1) Lack of Healthcare and Disability Planning. The majority of deaths occur in hospitals or other institutions. Patients may be incapacitated to the point where they can no longer communicate their healthcare wishes. Advance Directives and a Healthcare Power of Attorney can identify healthcare proxy decision-makers, specify wishes for end-of-life care, and provide a formal plan to control financial and property matters.
2) No will or estate plan. Without proper planning, your estate may be tied up in probate court for months or years after your death, at a great emotional and financial cost to your family.
3) Lack of attention to digital assets. Without a plan for digital assets and social media, you may lose critical documents, photos, memories, and family records.
4) Lack of attention to your children’s possible future divorces or lawsuits. It’s not fun to think about, but if your children divorce or are sued at some point in the future, their inheritance may be decimated and end up in the hands of those you never intended. A trust can help protect your legacy and your children’s inheritance.
5) Lack of attention to the conscious transfer of family values. Comprehensive estate planning can include family meetings, a family mission statement, and custom planning for children.
6) IRA funds wasted. Retirement account beneficiaries often receive these account funds in a lump sum, creating the potential for a huge and unexpected tax bill. A standalone retirement trust (sometimes called an IRA trust) can protect these funds while still providing for your beneficiaries.
7) Chaotic record-keeping. Good planning is essential to make sure your heirs do not spend months or years trying to make sense of what you left behind. A comprehensive estate plan provides you with a framework for maintaining your vital legal and financial records.
8) Surviving spouse creditors and predators. If your surviving spouse remarries and then divorces, your estate could end up in the hands of people you never intended. Likewise, if your surviving spouse is victimized by financial predators – something increasingly common as the population ages – your family may discover too late that your legacy is gone. A trust can ensure family money stays in and benefits the family.
9) Family feuds over sentimental items. This problem can be avoided with a Personal Property Memorandum, which can account for tangible items like artwork, family heirlooms, and jewelry. In addition to the financial assets, your plan should include careful consideration of important family items.
10) HIPAA privacy lockout. If incapacity leaves you unable to communicate, family members—even your spouse—may not be able to access your medical records because of HIPAA privacy rules. Executing a HIPAA authorization ensures access to medical information.
11) Outdated Estate Plan. You may have a will and estate plan already. Does it reflect your current circumstances, goals, and needs? A comprehensive review by an estate planner ensures that your estate plan reflects your current situation, desires, and needs.
During the home buying process, you worked with a lot of individuals: your realtor, the seller’s realtor, the title company, the loan officer, and the home inspector. Now that you have finalized the purchase of your house, there is one more expert you need to call: your estate planning attorney.
Aligning Your Ownership with Existing Estate Planning
First, your attorney can help you review the new documents associated with your home purchase in conjunction with your existing estate plan to ensure that everything aligns and works towards your overall estate planning objectives. If your existing estate plans include a trust that owns all of your assets, it is crucial that your new home is titled in the name of the trust and not in your name individually (or jointly if married).
General Review/Update of Your Estate Plan
Since you have engaged in a new life changing event, now is the perfect time to review your existing plan. This is a great opportunity to make sure that the individuals you have appointed in the crucial roles of guardian, executor, agent, or trustee are still able to carry out those duties when the need arises. With the passage of time, these individuals may have moved away, died, or otherwise undergone a life change themselves that makes them a less than desirable candidate to act on your behalf.
While you are reviewing your estate plans, it is also important that you review the dispositive language. Do you still want to have your assets divided the same way? Have the needs of your beneficiaries changed over the years? To ensure that you are protecting and providing for your beneficiaries, you need to make sure that the provisions are set up for the best individualized protection.
Lastly, if the purchase of your new home is in a different state, you will definitely want to visit an estate planning attorney. By changing states, the documents you previously have prepared may not adequately protect you and your family. Each state has unique laws regarding trusts and estates, you will need to make sure that any documents you are currently relying on are enforceable in your new state. Unenforceable or not-optimized documents can be just as bad as having no estate planning documents at all.
Give us a call.
Buying a new home is a great new adventure. Give us a call so we can make sure that you are embarking on this new chapter in your life fully protected.
Consider this story. Beth’s divorce from her husband was recently finalized. Her most valuable assets are her retirement plan at work and her life insurance policy. She updated the beneficiary designations on both to be her two minor children. She did not want her ex-husband to receive the money.
