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Wednesday, June 13, 2018

Leaving Assets to a 'Troubled' Heir

Estate Planning: Leaving Assets to a ‘Troubled’ Heir

If you have a child who is addicted to drugs or alcohol, or who is financially irresponsible, you already know the heartbreak associated with trying to help that child make healthy decisions.  Perhaps your other adult children are living independent lives, but this child still turns to you to bail him out – either figuratively or literally – of trouble.

If these are your circumstances, you are probably already worrying about how to continue to help your child once you are gone.  You predict that your child will misuse any lump sum of money left to him or her via your will.  You don’t want to completely cut this child out of your estate plan, but at the same time, you don’t want to enable destructive behavior or throw good money after bad.

Trusts are an estate planning tool you can use to provide an inheritance to a worrisome heir while maintaining control over how, when, where, and why the heir accesses the funds.  This type of trust is sometimes called a spendthrift trust.  

As with all trusts, you designate a trustee who controls the funds that will be left to the heir.  This trustee can be an independent third party (there are companies that specialize in this type of work) or a member of the family.  It is often wise to opt for a third party as a trustee, to prevent accusations among family members about favoritism.

The trust can specify the exact circumstances under which money will be disbursed to the heir.  Or, more simply, the trust can specify that the trustee has complete and sole discretion to disburse funds when the heir applies for money.  Most parents in these circumstances discover that they wish to impose their own incentives and restrictions, rather than rely on the judgment of an unknown third party.

The types of conditions or incentives that can be used with a trust include:

  • Drug or alcohol testing before funds are released
  • Payments directly to landlords, colleges, etc., rather than payment to the heir
  • Disbursement of a specified lump sum if the heir graduates from university or keeps the same job for a certain time period
  • Payment only to a drug or alcohol rehab center if the child is in an active period of addiction
  • Disbursement of a lump sum if the child remains drug free
  • Payments that match the child’s earned income

If you are considering writing this type of complex trust, it is advisable to seek assistance from a qualified and experienced estate planning attorney who can help you devise a plan that best accomplishes your wishes with respect to your child.
 


Tuesday, June 12, 2018

It’s Always Marcia, Marcia, Marcia: Avoiding Family Drama In The Estate Planning Process

In the classic Brady Bunch episode “Her Sister’s Shadow,” Jan’s frustration at constantly being compared to her older sister Marcia bursts forth. Perhaps it is because we can all relate that Jan’s exasperated “Marcia, Marcia, Marcia!” became a cultural catchphrase despite only being uttered just that one time.

These same feelings of inferiority and a sense of not being treated fairly frequently burst forth during the estate planning process.


Read more . . .


Thursday, June 7, 2018

Estate Planning Tips for Cryptocurrency Owners

As most cryptocurrency owners know, if you lose the private key that grants you access to your digital wallet, any coins stored in it become inaccessible. Experts estimate somewhere between 17 and 23 percent of all bitcoins have been lost and will never be recovered because people have lost their private key. Perhaps the most famous example of this is James Howells, an IT worker in London who lost 7,500 bitcoins, or around $56 million, when his laptop was thrown away in 2013.


Read more . . .


Wednesday, June 6, 2018

Preventing a Will Contest & Preserving Peace in the Family

Preventing a Will Contest & Preserving Peace in the Family

The purpose of writing a Last Will and Testament is to make sure that you – and not an anonymous probate court judge – have control over the distribution of your property after your death.  If one or more family members disputes the instructions in your will, however, then it is possible  that a probate court judge may decide how your assets will be distributed.

Protect yourself, your family members and your last wishes by taking steps to prevent a will contest after your death.  Will contests (this is the legal term used to describe a family member’s challenge to the contents of a will) can be based on one or more of these claims:

  • The will was not properly executed
  • The willmaker was under improper or undue influence from a beneficiary
  • The willmaker or another person committed fraud
  • The willmaker lacked the mental capacity to make the will

There are a number of steps that you can take to help prevent will contests based on any of those claims.  It is important to remember, though, that different states have different laws regarding wills and probate.  What is advisable in one state may be inadvisable in another, which is why the first suggestion for preventing a will contest is:

  1. Obtain qualified legal advice regarding your estate plan.  Estate planning has become a popular “do it yourself” legal task, but you should at least consider having your will reviewed – if not written – by a qualified estate planning lawyer.  Writing your will with the help of an estate planning attorney will also ensure that your will is a properly executed and valid legal document.
     
