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Avoid Living Probate: How to Keep Guardians and Conservators Out of Your Estate

While most proactive individuals know the importance of having a well-rounded estate plan, it is typically considered as something that will take effect after they have passed away. But there are in fact many ways in which comprehensive estate planning can have a positive impact on your life while you are still around to reap the benefits. 

Planning for Incapacity

Most people who reach old age come to a point at which they are no longer in a position to handle all of their affairs on their own. In many cases this incapacity is due to dementia or other cognitive impairments associated with the elderly. At that point, the decisions they’ve made with their estate planning attorney can have major repercussions on their lifestyle and the handling of their wealth. 

Take Alex for example. Long before Alex retired from his long and successful career as an IT manager at a large corporation, he put a cursory estate plan in place with a will detailing who would get which of his assets upon his death. But, Alex didn’t update his plan as he aged. In his late seventies, he developed Alzheimer’s and it became unclear to his family how to proceed with his medical care and wealth management. Since Alex did not formally choose an individual to be in control of his affairs in the event of incapacity, it falls upon the court to appoint a guardian or conservator. Unfortunately, that’s where things get complicated. 

What is guardianship?

Guardianship goes by a few other names, so it’s important to get familiar with various terms used to indicate similar and somewhat overlapping concepts. The other terms you may hear include “conservatorship,” “plenary guardianship,” and “living probate.” 

It’s important to note that these terms are used in slightly different manners from state-to-state, with some states using “guardian” and “conservator” interchangeably. Others maintain the distinction of a guardian being a person who makes decisions about medical care and living arrangements, whereas a conservator makes decisions about property and assets. In either case, the guardian or conservator is essentially a substitute decision maker that’s authorized by the court to make decisions on behalf of the incapacitated person.

3 Reasons You Should Avoid It

In the process of living probate, the court tries to settle on solutions that will fit the incapacitated individual’s best interests. That being said, there is a much better way. Here are just a few of the reasons guardianship and conservatorship are not ideal fallbacks: 

  1. Cost: To put it simply, living probate is expensive. The legal fees associated with court-appointed attorneys representing incapacitated individuals can chip away at their estates very quickly. Living probate also brings your affairs into the public sector. 
  1. Privacy: Alex may not have wanted his family to have to experience the financial and emotional costs of his living probate court proceedings, but he may also have felt less than enthusiastic about his personal affairs being discussed in a public forum. 
  1. Clarity: In addition to it being costly and a compromise of privacy, living probate is also full of guesswork. If Alex had assigned powers of attorney and established long-term care provisions in his estate plan, his affairs would be handled exactly as he wished in the event of his incapacity. When the court is involved, they usually apply default rules of state law, which means the legislature is essentially making some choices for you and your family.

How to Structure Your Estate Plan

So what does an individual like Alex need to do in order to avoid the chance of his family having to go through living probate? There are a few specific steps we can take to make in planning your estate to ensure your affairs never end up in a court-appointed guardian’s hands:

  • Powers of attorney: A complete estate plan includes named powers of attorney who will fulfill the roles of guardians and conservators in the event of your incapacity. The difference is that these individuals will be chosen by you rather than by the court. There are a number of different types of powers of attorney for specific purposes, such as a healthcare power of attorney or a general durable power of attorney, the latter of which controls the management of your finances.
  • Long-term care planning: Although you may never need long-term care, building a strategy for it into your estate plan will allow you to relax knowing that you’ll receive long-term care according to your wishes if that becomes necessary. This type of planning also helps protect the assets in your estate plan from being used up on medical expenses before going to your beneficiaries. 

Avoiding guardianship and conservatorship through living probate is a relatively pain-free process if handled well ahead of time. Get in touch with us today to go over the parts of your estate plan that may need amending to give you and your family the best possible outcomes. We are here to help and can quickly get your estate plan in optimal shape.  

How an Estate Planning Letter of Intent Can Help Your Family

Estate planning is an important task that everyone should undertake as it helps to protect your family and loved one’s financial future. But estate planning can do much more than focus on finances, it can also provide for care of those you leave behind. One aspect of estate planning that is often overlooked but can be quite useful is the letter of intent. This document is typically contained within an estate plan and includes instructions on how the estate and decedent’s executors should manage the estate’s assets and care for family and loved ones.