Beth passes away one year after her divorce. Her children are still minors, so the retirement plan and insurance company require an adult to be appointed to receive the inheritance Beth left behind. Who does the court presumptively look to serve as the caretaker of this money? Beth’s ex-husband who is now the only living parent of the children. (In some states, this caretaker of the money is called a guardian, whereas in others it is the conservator. The title does not matter as much as the role, which is to manage the funds on behalf of a minor, since the minor is not legally able to handle significant assets or money.)
Sadly, stories like Beth’s are all too familiar for the loved ones of divorced people who do not make effective use of the estate planning tools. Naming a beneficiary for retirement benefits or life insurance, or having a will can be a good start. However, the complexities of relationships, post-divorce, often render these basic tools inadequate. Luckily, there is a way to protect and control your children’s inheritance fully.
Enter the Trust
A trust allows you to coordinate and control your estate in a way that no other tool can. For those who are not yet familiar, a trust is a legal arrangement for managing your property while you are alive and quickly passing it at your death. There are a few key players in the trust. First, there is the person who created the trust, often called the Trustmaker, Grantor, or Settlor (this is you). Second, there’s the Trustee who manages the assets owned by the trust (usually you during your life and then anyone you select when you are no longer able to manage the assets). Finally, the Beneficiaries are the people who receive the benefit of the trust (usually you during your life, and then typically children or anyone else you choose).
How a Trust Protects Your Children’s Inheritance after a Divorce
A trust protects your children’s inheritance in a few distinct ways:
- Since you select the Trustee, you can choose someone other than your ex-spouse to manage the assets. In fact, you can even state that the ex-spouse can never be a Trustee, if you wish. If Beth had a trust, she could have named her brother to be Trustee after her death. Her brother (rather than her ex-husband) would then be in charge of the children’s inheritance.
- Since you select the Beneficiaries, you can determine how the trust assets can be used for them. You may have long-term goals for your beneficiaries, such as college, purchasing a first home, or starting a business. When you share your intent, your Trustee can invest the assets appropriately and ensure your legacy is used the way you want, rather than the assets being potentially wasted or used in a thoughtless way. If Beth had a trust, she could have instructed how she wanted the inheritance used, rather than leaving it to the whims of a court and her ex-husband.
- A fully funded trust avoids probate, so your children do not have to deal with the cost, publicity, and delay that is all-too-common in probate cases. Although “plain” beneficiary designations, like the one that Beth used, also avoid probate, they may still open the door for a guardianship or conservatorship court case, especially when your children are minors. A fully funded trust avoids these guardianship and conservatorship cases. This means more money for your intended beneficiaries and less for the lawyers and courts.
If you are divorced, it is essential to make sure your plan works precisely the way you want. Every situation is unique, but we are here to help design a plan that achieves your goals and works for your family. Give us a call today.
Many children and grandchildren are skipping the traditional bank and obtaining loans from parents or grandparents. Unfortunately, we have all heard stories of families torn apart because of disagreements over money. So, what can you do to make sure your intra-family loans help, rather than hurt, your family?
As far as estate planning is concerned, money you lend to others is legally an asset. If you have lent money to a family member the presence of these assets in your estate can be problematic for your surviving family members. This is because your executor and successor trustee are under a legal requirement, known as fiduciary care, to collect the outstanding obligation, even if the other party is a family member.
If the amount of money that you have lent out is significant — and “significant” can be relative — it is important to let us know as we help you plan your estate. For example, if you wish to forgive the debt there are special terms that must be included in your trust or will for this to happen. On the other hand, you may want the debt to be paid out of the inheritance the borrower is otherwise receiving. In that case, the payment of the debt from the inheritance must be addressed in your estate planning documents.
A Brief Loan Primer
A loan is a legal and financial arrangement where money is borrowed and is expected to be paid back with interest. Generally, a loan involves a promissory note, which is a signed document by the borrower containing a written promise to repay a stated sum of money to the lender in accordance with a schedule, at a specified date, or on demand. In some cases collateral, like real estate or other property, is used to secure the loan. Collateral is something pledged as security for repayment of the loan. If the borrower quits making payments, then the collateral can be taken by the lender.