  2. Don’t delay estate planning.  Plan your estate while you are in good health – “of sound mind and body.”  If you create your will while your physical or mental health is failing, your will becomes vulnerable to claims that it is invalid due to your lack of mental capacity.
     
  3. Consider a no-contest clause.  A no-contest clause (also called an in terrorem clause) in a Last Will and Testament disinherits anyone who contests the will.  Keep in mind, though, that no-contest clauses are valid in some states but not in others.
     
  4. Consider using trusts.  Trusts are becoming more widely used in estate planning , and are useful for various situations.  A will is a public document once it is filed in probate court, and the public nature of the document can give rise to disputes and will contests.  In contrast, a revocable living trust is a personal and private document that does not have to be filed as a public record.  Furthermore, lifetime trusts can be used to provide financially for “troublesome” beneficiaries who might otherwise spend through their inheritance.  Lifetime trusts are flexible and can link financial inheritance to the accomplishment of goals that you set forth in the trust documents.
     
  5. Write your will independently.  To avoid claims of undue influence after your death, make sure you write your will in circumstances that are clearly free from interference by family members or other beneficiaries.  Avoid having beneficiaries serve as witnesses, for example, and don’t allow beneficiaries to attend your meetings with your estate planning attorney.  This is especially important if you are under the care of a family member who is also a beneficiary.
     
  6. Be of sound mind and body.  At the time you write and sign your will, you can ask your physician to perform a physical examination and certify that you are mentally competent to execute your will.  Another option is for your attorney to ask you a series of questions before you sign your will and document that the questions were asked and answered.  It may also be a good idea to make a video recording of the process of signing your will, as another way to prove mental competency.
     
  7. Answer your family’s questions.  Consider sharing your intentions with your family and other beneficiaries.  If you explain the reasons for the decisions you made regarding bequests, you may help prevent will contests after your death.  Instead or in addition, you may write a letter to your beneficiaries that will be read at the same time your will is read.
     
  8. Keep your will dust-free.  Once your Last Will and Testament and other estate planning documents are complete, don’t just file and forget them.  Review your will with an attorney at least once a year and make any necessary changes in a timely manner.
     

Wednesday, May 30, 2018

A Living Will or Healthcare POA? Or Do I Need Both?

A Living Will or Health Care Power of Attorney? Or Do I Need Both?

Many people are confused by these two important estate planning documents. It’s important to understand the functions of each and ensure you are fully protected by incorporating both of these documents into your overall estate plan.

A “living will,” often called an advance health care directive, is a legal document setting forth your wishes for end-of-life medical care, in the event you are unable to communicate your wishes yourself. The safest way to ensure that your own wishes will determine your future medical care is to execute an advance directive stating what your wishes are. In some states, the advance directive is only operative if you are diagnosed with a terminal condition and life-sustaining treatment merely artificially prolongs the process of dying, or if you are in a persistent vegetative state with no hope of recovery.

A durable power of attorney for health care, also referred to as a healthcare proxy, is a document in which you name another person to serve as your health care agent. This person is authorized to speak on your behalf in order to consent to – or refuse – medical treatment if your doctor determines that you are unable to make those decisions for yourself. A durable power of attorney for health care can be operative at any time you designate, not just when your condition is terminal.

For maximum protection, it is strongly recommended that you have both a living will and a durable power of attorney for health care. The power of attorney affords you flexibility, with an agent who can express your wishes and respond accordingly to any changes in your medical condition. Your agent should base his or her decisions on any written wishes you have provided, as well as familiarity with you. The advance directive is necessary to guide health care providers in the event your agent is unavailable. If your agent’s decisions are ever challenged, the advance directive can also serve as evidence that your agent is acting in good faith and in accordance with your wishes.  


