Estate Planning

Wednesday, August 25, 2010

A Step-By-Step Guide to Getting Started With Your Estate Planning

You’ve heard all the arguments in favor of estate planning, you know it’s the right thing to do, you want to get your planning done... you just aren’t sure how to get started.  This is understandable; estate planning can feel like an overwhelming endeavor when you’re presented with everything at once.  The trick to getting started with your planning is to take it one step at a time.

Write down your goals.You may have a number of intertwined goals for your estate plan (this is especially true for blended and multigenerational families), or one simple-but-important goal such as “ensure my minor children have a place to go” or “keep the family business intact.” Knowing your goals from the outset will make all subsequent decisions much easier.

Make a list of the people you trust.Throughout your estate plan you’ll be nominating people to take over financial, healthcare, and guardianship responsibilities if something happens to you.  Have a rough list of people you would trust in these roles.  Begin with your initial goal and go from there.  For example, if your initial goal was guardianship of minors, make a list of people you would trust with the care your child, and move from there to financial decision-makers, etc.

Make a list of people you don’t trust.  If you’re having trouble coming up with people for the list above, it sometimes helps to consider the people you would NOT want to be responsible for your child, your finances, or your healthcare.  Write down those people and work backward from there.  If your kids must be kept from crazy Uncle Joe at all costs, would your cousin Emily be an acceptable alternative, even if she does have a different parenting style?

Know your assets.Make a list of all your assets and their approximate values. This will help your estate planner determine what kind of asset protection you need in your plan. Assets include:

• Your Home
• Investment/Vacation Property
• Bank Accounts
• Savings/Investment Accounts
• Retirement Accounts
• Life Insurance
• Family Owned Business
• Etc.

Bring In the Professionals.Estate planning is a very technical process, and the laws may frequently change, so you’ll definitely want professional help with the details of the process.  The good news is that now that you’ve completed the beginning steps, the follow-through with your chosen professional advisor will be a snap!  If you already have a relationship with a trusted attorney, insurance agent, financial advisor or CPA you’ll want to start there.  Let that person know your goals and that you’re ready to begin planning in earnest; he or she will be able to guide you onto the next steps, or give you the name of an estate planning professional who will help you build your ideal plan.

Although it looks overwhelming from the outset, estate planning is really just a series of small steps, each of which leads you to the achievement of your ultimate goal: Preserving your assets and protecting your loved ones.  Now that you know it’s so easy... what are you waiting for?

Monday, August 23, 2010

Debunking 5 Common Estate Planning Myths

There are five common myths that frustrate all estate planners—particularly because we know that not only are they patently untrue, but also because their continued circulation can be harmful. 

1. Estate Planning is only for rich people.This is probably the single most common estate planning myth there is—and it is a myth. During a normal year the first $1 million dollars of your estate would transfer to your beneficiaries tax-free.  (This is also the expected exemption amount for 2011.) By this standard it certain does seem that only “rich people” need estate planning, but when people add up the value of their home, their life insurance, savings, retirement account, etc., etc., etc. they often find that they are much closer to being a “rich person” than they thought.  Not only this, but as we’ll get into in more detail below, estate planning is not only about saving on estate taxes, it’s also about controlling your wealth and protecting your own needs when the unexpected occurs.

2. “I have plenty of time.”  AKA: Only old people need estate plans.First of all, just because you’re young doesn’t mean bad things can’t happen to you.  But you know this, and anyway, this post is not about fear.  Unexpected tragedies aside, an estate plan is useful even when you’re young because an estate plan is not just about death.  A good estate plan will include not only a will, but also a healthcare directive and HIPAA Authorization (both of which are useful if you find yourself facing a surprise stay in the hospital), Power of Attorney documents (which you may need if you ever travel outside the country or are otherwise unable to sign for yourself on financial or legal documents), and legal documents relating to minor children (such as medical authorizations—an essential document if you leave your minor child with a babysitter for any extended period of time.)

3. Married people don’t need estate plans. While it is true that a married person with straightforward wishes for the distribution of their property has less need of estate planning, it does not necessarily follow that they can skip estate planning altogether. Under normal circumstances, any jointly held property will pass to the surviving spouse upon the death of the first spouse... But what happens if the surviving spouse gets re-married?  What about the property you would specifically like to go to your children, or to your parents or siblings? And what if both you and your spouse die together? These are the reasons why even married people should consider drawing up a simple plan.

4. All I need is a quick will and I’m done.A quick will is certainly better than no will.  And if you want to be technical, you don’t even need a quick will; after all, your state of residence has a plan already in place for you.  The problem is that it may not be the plan you want. There is a saying that “anything worth doing is worth doing well.” This goes for wills (or any other legal document) as well.  If you want the basics you can have the basics.  But if you want the best, you’re going to need to spend a little more time on it.

5. Estate Planning is only about money.Although money is often one of the main motivating factors behind creating an estate plan, money is absolutely not what estate planning is all about.  Estate planning is about people.  It’s about your family and doing what’s right for them.  Estate planning is not just about saving your family from estate taxes, or making sure Junior gets the house; it’s about leaving them peace of mind. A well thought-out will or trust saves them from a lengthy probate process, but also reassures siblings that they are doing what mom or dad really would have wanted.  And a memorandum of intent gives you the opportunity to express the things that sometimes cannot be expressed during life.  An estate plan is full of documents designed not just to save you or your heirs money, but to allow you to express your wishes and values even after your death. Estate Planning is about more than just money—it’s about family, legacy, and love.

Friday, August 20, 2010

Women and Finances: How Estate Planning Can Help

When it comes to family matters, women are often the head (and sometimes the sole member) of the planning committee.  Vacations, dinner parties, school activities and celebrations... many of these wouldn’t happen at all if the women of the family didn’t take the lead.  Estate Planning tends to be no different: Many first phone calls, appointments, and attendance at estate planning or elder law seminars are initiated by women.  However, studies suggest that this tendency in women to plan ahead may not apply to financial planning.

A recent article from CBS news suggests that although women are actively involved in family and household finances, they are less likely to be involved in long-term financial decisions. According to the article, although many women “know how to spend and get by on a short term basis... they have a time getting a grip on their long term saving and planning." Of course this is a generalization, and won’t apply to everyone; but considering the importance of the topic, it is definitely a worthwhile subject for discussion.

Here are a few statistics to consider that impact women and their long-term financial decisions:

• Older women (65+) outnumber older men by 22.4 million to 16.5 million. (Administration on Aging)
• Poverty rates are higher among older women than older men by 20.4 to 13.1. (U.S. Census Bureau)
• The median weekly earnings of full-time wage-earning women is $657, or 80 percent of men’s $819. (U.S. Dept. of Labor)
• Not to mention that on average, it is the woman of the family who will end up putting her career on hold for caregiving duties at various times in her life (either to care for young children or aging parents.)

Put all of this together and it means that women need to take control of their finances, not the other way around!  Luckily, this may not be as difficult as you think. The CBS news article mentioned above has some suggestions on how to take charge of your finances; but beyond that, planning your estate can be a huge step toward planning for your financial future as well, because any estate planning includes taking stock of of your financial assets—including savings accounts, retirement assets, individually owned assets as well as those owned jointly by a married couple.

We encourage women (and their families) to let their estate planning contribute to their financial future—it’s not just about how your assets will be distributed after your death, but also what steps you’d like to take to preserve those assets during your lifetime.

Monday, August 16, 2010

The REAL Reason to Plan Your Estate

We write often on our blog about specific pieces of the estate planning whole: elder law, retirement planning, estate administration, etc... But sometimes it’s important to pull back and look at the big picture—to remind ourselves why we’re doing all this in the first place. And the plain truth is that there is one main reason we do this: Love. 

Now, “love” may sound sappy and sentimental, but when it comes down to it love truly is the only reason we would spend time and money thinking about the unpleasant subject of death, and planning for a time that we won’t be around to enjoy.

Estate Planning Ensures Your Minor Children Have a Home

Part of creating your estate plan includes nominating guardians for your minor children.  Without this nomination your children are at the mercy of the court should anything happen to you. Estate planning also allows you to ensure that your minor children and their guardians have the financial security they need to make a smooth transition during a difficult time.

Estate Planning Preserves Sibling Relationships

There are fewer things more stressful to a family than the death of a beloved parent.  And it is at this time more than any other that fights are liable to break out between normally loving siblings: Fights over what to do for mom’s funeral, over who gets treasured heirlooms, over who dad would have wanted to distribute the estate. All of these fights can be easily avoided by creating an estate plan that spells out your wishes in clear and loving terms.

Estate Planning Allows You to Provide for Your Children and Grandchildren

You spend a lifetime raising and caring for your children knowing that someday, when you’re gone, they’ll have to fend for themselves. Creating an estate plan allows you to leave a little bit behind, a cushion your children can hold in reserve in case of emergency.  An estate plan allows you to continue providing for your children even after you’ve gone.

Estate Planning Leaves an Enduring Legacy

Estate planning is not just about finances and paperwork, it’s about relationships.  Creating your estate plan allows you to brush away life’s minor details and minutia and focus on what’s really important, allowing you to connect with your loved ones in a more meaningful and lasting way than ever before.  Your estate plan expresses your enduring values, leaving a legacy for your family that will live on for generations to come.

Friday, August 13, 2010

Does Marriage Matter in Estate Planning?

How much does “marriage” matter when it comes to estate planning?  The recent California court ruling on gay marriage has thrown marriage and its meaning once again into the limelight, and has many people thinking about what marriage means on a legal level.  

Anyone who pays taxes knows that your marital status matters to the state and federal government.  Your marital status also impacts your rights when it comes to insurance, privacy, pensions, and even probate. For example, the property of a married person who dies without a will automatically passes to their spouse (and children)*—this is not necessarily the case for unmarried couples. Similarly, in an emergency medical situation a spouse will have access to information about his or her injured spouse, but unmarried couples do not always have this same privilege.  Although there is good reason behind these privacy laws, it can be particularly distressing when couples who have lived together for years may suddenly have trouble getting medical staff to recognize their partner when a medical decision needs to be made.

Luckily, your estate planning attorney can help circumvent some of the potential problems unmarried couples may face in case of incapacity or upon death.  Executing an Advanced Health Care Directive or Health Care Power of Attorney will ensure that medical personnel recognize the authority of a trusted partner to make medical decisions for you.  Similarly, by creating a Will or Trust you can nominate the person you want to act as executor of your estate upon your death, and who the beneficiaries of your property will be, regardless of whether you have a marriage license or not.

The issue of marriage is one that is obviously very close to the heart, but estate planners see it on a practical level as well.  In the legal world of estate planning our goal is to ensure that your wishes for end of life health care and final distribution of wealth are honored—regardless of your marital status.  

*Please note: Probate laws will vary from state to state—be sure to talk to your estate planning attorney about the laws specific to your state of residence.

Friday, August 06, 2010

Jane Austen’s Will: It Used to Be So Easy

Many clients are shocked when they see the sheer volume of paper in a truly well-done estate plan.  A trust by itself can be hundreds of pages, not to mention the other 6 to 16 documents you may or may not have—depending on your family situation. You may find that the “simple” estate plan you thought you were getting has turned into something of a size that would rival War and Peace! 

It didn’t always used to be this way.  The last will and testament of the great Jane Austen, for example, was only one paragraph long:

I Jane Austen of the Parish of Chawton do by this my last will I testament give and bequeath to my dearest sister Cassandra Elizabeth everything of which I may die possessed, or which may be hereafter due to me, subject to the payment of my Funeral expences, & to a Legacy of £50. to my Brother Henry, & £50 to Mde de Bigeon - which I request may be paid as soon as convenient. And I appoint my said dear sister the executrix of this my last will & testament.

