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Non-Probate [De-facto] Estate Assets

Many Different Assets May Trap Uninformed Doctors

By Lawrence E. Howes; CFP™

By Joel B. Javer; CFP™ 


There are situations where avoiding probate is desirable for physicians who want privacy for their finances after their death. And, there are relatively simple ways to avoid probate, but they all have consequences.

Several of these mechanisms are reviewed below: 

[A] Joint Tenancy

Joint tenancy is the conventional way that property between spouses is titled.  Each spouse maintains a 50 percent-undivided interest in the property.  Upon death, the property automatically, by operation of law, passes to the surviving spouse and avoids probate.   However, the automatic aspect of JT means that a will does not control the disposition of the asset.  Before you title anything think about the consequences and be careful when establishing the ownership of all property.   

[B] Community Property

Community property is another form of co-ownership limited to the interests held between husband and wife. Community property does not automatically pass to your spouse. When one spouse dies, the survivor continues to own only his or her half of the assets. The decedent’s will determines the transfer of the other half. Only eight of the 50 states are community-property states, but it is estimated that 25 percent of the population resides in these states. The eight states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington. 

Wisconsin has a form of community property called “marital partnership property.”  The laws of the particular state must be examined to determine the effect on the married couple’s property.  

[C] Life Insurance       

Life insurance is also property.  The two aspects of the property are the face amount and unless it is a term life insurance policy, the cash value. 

The critical item to remember is: if you own the policy, then the face amount or death benefit is included in your estate and probably subject to estate taxes.  The death benefit passes through the operation of a beneficiary designation.  At the time of death most cash value policies include the existing cash value in the death benefit. This is known as a type A policy. Type B excludes the cash value from the death benefit so it would be added to the face amount.        

[D] Retirement plans

Your retirement plans and IRAs are transferred by beneficiary designation.  It is common to see a physician who is divorced still have an ex-spouse as the named beneficiary on a retirement plan or life insurance policy. Making sure that all beneficiary designations are consistent with your current estate plan will avoid these unintended consequences. 

[E] Revocable Living Trust

In a revocable living trust your assets are voluntarily placed in a trust thereby making you a trustor.  The control of the assets in the trust is then transferred to a trustee.  You can make yourself the trustee as well. 

The key word here is revocable, which means the terms of the trust can be changed, altered, amended or terminated. Legal title to the property however is retained by the trust. The trust can provide continuity of investment management, bill paying, collection of accounts receivable and general financial stability until the medical professional is able to resume control of his or her financial affairs.  

In addition, if property is owned in more than one state, ownership of that property by a revocable living trust would eliminate the necessity of dealing with probate in several states. 

[F] Buy-Sell Agreements 

A highly valued medical practice may not have sufficient cash to buy out a deceased partner and face an overwhelming financial burden. Life insurance is commonly considered the best vehicle to provide the cash when it is needed the most, and there several different way to create a practice buy-sell agreement.

Nevertheless, always remember that it too, is an asset. 


What is your experience with any of the above non-probate assets in your estate planning endeavors? 

More information: http://www.jbpub.com/catalog/9780763733421/

Linuistic terms:  www.HealthDictionarySeries.com


The Medical Expert [Trial Witness]

An Important Determinant of Success or Failure

By Dr. Jay S. Grife; JD, MAinsurance-book1 

In every civil medical malpractice trial, besides counsel for the respective parties, there is a Plaintiff (patient) and a Defendant (doctor).

In addition to the parties and their respective counsel, witnesses, both lay and expert, form the main body of testimony that will be elicited and heard by the Judge and jury.  

Overview of Witness Types 

Both lay and expert witnesses serve to tell the story of the parties to the court.  In a medical malpractice case, a lay witness generally explains the facts of specific events which they have witnessed, or more likely, how the Plaintiff has been affected by the alleged negligence. The parties may also call a special kind of witness, called a “medical expert”, to testify on their behalf.   

Definition of Medical Expert 

An expert witness is simply a witness with experience in a particular field, whose testimony will aide the lay jury in understanding the medical aspects of the case. In most medical malpractice cases, the Plaintiff must present expert testimony from a health care practitioner that the Defendant fell below the standard of care required and caused injury to the patient.  

These are the two essential prongs which when conjoined equate to negligence in legal terminology; (1) liability being a breach in the standard of care and (2) causation being that the negligence caused the Plaintiff damages. 

The “Two-Pronged” Test 

It is essential to understand that a Plaintiff cannot prevail in litigation if only one of these two prongs has been left unsatisfied.

For example, if a physician failed to diagnose cancer in a terminally ill patient, the fact that the diagnosis was not made can be deemed negligent, but the negligence in the failure to diagnose did not damage the patient, in that she was terminal when she initially presented. 

It is this two pronged test which delineates legal negligence from commonly expressed negligence or a bad result from the care and treatment provided.

Experts Not Always Required 

In rare instances, and in ever diminishing jurisdictions, expert testimony is not required in medical negligence matters.

In those instances, the legal doctrine of Res Ipsa Loquitur or “the thing speaks for itself” often will attach to obviate the expert’s place.

Normally, in a medical malpractice case, a Plaintiff is required to establish: (1) a breach in the standard of care or that an act or omission by the Defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession; and (2) causation or that such negligence or omission caused the plaintiff’s injury.

The Res Ipsa Loquitur Doctrine 

However, the doctrine of Res Ipsa Loquitur exists to preclude the need for direct proof of negligence through medical testimony, and allows cases submitted under the doctrine to proceed to the jury even in the absence of testimony as to negligence because a jury is permitted to draw an inference of negligence from the specific act itself.

The classic example of such an incident would be the leaving of a surgical instrument inside a patient’s body, or operating upon the wrong body part [“Never-Event”]. 


What has been your experience with medical expert witnesses – help or hindrance – hired gun or balanced interpreter?

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