Lending as an Estate Planning Tool
When properly structured and well documented, loans can be a smart estate planning tool for many families. This is because lenders (usually grandparents or parents) can essentially give access to an inheritance without any immediate gift or estate tax problems, generate a better return on their cash than they could with bank deposits, and borrowers (usually children or grandchildren) can take out loans at interest rates lower than commercial rates and with better terms. In fact, the Internal Revenue Service allows borrowers who are related to one another to pay very low rates on intra-family loans. Furthermore, the total interest paid on these types of transactions over the life of the loan stays within the family. If structured and documented properly, intra-family loans may effectively transfer money within the family, for the purchase of a home, the financing of a business, or any other purpose.
Sometimes loans can be used in sophisticated estate tax planning strategies as a way to shift assets into special estate-tax saving trusts. One variant of this technique is sometimes called an installment sale to a grantor trust. Although this sophisticated strategy and others like it are usually only appropriate for those with a net worth of at least a few million dollars, other types of intra-family loans, perhaps for home improvement, an automobile purchase, or a business, can help families across the wealth spectrum.
There are several points to keep in mind regarding these types of loans: the loan must be well-documented, lenders should usually ask for collateral, the lender should make sure the borrower can repay the loan, and the income and estate tax implications should be examined thoroughly.
Deciding What You Want
While you were kind enough to help a member of your family by lending him or her money, do not let this become a legal dilemma in the event of your incapacity or after your death. Instead, use your estate plan to specifically express what you want to have happen regarding these assets. Before lending money, it is important to carefully consider how the loan should be structured, documented, and repaid . If you or someone you know has lent money and has questions about how this affects your estate plan, contact us today to discuss the options.
Confused about the differences between wills and trusts? If so, you’re not alone. While it’s always wise to contact experts like us, it’s also important to understand the basics. Here’s a quick and simple reference guide:
What Revocable Living Trusts Can Do – That Wills Can’t
- Avoid a conservatorship and guardianship. A revocable living trust allows you to authorize your spouse, partner, child, or other trusted person to manage your assets should you become incapacitated and unable to manage your own affairs. Wills only become effective when you die, so they are useless in avoiding conservatorship and guardianship proceedings during your life.
- Bypass probate. Property in a revocable living trust does not pass through probate. Property that passes using a will guarantees probate. The probate process, designed to wrap up a person’s affairs after satisfying outstanding debts, is public and can be costly and time consuming – sometimes taking years to resolve.
- Maintain privacy after death. Wills are public documents; trusts are not. Anyone, including nosey neighbors, predators, and unscrupulous “charities” can discover the details of your estate if you have a will. Trusts allow you to maintain your family’s privacy after death.
- Protect you from court challenges. Although court challenges to wills and trusts occur, attacking a trust is generally much harder than attacking a will because trust provisions are not made public.
What Wills Can Do – That Revocable Living Trusts Can’t
- Name guardians for children. Only a will – not a living trust or any other type of document – can be used to name guardians to care for minor children.
- Specify an executor or personal representative. Wills allow you to name an executor or personal representative – someone who will take responsibility to wrap up your estate after you die. This typically involves working with the probate court, protecting assets, paying your debts, and distributing what remains to beneficiaries. But, if there are no assets in your probate estate (because you have a fully funded revocable trust), this feature is not necessarily useful.
What Both Wills & Trusts Can Do:
- Allow revisions to your document. Both wills and trusts can be revised whenever your intentions or circumstances change so long as you have the legal capacity to execute them.
WARNING: There is such as a thing as irrevocable trusts, which can only be changed under certain circumstances, using very specific methods.
- Name beneficiaries. Both wills and trusts are vehicles which allow you to name beneficiaries for your assets.
- Wills simply describe assets and proclaim who gets what. Only assets in your individual name will be controlled by a will.
- While trusts act similarly, you must go one step further and “transfer” the property into the trust – commonly referred to as “funding.” Only assets in the name of your trust will be controlled by your trust.
- Provide asset protection. Trusts, and less commonly, wills, can be crafted to include protective sub-trusts which allow your beneficiaries access but keep the assets from being seized by their creditors such as divorcing spouses, car accident litigants, bankruptcy trustees, and business failure.
While some of the differences between wills and trusts are subtle; others are not. Together, we’ll take a look at your goals as well as your financial and family situation and design an estate plan tailored to your needs. Call us today and let’s get started.