Jane Austen

April 27 1817

Although this simplicity may have worked in 1817 England, it isn’t practical in the here and now.  Things just aren’t that simple anymore.  First of all, although Austen appoints her sister Cassandra as the executrix of her will, the will itself neglects to specify what powers are included in that appointment, leaving Cassandra effectively unable to carry out Austen’s wishes.  Secondly, the will neglects to make alternative provisions—what if Cassandra had unexpectedly died before Jane? Also notably lacking (from our contemporary perspective) are any provisions for estate taxes. And finally, discerning readers may notice that the will does not include the signatures of any witnesses, something which is absolutely necessary in order to execute a valid will today (with the exception of holographic wills, which are often created in emergency situations, are entirely hand written, and do not require the signatures of witnesses.) 

We all may long for simpler times, especially when it comes to something most people think will only benefit their heirs and not themselves; but many of the rules and regulations that are dismissively thought of as “hoops to jump through” are there for your best interest.  They exist to protect your heirs and your legacy from fraud, misuse, greed and neglect.  Far from being a chore, creating a thoughtful and legally valid will these days is actually an act of love... One might even say it’s a matter of sense and sensibility.

Wednesday, August 04, 2010

You Know the Importance of Planning... But Do Your Aging Parents?

If you have been reading our blog then you know that this year—the year without a federal estate tax—is an important year, and that next year—when the estate tax returns—will be an even more important year for planning and reviewing your estate.  You know this... but do your parents?

Kimberly Palmer, author of this article in U.S. News and World Report says that “bringing up the estate tax with your aging parents can be as awkward as inquiring after their sex life.”  Talking about any kind of estate planning with your parents can indeed be awkward, but as Palmer points out it is extremely important... especially now when the repeal and reinstatement of the estate tax means that “ignoring the issue could mean giving Uncle Sam a big chunk of one's estate inadvertently.”

So how can you bring up the topic of estate planning with your parents without them thinking that you’re more interested in your inheritance than your parents’ well-being? The article mentioned above has a few ideas, including:

• Talk about your own estate planning experienceand how relieved you are that everything is in place.
• Talk about recent celebrity deathsthat have been in the news: George Steinbrenner, Michael Jackson, etc.
• Mention how concerned you areabout the uncertain estate tax situation.

Of course, the best policy is to just be honest. Tell your parents truthfully that you are concerned about their financial stability, about keeping the family peace, about your grasping uncle Mickey taking the antique dining set you’ve loved since you were a child.  Explain that you only want to help... but remember that the choice is ultimately theirs.  As author Deborah Jacobs says in the article, "if they don't want to talk about money, then you need to drop it and accept that this is not something you should pursue... If you have tense times towards the end of your parents' life because you're talking about estate planning, it will stay with you forever, and it's just not worth it."

Wednesday, July 28, 2010

Not Just Estate Tax Anymore

Anyone who has been following our blog knows that the expiring Bush tax cuts (including the repeal of the estate tax this year and the tax’s reinstatement next year) have given lawmakers no end of trouble as they struggle and debate—and debate and struggle—to agree on new tax legislation moving forward. In fact, The Wall Street Journal calls the issue “a ticking time bomb,” while the New York Times warns that “an epic fight is brewing.” It seems that the only thing everyone does agree on is that something has to be done before December 31, 2010.

Unfortunately, according to both news sources, politics takes precedence over legislation.  “The tax fight will serve as a proxy for the bigger political clashes of the year, including the size of government and the best way of handling the tepid economic recovery,” warns David M. Herszenhorn of the NY Times, “’...this is code for the role of the federal government, the debate over the size of government and the priorities of the nation.’”

According to David Wessel of the WSJ party lines are clearly drawn.  “The Obama administration is pressing to extend the Bush tax cuts for everyone with an income under $250,000 a year and to raise taxes on those above. A recent Pew/National Journal poll found that only 11% of Democrats favor extending all the Bush tax cuts.” Meanwhile, “Republicans are happily staking out the no-new-taxes turf, playing to their traditional constituency. Pew says 52% of Republicans favor extending all the Bush tax cuts.”

It would certainly give taxpayers some comfort if legislation could be passed quickly and decisively, but Herszenhorn warns that it’s not likely to happen, “Given the partisan gridlock of recent months, there is a chance that the battle could go down to the last minute, or even — in the face of a stalemate — that the tax cuts could be allowed to expire completely, a development that... lawmakers in both parties say could be the worst outcome.”

Either way, the best advice we can give our readers is to be prepared.  Just because lawmakers keep putting off a decision doesn’t mean you should.  Talk to your attorney about the best way for your family to weather the coming storm.  Be aware of changes to tax laws and update your estate plan accordingly.

Monday, July 26, 2010

The Comfort That Comes With Planning Ahead

Everybody thinks it won’t happen to them.  Or rather, everybody knows it’s going to happen to them eventually, but nobody thinks it’s going to happen tomorrow, or next week, or even next year.  The “it” of which I speak is, of course, death. It is this perceived immortality that allows so many people to put off their estate planning until it is too late. 

But today’s blog post is not a cautionary tale about a family who put off their planning and regretted it, today’s post is about the peace and relief that forethought and planning brings not just to your family, but to you as the person making the plan.

In this article in Market Watch Chuck Jaffe tells the moving story of his brother Rob, who insisted 2 years ago on creating an estate plan even though he and his wife were both healthy.  As Jaffe puts it, “While not pleasant subject matter, it was not morbid... you'd rather be drinking lemonade on the veranda, but it wasn't a sharp stick in the eye.”  However, when Rob became unexpectedly ill in May of this year the estate plan turned out to be a comfort to Rob and his family—such a comfort, according to Jaffe, that Rob “made me [Chuck] promise that I would write about him... when his time was up, because his story would help others.”

"People need to understand... how big a blessing it is to know -- when their time comes -- that they have everything in order, that they don't need to stress or worry about how things they worked their whole life for are going to turn out. ... I would not want to waste a minute of my life now having to do estate planning or worrying that I live long enough to get documents filed or whatever garbage comes with it... Focusing on death and dying while you are living, that's easy; having to focus on death when you are dying, that would be unimaginable."

In our business we frequently see how much easier it is for people to create a plan when they’re healthy, as opposed to the stress that comes with creating a plan when they are sick.  Thank you Mr. Jaffe for sharing your brother’s moving story.  We hope that your (and your brother’s) words will help motivate others to take comfort in planning ahead.

Friday, July 23, 2010

Should You Pre-Plan Your Own Funeral?

In just about every will or trust you will find something about the estate “paying the deceased’s final expenses,” otherwise known as funeral and/or memorial costs.  As a small portion of what can sometimes be a very large and intricate document, this “final expense” clause can seem unimportant—but we know better.

A funeral comes at a time when the death of a loved one is recent and close, and many people are still in shock and in some cases struggling with the reality of loss.  Funerals help grieving loved ones come to terms with death and say their final goodbyes… but for the person planning the funeral the experience can sometimes be a frustrating, painful, and expensive experience. Planning ahead for your own funeral—discussing it with your loved ones and even including your wishes in your estate plan—can remove this burden from their shoulders when the time comes.

Although pre-planning a funeral is essential, pre-paying for a funeral can actually be detrimental.  According to The Funeral Consumers Alliance there are just too many things that can go wrong, “[prepaying for] funerals may not cover every item of service you and your family expect, and there's often no guarantee the money you pay today will keep up with inflation to pay the cost of the service you've picked out.” In addition, “many state laws don't offer much protection for your prepaid funeral money.” If you change your mind or move out of the area there’s no assurance that you’ll get your money refunded. That having been said, although pre-paying may be a no-no, but setting aside funds—in an account, CDs, or a specially designated insurance policy—is always a good idea.

Talking about your wishes for “final disposition of your remains” is something that should always be discussed with your estate planning attorney. Whether you choose to pre-plan your funeral or not, having some basic instructions in your will or health care directive for your preferences regarding burial, cremation, organ donation and so on will be a huge help to your loved ones during a difficult and emotional time.

Monday, July 19, 2010

Estate Planning Advice for Ex-Pats and World Travelers

Estate planning can be a pretty involved affair, even for people whose lives are fairly straightforward; but if you are an ex-patriot, have dual citizenship, or plan to leave assets to family members in another country the estate planning process can by downright mind-boggling. This is because each country is going to have its own laws regarding heirs and distribution, while some governments (according to this article in the New York Times) will even “require their citizens or residents to pass assets on to people other than those whom they would choose.”

The United States has avoided these “forced-heirship” laws (although your state’s laws regarding distribution of assets in the absence of a will or estate plan may feel like forced-heirship), but these laws “are prevalent in many parts of the world, notably the Middle East, where Islamic law predominates, and continental Europe.”  If you are a United States citizen residing in one of these “forced-heirship” countries—or if you are a citizen of one of these countries residing in the United States—you will definitely want to talk to your attorney about how best to protect your family and your assets.

Just how you will go about building your web of protection will depend on a number of variables, including your citizenship, your country of residence, and in which country the assets were acquired or are held. Most estate planners agree that a trust is generally the best way to go about protecting your assets, but a trust may not work in every situation.  “The legal systems that have forced-heirship rules tend not to recognize trusts.” You may find that you’ll have to set up a will or estate plan in two places: one in your country of origin and one in your country of residence. 

And of course international estate planning is not all about heirs and distribution—especially if you have young children. International guardianship documents should be carefully drafted and should include provisions for temporary guardians, travel arrangements, and medical powers of attorney for minors.

Living in a global community has its pros and its cons—the best way to successfully span two countries or cultures is to be flexible... and be prepared!

Friday, July 16, 2010

One Man’s Trash is Another Man’s... Heirloom?

Families have a way of acquiring great numbers of treasured objects and mementos: photo albums, antique books, Wedgewood China... a mounted deer head?  You just never know what’s going to end up in the trash-heap and what will be kept and passed on to the next generation.  Ellen Lupton mentions in her recent article in the New York Times that she and her husband kept the Wedgewood China and (surprisingly enough) the deer head.  But the question she puts forth is... why?

Lupton’s article, entitled How to Lose a Legacy, makes the point that the difference between old stuff as trash and old stuff as treasure lies largely with you and how you choose to leave all this stuff to your heirs. “You can’t buy an heirloom at Pottery Barn or IKEA. It comes via gift, bequest or a heated sibling brawl.”

Lupton says early on in her article that “Even folks in the ‘die broke’ crowd, determined to enjoy their remaining assets rather than leave them to the ungrateful grandkids, may secretly hope the family will love and honor their dearest possessions.” But secret hopes aren’t of any use to your children or grandchildren after you’ve passed away.  Part of the job of an estate planner is to help you express these secret hopes to your heirs and leave your treasured possessions in safe and appreciative hands.

Of course your heirs are going to have minds (and memories) of their own, and your treasured silver cake platter could still end up in the local antique store; but the best way to keep your treasures in the family is to make sure your family knows your wishes.  If they know how much your grandmother’s English tea set meant to you (and why it meant so much to you) it’s going to mean that much more to them.

You may share a life and history with your heirs, but you can’t expect them to read your mind.  If you can put your stuff into context—let each heirloom tell a part of your story and reflect a meaningful relationship—the legacy you leave will be priceless.

Wednesday, July 14, 2010

Will Billionaire Steinbrenner’s Death Inspire Congress to Reinstate the Estate Tax?

Common superstition says that famous deaths come in threes, but the death of New York Yankees owner George Steinbrenner on July 13 makes four billionaire deaths in 2010.  It’s hard to deny the significance of such events in a year when there is no estate tax.

According to the Associated Press Steinbrenner’s family is set to receive a tax break of “about $328 million” because of the estate tax repeal this year.  This number, along with the millions of dollars saved (that would otherwise have gone to pay estate taxes) by the families of Dan L. Duncan, Walter Shorenstein, and Mary Janet Morse Cargill may inspire Congress to take action on the issue of the estate tax before the year is over. The Washington Post quotes Senator Bernard Sanders of R.I. as saying, “In the midst of this terrible recession, the idea of giving billionaires a massive tax break is obscene... Already we have four billionaire families who are not paying taxes -- Steinbrenner's being the last one. Many billions are being lost. We have to address that reality right now.”

