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make a will

August is national make-a-will month

August is national make-a-will month

August marks national make-a-will month, an annual reminder of the importance of drafting or updating your will to ensure your final wishes are executed as you intend. 

Despite the importance of having a will, nearly two-thirds of American adults don’t take the time to create one, citing busy schedules, lack of wealth or assets to distribute, or dislike of the idea of thinking about one’s mortality. However, all adults – particularly those with children – should have a will. Why?

  • It’s necessary. No matter what your “estate” includes, everyone needs a plan. Having a legal will in place is a powerful way to steward your resources and protect yourself and your loved ones.
  • It’s your legacy. Your will is your opportunity to define your legacy on your own terms and create a lasting impact through the causes that are important to you.
  • Wills aren’t just for the rich and famous. They make life (and death) easier for everyone, regardless of socioeconomic status.
  • If you die without a valid will, you risk having very personal questions settled by a third party administrator, usually appointed by a probate court.

Luckily, getting your affairs in order does not need to be a lengthy or costly task. Here are a few tips from the National Foundation for Cancer Research on how to get started:

  • Make a list of all of your assets, including investments, properties, bank accounts and personal property such as art, jewelry and other valuables.
  • Review all of your beneficiary designations of your life insurance, investment and retirement accounts. For example, you still may have an ex-spouse listed as a beneficiary—if you do not change it, they may inherit these funds. If you own an account with a beneficiary and pass away, the funds go directly to the beneficiary, regardless of what any other document, such as a will or trust, may say.
  • If you already have a will in place, be sure to review it every couple of years, updating it with any new assets, and making any necessary change to your wishes.
  • At the same time you review your plans, also review the executors that you put in place to execute it, making sure that you still trust the designee and that they are still willing to complete the task.
  • Lastly, consider whether or not you would like to include a charitable organization in your final plans like your will and/or as beneficiary of your accounts. When designating a charity as a beneficiary, it doesn’t have to be an all or nothing scenario. You can always decide to leave any percentage you please to a charity or even to multiple charities.

Read more related articles here:

August Is National “Make a Will” Month

August is National Make a Will Month

Also, read one of our previous Blogs here:

When it comes to a will or estate plan, don’t just set it and forget it. You need to keep them updated.

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

guardianship

How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness, or other serious health issues. If the person you are caring for is unable to make rational decisions about their health care, their finances, or other aspects of their life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness, or disability. Even if an individual has completed a power of attorney (POA) document, guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person (the guardian) control over where the incapacitated individual (the ward) lives, what health care they receive, and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person (the conservator) the ability to handle a conservatee’s financial decisions, such as paying bills, managing investments, and budgeting. Sometimes these terms may be used interchangeably.

An individual petitioning for guardianship and/or conservatorship must go to court to have the potential ward declared incompetent based on expert findings. If the person is ruled incompetent and the petitioner is a suitable candidate to serve as their guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions, or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history, and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any valid legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will, or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children, or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of a guardian or conservator.In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.

Read: What Are the Duties of a Guardian for the Elderly?

Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (e.g., a spouse, family member, or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require, and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

Adult Guardianship

The elder guardianship system in Florida

Also, read one of our previous Blogs at:

The Difference between Power of Attorney and Guardianship for Elderly Parents

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

protect inheritance

CAN A TRUST PROTECT YOUR CHILD’S INHERITANCE?

CAN A TRUST PROTECT YOUR CHILD’S INHERITANCE?

A living trust is a common estate planning tool for transferring assets at death to children and other loved ones. One of the primary reasons trusts are used is to avoid the necessity of having assets tied up in Probate Court (a common misconception is that a Will avoids probate – it does not). Another reason might be to minimize the amount of estate taxes owed upon death, although under current tax laws, estate tax is reserved for the very wealthy. However, one of the most important benefits of a trust is the ability to protect your assets from your children and from their creditors.

Note, this article is not about protecting your assets from your own creditors. While there are asset-protection trusts and other techniques for doing that, a revocable living trust does not accomplish that goal. However, it can be a valuable asset-protection tool for your children if properly drafted.