Wednesday, May 23, 2018

Planning Your Final Sendoff

Planning for Your Final Sendoff

Although most people don’t like to think about it, death is inevitable. It’s imperative that you have an estate plan in place that outlines your end of life wishes and how you would like your assets distributed upon your passing. As part of your planning, it’s important that you consider and make arrangements for your funeral. By planning this event before your passing, you can spare your family difficult decisions and ensure that your send off is exactly as you’d like it.

Here are a few things to consider:

Location
Funerals are not limited to churches or temples. If you’re not religious or if you want something different, you might ask that your relatives instead hold a memorial service in your honor at the park or even at the family vacation home.

Burial
Perhaps you hate the idea of being buried at the local cemetery and would prefer to be cremated. There are many options and having your relatives all agree upon one can be challenging. Be sure to make these wishes known as part of your funeral planning.  

Details    
You wouldn’t want someone picking the song for the first dance at your wedding so why would you want someone else deciding all of the details of an event to celebrate your life? As part of your funeral planning, list songs you might want played or poems which should be recited. If your favorite vacation was to Hawaii, you might want to brighten up the event with tropical flowers from Maui.

Obituary
It can be difficult to write about your life but for many writing their own obituary can help them reflect on the important things while giving them a chance to highlight their proudest moments. If you aren’t a writer or find this task daunting, consider writing a few bullet points for your loved ones so the information they share is accurate and provide a list of publications where it should be featured. Sure, your children may know that you belong to the church book group but they may have no idea that that same group has a newsletter which should share this information with fellow members.

Virtual Passwords
Traditionally when a person died, his or her children had the task of going through the old phone book and calling contacts to inform them of the news. Today, many of us connect with friends and relatives online. To help your heirs effectively communicate information about your passing, be sure to store your online passwords in a place where your relatives can find them and access the appropriate accounts accordingly.

Paying in Advance
Funerals can be very expensive and a huge burden for many families dealing with the loss of a loved one. Luckily, with the right planning, you can prepay for your funeral and save your family the expense. Generally an attorney or a funeral director can help you to determine how much money will be needed and help you to establish a trust where it will be stored until your passing.

While planning your funeral may seem to be a depressing thought at first, it is actually empowering—allowing you determine how you will say farewell to your loved ones and leaving you with peace of mind knowing that you’ve taken care of every last detail so your family can celebrate your life without the added stress of planning your funeral.  


Tuesday, May 15, 2018

Can I Get A Witness?

Whenever that Brothers Osborne song “It Ain’t My Fault” comes on the radio, and it gets to the part where they sing, “I got my hands up. I need an alibi. Find me a witness who can testify.” it always gets us thinking about


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Friday, May 11, 2018

Author’s Estate Plan Preserves Her Privacy

The beloved author Harper Lee was known for two things: 1. The coming-of-age classic To Kill a Mockingbird and 2. Her desire to keep her personal affairs out of the public eye. When she died in 2016, many thought her will might reveal whether readers could expect additional books written by her to be published, and tell us a little more about her mysterious private life. Earlier this year, her will was finally made public, but it leaves us with more questions than answers.


Read more . . .


Wednesday, May 9, 2018

Pooled Income Trusts & Public Assistance Benefits

Pooled Income Trusts and Public Assistance Benefits

A Pooled Income Trust is a special kind of trust that is established by a non-profit organization. This trust allows individuals of any age (typically over 65) to become financially eligible for public assistance benefits (such as Medicaid home care and Supplemental Security Income), while preserving their monthly income in trust for living expenses and supplemental needs. All income received by the beneficiary must be deposited into the Pooled Income Trust.

In order to be eligible to deposit your income into a Pooled Income Trust, you must be disabled as defined by law. For purposes of the Trust, "disabled" typically includes age-related infirmities. The Trust may only be established by a parent, a grandparent, a legal guardian, the individual beneficiary (you), or by a court order. 