Although there is still some talk of the possibility of the estate tax being reinstated retroactively, most lawmakers and attorneys agree that the further into 2010 we get the less likely this becomes. But missing out on the estate taxes of four billionaires has to hurt, and the members of Congress are not likely to drag their feet much longer.  One way or another, we can soon expect to see the issue of the estate tax become a hot topic of debate in Washington.  Our firm will keep you abreast of any changes to the law that could affect you, your loved ones, or your estate.

Wednesday, July 07, 2010

Communication is Key: Talk to Your Doctor About Your End-Of-Life Wishes

Part of creating an estate plan is talking to your spouse, your family—and yes, your attorney—about your end-of-life wishes. A living will or healthcare directive is an essential part of any estate plan. This is the document in which you nominate the person or people who will make healthcare decisions for you when you are unable.  It is also in this document that you specify what treatment you would (or would not) like to have at the end of your life. It is in this document that many people specify their do not resuscitate (DNR) orders; and once they’ve created and signed this document they think they’re all done. 

Not quite.

Studies have shown that even with perfectly executed healthcare directives many patients receive treatment they specifically did not want; this is because their wishes are unclear or have not been communicated to medical providers.  Some states have found a way to prevent this miscommunication... with a program called Physician Orders for Life-Sustaining Treatment, or POLST.  “The program involves an innovative medical form that is signed by a doctor, allowing patients to specify what kind of care they want at the end of life, such as feeding tubes and other medical interventions.”

The key here is that the medical form is signed by the patient’s doctor.  This requires patients to include their primary care physician in their decisions regarding end-of-life care—or at the very least notify their physician of these wishes—with excellent results.  A study published in the Journal of the American Geriatrics Society found that “patients with the Physician Orders for Life-Sustaining Treatment forms had much less unwanted hospitalization and medical interventions.”

This is wonderful news if you’re in a state like California or Oregon, which already has the POLST program in place.  But it doesn’t mean you’re out of luck if you happen to reside in a non-POLST state.  Even without the official POLST program, the key to having your end-of-life wishes respected is communication; communication with your doctor, with your family, and with the nursing or caregiving staff most likely to be attending you in an emergency situation. 

If you are concerned about having your wishes followed, don’t hesitate to talk to your doctor and/or nursing staff about your living will or healthcare directive.  Even have them read and sign off on it if necessary.  After all, a healthcare directive is a wonderful tool, but it doesn’t do much good gathering dust in your filing cabinet.  Make sure your family and medical staff are aware of your end-of-life wishes.

Monday, July 05, 2010

Heirs Pay the Price for a Do-It-Yourself Estate Plan

A recent article in U.S. News and World Report has brought the battle between professional estate planners and Do-It-Yourself document proponents out into the open.  As author Kimberly Palmer points out in the article, lawyers believe Do-It-Yourself is dangerous when it comes to estate planning, and they will certainly tell you so when asked.  But here’s the thing—estate planning lawyers rarely get asked.  EP attorneys don’t get D-I-Yers coming into their offices to ask questions; it’s the heirs of the D-I-Yers who will have to come in and hire an attorney when the Do-It-Yourself will doesn’t function properly.

There is a lot of legal knowledge, personalization, and attention to detail that goes into an estate plan, even if you are young and think you have negligible assets. The U.S. News article quotes one Brooklyn-based attorney as saying "Unless you are single and have absolutely no money...you need an estate planner.” There are just too many things that can be forgotten, misunderstood, or just plain go wrong; and a small mistake can lead to big problems, even to the extent of invalidating your entire plan.

For example, did you know that...

1. Although a will doesn’t usually have to be notarized, most states do require you to sign it in the presence of witnesses?
2. You should always nominate at least one back-up guardian for your minor children in case your first choice is unwilling or unable?
3. Although there is no estate tax in 2010, many heirs will actually end up paying more because of capital gains taxes?
4. Your will becomes a public document upon your death, leaving your heirs open to criticism, claims and contest suits by predators and disgruntled relatives?

These are issues that could completely de-rail all your good intentions in a Do-It-Yourself document, but would be easy for an estate planning attorney to anticipate and address. Contact our office (or your own trusted, local attorney) to ensure that your estate plan is current, comprehensive, and complies with all state and federal regulations.

Friday, July 02, 2010

No Estate Tax Means No Need to Plan, Right? . . . Wrong.

Since the estate tax was repealed at the beginning of this year many people have rejoiced in the thought that there’s no need to create an estate plan. While it may be true that for the moment, at least, your assets don’t need to be protected from outrageous estate taxes, there are still a number of reasons why it is not only beneficial but essential to have a plan in place for your finances after you pass away.

Attorney and accountant Bob Carlson has written an article in InvestingDaily.com in which he enumerates four reasons to create an estate plan even without the motivating factor of estate taxes (he calls this Legacy Planning):

1. Financial Security
2. Continuing management and caretaking
3. Protection (from creditors, predators and lawsuits, if not from taxes)
4. Other tax burdens (such as state taxes, capital gains taxes, gift taxes, etc.)

There are many things we do in our lives not because we have to, but because we know it’s the right thing to do.  Estate planning is no different.  Creating an estate plan is not just about taxes, it’s about you and your family planning for the future.  Creating an estate plan is about being there for your children even after you’ve passed away; it’s about protecting them, providing for them, and even teaching them fiscal responsibility.

Will the lack of estate taxes in 2010 lead you to ignore these other important reasons to protect your family and plan for the future?

Monday, June 28, 2010

How to Plan for the Future While Estate Tax Debate Continues in the Senate

With all the estate tax proposals currently floating around the Senate the future of the estate tax is anybody’s guess... but that doesn’t mean we’ll stop trying to figure it out. A recent article in the Wall Street Journal touches on some of the more recent (and more controversial) proposals floating around Washington.

The proposal that is currently getting the most attention comes from Vermont independent Sen. Bernie Sanders and three Senate Democrats who say that "It's time for multi-millionaires and billionaires to pay their fair share."  And pay they would!  According to Sanders’ proposal “the [estate tax] exemption would be $3.5 million for an individual or as much as $7 million for a couple, with a tax rate of 45%. But estates with taxable assets between $10 million and $50 million would pay a 50% rate, and estates valued above $50 million would pay 55%. A further 10% surtax would apply to assets above $500 million.”

Of course, it’s too early to get worked up just yet, Sanders’ proposal is just one of many right now, and the debate still rages in the Senate with no clear winner in sight.  Of course, if no action is taken the estate tax will come back in 2011 with a 55% tax rate on estates above a mere $1 million. 

Either way, you’ll want to be prepared, and the only way to do that is to keep in contact with your estate planner and make sure that your plan is designed to handle anything.  Although it may be tempting to wait to update your estate plan until a clear decision is made, all that really does is leave your family unprepared if something should happen to you while the tax is in flux.  Contact our office to find out what adjustments should be made to your estate plan to keep your family protected while lawmakers continue to debate the future of the estate tax.

Monday, June 21, 2010

The Estate Planning Needs of Women

We’re all about equality, but the fact is that women have different estate planning needs than men.  Whether they’re single or married, have children or no children, women have different things to think about when it comes to estate planning. This means that women need to be involved in the planning process: Express their own wishes, voice their own concerns, and ask their own questions.  Here are three of the ways that women are different from men—and how it affects their estate planning.

1. Women live longer than men.Among the senior citizen population (65 and older) more than three times as many women as men are widowed. This longer life expectancy means two things; first of all it means that women are the ones who will likely have to deal with taxes.  When a married person dies their assets can transfer to their spouse tax free.  This doesn’t avoid taxes it merely delays them, and the surviving spouse (the woman) will have to be the one to minimize the tax burden on the children.  Second of all, women have to worry more about their retirement savings lasting them to the end. Estate planning is partially about distribution of your remaining assets when you die—it takes careful planning to ensure that you’ll have remaining assets after a long and active life.
2. Women are the caregivers.This includes taking care of young children and elderly parents.  Statistically, women are the ones who will initiate the estate planning process—mainly because they are concerned about the guardianship of young children.  Women are also the ones who will eventually have most need of a caregiver agreement or help navigating the Medicaid application process when they’re caring for their older relatives.
3. Women need to be most concerned about loss of primary income.Because men are still generally the primary breadwinners in a family, women are the ones most often left out in the cold when their spouse passes away and they lose that income stream.  Women need not only to make sure they and they’re partner both have adequate insurance policies, they need to plan to keep those insurance proceeds avoid heavy taxes upon death.

All of these things can be discusses and planned for with your estate planning attorney—and it doesn’t take away from your spouse or children.  In fact, having your own plan in order actually helps the important people in your life.  So don’t wait any longer, plan to protect yourself today and in the future.

Friday, June 18, 2010

It’s a Dog’s Life

There seems to be some confusion nowadays about whether “a dog’s life” refers to a life of ease or toil, but for these wealthy canine heirs life is definitely the former!  Whether it’s a wealthy eccentric leaving millions to a dear canine companion or whether it’s a lover of animals leaving a portion of their estate to charity, more and more dogs (and other animals) are being included in wills and trusts.

Naming your pet in your will or trust may be odd, but it’s perfectly legitimate.  Unfortunately, disinherited family members may not always agree.  When Leona Helmsley passed away in 2007 she left $12 million to her dog Trouble, but that amount was reduced by Judge Renee Roth of the Manhattan Surrogate Court to a mere $2 million.  The current canine court battle is over the will of Miami heiress Gail Posner, which leaves $3 million to her dog Conchita, as well as $26 million split between seven of her bodyguards, housekeepers and other personal aides.

Naming your pet in your will may be perfectly legitimate, but the truth is that there is nothing to stop disgruntled family members from contesting your wishes.  If you choose to do something “unusual” in your will or trust, or if you know of family members who are likely to make trouble, it may be necessary to take extra precautions to ensure your wishes are followed.  Inform your estate planning attorney of the potential conflict and discuss what steps can be taken to prevent it.  In some cases “no contest clauses” can be added to a will or trust to discourage court battles.  In other cases a simple meeting of all family members with your attorney to explain your wishes and reasoning will do the trick.  Talk to your attorney or call our office to find out what can be done to keep the peace in your family—canine or human.

Wednesday, June 16, 2010

More News About the Repealed Estate Tax

Six months into 2010 and the estate tax repeal is still making news.  This time it’s a story about Texas billionaire Dan L. Duncan who died in March, leaving all of his billions to his spouse, family and various charitable organizations... and none to the government:

“Had his life ended three months earlier, Mr. Duncan’s riches — Forbes magazine estimated his worth at $9 billion, ranking him as the 74th wealthiest in the world — would have been subject to a federal tax of at least 45 percent. If he had lived past Jan. 1, 2011, the rate would be even higher... Instead, because Congress allowed the tax to lapse for one year and gave all estates a free pass in 2010, Mr. Duncan’s four children and four grandchildren stand to collect billions that in any other year would have gone to the Treasury.”

According to the NY Times article this news is meeting with mixed reactions.  Opponents of the estate tax (sometimes called the death tax) are hoping to make the repeal permanent.  Others, however, don’t agree:

“’The ultrawealthy in this country will still be able to pass on enormous wealth to the next generation,’ said Chuck Collins, who studies income inequality and has worked with billionaires like Warren E. Buffett and Bill Gates to promote an estate tax. Mr. Collins argues that the tax is a ‘recycling program for economic opportunity.’”

Whatever happens in future years, considering that this year is already half over it can only be hoped that heirs and executors won’t have to worry about the tax being reinstated and made effective retroactively; which leaves us free to look ahead and plan for 2011 when the estate tax comes back at a whopping 55%. If you’re wondering how all these changes will impact your estate plan today, tomorrow, or years in the future please call our office.