The Benefits of Letters of Intent

Estate planning documents are written in broad legal terms. Some terms that you will commonly see in these documents include maintenance, support, health, and education. Eventually, your estate plan, and the included wishes, will need to be implemented. Since there can be numerous interpretations to these terms, a letter of intent can help provide clarification with additional context regarding what you want these terms to mean. 

Likewise, it is typical for trusts to grant the trustee discretion to distribute the estate’s assets. This discretion gives him or her the freedom to decide what should be done in regards to a beneficiary’s share. A letter of intent can provide the trustee with guidance on how to exercise his or her discretion without the legal risk of limiting their decision by putting this into the trust document. A letter of intent can be a vital document when it comes to providing for a child, especially one with special needs.

Limitations of Letters of Intent

While letters of intent can be a useful addition to your estate plan, there are some limitations to these documents. For instance, a letter of intent is not a legally binding document.  It simply serves as a guide for the management of your estate after your death. That being said, courts across the country have generally relied on letters of intent when there is a question regarding the decedent’s wishes. Similarly, anyone who is put in charge of managing your estate will likely turn to your letter of intent for instruction as well.

Essentially, a letter of intent is a blueprint for your other estate planning documents. Once your letter of intent is written with specific preferences regarding your estate, your other estate planning documents should reflect these intentions so that your wishes are carried out properly and consistently. A letter of intent can be written at any point, no matter where you are in life. A letter of intent should be written simply but be comprehensive in content. This can include information that would not be put into your estate planning documents, such as life experiences you wish to promote with your assets.

Estate Planning Help

While letters of intent are not legally binding, these documents are useful because they can provide guidance and context to the financial legacy you left behind and how your trustees and executors should manage your estate. The time is now to create your estate plan, no matter where you are in life. Contact us today to learn more about your options in securing your family’s future and making your wishes for the future known to your family. 

Don’t Leave Your Trust Unguarded: 6 Key Ways a Trust Protector Can Help You

Trust protectors are a fairly new and commonly used protection in the United States. In short, a trust protector is someone who serves as an appointed authority over a trust that will be in effect for a long period of time. Trust protectors ensure that trustees: maintain the integrity of the trust, make solid distribution and investment decisions, and adapt the trust to changes in law and circumstance.  

Whenever changes occur, as they are bound to do, the trust protector has the power modify the trust to carry out the trust maker’s intent. Significantly, the trust protector has the power to act without going to court – a key benefit which saves time and money and honors family privacy.  

Here are 6 Key Ways a Trust Protector Can Help You 

Your trust protector can:

  1. Remove or replace a difficult trustee or one who is no longer able or willing to serve
  1. Amend the trust to reflect changes in the law
  1. Resolve conflicts between beneficiaries and trustee(s) or between multiple trustees
  1. Modify distributions from the trust because of changes in beneficiaries’ lives such as premature death, divorce, drug addiction, disability, or lawsuit
  1. Allow new beneficiaries to be added when new descendants are born  
  1. Veto investment decisions which might be unwise

WARNING

The key to making a trust protector work for you is being very specific about the powers available to that person. It’s important to authorize that person, and any future trust protectors, to fulfill their duty to carry out the trust maker’s intent – not their own. 

Can You Benefit from a Trust Protector?

Generally speaking, the answer is yes. Trust protectors provide flexibility and an extra layer of protection for trust maker intent as well as trust assets and beneficiaries. Trust protector provisions are easily added into a new trust and older trusts can be reformed (re-drafted) to add a trust protector. If you have trusts you’ve created or are the beneficiary of a trust that feels outdated, call our office now.

3 Tips For Every New Homeowner

Congratulations on the purchase of your new home.  Whether this is your first home or an upgrade/downsize, the purchasing of a home is a big event in your life.  When these major life changes occur, it is important that you are properly prepared. Below are a few things for you to consider now that you finally have the keys to your new home!

1. Update Your Address

Now that you are in your new home, it is very important that you update your address with the appropriate entities.  Your local United States Postal Office will have a form you can fill out. If you cannot make it into the post office, you can also update this information on their website.  This will assist them in forwarding your mail to you.  

