical needs. Offer to drive him to the activities he enjoys or find someone who can take him. Make sure he’s included in family outings and help him develop new routines and hobbies that don’t require driving, like gardening or walking.

Some of these tips can help you broach the subject of not driving with your elder, but kindness and respect will always go a long way.

Where to Keep Your Estate Planning Documents

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Keep your estate planning documents in a safe place. You want to make sure, though, that you keep them in a place that can be found by your relatives after you die. Or, better yet, make sure to tell your family where you keep your documents. It may be a good idea to keep your documents in a fireproof safe at home. Some people give their documents to a person named in their documents, but this may not be the best idea. For example, if you decide to update your documents, it can be difficult to track down and destroy the old documents. If you’re unable to destroy all the old documents, it can get confusing about which documents are your most current. It’s definitely not a good idea to keep your estate planning documents in a bank safety deposit box. If something happens to you over the weekend or holiday, your estate planning documents are not easily accessible. Also, it can be difficult for another person to gain access to the safety deposit box if you’re not available. The best place to store your estate planning documents is at home in a safe but accessible place with your other legal documents.