Monday, June 14, 2010

Options Abound With Out-of-State Trusts

If you have a family trust—or are considering creating a family trust—to protect your assets you may want to ask your attorney about creating an out of state trust. It’s a grantor’s market (so to speak) and creating a trust these days doesn’t mean you have to simply accept the tax laws of your state of residence.  Creating a trust in another state—with tax laws that are friendlier to trusts—is a perfectly legal option, “the only real requirement is that [you] choose an in-state trustee.”

As we mention frequently on our blog, there are many reasons for families to create a trust: credit protection, keeping assets in the family, estate planning, educational savings, and many more.  Furthermore, trusts are no longer an exclusive tool for the rich and famous; trusts are useful for just about everybody, and the states recognize this.

“States such as Alaska, Delaware, Nevada, New Hampshire, South Dakota and Wyoming have modified their trust laws in recent years to make them more attractive to individuals and families, including nonresidents, looking to minimize taxes, shield assets from creditors and preserve family assets in the event of a divorce, among other things.”

If you would like to explore your options for out-of-state trusts we recommend working with your local attorney, someone you trust who can meet with you when needed, who can draft the trust documents for you.  Your local attorney can then have a licensed attorney from the state of your choice review the documents for state-specific issues.

Friday, June 11, 2010

How To Choose Your Executor or Personal Representative

Serving as someone’s executor or personal representative is a HUGE job, and not for the faint of heart.  Although it is commonly considered an honor, there is a lot of work involved, and an executor must have a great capacity for organization, attention to detail, meeting deadlines, and more.  You may be tempted to name your favorite sibling or eldest child just to keep from hurting any feelings, but your family and heirs will not be well served if you choose your executor based on emotion rather than ability.

Keeping this in mind, here are 4 things to consider when choosing your executor or personal representative:

1. Your executor should be trustworthy.Your executor will be privy to all of your financial secrets: reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to heirs. Chances are you don’t want all that information spread throughout the family or community.
2. Your executor should be organized.The person you choose will be in charge of a number of detailed tasks, both large and small.  He or she will be making lists of assets, meeting court deadlines, making timely distributions for estate taxes, and more.  Missing or being late for one of these many steps can draw out the entire process, costing your heirs both time and money.
3. Your executor should be financially savvy.One of the responsibilities of executor is to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. If you have investment accounts you’ll want to ensure they won’t languish and lose their value before they can be distributed to your heirs.
4. Your executor should have heart.  Although probate is a can be a difficult and detailed process, it is at its core about the people you love.  Your executor should have the ability to be caring and compassionate during this emotional time. 

If you don’t know anybody you would trust with all of these responsibilities don’t lose faith, there are other options.  You can choose a bank or financial institution as your executor, or you can ask your estate planning attorney to partner with the person you choose as executor—helping them with the difficult tasks and ensuring a smooth probate for all involved.

Friday, June 04, 2010

Ensure that Your Retirement Savings Goes to the Right People

Do you know how your retirement plan fits into your estate plan?  Ideally you would never have to worry about this; you would spend the last penny of your savings on the day you die.  But life rarely works out according to ideal circumstances, and the reality is that doing a little bit of estate planning for your retirement savings can save your heirs a whole lot of money and confusion.

The good news is that it’s fairly quick and easy to make arrangements for the distribution of your retirement assets after you die—that’s why you fill out all those beneficiary forms when you start a new job or open a new retirement account.  The bad news is that it’s also fairly easy to forget about these forms as the years go by, which is how too many people end up inadvertently leaving their retirement assets to a divorced spouse or aging parents rather than to their current spouse or children.  How can you ensure that your retirement savings will go to the right people?

• First and foremost, you’ll want to review your beneficiary designation forms frequently: every 2-5 years, and whenever you experience a major life event. 
• Second, always name contingent beneficiaries!  You may feel that if you name your spouse as the primary beneficiary you’ve done all you need to do, but in life you should always have a fallback plan, and your retirement assets are no exception.
• Third, don’t count on your will to take care of everything.  Your named beneficiaries on your retirement account will override the beneficiaries named in your will.  If you are certain you want to leave your retirement assets to your estate, do so through a living trust and under the advice of an estate planning attorney.
• Fourth, if you’ve named minor children as beneficiaries (either primary or contingent), make sure you name a guardian for your kids and a trustee for their assets.  You may want to use those retirement funds to provide for the kids if anything happens to you, but minors cannot legally control assets, and they’ll need someone to manage their inheritance for them until they come of age.

If you have more questions about fitting your retirement assets into your estate plan, more information is available in this article from InvestorGuide.com, or call our office for more detailed and personalized information.

Friday, May 28, 2010

Planning for the High Cost of Raising Your Child AND Your Family

How much does it cost to raise a child from birth to age 18?  Online calculators now estimate the cost at about $250,000 (varying depending on where you live around the country), but any parent will tell you that it costs much more than that to raise a family.  This is because children don’t grow up in a vacuum.  Raising a child includes the cost of food, clothing, diapers, child care, and other necessities... Raising a family includes all of the above plus college education, insurance, retirement savings for mom and dad, and let’s not forget a little bit of estate planning.

Does estate planning really rank up there with college savings and retirement?  If you have a growing family the answer is an absolute yes.  Financial experts such as the one quoted in this article in the Boston Globe will agree; your estate plan is a kind of family insurance, and is just as important as your homeowners or life insurance policy.

Raising a family and creating your estate plan both require the kind of split thinking that allows you to look at the long-term future while still keeping yourself firmly grounded in the necessities of the here and now.  Just as parents must consider both onesies and universities, roller skates and retirement—so must your estate planning take into consideration what your family would need if you were to disappear today, as well as planning for the possibility that you could be alive and well and spending your money long past the age of 85 or 90.

If you have a growing family—or are a young couple about to jump into the joys of parenthood—don’t let the demands of the here and now blind you to the needs of the future.  Schedule time every few months or so to sit down with your partner and re-evaluate your current financial situation as well as your future financial portfolio and your estate plan.  Make sure they continue to reflect your long-term needs and desires.

Wednesday, May 26, 2010

Stay Current and You’ll Stay Protected

In many of our previous posts we’ve stressed the importance of keeping your estate planning documents up-to-date.  Changes to the law, as well as changes to your own personal, medical and financial status can wreak havoc on a well-crafted estate plan if these changes aren’t addressed.  A good rule of thumb is to have your attorney review your estate planning documents every 2-5 years, but are there other changes or life events that might necessitate a more immediate review or update?  The answer to that question is YES!

Andrew Chan has written a short article for the Boston Globe in which he lists 13 significant life events that should have you reaching for the phone to call your attorney.  To go to the article and read his list click here.  To Mr. Chan’s list we would add just a few more life events that could have an effect on your estate plan:

• A change in residence—especially if you move to a new state.
• Children or grandchildren turning 18 or graduating from college—this may or may not change your estate plan, but at the very least your young adults will now need their own health care directives and privacy forms.
• If you anticipate one of your relatives or heirs disagreeing with your wishes and challenging your will.

There are of course a great number of things which could impact your estate plan, not all of which can be named in one article or blog post; but if you stay aware—and stay in touch with your estate planner—you can rest easy that your plan will continue to function exactly as you intend.

Monday, May 24, 2010

Back to Basics: Forethought and Planning Prevent a World of Hurt

Wills and estate plans are always touchy subjects among family simply because they can have so much hidden meaning... at least that’s what heirs often think: 

I got mom’s jewelry but my sister got a cash gift—does that mean mom loves her more than me?

What’s wrong with me that Dad didn’t choose me as executor?

I never really liked the vacation home, but is my brother trying to cheat me by buying me out?

If I ask my parents about their estate plan now will they think I’m eager for them to die?

Wouldn’t things be so much easier if we could just lay all the estate planning issues on the table and discuss them openly and without judgment?  Well, that is exactly what this article on abc.com suggests we do.

The article includes 3 “Estate Planning 101 Inheritance Lessons” to help your family become better prepared for the inevitable: 1. practice honesty and transparency, 2. plan ahead and update often, and 3. think through your own wishes and the wishes of your heirs.  Three simple suggestions that can save you and your heirs a world of fighting, hurt feelings, and high legal fees later on.

But it’s not always easy to start such a sensitive conversation with family—that’s where our firm comes in. We can help you with the tough questions and decisions, and when the time comes we can help you discuss those questions and decisions with the rest of your family.  Although it’s tempting to simply bury your head in the sand, the longer you put it off the more difficult it becomes.  Let us help your family find a peaceful solution today.

Friday, May 21, 2010

Senate Considers Option to Prepay Estate Taxes

2010 has been anything but ordinary as far as the estate tax is concerned.  First there was the unexpected repeal of the estate tax (unexpected not because the repeal was unplanned, but because nobody expected it to actually happen), then the idea that congress could reinstate the estate tax and make it effective retroactively, and now there are rumblings that certain  Senators are considering a prepaid estate tax!

According to this article in the Christian Science Monitor, “News reports suggest that the Senate may soon consider restoring the estate tax with an option allowing people to prepay their tax before they die. Details are apparently still in flux as senators negotiate. We—and maybe they—don’t know yet what they’ll propose for the basic estate tax but it’s unlikely to be harsher than the 2009 version.”

If something like this gets passed, a visit to your estate planning attorney will be more important than ever, especially if you have the wealth to protect and the means to spend some money now to save a lot of money later.

Of course, this is all just speculation right now, but even the idea of prepaid estate taxes tells us just how much the government is counting on that revenue—one way or another.  If you were under any illusions that the repeal of the estate tax might turn into a permanent thing this should be more than enough to convince you that the estate tax is here to stay.

Wednesday, May 19, 2010

Harvard or Shady Oaks? How to Choose Your Financial Priorities

There are any number of things for which you can be earning and saving money: investments, retirement, college, a home, a car, the current high-tech gadget... The thought of it all is enough to make a person dizzy!  So how do you decide what are the most important things for your family’s financial happiness and security right now, and years down the road?  Choosing your financial priorities requires taking stock of the present, a lot of thought about the future, and a little bit of help from trusted advisors.

Robert Brokamp has written an article entitled “Should You Save For College Or Retirement”, which focuses on helping families and individuals organize their financial priorities.  In spite of the title of his article, what Brokamp really stresses that there is more to good financial health than just college or retirement; a good financial future means taking care of your finances now by paying off credit cards, building an emergency fund, and having adequate insurance.

Building a strong financial future includes more than just planning for college and for retirement, it should also include planning to ensure your family’s financial security should something happen to you.  Brokamp alludes to this in his article when he mentions purchasing an adequate life insurance policy, but he neglects to mention how little that policy will actually provide if your assets are eaten up after your death by estate taxes, probate fees, or a young and spendthrift son or daughter.

When it comes to your financial health, our firm may not be able to help you with the credit card fees, but we can help with the rest—especially ensuring that your efforts to save right now will not go to waste years down the line.

Wednesday, May 12, 2010

Trade Like A Man, Save Like A Woman

How will you be planning for your retirement? According to CNBC your gender could play a bigger role than you think in your retirement plan. While of course not everyone will adhere to gross generalizations, studies have shown that men and women do have a tendency to take a different approach to saving and investing for retirement. Which way is the right way?  Well, as John Ameriks points out in the article, “It's not a matter of one gender being right and the other wrong... You just need to be aware of the differences when you're making investing decisions.”

 The differences may not be as surprising as you think.  Here are some of the things CNBC had to say about how men and women invest and save:

• Men tend to be overconfident about their investing and retirement planning skills.
• Women generally prefer less risky investments.
• Men don't plan for a long retirement.
• Women save more over time.

Considering the fact that our society still tends to view the stock market as “a man’s game”, and one with which women aren’t quite as comfortable, it makes sense that a man would be more confident with frequent buying and selling, while a woman might tend to go for the safer investment requiring less action and attention over the long haul. But lack of attention doesn’t necessarily mean lack of awareness.  Women tend to worry more than men about security in their Golden Years.  The article posits that this is because many men don’t expect to live much past 80, but another possibility is that men have more confidence in their ability to earn a living at any time in their lives; whereas women (who are often the ones to leave the job market in order to care for family) are more afraid of having to depend on an outside source for their livelihood.