Poor estate planning is a recipe for disaster. Look no further than Dickens’ Bleak House—or a telenovela—to witness the tragedy and melodrama inadequate estate planning can cause. While having your estate planning documents prepared is the first hurdle to overcoming these types of disasters, there are several threats that lurk around the corner that might derail your wishes.
According to a TF Wealth survey of over 100 estate planning professionals, family conflict is the number one risk to a peaceful inheritance. If children are treated differently under the estate plan, there is often an assumption that a mistake was made in drafting the documents or that someone has exerted undue influence on the parent. While this may not be the case, without any guidance from you, family members can begin to think the worst of each other.
Sloppy or No Estate Planning
If you have not done any estate planning or if what you have done is ineffective, your estate will be subject to your state’s intestate laws. These laws predetermine who will inherit your assets and in what proportion. While these statutory schemes might work for some people, they will have adverse consequences for those who have been married multiple times, have children from prior relationships, or children who need additional asset protection. If you haven’t done any estate planning, you’re simply leaving your inheritance and your legacy in the hands of the government.
In order to ensure that your wishes are being carried out and safe from the ever present dangers, it is important that you know what a successful estate plan looks like.
No (or Little) Family Conflict
The goal here is for there to be no surprises. If you are choosing to treat children or other family members differently, be open and honest about it. It may be helpful to have a conversation about your wishes prior to your death so that those individuals understand why you have made those decisions. Even if you choose to not have such a conversation, it’s important to discuss your plan and reasons with your attorney, so that the plan can be drafted to carry out your wishes.
Eliminate (or Minimize) Costs and Taxes
Watching inheritance get whittled away by taxes and fees will only lead to frustration and hard feelings. When preparing your estate plan, your intent is to benefit your loved ones, not the government. Working with a qualified estate planning attorney can help ensure that your assets are being handled in such a way that the administrative costs of your passing and any income or estate tax are minimized or avoided.
A Chosen Representative
It is possible that, later in life, you may not be able to handle all of your affairs yourself and may require some assistance from a loved one, whether it be with your finances or healthcare. Look for someone you trust who understands you and your desires. Don’t necessarily rely on someone just because they are the most convenient. And, don’t rely on hope that everyone will know who you want to be in charge. You must ensure that you’ve granted proper authority using a power of attorney, a trust, and a will.
Ensure that Everyone Gets What You Want
Your assets may be, or may in some way, represent your legacy. Do some real soul-searching about how and what you want to share this with your family and friends. To ensure that your legacy is passed on in a meaningful way, consider including an explanation as to why someone is receiving a particular inheritance. If you have wishes as to how they use a gift of money, he or she may appreciate hearing the hopes and dreams you have for them and their future even though you are no longer with them.
Documents Are Up-to-Date
Life can change quickly. It is important that you review your estate planning documents with each life change (i.e. birth or death of a family member, purchase or sale of a major asset, change in health, etc.). It is also important that we stay in touch. Contact us when these major life changes occur and we will contact you when there are changes in the law. This will help ensure that your documents stay effective and your wishes are carried out.
So do the groundwork that a little planning requires. And leave the melodrama for entertainment. Give us a call today. We’re here to help.
Why Every Pet Parent Needs to Consider a Pet Trust Today
Estate planning is about protecting what’s important to you. Although much of the traditional estate planning conversation focus on surviving spouses, children, grandchildren, many pet parents wonder about what could happen to their “furry children” after their death or if they become incapacitated and unable to care for the pets. Read on if you’ve ever thought, “What will happen to my cat, dog, or other pet if I pass away?” “What if I’m incapacitated and unable to care for them?”
Enter the pet trust. This tool is something that can be easily incorporated into a new or existing estate plan to provide a strategy for caring for your pets. Remember, estate planning is about protecting what’s important to you. So, even if you anticipate outliving your pets, it’s always better to be safe than sorry.
How a Pet Trust Works
Although these can be set up as standalone trusts, most pet trusts are incorporated into your overall estate plan. First, you determine an amount of money you want to leave for the care of your pet. When the pet trust becomes active (upon your death or incapacity) and while your pet is alive, the money you have set aside will be managed by a trustee for your pet’s benefit. Second, decide on a caretaker who will have custody and responsibility for the care of your pet. Lastly, after your pet’s death, the trust will terminate and any money that’s left will be distributed to the remainder beneficiaries you have chosen.