A common estate plan might provide that upon your death (or upon the death of the last to die of you and your spouse), your assets will be distributed outright to your children. While that has the benefit of being simple, there can be risks with such a plan:

  • The child may be immature or irresponsible with finances. In many cases, a child who receives a sizable inheritance will view it as a windfall. Rather than save the money for the future, he or she may not be able to resist the temptation of spending it on items or services that he or she ordinarily would not have purchased, such as expensive cars, luxury items, and lavish vacations.
  • The child may have creditors. If a child owes money to a creditor (whether as a result of a loan, a civil judgment, or otherwise), and defaults on that debt, that child’s assets are subject to being seized or attached by his or her creditors. To the extent a child receives an inheritance outright, it becomes fair game to his or her creditors.
  • The child may get divorced. In a divorce, a couple’s marital assets are typically divided equally between the former spouses. While inheritance is considered a “separate” asset under most states’ laws, and not marital property, it can easily be reclassified as marital property if the child commingles it with other marital property. An example of this would be using that money to help purchase a marital home, or depositing it into a joint bank account.

A properly drafted trust can reduce those risks by limiting or delaying the distribution of assets to your children and putting control of distribution decisions in the hands of a qualified trustee. In most cases, a trust will give the trustee some degree of discretion concerning distributions of income or principal to the trust’s beneficiaries.

An important component is the existence of a “spendthrift” clause in the trust, which is a statutory protection in most (if not all) states. Such a clause prevents a beneficiary from transferring (voluntarily or involuntarily) his or her interest in the trust, and prevents most creditors of the beneficiary from reaching the trust income or principal before it is distributed to the beneficiary. Of course, once trust assets are distributed to the beneficiary, those assets become his or her property, and thus are subject to creditors’ claims. But until that occurs, a spendthrift clause provides very good protection. It is important to note, however, that a spendthrift clause generally will be unenforceable with regard to claims against the beneficiary by a state or federal governmental entity (such as claims for unpaid taxes). And in most states, if there is a judgment against the beneficiary for the payment of child support or spousal maintenance (i.e. alimony), a spendthrift clause does not prevent the child, spouse, or former spouse from obtaining a court order attaching trust income or principal that would otherwise be distributable to the beneficiary (although in some states, such as Missouri, this is limited to trust income).

A trust can also help protect your assets from being given to your child’s spouse in the event of a divorce. The reason is that the assets of a properly drafted trust remain segregated from your child’s assets, and out of his or her control – at least to the extent the trust assets have not been distributed to your child (and even then, depending on state law, for purposes of divorce they may still remain separate property as long as they are not commingled with marital property). Similarly, in the event your child dies and is survived by a spouse and/or children, with a trust, you can control the extent to which the assets are distributed to (or held for the benefit of) the surviving spouse and/or your grandchildren.

In conclusion, making a trust part of your estate plan, combined with the designation of a capable and qualified trustee and a spendthrift clause, can help ensure that after you are gone, your assets will be preserved and protected from your children, their creditors and their ex-spouses.

Read more related articles here:

What Can I Do to Protect my Children’s Inheritance from Potential Divorce?

Can I Leave Money to My Kids But Not Their Spouses?

Also, read one of our previous Blogs here:

Can I Keep a Loved One’s Inheritance From Their Spouse?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

trust funding

Importance of Funding Your Trust and What Can Happen if You Fail to Do So

Importance of Funding Your Trust and What Can Happen if You Fail to Do So


Funding a revocable trust is an important aspect of creating the trust and it being valid in the future. If the grantor fails to complete this necessary step, there may be lasting consequences.

Funding a Trust

Funding a trust is the process in which the grantor transfers the assets from his or her own person to that of the trust. Funding a trust often involves changing the titles of assets from a person’s individual name to the name of the trust. This may be completed by signing a title of a car to the trust or a deed to a house to the trust.