Part of planning for your retirement is planning for your estate.  Whether you are a man or a woman, adventurous or conservative, a trader or a saver—your retirement plan and your estate plan need to be in line with each other.  Our office can help ensure that your retirement and estate plans are compatible... both right now and decades down the line.

Monday, May 10, 2010

Robin Hood Lives On: Tax Breaks to Help Your Family

It may seem like you just can’t catch a break when it comes to paying taxes, but according to this article in the Wall Street Journal there are a few little known tax breaks that could end up saving your family money.  Some are new—so new, in fact, that it is still before the Senate—such as the tax exemption for employer provided cell phones and smart phones; and some—like the tax free income homeowners can earn if they rent out their home for 14 days or fewer during a year—have been around for a few years.

Of particular interest to our clients is the gift tax exclusion (another lesser known tax break that has been around for a few years.) As stated in the article, “Anyone may give anyone else up to [$13,000] per year in cash or property, free of gift tax. One partner of a married couple can double the gift and the exemption. So a couple with three married children and six grandchildren could give away over $300,000 a year, tax-free.”

We say that this gift tax exclusion may be of particular interest to our clients because if you are looking for a way to lower your estate tax, or anticipate applying for government medical services in the next few years, giving gifts to loved ones right now may help you achieve your goal—if you go about it the right way.

Contact our office for more information on how any of these “Robin Hood” tax saving techniques may help your family this year.

Friday, May 07, 2010

Take Action in the Face of Estate Tax Uncertainty

If you’ve been reading our blog regularly then you know that the 2010 estate tax repeal has caused no end of confusion and uncertainty; not only for those who have been dealing with probate and trust administration since the tax was first repealed, but also for those who are trying to think ahead and do the right thing for their spouses and children.  Many people have come to the erroneous conclusion that they have no choice but to stand by and wait until the Washington politicians make up their minds about whether or not to restore the estate tax retroactively—but we’re here to tell you that you don’t have to wait to protect your assets and your family.

Forbes.com recently published an article entitled How to Protect Your Family From Estate Tax Uncertainty.  This article suggests that there are a number of steps you can take right now to protect your heirs and your assets, even if you don’t know what changes lawmakers may enact tomorrow or 2 months from now. Their suggestions include everything from working with your estate planning attorney on contingency plans to account for anomalies such as no estate tax or minimum exemptions, to common sense action items such as taking the time now to track your cost basis for assets (to help your executor and heirs determine the change in value for tax purposes.)  The Forbes article also suggests that some people may want to plan to save by giving—taking advantage of the gift tax exemption amounts.

There are always steps you can take to ensure that your estate plan is up to date, our firm can be your compass and your guide; we can help your family prepare for whatever the future may have in store.

Monday, May 03, 2010

Recent Deaths Bring Home the Consequences of No Estate Tax in 2010

There was too much confusion to be much rejoicing when the estate tax was repealed for a year on January 1^st, 2010.  Although the words “no estate tax” may sound good, nobody really expected the state of affairs would last.  Most experts believed that Congress would never actually let it happen in the first place; then when ’09 became ’10 without any action on the estate tax repeal that the George W. Bush administration had put into place experts warned people not to get too comfortable, that a retroactive estate tax would likely be implemented.

Well, we’re 4 months into 2010 and there is still no retroactive estate tax—but there is also still no rejoicing.  This is because the lack of estate tax has actually created more problems than it has solved for the wealthy and affluent.  According to this article in Financial Advisor Magazine the recent deaths of Texas billionaire Dan Duncan and Taco Bell founder Glen W. Bell, Jr. have only made it clear to tax attorneys that “lawsuits of various kinds will blossom in the estate-tax vacuum. The more money left on the table when the wealthy die, the more likely heirs are to fight for years over who should inherit.”

And you don’t have to be a billionaire to feel the consequences of the lack of tax.  This article in Bloomberg Businessweek explains that those who think they’re catching a break on the estate tax could instead “...wind up paying stiff capital-gains taxes on inheritances. That's because of the disappearance of what's known as the "step-up" in basis, which allowed assets to be revalued for tax purposes at the time of death.”

But even this is preferable to finding yourself unintentionally disinherited by standard estate tax clauses included in older wills and trusts, a scenario that is more likely to happen than you may think if your spouse or parent hasn’t had their estate plan reviewed yet this year. 

What is the bottom line?  Every silver lining has a dark cloud, and you want to take every precaution possible to keep your heirs safe from the storm during this “gap year” in the estate tax.

Wednesday, April 28, 2010

Family Feuds: Your Estate Plan Can Save Your Kids’ Relationship

Parents want to think the best of their children, but the fact is that many adult children lose their perspective in the wake of the death of a parent and end up permanently damaging their sibling relationships.  When mom or dad dies the hurt and emotion takes over; insecurities come out, deep-seated rivalries make themselves known, and logic goes out the window. What all of this can lead to is years and years of brothers and sisters taking each other to court, spending thousands of dollars of your estate fighting over mementos and heirlooms, and lifetime relationships in shatters. . . Unless you have an estate plan.

A recent article by Scripps Howard News Service explains that the best way to prevent this from happening to your children is by creating a good estate plan. A good estate plan can be a great comfort to your children, and can save them thousands of dollars in probate and legal fees; and most importantly, a good estate plan is very clear about your intentions for your assets, leaving no room for court battles or ugly disagreements. But getting that good estate plan takes time and forethought—and the help of a professional.

A good estate plan takes into account the relationships and personalities of your heirs, as well as your own wishes.  If one of your children has a problem with substance abuse, or if two of your children had a fight 10 years ago and still don’t speak, those things are considered in the creation of the plan.  A good estate plan deals with small items and family heirlooms with emotional value, as well as real property and valuable liquid assets. A good estate plan is created with the idea of creating the best future for your heirs; it doesn’t leave the difficult decisions to be made by others when you’re gone.

If you would like to know more about how to smooth the way for your children and grandchildren, contact our office.  We can help you create not just a good estate plan for your situation, but the best future for your family.

Friday, April 23, 2010

Your Family Is One-Of-A-Kind; Your Estate Plan Should Be As Well

According to statistics the average U.S. family size is 3.2 members.  The median age of a man upon his first marriage is 28.1, the median age of a woman is 25.9.  Also according to statistics, approximately 60% of couples own their home, 70.7% of mothers with children under the age of 18 go back to work, and 6% of men are likely to be unemployed.

Do these statistics accurately portray your family?

“Average,” “median,” and “approximately” may be fine for statistics, but it’s certainly not what you want from your estate plan.  Your estate plan should represent your family; your hopes for the future as well as your current needs.  This may include a nomination of guardian and education trust for young children, it may include a special needs trust for your disabled adult child, or it may include incentive trusts for unambitious heirs. Alternatively, you may find that you need none of these, and that a will and simple ancillary documents will serve you just fine.

Whatever your family’s needs may be, you want them to be met by a keen, compassionate, and knowledgeable attorney; someone who will meet you face to face and listen to your concerns with an open mind, not a machine which will spit out a standard document based on numbers and averages. Estate planning may be a business, but it’s also an art, and as such it takes a real person to help create the plan that will provide for you and your family now and in the years to come. The members of our firm have our own families, we understand that you want the best for your family, and we want to help.

Wednesday, April 21, 2010

Sharing Your Passion With The People Who Matter

What is your passion?

Do you love reading and collecting books?  Are you a rabid coin or stamp collector?  Do you find peace and tranquility out tending your garden?

Whatever it is that you love to do in your “off time”, you can bet the people closest to you know it.  These are the people who give you that antique seed cabinet that you would never buy for yourself; it’s the person who finds the Ted Williams baseball card for a steal at an estate sale and presents it to you for your birthday; or the friend who happily goes with you to the antique car show because he knows hobbies are better when you have someone to share them with. These are the friendships that last a lifetime, the people who sometimes seem to know you better than you know yourself; and yet oddly, these friendships are often forgotten when people create their wills and divvy up their estates.

Many people go to their estate planner with their descendents and their financial assets foremost in their minds, and that is as it should be; but your estate plan can be more than a just a way to distribute property to the next generation, it can also be an opportunity to say thank you to the people who have touched your life by sharing with them the accoutrements and paraphernalia of your hobbies and passions.

You can express how much you appreciate your best chess opponent by leaving her your favorite chess board; or you can encourage the interest of your young philatelist nephew by bequeathing to him your extensive stamp collection; all you need is an estate plan which includes some kind of personal property memorandum.  A personal property memorandum is not a difficult legal document to create—in fact, it will often be a very informal document—but it does require some forethought to ensure that your formal will or trust recognizes and refers to the memorandum.

Our office can help you create an estate plan that not only ensures the protection of your heirs and property, it also helps you leave a meaningful ‘thank you’ to the people who matter most.

Friday, April 16, 2010

Real Estate Investments Bring Real Long-Term Value to Families

If there is one way to be sure money stays in the family and grows over time it is through real estate. Despite the year-to-year ups and downs of the real estate market, the value of real property continues to grow over the long term.

Real estate is often considered a comparatively easy way to maintain and grow wealth because it doesn’t require the kind of daily attention—or stress!—that a business demands. Depending on the type of property, real estate typically requires duties that are annual or month-to-month, such as maintaining the physical structures, paying property taxes, making insurance payments, getting updates from property managers, and the like.

What real estate investors might be slow to realize is that property ownership carries with it significant liability risks. Unless the precautionary measures are taken, one small misstep can result in the loss of all your real estate holdings. Imagine it, one person slips and falls in front of one of your properties, and suddenly ALL of your holdings are at risk.

Preventing this kind of mess is not as difficult as you might think—for example, putting each of your properties in its own separate legal entity is one technique that can be used to protect all of your properties (and yourself) from lawsuits. Our firm can help you with this and other asset protection techniques.

We know how important it is to keep your family and your finances safe, and we are dedicated to helping you achieve that security. Call our office and let us tell you how we can put our expertise to use for your benefit.

Wednesday, April 14, 2010

Questions to Ask When Choosing a Guardian for Your Child

Choosing a guardian for your children is one of the most difficult things you may ever have to do as a parent, and if you have a special needs child the task is even more difficult.  From parenting style to living situation to your gut feeling about this person’s ability to love your child as well as you do—there are endless things to consider before you ask the big question.

In honor of Autism Awareness Month, MassMutual has published a list of 10 questions for parents to ask themselves when choosing a guardian for their child with autism or special needs.

Although the list is supposed to be for parents of children with special needs, the questions are a helpful road map for any parent, not just parents of special needs children.  MassMutual’s ten questions cover issues such as considering how close the person you are considering as guardian currently lives to your child, whether he or she is financially able to assume the responsibility of guardian, and whether you should name a second or third person or couple as backup guardians. These are important questions that all parents should ask themselves before choosing a guardian.

Having children means always planning ahead and thinking about the future, even as you try to live in the present and appreciate the small moments in every day. Nominating a guardian for your children makes it that much easier to focus on the here and now, because in the back of your mind you’ll know that your children will be protected if something happens to you. Let our firm help you achieve that peace of mind.

Friday, April 02, 2010

One More BIG Reason to Have a Health Care Directive

Do you have a health care directive?  If not, the Los Angeles Times has just given you one more reason to create one: Advance directives for end-of-life care result in preferred treatment.

That’s right, according to the recent article; those people who have recorded their wishes for end-of-life treatment have their wishes followed by agents and doctors over 80% of the time.  According to a health and retirement study done between the years of 2000 and 2006, “researchers found that of the 398 incapacitated people who had used a living will to request limited care at the end of life, almost 83% received it...” and “...Of the 417 incapacitated people who had requested comfort care in a living will, 97% received it.”