What a Pet Trust Avoids
Frankly, it can be chaos for your pets if you are incapacitated or deceased without a plan. With the shuffle of so many other tasks, a pet can sometimes be overlooked, abandoned, or even euthanized. A pet trust provides a legal tool to ensure that your beloved dog, cat, or other pet is not left somewhere or euthanized merely because you are not here any longer. Proactively including a pet trust is especially important when you have family members that may be unable or unwilling to care for your beloved pets.
The Three Easy Decisions You Will Make
Trusts may seem complicated, but it is a reasonably straightforward process to get your planning in order. A pet trust is a trust, so let’s start with a quick review of the cast of characters in trusts. There’s a grantor, settlor, or trustmaker (the person who creates the pet trust – that’s you!), the trustee (the person who will manage the assets of the trust – you select who this is), and then the beneficiaries (who will receive whatever assets are left after the pet passes away – you choose this as well).
In the case of a pet trust, there are three decisions you will need to make to make sure everything works as you intend.
- The selection of the remainder beneficiaries. These beneficiaries will receive the assets that remain, if any, after the pet has passed away. Some people leave the remaining assets to a favorite pet (or other) charity, whereas others have whatever’s left pour into the children’s or grandchildren’s trust. The law is flexible, and we can tailor the plan to match your goals. It is entirely up to you!
- The selection of your pet’s caretaker. You can think of this role as similar to the guardian of minor children. This will be the person who cares for your pet if you are no longer able to do so. You can leave detailed instructions or general recommendations for your pet’s care, whichever works best for your pet’s situation. The trustee will be authorized to distribute money to the caretaker for supplies, vet visits, vaccinations, medications, toys, or whatever else you specify in the agreement. You can even have some amount set aside for compensation for the caretaker if you wish.
- The amount you want to set aside. Some people estimate the expected cost of caring for their pet over the pet’s expected lifespan and leave that amount, plus a little margin for safety. With this approach, the goal is to provide for the care of the pet only. Others want to use the pet trust as a method for caring for their pet, but with an eventual charitable goal (say a local animal shelter). Many of these people will allocate a large sum of money with an expectation that there will be money left over upon the pet’s passing. Determining how much to set aside is really about what you are trying to achieve. We can help you come up with the right number. Moreover, since these plans are fully changeable, you can always update the amount as your and your pet’s circumstances change.
Planning for the Future
You might be thinking that you will outlive your pets, so there’s no reason to plan. But, what if you don’t? The entire purpose of estate planning is to ensure that you have left your wishes known and fully protected your whole family – including your furry, four-legged children. Give us a call today so we can work with you to protect what’s important to you.
The idea of implementing an estate plan might be one of the scariest things you have to confront as an adult. But estate planning does not have to make chills run down your spine. On the contrary, estate planning is empowering for both you and your family and allows you to live confidently knowing that things will be taken care of in the event of your passing or incapacity. Remember, estate planning is not just for the ultra-rich. If you own anything or have young children, you should have an estate plan. Read below to find out reasons why.
Benefits of Estate Planning
Proper estate planning accomplishes many things. It puts your financial house in order. Parents designate a guardian for their minor or disabled children, so they’re raised by someone who shares your values and parenting style (rather than whoever some judge picks). Homeowners can make sure their property is transferred to a designated beneficiary in the event of untimely death. Business owners can ensure the enterprise they’ve worked so hard to build stays within the family.
Yet, according to WealthCounsel’s 2016 Estate Planning Literacy Survey, only 40 percent of Americans have a will and just 17 percent have a trust in place. This translates to a majority of American families not being adequately protected against the eventual certainty of death or the potential for legal incapacity.
When it comes to estate planning, knowledge is vital. Less than 50 percent of those surveyed by WealthCounsel understood that an estate plan can be used to address several concerns – financial or non-financial matters – including health decisions and guardianship, avoiding court and preempting family conflicts, as well as taking advantage of business and tax benefits.
Estate Planning Horror Stories
Legal disputes over estate plans and wills – or, usually, the lack of having these in place at all – are common. These conflicts can cause harm to family relationships and be financially burdensome. Disputes among the rich-and-famous often made headlines.