Typical individuals who use a Pool Income Trust are: (1) elderly persons living at home who would like to protect their income while accessing Medicaid home care; (2) recipients of public benefit programs such as Supplemental Security Income (SSI) and Medicaid; (3) persons living in an Assisted Living Community under a Medicaid program who would like to protect their income while receiving Medicaid coverage.

Medicaid recipients who deposit their income into a Pooled Income Trust will not be subject to the rules that normally apply to "excess income," meaning that the Trust income will not be considered as available income to be spent down each month. Supplemental payments for the benefit of the Medicaid recipient include: living expenses, including food and clothing; homeowner expenses including real estate taxes, utilities and insurance, rental expenses, supplemental home care services, geriatric care services, entertainment and travel expenses, medical procedures not provided through government assistance, attorney and guardian fees, and any other expense not provided by government assistance programs.


Wednesday, May 2, 2018

When Is A Person Unfit To Make A Will?

When is a person unfit to make a will?

Testamentary capacity refers to a person’s ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.

If the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.

It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.


Wednesday, April 25, 2018

Changing Uses for Bypass trusts

Changing Uses for Bypass Trusts

Every year, each individual who dies in the U.S. can leave a certain amount of money to his or her heirs before facing any federal estate taxes. For example, in 2016, a person who dies could leave $5.45 million to his or her heirs (or a charity) estate tax free, and everything over that amount would be taxable by the federal government. Transfers at death to a spouse are not taxable.

Therefore, if a husband dies owning $8 million in assets in 2016 and passed everything to his wife, that transfer was not taxable because transfers to spouses at death are not taxable. However, if the wife died later that year owning that $8 million in assets, everything over $5.45 million (her exemption amount) would be taxable by the federal government. Couples would effectively have the use of only one exemption amount unless they did some special planning, or left a sizable amount of their property to someone other than their spouse.

Estate tax law provided a tool called “bypass trusts” that allowed a spouse to leave an inheritance to the surviving spouse in a special trust. That trust would be taxable and would use up the exemption amount of the first spouse to die. However, the remaining spouse would be able to use the property in that bypass trust to live on, and would also have the use of his or her exemption amount when he or she passed. This planning technique effectively allowed couples to combine their exemption amounts.

For the year 2016, each person who dies can pass $5.45 million free from federal estate taxes.  This exemption amount is adjusted for inflation every year.  In addition, spouses can combine their exemption amounts without requiring a bypass trust (making the exemptions “portable” between spouses). This change in the law appears to make bypass trusts useless, at least until Congress decides to remove the portability provision from the estate tax law.

However, bypass trusts can still be valuable in many situations, such as:

(1)  Remarriage or blended families. You may be concerned that your spouse will remarry and cut the children out of the will after you are gone. Or, you may have a blended family and you may fear that your spouse will disinherit your children in favor of his or her children after you pass. A bypass trust would allow the surviving spouse to have access to the money to live on during life, while providing that everything goes to the children at the surviving spouse’s death.

(2)  State estate taxes. Currently, 14 states and the District of Columbia have state estate taxes. If you live in one of those states, a bypass trust may be necessary to combine a couple’s exemptions from state estate tax.

(3)  Changes in the estate tax law. Estate tax laws have been in flux over the past several years. What if you did an estate plan assuming that bypass trusts were unnecessary, Congress removed the portability provision, and you neglected to update your estate plan? You could be paying thousands or even millions of dollars in taxes that you could have saved by using a bypass trust.

(4)  Protecting assets from creditors. If you leave a large inheritance outright to your spouse and children, and a creditor appears on the scene, the creditor may be able to seize all the money. Although many people think that will not happen to their family, divorces, bankruptcies, personal injury lawsuits, and hard economic times can unexpectedly result in a large monetary judgment against a family member.

Although it may appear that bypass trusts have lost their usefulness, there are still many situations in which they can be invaluable tools to help families avoid estate taxes.


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