Those are huge percentages, especially when you consider how easy it is to create a health care directive or living will.

There is no down side to recording your wishes and nominating a trusted agent to help ensure those wishes are followed—it brings you peace mind, it brings comfort to your family members, and our office can help you execute one quickly and easily.  Knowing all this, as well as the fact that studies now show how truly effective they are in getting you the treatment you desire... there’s really no reason to delay any longer.  Call our office for more information.

Monday, March 29, 2010

The Receiving End of Estate Planning

We publish a lot on this blog about preparing your estate plan: writing a will, setting up a trust, choosing beneficiaries and nominating guardians; but there is another side to estate planning, a fun side... the receiving end.

You may assume that the receiving end of estate planning is the fun and easy part, but that is not always the case. Coming into an inheritance presents its own questions and challenges; financial, logistical, and personal.

Financial

Receiving an inheritance always means you have to think about taxes.  Estate taxes, income taxes, property taxes... The estate tax this year is not as clear as it has been in the past, and you will probably want to have an attorney or accountant help you with it.  Whether or not you have help, you will absolutely want to keep paperwork on everything.  This includes paperwork from any transfers of inherited property made by you, as well as any and all of the original paperwork you can find for the inherited assets.

Logistical

There is a lot more to an inheritance than simply getting money and spending it.  Are you the nominated guardian of young children, holding those assets in trust for their benefit?  Or perhaps you are the beneficiary of a trust, and your receipt of the assets is subject to the terms of that trust.  Do you have to use the money for school?  Do you need to approval of a trustee before you can spend it? Hopefully you are working with a trustee you know and trust, but if you and the trustee disagree you may need mediation or even your own attorney.

Personal

Inherited property is almost always very personal and fraught with emotion.  Should you really sell the house grandma lived in for decades and use the money to take a cruise? (If so, wait until after taxes to buy the tickets.) Would your parents have wanted you to use the money to pay for a wedding, or save it for your retirement? Do you want to take the summer home that’s been in your family for generations and own it jointly with your new spouse, or keep the property on your side of the family?

Whatever you choose to do with your inheritance, it’s likely you’ll need some guidance from a knowledgeable and trustworthy professional.  Your estate planning attorney can help.  Our knowledge of the probate system, estate taxes, and creating vehicles to protect your assets can answer your questions regarding the receiving end of estate planning as well as the planning.

Friday, March 26, 2010

The Cold, Hard Truth

“No one wants to think about dying. But refusing to look at the documents that will determine where your money goes when you pass away will not make you live longer. It will just make sorting through everything more difficult for your heirs.”

So begins Paul Sullivan’s recent article in the New York Times, and we must admit, we couldn’t have said it better ourselves. Most people simply don’t want to deal with what they imagine will be a mountain of decisions and paperwork to create an estate plan, and they especially don’t want to think about their own death.  It’s not that they truly believe avoiding it will help them live forever, it’s just that they know they aren’t going to die tomorrow or next week, so estate planning really isn’t a high priority... yet.

It’s time now for some straight talk.  Any one of us—including you—could die tomorrow.  Or next week.  You could be in a car accident, your plane could crash, or you could simply be in the wrong place at the wrong time. If and when that occurs, what will happen to your spouse and children?

There are two answers to that question:

1. If you have no planning in place your assets will likely go through a lengthy and expensive probate process, losing some value in the process, eventually to be divided amongst your closest living relatives.  If you are married your spouse may have to fight your parents about your wishes regarding burial and memorial. And if your spouse dies with you in that terrible car crash your children will be raised by whichever faintly qualified relative steps up to the plate—your parents?  Your in-laws? Your 23 year old sister? And if nobody steps up...
2. If you DO have planning in place your assets will transfer quickly and smoothly to the beneficiaries you’ve named, in the amounts you have specified.  If you have a spouse that person will be taken care of, while perhaps some of your estate is set aside for your children’s education, or to help them buy a home. Your children will receive their inheritance at a time of your choosing; when you feel they will be ready for the responsibility. Your parents and your spouse will know exactly how to arrange your burial and memorial, and will feel a sense of peace and closure knowing that they are following your wishes.

These are hard truths, and no one denies that they are difficult and uncomfortable to consider, but the heartache that can result from neglecting to think about these things is even more painful to imagine.

Wednesday, March 24, 2010

3 Reasons to Discuss Estate Planning With Your Ex

Creating an estate plan to protect your minor children is one of the most difficult—and most important—things you will ever do; this is especially true if you and your child’s other parent are separated or divorced. Relationships don’t always end amicably, but if you do have children it is definitely worthwhile to put aside your differences with your ex long enough to discuss estate planning for the sake of your kids.

There are three major things to consider when estate planning during or after a divorce:

1. Guardianship
2. Financial inheritance
3. Remarriage

Guardianship:According to the law, if you pass away guardianship passes to your child’s other biological parent; this is the case even if you had full custody (unless it is determined that the surviving parent is unfit). This is something to keep in mind when you are nominating guardians.  If you and your ex can sit down and discuss guardians together and agree on a few alternates it will make everyone (including your child) feel more secure about the future.

Financial Inheritance:Although many divorced couples may feel comfortable with their ex as guardian, most are dead set against their ex having any control over their finances. How then can you leave your estate for the benefit of your child without leaving it in the hands of your ex? The solution is to put your child’s inheritance in trust until they come of age, with a person you know and trust acting as trustee. Your trustee will have the responsibility to keep and maintain the trust, giving distributions to the guardian for the benefit of your child.  Keep in mind that your trustee and guardian will have to work together quite often, if you and your ex can agree on someone with whom you both are comfortable it will make the process much easier on your trustee, your ex, and your child.

Remarriage:When you marry there is an inevitable mingling of finances, and this is no different for a second or third marriage.  However, if you don’t make provisions for your children in your estate plan your assets will end up going entirely to your new spouse when you die, leaving your child(ren) out in the cold. This can be easily addressed in your estate plan (or your ex’s estate plan, if he or she is the one getting remarried) as long as you talk to your attorney and take action now, before it’s too late.

If you are going through or have gone through a divorce please call our office and let us help.

Wednesday, March 17, 2010

Estate Tax to Again Become an Issue in the House

Could it be that some movement finally happening in the House of Representatives with regards to the estate tax? 

It looks like it may be, if we are to believe this recent article in Bloomberg Business Week. According to the article, the House Ways and Means Committee has plans to begin discussions in April (after the spring break) about former President George W. Bush’s tax cuts benefiting the middle class. 

Of special interest to our clients is the section about the estate tax, found at the bottom of the article:

“...The committee would begin work to retroactively reinstate a federal tax on multimillion-dollar estates that expired Dec. 31. The legislation would likely seek an extension of a 2009 law, which applied a 45 percent tax rate on the value of estates that exceeded $3.5 million per individual... One possibility being considered... would let heirs choose to pay the capital gains tax that replaced the estate levy if that is more beneficial.”

Just one more reason to be sure you see your estate planner as soon as possible in 2010.

Wednesday, March 10, 2010

Ensure Your Wishes for Medical Treatment are Followed: Share Them With Your Doctor

This time of year often involves spring cleaning for many families: reorganizing the closets, clearing the weeds and brush from the yard, and getting rid of all those boxes in the garage or basement.  Spring seems to be a time to take stock and start fresh... at least in the home.  But what about with your health? 

We’re not talking about the diet you vowed to follow in your New Year’s Resolution, or trying to look good in that new bathing suit for summer; what we’re talking about is your annual checkup—taking stock of your health with your primary care physician and making sure you’re both on the same page with your instructions for health care and your advanced healthcare directive or living will.

When clients come into our office for an estate plan, we ensure that their healthcare instructions are completed as well; but the job doesn’t end when the document is signed. Your health care providers need to be aware of your wishes as well.  The best way to ensure that they know and understand your wishes is to take a copy of your advanced healthcare directive or living will with you to your next check up and talk to your physician about it, then ask them to keep the copy on file.

A rule of thumb with healthcare wishes is to give a copy of your living will or healthcare directive to each of your primary care physicians, give a copy to each of the healthcare agents you’ve nominated, AND keep a copy or two on file to take with you if you ever need to go to the hospital. And of course keep the signed original in a safe place with the rest of your estate planning documents.

Monday, March 08, 2010

Do You Need A Will Or A Trust?

When it comes to estate planning there are two major vehicles for the distribution of property: A will and a trust. Both are very useful tools and can accomplish specific goals—but how do you know which one is best for your family? Which document you will need depends on a number of factors, some of which may seem completely irrelevant at first: the size of your estate, your goals for that estate, the age of your children, your marital status, your retirement account, and many, many more. But the first step to understanding which tool may be right for you is to understand what each document does.

A Will:A will is a formal declaration of your wishes.  It is a document you create to declare the extent of your privately held property (it does not cover jointly owned property) and what your wishes are for the distribution of that property.  You name an executor to carry out your wishes, and you can even include a nomination of guardian for young children in your will.   A will does not go into effect until after you die; before then it is simply a piece of paper containing your private wishes.  However, once you have passed away your will no longer remains private, it now becomes a matter of public record, available to anybody who would like to view it, and overseen by the court in a sometimes lengthy and expensive process called probate.

A Trust:A trust is a far more extensive tool than a will.  In fact, there are many different kinds of trusts, each of which may be used for specific situations.  Most trusts created for estate planning purposes are revocable living trusts (or RLTs.) An RLT is a document created not simply to distribute your property, but to own your property on your behalf, to be invested and spent for your benefit or the benefit of your named beneficiaries.  As such, a trust takes effect as soon as you sign it and your property is protected by and subjected to the trust parameters as soon as you place them in the name of your trust. There is a lot of flexibility available with a trust, and yours can be created to fit your unique situation.  Most RLTs name the trust creators as the initial trustees, nominating individuals or banks to take over as trustee when the creator becomes incapacitated or passes away.  The benefit of a trust is that when the creator passes away, property is not merely distributed and that’s the end of it; the creator can instruct the trustee to distribute the money slowly and in any number of ways, even to the extent of creating new trusts for each beneficiary.  Trusts can last for generations, as evidenced by the enduring Kennedy trusts.

Wills and trusts are necessary tools in estate planning, each one working in unique situations.  Your attorney will be able to tell you which one is best for your family.

Friday, March 05, 2010

5 Ways to Enjoy Planning Your Estate

Creating a will or trust, healthcare documents, powers of attorney, etc., can sometimes seem overwhelmingly sad and serious.  Well, the act of protecting your loved ones is very serious, but it doesn’t have to be sad.  In fact, planning your estate can sometimes be downright enjoyable!  Here are 5 ways you can enjoy planning your estate:

1. Let the process of choosing and informing your fiduciaries (the people you will trust to be your executor, your guardians, your agents) forge stronger bonds with the people you love and trust the most.  It can be the perfect excuse to spend more time with the friends and family you will be naming in your documents.
2. Make it a time to go crazy with your dreams for the future: Your own retirement, goals for your children, and plans for your grandchildren.  Have fun imagining the wonderful old-age you want—and then make it happen.
3. Take the opportunity to learn more about your past—and record that past for your children and grandchildren.  Talk to your parents and grandparents about their history and experience; then write it down—along with your own memoirs—and include it with your EP docs for your children to find.
4. As long as you’re gathering important financial information and documents, keep the momentum going and use the time to organize your important files and information.  Not only will this help you with your planning, it will make life easier for you every time tax season rolls around, and it will save your family and executor a lot of headache and heartache as well.
5. The biggest reason to enjoy planning your estate is the simplest—it has to be done and it’s the right thing to do.  When your estate plan is signed and complete it will be a weight off your shoulders because you will know you have done what is necessary to protect yourself, your family, and the people you love.

Wednesday, March 03, 2010

Filling in the Blanks of Your Estate Plan

Do feel like there’s more to your children’s inheritance than money?  Does your will or trust seem good but... not quite enough?