To ensure that you don’t miss any important tax notices or refunds, you will also want to update this information with the Internal Revenue Service, using Form 8822, and your local state tax agency.

2. Make Sure Your House Title Coordinates With Your Estate Plan

While it is still fresh in your mind, reference your new deed to see how the property is titled.  Then, you will want to reference your estate planning documents to make sure that your property has been titled properly to achieve your estate planning goals.

For example, if your previous plan had a specific provision distributing your old property, you will want to make sure that you update this provision since you no longer own the previous property. On the other hand, if this is your first home and your estate plan includes a trust to avoid probate, you will need to make sure that your home was titled in the name of the trust and not in your name individually.

3. Check Your Life Insurance Coverage and Beneficiary Designations

Unless you were fortunate enough to pay cash for your new home, chances are you now have a large monthly mortgage expense. In order to protect your loved ones, it is important that you check your life insurance coverage. Should you die before paying off the mortgage, it is a good idea that you have enough life insurance to meet that obligation should you have a surviving spouse or children that will likely continue to reside in the home. Even if they choose to not remain in the home, the life insurance can provide valuable assets during what is usually an emotionally difficult time.

This is also a great opportunity to double check your beneficiary designations. Life changes happen so quickly that sometimes this can be overlooked.  If your designations do not match up with the rest of your estate plan, you may end up inadvertently disinheriting a family member or having the money fall directly into the hands of an individual without any guidance.

Lastly, now that you have a home and homeowner’s insurance, call your insurance agent to make sure that you are getting all of the discounts that you are entitled to.  Many insurance companies will offer discounts when you bundle services.  If you already have car insurance through a carrier and use the same company for your homeowner’s insurance, you may be entitled to a better rate that if you had both policies separately. In addition, homeowners often get discounts that renters don’t.

We’re Here to Help

Buying a new home is a big step and we are here to help.  Give us a call and we can help make sure that your new purchase and estate planning are working together to carry out your goals.

The More You Know: Reverse Mortgages & Estate Planning

You have likely seen several advertisements for reverse mortgages if you have spent any time watching television or surfing on the internet. The concept and sell is a simple one: as long as you own and live in your home, you can supplement your retirement income with a loan that you do not need to pay off. The trade-off when it comes to a reverse mortgage is that you are using your home’s equity to receive that extra retirement income. Even if a reverse mortgage is right for your circumstances, entering into a reverse mortgage is something that should be understood fully before signing any paperwork.

Reverse Mortgages Explained

How they work: Most reverse mortgages are federally insured and have several requirements including: (1) at least one borrower is aged 62 or older; (2) the home must be the primary residence; (3) the borrower must have financial resources to keep up with the home (taxes, insurance, maintenance); and (4) the borrower must own the home outright or have a low enough “regular” mortgage.

Impact on your estate plan: If you plan on leaving your home to your heirs, understand that a reverse mortgage will reduce the value they receive. Depending on when you pass away and how long the reverse mortgage was in place, your home’s equity may have been exhausted meaning that there is nothing of value to leave your heirs. In that case, your heirs may need to pay off or refinance the mortgage to keep the house.

Retirement income: The positive trade-off of a reverse mortgage is that you will have an additional source of retirement income, which can be received in several different ways including: (1) an upfront lump-sum, (2) a monthly payout, or (3) a line of credit. Each scenario has its own tax, borrowing costs, and home value implications. If you’re considering a reverse mortgage, talk to your financial advisor and estate planning attorney first, to make sure you select the best payout option for your circumstances.

Buyer beware: It is important to make sure you avoid scams that are pretending to be legitimate reverse mortgages. One way to help avoid being tricked is to make sure you work with a reputable provider. You should also make sure that a reverse mortgage is a good fit for your financial needs before signing any documents. Finally, consider the estate planning impact entering into a reverse mortgage may have on your intended wishes once you are gone.

The Implications of Reverse Mortgages

There are several factors to take into consideration when you are contemplating a reverse mortgage. Specifically, the effect it will have on your estate plan, the type of retirement income you are trying to obtain, scams to watch out for, and anything unique to your circumstances. There are several questions you should address before deciding whether or not a reverse mortgage is right for you. These include:

  • Can the life insurance you have in place pay off your reverse mortgage?
  • Will your reverse mortgage exceed your home’s value when you pass away?
  • What will happen to others living in the home if you die without paying off the loan?