Some scary outcomes of inadequate or non-existent estate planning include:
- Prince, who died without a will, leaving lawsuits and hefty lawyer’s fees for his family;
- Whitney Houston, whose failure to update her will negatively affect her daughter Bobbi Kristina’s inheritance;
- James Gandolfini, who didn’t finish planning causing his estate to be hit with unnecessary and easily avoided death taxes;
- Michael Jackson, who set up trusts for his children but never funded them resulting in a multiple probate court battles; and
- Philip Seymour Hoffman, who never set up trusts for his kids causing their inheritances to be unnecessarily taxed.
These horror stories are not limited to wealthy celebrities. WealthCounsel’s survey found that more than one-third of respondents know someone who has experienced or have themselves suffered family disputes due to the failure of an existing estate plan or inadequate will. Additionally, more than half of those who have established an estate plan did so to reduce family conflict. Preserving family harmony is for everyone – not only for the wealthy or celebrities.
Attorneys: Your Guide to Not-So-Spooky Estate Planning
Estate planning can be confusing as each circumstance is unique and requires different tools to achieve the best possible outcome. Nearly 75 percent of those surveyed by WealthCounsel said estate planning was a confusing topic and valued professional guidance in learning more – so you’re not alone if you aren’t sure where to begin.
We’re here to help. An estate planning attorney is essential in determining the best way to structure your will, trust, and estate plan to fit your needs. If you or someone you know has questions about where to begin – contact us today.
You probably know that the practice of medicine is a profession fraught with the risk of liability. It’s not just medical malpractice claims either (although those are certainly scary enough). It’s the entire scope of risk from being in business, including employment-related issues, careless business partners and employees, and contractual obligations, as well as personal liabilities. Unfortunately, in our litigious society, these liability risks are not unique to physicians, although physicians are a frequent target.
Below are three liability planning tips for physicians to protect their hard-earned money.
Tip #1 – Insurance is Always the First Line of Defense Against Liability
Liability insurance is the first line of defense against a claim. Liability insurance provides a source of funds to pay legal fees as well as settlements or judgments. Types of insurance you should consider are:
- Homeowner’s insurance
- Property and casualty insurance
- Excess liability insurance (also known as “umbrella” insurance)
- Automobile and other vehicle (motorcycle, boat, airplane) insurance
- General business insurance
- Professional liability insurance
- Directors and officers insurance
Tip #2 – State Exemptions Protect a Variety of Personal Assets from Lawsuits
Each state has a set of laws and/or constitutional provisions that partially or completely exempt certain types of assets owned by residents from the claims of creditors. While these laws vary widely from state to state, in general, the following types of assets may be protected from a judgment entered against you under applicable state law:
- Primary residence (referred to as “homestead” protection in some states)
- Qualified retirement plans (401Ks, profit sharing plans, money purchase plans, IRAs)
- Life insurance (cash value)
- Property co-owned with a spouse as “tenants by the entirety” (only available to married couples; and may only apply to real estate, not personal property, in some states)
- Prepaid college plans
- Section 529 plans
- Disability insurance payments
- Social Security benefits
Tip #3 – Business Entities Protect Business and Personal Assets from Lawsuits
Business entities include partnerships, limited liability companies, and corporations. Physicians who are business owners need to mitigate the risks and liabilities associated with owning a business, and real estate investors need to mitigate the risks and liabilities associated with owning real estate, through the use of one or more entities. The right structure for your enterprise should take into consideration asset protection, income taxes, estate planning, retirement funding, and business succession goals.
Business entities can also be an effective tool for protecting your personal assets from lawsuits. In many states, in addition to the protections offered by incorporating, assets held within a limited partnership or a limited liability company are protected from the personal creditors of an owner. In many cases, the personal creditors of an owner cannot step into the owner’s shoes and take over the business. Instead, the creditor is limited to a “charging order” which only gives the creditor the rights of an assignee. In general, this limits the creditor to receiving distributions from the entity if and when they are made.
Final Advice for Protecting Your Assets
Liability insurance, exemption planning, and business entities should be used together to create a multi-layered liability protection plan. Our firm is experienced with helping physicians, professionals, business owners, board members, real estate investors, and retirees create and—just as important—maintain a comprehensive liability protection plan. Please call our office if you’d like to make sure you have the right protection in place.