You’re right.  A will and a trust are essential documents to have—especially if you have minor children—but there’s more to protecting your children than those documents.  With those documents (plus a nomination of guardian, of course) you’ve provided for your children financially, but what about emotionally? After all, you’ve built a full life for your family and children, one in which they are comfortable and happy.  Preserving (as much as possible) the comfort and stability of that life is at least as important as preserving your financial estate.

One of the best ways to do this is with a document called a memorandum of intent.  A memorandum of intent is a letter that you write to the guardians of your children.  This is a document that details the crucial minutia of your daily life.  In it you can express the things that might be considered too small, or the things that change to frequently, to include in your trust—but are essential to the daily fabric of your life:

• After-school activities
• Names and phone numbers of your children’s “best friends”
• Your preferences for religious upbringing
• Unique holidays and traditions celebrated by your family
• Pediatrician name and phone number (or other health-care providers)
• Your discipline style and parenting resources you find helpful
• Your children’s favorite foods, favorite toys, comfort objects

These things may all seem small right now, but it is these comfortable people, places and activities that will help your children through a difficult transition should tragedy strike. You can’t be sure that you will always be there to guide your children into adulthood, but you can be sure they will always know your hopes and wishes for them. 

(*A memorandum of intent is not necessarily just for parents of young children.  Memorandums can be especially helpful if you have a special needs child or are the caretaker of an elderly parent.  Some people have even chosen to leave memorandums of intent along with a pet trust to the caretakers of their pets.)

Monday, March 01, 2010

Facing the BIG Picture

We frequently urge you here on our blog to create the documents necessary to protect yourself in case of emergency, and to ensure that your family and loved ones know your wishes for health care if you are ever unable to make those decisions yourself.  But a recent article on MSNBC reminds us that creating the documents isn’t always enough.

The article by Susan Brink details the final days of Bunny Olenick, 87-year-old mother and grandmother, whose massive stroke in December of 2008 threw her family into a state of confusion... in spite of the fact that she had done all the right things.

“Olenick had done all she could to give her family instructions about her death. She had spoken to her sons about her wishes, filled out an advance directive, a living will, and had named her sons as health care proxies — all legally accepted documents and procedures designed to insure that a person’s end-of-life wishes are spelled out and honored. Yet even they weren't prepared for the many difficult questions they faced.”

The questions they faced were a surprising mixture of technical and metaphysical: Did “life-support” include temporary nasogastric tubes for nutrition?—How exactly does one define “Quality of Life?”—Was a short-term oxygen mask okay, even though a respirator was against her wishes?—And Bunny’s own heart-breaking question upon waking up in a hospital bed, “Why am I still here?”

Bunny’s story illustrates for all of us the importance not only of creating the appropriate legal documents, but also creating the time and space to talk to our loved ones about these difficult situations. Our firm can help you to create an estate plan that will protect your loved ones and guide your agents in your wishes... but the documents are only a small part of the process. Talk to your family about the process of creating your estate plan: the how and why of your important decisions. Knowing why you made the choices you did will help your family accept your decisions and follow your wishes when the difficult metaphysical questions come up.

Monday, February 22, 2010

When and Why You Might Turn Down An Inheritance

Would you ever turn down an inheritance?

Your first reaction might be “Of course not!” But don’t speak too soon. Most estate plans are created at least in part to protect heirs (generally spouses and children) from the sometimes devastating blow of estate taxes; but with the estate tax in a confusing state of flux this year some of these plans won’t work as their creators intended—and heirs may end up looking for a way to protect themselves against the unintended consequences of well-intentioned estate plans.

This article in the New York Times explains what it means if you disclaim (or turn down) an inheritance, and when you may want to employ this tactic. 

“Historically, lawyers have recommended disclaimers to repair estate planning oversights that bring negative tax consequences — as when parents left money to already affluent adult children. In such a case, the children could disclaim, so the inheritance would go their own children instead, rather than facing the possibility that this money might be taxed in their own estates.”

The article goes on to explain why some people might consider using this strategy this year, when—due to the expiration of the estate tax—“a formula clause could wind up allocating all the money to one [heir] or the other, rather than dividing it between the two.”

Although this is an interesting solution to be considered in some cases, there are no easy answers to the question of what to do when you are the beneficiary of an estate that has taken an unexpected turn.  If you have any questions whatsoever about an inheritance—or about your own estate plan—call your estate planning attorney for help.

Saturday, February 20, 2010

The Not Quite Empty Nest Syndrome

It’s that time of year when many high school seniors are starting to prepare for graduation and eventually to head off to college; these seniors are close to turning—or in some cases have already turned—eighteen.  It’s almost time to spread their wings, leave the nest, and be on their own...

... Except that most 18 year old college freshmen aren’t actually ready to be on their own.  They still rely on their parents for financial support, emotional support, credit card payments, physical transportation... even clean laundry! And just about all of them still rely on their parents’ medical insurance when they need health care. You would think, then, that you as parents would be able to make medical and financial decisions for these fresh 18 year olds when they need help... except you can’t. 

Once your child is 18 you as a parent are no longer their legal guardian. No longer will you be able to easily call the shots in the hospital or doctor’s office.  You may pay the credit card bill, but you may not always get a representative to talk to you if there is a problem with that credit card.  Likewise you may not make decisions regarding their bank account, or have legal dealings on their behalf with their landlord. Not unless your child gives you permission, that is—written permission in the form of a durable power of attorney and/or a healthcare directive.

By naming you as his agent in a durable power of attorney and/or a healthcare directive, your brand new 18 year old is giving you the power to keep doing what you’ve been doing all along... be his loving parent and help with the tough decisions; or—heaven forbid—step in to take charge in case of an emergency. 

Durable powers of attorney and health care directives are documents that can be easily executed by our office or your own trusted attorney.  Creating one of these documents for the first time is a good opportunity to discuss responsibility with your child, and encourage him or her to begin thinking of these decisions that you have helped them make all these years as their own.  We know, however, that this isn’t always an easy subject to discuss with your young adult.  If your child is resistant to discussing this with you, perhaps he or she will be willing to discuss it with your family estate planning attorney instead.  This is an important subject, not only for you as a parent, but also for your young adult’s safety and well being.

Thursday, February 18, 2010

10 Tips for Potential (or Existing) Trustees

The creation of a trust and estate plan includes spending a certain amount of time choosing the people who will be your fiduciaries—the people who will carry out your wishes.  One of the most important fiduciaries is your trustee, who is involved in just about every aspect of the administration of your trust. Most people choose someone close to them to serve as trustee: a best friend, son or daughter, brother or sister. Choosing someone who knows you and your family to serve in this role can be beneficial in many ways, but if that person doesn’t have a financial or legal background the responsibilities can be overwhelming!

If you want to give your trustee a head start (or if you’ve been nominated as a trustee and need a little help yourself) this article from the Elder Law Answers website shares “9 Do’s and 1 Don’t” of being a trustee. These suggestions will help a potential or new trustee better understand their responsibilities and the scope of the job to come.  Advice such as #1, “Do read the trust document”; or #3, “Do keep the best interests of the beneficiaries in mind at all times” may seem obvious now, but it’s not always so clear when you’re beset by insistent and emotional relatives.  The more technical tips such as #2, “Do create a checking account for the trust”; and #9, “Do file income tax returns for the trust” are invaluable starter-steps for someone who has never done this before.

But the most important tip to remember is the one don’t: #10, “Don't fly solo. Get professional advice to make sure you are correctly fulfilling your role.” If you or the people you’ve chosen as your trustee are ever in doubt, please don’t hesitate to call our office for help.

Tuesday, February 16, 2010

News and Updates About the Estate Tax

A month and a half into 2010 and Congress’ failure to stop the lapse in estate tax is still making waves. These two trusted news sources explain why having “no estate tax” this year should worry you.

One of the first reasons you should be worried, as revealed by this article in the Wall Street Journal, is that a larger base of estates will actually end up paying more this year rather than less; “Under last year's law, estates up to $3.5 million, or $7 million for married couples, were exempt from federal tax. This year that law has been replaced by a fiendishly complex levy raising taxes on the assets of those with little as $1.3 million. It will affect the heirs of at least 50,000 U.S. taxpayers who die this year, whereas the old law affected only about 15,000 estates a year.”

Another main cause of worry, explains the New York Times, is the possible reinstatement of the estate tax by congress, effective retroactively; “The general view is that Congress wants to, and should, re-enact the estate tax retroactive to the beginning of this year,” [says tax specialist Ian Shane] “In January, February or March that’s easy, but as the year goes on it becomes more difficult.”

Of course the biggest worry estate planners have is the effect this year-long lapse will have on existing plans.  Couples who already have an existing estate plan are advised to get their documents reviewed—and possibly revised—to prevent “standard clauses” from having unanticipated effects.  As Joanne Johnson, head of the American wealth advisory service of J. P. Morgan explained to the NY Times, “It’s common to find language like ‘I hereby fund this trust to the maximum amount I can shelter from federal estate tax.’ The rest can then pass tax-free to the spouse. Such wording is risky as long as the estate tax is off the books... because there is no maximum.” What ends up happening is that everything goes into the trust for the kids, leaving the spouse with nothing.

What is the lesson here? The lapse in the estate tax may not be the boon it first appears to be.  Talk with your estate planning attorney to find out how the new laws may affect your family.

Friday, February 12, 2010

Make Your Memoirs a Part of Your Legacy

As members of a melting-pot nation, Americans place a high value on family stories and history.  We love to know when and why our ancestors came to this country from “the home land”; but we also enjoy the simple stories about how mom and dad met, or how grandpa served in the military.  These stories help us define who we are and where we came from—they give us a sense of belonging.

But the sad fact is that most of us don’t think about asking our parents or grandparents about their stories and histories until it’s too late. All too often it’s after grandma passes away and you’re going through her belongings that you find old books, photos or letters and wish you could ask about them.

This is part of the reason why writing memoirs, or a family history, has become so popular in recent years. Although the thought of “writing your memoirs” may seem daunting, it doesn’t have to be difficult.  In fact, it has become so popular that there are quite a few books and tools out there to help guide you through either writing your own history or interviewing older relatives to record theirs.

Nothing seems more natural than including your memoirs as part of your estate plan. When you create an Estate Plan you plan to pass on your estate (property, assets, and wealth) to your loved ones; but that is only part of what you’ll want to pass along.  An Estate Plan can also include your history and experience as part of that wonderful inheritance.  Our firm can help take care of your assets, but only you can preserve the wisdom and experience that makes your history so unique. Don’t wait until it’s too late.

Wednesday, February 10, 2010

Make your Estate Plan About Values

It’s easy to see, when creating an estate plan, how important it is to protect and pass on your assets, but a good estate planner knows that a will or a trust is not all about assets.  In fact, for all of the technical and financial language you may find in your will or trust, the most important part of the document is if—and how—it reflects your values.

You may think that values are something you’re more likely to discuss with your spiritual advisor than your estate planner, but we know you’ve worked hard to give your children and grandchildren a foundation of knowledge and belief to serve them when you’re not there.  We want to help you create a thoughtful and comprehensive Estate Plan can help you continue doing just that.

There are a few ways in which you can use your estate plan to pass on your values: 

• You can impress upon your grandchildren the importance of education by leaving an inheritance to them in an Educational trust.  
• Help your kids learn to follow their dreams by earmarking part of the trust principal to be distributed should they want to start their own business. 
• Pass on your belief in the value of family by creating a special trust to support stay-at-home parents. 
• Teach fiscal responsibility by choosing to have distributions made gradually, helping your beneficiaries learn how to handle their finances responsibly and with maturity. 

With the help of a caring and attentive attorney, you can leave a deeper legacy than mere money; you can impart your closely held values for generations to come. 

Monday, February 08, 2010

Handing Over the Keys to the Kingdom

It goes without saying that nobody wants to give up control of their finances and put themselves at the mercy of someone else’s decisions; which is why most people spend hours and hours considering who to name as their agent when they sign a power of attorney.  But what happens if you pick the wrong person? This article about an elderly mother and the daughter who stole from her is a sad example of just how important it is not only to choose your agents wisely, but also to relinquish control wisely as well.