Seek Advice

In addition to shopping around to find a reverse mortgage lender with terms that are most favorable to you, you should also determine whether a reverse mortgage is right for you and your needs. We can help you learn more about the options available to you and your family when it comes to your applying for a reverse mortgage and the impact it will have on your estate plan.

What is an Inheritor’s Trust?

When it comes to estate planning there are several types of tools you can use, depending on your circumstances. One such estate planning tool is the trust. There are numerous types of trusts aimed at fulfilling different estate planning purposes. If you are anticipating an inheritance, there is a special type of trust designed to help protect it: an inheritor’s trust. 

Purpose of an Inheritor’s Trust

An inheritor’s trust is a trust that has been established for the purpose of receiving a beneficiary’s inheritance in a way that is protected legally and financially. In order to fulfill its intended purpose, an inheritor’s trust must be set up in a way that follows numerous tax and legal rules. Virtually every state in the country forbids what is referred to as a “self-settled trust.” A self-settled trust is an irrevocable trust established by an individual, for his or her own benefit, with the intent to protect the trust assets from creditors. Therefore, once you receive an inheritance, it is very challenging to protect the inheritance assets yourself. Luckily, the inheritor’s trust provides an option for people expecting an inheritance.

Inheritor’s Trust Explained

If you are expecting an inheritance from a loved one, and he or she is unwilling or unable to leave your inheritance in a trust, you can protect these new assets with an inheritor’s trust. However, because you cannot set up the trust yourself because of the “self-settled trust” rule discussed earlier, you will need to work with your loved one to establish the trust. Instead of receiving the inheritance outright, the trust will be the recipient of the inheritance. The trust will typically include a spendthrift clause to protect against creditors, a more drawn out distribution schedule, or provisions granting only discretionary distributions to you. Once the trust has been drafted, your loved one will need to sign the instrument as the creator (grantor) but you will be the beneficiary. 

There are several benefits to an inheritor’s trust:

  • The inheritance can be excluded from your taxable estate potentially saving your family estate taxes;
  • The trust can be a more cost effective way to protect the assets instead of your loved one revising their existing plans;
  • Upon your death, the inheritance will be distributed outside of your probate estate which can help ensure privacy and lower attorneys fees and administration costs;
  • The inheritance will be protected from creditors, lawsuits, and divorcing spouses;
  • In some circumstances, the inheritance can even be controlled and managed by you, as a trustee; and
  • You can decide how remaining trust assets will be distributed after you pass away if the trust gives you that power.

An inheritor’s trust is a sophisticated, but powerful estate planning tool. It is ideal for anyone who is to receive a substantial, outright inheritance that may need additional asset and tax protection. 

Consult with an Estate Planning Professional

Estate planning can be complicated, but it is essential in protecting yourself and your loved one’s financial future. If you expect to receive an outright inheritance and desire to maintain control, gain superb asset protection, and use all possible avenues to avoid estate and transfer taxes, an inheritor’s trust may be right for you. Give us a call today to learn about whether this estate planning tool is an option for you. 

Stress Test Your Estate Plan

So you’ve done the hard work of establishing an estate plan. Good on you, as they say across the Pond. However, you still have serious work to do to ensure that the strategy you’ve selected will maximize your peace of mind and protect your legacy.

Estate plans are living, breathing creations. Your life can and will change due to new births, children getting older and other shifts in the family; changes to your portfolio, career and business; and changes to your health, where you live and your core values. Likewise, external events, such as tax legislation passed in your state or the development of a novel financial instrument, can throw your plan off track or open the door to opportunities.

Obviously, you want to do due diligence without spending inordinate amounts of time noodling over your plan. Good enough should be good enough. To that end, ask yourself the following “stress test” questions to assess whether you need to meet with an estate planning attorney to update your approach:

1. When was the last time you updated your will or living trust? Since then, have you had new children or gotten divorced? Have you moved to a new state, opened or sold a business, or just changed your mind about the type of legacy you want to leave behind? Especially if big, tangible life events have occurred, strongly consider updating your documents as soon as possible against all else.