It is commonly believed that simply adding your “agent” as a joint owner on your bank accounts is the easiest (or cheapest) way to gradually “hand over the reins”; but giving someone else unfettered access to your bank accounts is a dangerous risk in the best of circumstances—all too often it leads to the tragic exploitation and abuse mentioned in the article above.

The good news is that there are safer ways to give your agents the powers and access they need without completely handing over the keys to your kingdom: 

A Durable Power of Attorney that goes into effect when two doctors have declared you incapacitated

Naming more than one person as your agent (This can lead to a slower decision-making process, but it does provide you with checks and balances and oversight.  If you’re worried about disagreements between agents, name a third party to serve as a mediator or tie-breaker.)

Naming a financial institution as your financial agent

Choose a professional advisor or overseer through whom all decisions must be approved. This has the added benefit of giving your agents someone to whom they can go for advice in a tough situation.

Any of these options may be safer than joint ownership of your bank accounts, but every family and financial situation is unique, so ask your trusted attorney about which options may be best for you.

Wednesday, February 03, 2010

The Question of Competence

One of the things estate planning attorneys have to deal with in their line of work (most often with elderly clients) is the question of whether or not a client is competent to sign their legal documents. Every principal (or person executing the documents) must be competent, and most attorneys—most people—can make this assessment based on observation, experience and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.

How can you tell if a person is competent? In her book Senior Moments author Jacqueline D. Byrd quotes law professor Peter Margulies’ six factors to determine capacity:

1. Ability to articulate reasoning behind a decision
2. Variability of the client’s state of mind
3. Appreciation of the consequences of a decision
4. Irreversibility of a decision
5. Substantive fairness of a transaction
6. Consistency with lifetime commitments

 Byrd goes on to say that for the purposes of determining whether or not a person is competent to sign a will or trust, however, the requirements may be slightly different; more focused on whether or not the principal has a clear knowledge of his or her assets, has a full knowledge of the persons to whom the estate is being left, and is able to reasonably formulate and express a plan for the disposition of the estate.

The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or Dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to have mental examination performed by a doctor, and even perhaps include a video will. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.

Monday, February 01, 2010

Living in a Digital World

Do you have an e-mail account?

Do you participate in Facebook or other Social Networking sites?

Do you do any of your banking, bill paying or investing online?

If you answered yes to any of these questions then you might want to think about this next question... what will happen to all of your online assets and accounts when you die?

As we move further into the 21^st century more and more of our lives are moving into the digital realm.  This includes friendships, networking, business and banking.  The beauty of this is that it gives us unprecedented freedom and global access; the downside is that huge portions of our lives are locked away behind password protected accounts, many of which our friends and relatives aren’t even aware. Online accounts are incredibly convenient, but they can create huge problems if your executor or agent has no way to retrieve your online passwords, assets or contacts after you die.

Some large online service providers are developing policies to deal with the transfer of accounts upon the death of the user, as noted in this article by Alejandro Martínez-Cabrera, “but the process is rarely a simple one.” Some companies require a death certificate before they will agree to shut down an account or turn over the contents, but rarely will an online company transfer actual ownership. It could take months or years of headaches and frustration before your heirs have access to any assets or information locked behind these online protections.

What this means for estate planning is that when you talk to your attorney about your will or your trust it’s not just about physical assets anymore; digital and online accounts and assets must be part of the conversation.

Friday, January 29, 2010

What Does “Do Not Resuscitate” Mean to You?

Everybody seems to know (from popular TV shows, if nothing else) that DNR means “Do Not Resuscitate”, but do you know what “Do Not Resuscitate” means in your own personal healthcare directive or living will? Too often, when talking with clients about the healthcare documents in their estate plans, they don’t know the extent of their own (or their parent’s or grandparent’s) instructions. 

“Do Not Resuscitate” can cover a wide array of options, which is why it is so important to define what “life-saving procedures” means to you, and exactly when you would like your DNR to go into effect.  Here are some examples of “life-saving procedures” that you (or your elderly relatives) should talk about with family, medical staff, and your estate planning attorney:

Artificial Nutrition and Hydration When grandma decides to stop drinking fluids orally and begins to dehydrate, does the nursing staff have permission to keep her hydrated via IV fluids? What about if you are in a non-reversible coma and unable to drink liquids on your own?

Antibiotics or Other Medicines Do you include antibiotics in your definition of “life-saving procedures?” Do you still if you have been declared irreversibly brain-dead by two independent physicians? When you are 102 and confined to a bed in a nursing home, do you want to be given medicines to combat pneumonia or other illnesses?

Chemotherapy A point similar to the paragraph above; if you are 102, afflicted with dementia and confined to a bed, do you want to receive expensive and painful chemotherapy treatments if the doctors discover cancer?

Blood Transfusions Blood Transfusions are fairly universally considered “life-saving procedures”, and they should be addressed in your healthcare documents.  Do you have religious reasons for refusing a blood transfusion?  Do you still want one if you are severely and irreversibly disabled?

Organ Donation Though obviously not considered a “life-saving procedure”, organ donation is a topic you should discuss with your family, medical providers, and estate planning attorney to prevent any misunderstandings or delays in treatment if and when the situation arises.

A healthcare directive is one of the most important documents in your estate plan.  State-specific healthcare directives or living wills can often be found for free online or at your doctor’s office, and in a pinch these will work; but they cannot take the place of a conversation with a knowledgeable estate planning attorney who will ensure that all aspects of your decision-making process are addressed and put down in writing.

Wednesday, January 27, 2010

Your Estate Is Ready For The Kids, But Are The Kids Ready For Your Estate?

Many parents spend a lot of time and money ensuring that their estate will go to their children exactly when and how they want it to; they work with the best advisors to create a plan that will transfer their assets as smoothly as possible to their children and grandchildren when the time comes. Ninety-nine percent of the time these parents have in mind that the inherited estate will be used responsibly to help their children and grandchildren pay for schooling, make it possible for one parent to stay home with young children, be put away for retirement, etc. But according to Pamela Black at financial-planning.com, “while estate planners are 98% effective at preparing these assets to be passed on, that preparation goes to waste in 70% of the cases... [because] no one is preparing the heirs for assets.”

When considering how to pass your estate on to your heirs, it is important to take the time to consider how your heirs are likely to handle the new responsibility.  While many parents have numerous discussions with their advisors about how they would like their money to be handled, they neglect to have these important conversations with their children because they assume (often erroneously) that they and their children share the same financial values.

Death and money are two of the most uncomfortable subjects for discussion between parents and children, and many families will simply avoid these conversations.  But financial advisors and estate planners have seen too many cases of families and carefully crafted estate plans falling apart in the wake of the death of a parent; we know how important it is to have these difficult discussions. 

Do you need to spend more time preparing your children for their eventual inheritance?  Pamela Black has included in her article a preliminary “Wealth Transition Checklist” to give you an idea of how well prepared your family is for the transition.  Bring your kids in with you to your next appointment and let them share in the process of planning for their future.  The more they know the better prepared they will be.

Monday, January 25, 2010

The Importance of Being Earnest

Do you have a will or a trust?

Has your will or trust been reviewed or updated in the past 3-5 years?

If you answered yes to these questions then you are two steps ahead of 2/3 of the rest of Americans.  But the next question is the big one:

Does your family or executor know where your legal documents are stored, and are they able to access them?

Having a will or a trust is essential, but it doesn’t do any good if nobody can find it after you’re gone.  Olympic medalist Florence Griffith Joyner (“Flo-Jo”) supposedly had a will when she tragically passed away at the age of 38, but because her husband was never able to locate the original document, a neutral administrator had to be appointed by the court to execute the estate; and whether her estate was executed according to her wishes is anybody’s guess.

A will or a trust often contains sensitive and emotional information, and for that reason many people (understandably) want to keep these documents private; but spending any amount of time or money on your estate planning documents won’t help your family if they can’t locate—or don’t have access to—those documents after your death.

We suggest having an earnest conversation with your family (or one or two select members at the very least) about the existence and location of your personal documents.  Although they don’t have to know what is in your will or trust, knowing where those documents are can ensure that the time and money you spent creating them isn’t wasted.

Saturday, January 23, 2010

Your Will May Be a Ticking Time Bomb

The recent repeal of the estate tax is having unintended consequences for responsible husbands and wives who already had a will or trust in place to protect their spouse and family—instead of protecting them, that existing will could now end up leaving surviving spouses with nothing.  Jonnelle Marte at the Wall Street Journal has this to say:

“It's a common practice for people to use formulas in their wills designed to send the maximum amount of assets not subject to the estate tax into a trust, often for their children. The remaining assets are usually left to the surviving spouse. But this year, there's no limit on the assets people can pass to their heirs without being subject to federal estate tax. So all of the assets could go into a trust and the surviving spouse would get zero.”

Does this mean you’ll have to get your will or trust updated every year?  No. But it does mean that you’ll want to get your will or trust reviewed by an estate planning attorney this year. A review of your estate planning documents is a quick and easy process, especially if you don’t have any other significant changes to make.  One thing is for sure, the small amount of time you spend making sure your documents are current is well worth the protection and benefit your spouse and family will receive from it.

Tuesday, January 19, 2010

Another Kind of “Bucket List”

Among the many changes in tax law to go into effect in 2010 was the change in cost basis for inherited assets. Previously, all inherited assets were “stepped-up” from their original value at date of purchase to their fair market value at date of death. In this way, if inherited assets were sold shortly after death, no capital gains tax was owed. However, in 2010 inherited assets do not receive this automatic “step-up”; instead they will be valued at the lesser of the decedent’s basis or the fair market value as of date of death. The result is that for decedents dying in 2010, the decedent’s tax basis and the fair market value as of date of death will have to be determined for every asset. As you can imagine, this will cause paperwork nightmares for heirs.

What we suggest is making a list of your assets and their values and tax basis information now, while you are still alive and your memory is fresh. This is not a list that has to be shared with anybody until after your death, but the mere existence of your list of assets will save your family and heirs hours of headaches (and heartache) later on.

If the thought of taking the time and energy to sort through files and records to gather this information makes you want to run for the hills, imagine how your heirs will feel!  To ease the burden, try making your list one asset at a time, over the course of many days.  However you choose to create your list, you can be sure your heirs will thank you.

(Note: There is an exemption amount of $1.3 million of gains from this carry-over basis rule, and another $3 million exemption applying to assets inherited from a spouse.) 

Tuesday, January 12, 2010

Part of the Family: Planning for Pets

Creating an estate plan often involves serious discussion with your advisors about tax planning, asset protection, and charitable giving; but it is important to remember that at its core, estate planning is about protecting your family—and as this article in the Wall Street Journal reminds us, for many people the word “family” also includes our four-legged friends.

Some people will be tempted to roll their eyes and joke about Leona Helmsley at the mention of including your pet in your estate plan, but most will agree with article author Max Alexander that ensuring your pet will be taken care of after your death is not a frivolous indulgence but a simple matter of responsibility. 

Providing for the care of your cat or dog does not necessarily mean leaving millions of dollars in a pet trust, what it really means is taking steps to ensure your pet doesn’t end up out on the street or in a cage in the local animal shelter.  The Wall Street Journal suggests four simple steps pet lovers can take when planning their estate, including:

• Choosing a “pet guardian”
• Deciding whether or not to provide financial assistance for the care of your pet
• Adding language to your will or trust regarding the care of your pet
• Writing down a list of instructions for your caregiver 

Over 50% of U.S. households own a dog or a cat.  Those pet owners know that in return for companionship, love, and devotion pets rely on their owners for the basic necessities: food, shelter and protection. Why gamble with the future when ensuring their care can be so easy?

Friday, January 08, 2010

Keep Your Estate Safe in 2010