2. Who have you named as executor and trustee? If you had to start your planning over from scratch today, would you still make the same decisions? If not, why not?

3. Do you have adequate insurance? Many people do not have enough insurance for themselves or their businesses. They also fail to name contingent beneficiaries. Get your insurance policies in order.

4. How much of your property is jointly owned with someone other than your spouse? Jointly owned property has the potential to be double taxed. Take a look at your real property and seek advice on the proper adjustments to make in order to save on taxes when it’s really necessary to save on taxes.

5. How’s your record keeping? Nothing drives an executor crazy like sloppy record keeping.

6. When was the last time you gave your plan a thorough once-over? Even if nothing “huge” has happened in your life recently, if it’s been over five years since a qualified estate planning attorney has assessed your strategy, schedule a time to meet. Identify any issues, and iron out the kinks one at a time.

Giving Thanks With Your Estate Plan

Estate planning covers more than just financial matters. Indeed, many use their estate plan to pass along their values as well as their wealth. One way to do this is to give thanks with your estate plan, by designating charitable giving or specific gifts that will help ensure your legacy. It is important, however, to balance your income and the needs of your beneficiaries with the available tax incentives. 

Your Legacy

While the general purpose of estate planning is to ensure you and your family are taken care of when most needed, you do not need to contain your estate planning to financial issues. Indeed, many individuals use estate planning to pass along family history and traditions through their giving. An estate plan may specify how a beneficiary can use their inheritance such as for studying abroad, embarking on a particular trip, or other values that are important to the giver. In addition, you can choose to give to a qualified charitable organization in your will so that the gift is distributed upon your death or incapacity. Giving to charity during your life or after you have gone can help significantly reduce federal estate and gift taxes and allows you to support charitable causes that are meaningful to you. 

One way to pass along your values as well as your wealth is an incentive trust. An incentive trust is a type of trust that includes provisions that reward a beneficiary for achieving a specified range of desired goals or behaviors. The trust may also indicate how the money may be distributed. Another estate planning tool is the charitable lead trust, which allows payments to be made to the charity during the settlor’s lifetime. When the settlor passes away  – or at the end of a shorter term of the settlor’s choosing – the remainder of the assets in the trust go to the decedent’s estate, his or her spouse, or other beneficiaries. A third way to continue your legacy is through a donor-advised fund. A donor-advised fund is similar to a charitable investment account with the specific purpose of supporting charitable organizations. Pre-funded charity gifts can help your family decide which organizations will be financially supported. 

These are just some of the estate planning tools available for charitable giving and allowing you to pass along values and give thanks with your estate plan.

Estate Planning Professionals 

No matter what your goals regarding your estate plan, it is important to craft a plan that takes advantages of the tools and tax benefits available to you under applicable law. We can explain the options available to you and your family, and help create the best plan to suit your needs. Give us a call today.

How to Share Family History and Heirlooms with Your Estate Plan

The best time to share your family history with loved ones is right now, before the memories are forgotten. The coming holiday season is a great opportunity to reminisce because you’ll probably have your loved ones nearby.

While you can always pull aside children and grandchildren for a chat about family history, did you know you may also be able to use a personal property memorandum in your estate plan to pass along special memories and stories about specific items that are meaningful to you and connect your family with the past?

What Is a Personal Property Memorandum?

Many states allow you to include a “personal property memorandum” in your estate plan. This supplemental document, specifically referenced in your will or your living trust, lets you describe which personal property items you wish to leave to heirs, without having to call your lawyer and arrange for a meeting. You can handwrite or type this document, but it must be signed and dated to be valid. In conjunction with a will or living trust, a personal property memorandum can provide a roadmap for your executor regarding the distribution of specified items to your beneficiaries.

One important feature of a personal property memorandum is that you can change or update it whenever you like without the assistance of an attorney or notary. This freedom can be beneficial to you, because although you can also change your will as often as you like (and you absolutely should update it periodically to make sure it still reflects your wishes!), updating your will or living trust does require a visit to the estate planner’s office. 

Another great reason to have a personal property memorandum in addition to your will and living trust is that your personal possessions likely change more frequently than other assets. For example, you probably add items to your closet more often than you add vehicles to your driveway.

What Can Be Included in a Personal Property Memorandum?

Not every asset can be distributed using a personal property memorandum! However, here are a few examples of assets that we commonly see people list in their personal property memorandum:

·      Furniture

·      Jewelry

·      Clothes

·      Books

·      Photographs and portraits

·      Important certificates (birth, marriage, death, citizenship/naturalization)

·      Collections of dolls, figurines, etc.

·      Other family heirlooms

Items that should not be included on your personal property memorandum are: 

  • items which have a title, such as your car, RV, plane, boat, etc.;
  • real property, such as your home, timeshare, farmland, etc.; and
  • intangibles, such as stock certificates, royalties, or bank accounts. 

Leaving these types of assets to others upon your death requires a will or trust. Of course, if you have questions about those assets, check with us as your estate planning attorney so we can include everything you own in your plan.

Giving It Away Now Versus Waiting Until Later

One option you always have is to give personal items to your loved ones while you’re still alive. You can share with them the accompanying stories as you’re making the gift. Indeed, this in-person exchange is often the surest way to know your wishes will be followed. If you do choose to give away possessions during your lifetime, you must be aware of any potential gift tax consequences that could arise for items of a larger value. But, generally any gift or series of gifts, within the calendar year, that is valued at less than $14,000 (up to $15,000 starting in 2018) can be given this year without concern.

Verbal wishes alone are insufficient to gift personal property after you’ve passed away. Unfortunately, just because you’ve told people verbally who should get what doesn’t necessarily mean that’s what will happen once you’re gone. A personal property memorandum combined with your will or trust gives you the peace of mind of knowing your wishes are clear for everyone to see.  You can also use this tool as an opportunity to document memories and histories that go along with your cherished possessions. Even if you’ve already communicated this information to your loved ones orally, videos, photos and text about the items can continue the history for future generations and ensure the stories live on.

Whether you decide to hand down your prized possessions now or later through a personal property memorandum, know that one of the best gifts you can give your loved ones is the story behind a personal possession that connects it with you and your family forever. Give us a call today to discuss how we can help not only protect your family, but pass along your cherished possessions and memories.

Legal Considerations When Getting Your New College Student Ready to Go

If you are preparing to send your son or daughter off to college to pursue higher education, you may be wondering how their first semester of school will go. During this exciting new chapter in your family’s life, the last thing you may be thinking about is estate planning for your college-aged child. While your child may not have any assets (yet), once he or she turns 18, your child is considered an adult in the eyes of the law. Before your kids go away, have a frank conversation with them about how much information — including grades, finances, health records — you will be able to access. 

Basic, Yet Crucial, Estate Planning Documents

Before your child is college bound, you should consider completing the following basic estate planning documents:

Healthcare Directive with HIPPA Authorization — While most parents assume when their child is away to college and is in need of medical attention (including mental health care) they will be immediately contacted and will have full rights to make decisions, this is simply not the case. Once your child becomes 18 years of age, he or she is protected by HIPPA laws. This means health care professionals cannot provide medical information without your child’s signed consent, even though your child may still be on your health insurance. If there is no signed HIPPA release at the time, then you may need a court order to be able to access your child’s health information. A Healthcare Directive appoints you as an agent that is able to make medical decisions on behalf of your child in the event he or she becomes ill or incapacitated. 

Of note, each university or college may have its own form of medical release documents as well. While these is no substitute for a Healthcare Directive, signing the school’s documents in advance will likely speed up the process in assisting your child in his or her healthcare needs. 

Power of Attorney — similar to a healthcare directive, a durable power of attorney appoints an agent to make financial decisions on behalf of the individual. This can allow you to have access to your child’s finances including bank accounts, scholarship funds, rental agreements, and insurance matters to name a few.

Prepare Ahead of Time

Many parents are actively involved in their college-aged children’s care and responsibility. Nonetheless, turning 18 changes the legal landscape when it comes to your rights to address your child’s needs. Preparing a legal plan for your college student ahead of time will greatly reduce any legal hurdles you may face as a family while he or she is attending college. Before sending your child off to college, give us a call so we can help you craft a plan that protects your most valuable asset — your children.