Funding a trust is often not difficult. However, it may be time-consuming. How assets are transferred depends on the type of asset, its value, title requirements and the laws in the jurisdiction where the property is situated. Some assets require an owner to sign a deed or title. Others may require an assignment document. The holder of the asset such as a financial institution may require proof of the trust.

Roles Involved in the Trust

The grantor or settlor is the person who establishes the trust. The trustee is the person who is appointed to control the trust. The beneficiary is the person who will receive trust assets or income through the administration of the trust. One of the benefits that grantors have when establishing a revocable living trust is that they can freely buy and sell assets and add and remove assets from the trust. However, if a person dies without an asset being titled to the trust, the trust will not own the asset at the decedent’s death and any provisions related to how it should be treated will be moot.

Avoiding Probate

One of the most common reasons why individuals set up a trust is to avoid the probate process, which can often be expensive and time-consuming. If the settlor did not change the title of the asset or name the trust on a beneficiary designation form for certain accounts, these accounts and assets will not pass outside the probate process. The revocable trust only controls the assets that have been placed into it.

If a person owns assets at the time of his or her death and these assets were not titled in the name of the trust, the probate process may be necessary. There may be shortcuts when the decedent’s estate only consisted of personal property and was below a certain value. However, these shortcuts should not be exclusively relied upon.

If assets are owned in multiple states and they are not titled to the trust, it may be necessary to have ancillary probate in the secondary state. This can result in the settlor’s beneficiaries having to go through two or more separate probate cases. This can cause complications with the probate process and can result in the beneficiaries waiting much longer for the property they were entitled to under the trust. Each state handles probate cases in slightly different manners, which can often cause confusion.

Conservatorship

Without a trust in place, a conservatorship may become necessary for any minors that are named as beneficiaries. This may be much more expensive than the administration of the trust would have been. Likewise, if a settlor forgets to fund the trust and later becomes incapacitated, he or she may require a conservatorship to manage his or her funds because the assets are not part of the trust.

Wishes Not Followed

If a person creates a trust and does not fund it and has a will that provides contradictory instructions or no will, the trust provisions that would have applied to the house or other assets will be invalid. This may mean that a person’s wishes that he or she took the time to cement into a trust are disregarded because the assets are not owned by the trust and the trust therefore has no authority over them. The treatment of assets owned outside the trust will be handled pursuant to the provisions in the will or laws of intestacy if there is no will.

Legal Assistance

Individuals who would like assistance in establishing their estate plan may wish to contact an estate planning lawyer. He or she may advise clients about funding the trust to avoid these problems. He or she may also establish a pour-over will to serve as a safety net for any assets owned at the time of the testator’s death.

Read more related articles here:

What Is Funding a Trust?

Don’t Overlook Your Trust Funding

Also, read one of our previous Blogs at:

Why Is Trust Funding Important in Estate Planning?

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

blended families

Estate Planning for Blended Families and Second Marriages

Estate Planning for Blended Families and Second Marriages

Many people don’t get serious about estate planning until they are well into middle age. By then, they may be part of a blended family: they are married for a second (or more) time, and one or both spouses have children from a previous marriage. Estate planning for a blended family can be tricky because each spouse may want to provide both for the other and also for their biological children after their death. If you’re in such a marriage, you should proceed cautiously and read the entirety of this page.

Redo Your Estate Plan Will(s) and Trust(s) Before You Remarry

If you are about to get remarried, you obviously want to celebrate, but it is also important to focus on less exciting matters like redoing your estate plan. You may have created an estate plan during your first marriage, but this time it will probably be more complicated–especially if you have children from your first marriage or you own more valuable assets. The following are some pointers for ensuring your interests are taken care of when you remarry:

  • Take an inventory. The first thing you and your spouse should do is take an inventory of your assets and debts and share it with the other person. Don’t forget to include life insurance policies and retirement plans in your inventories. It is important to be open and honest about money if you want to prevent bad feelings in the future.
  • Decide how you want to handle finances. Once you know what you are worth financially, then you need to decide if you want to combine (or not combine) assets when you are married. For example, if one spouse is selling a house and moving in with the other partner, will he or she contribute to the cost of the house? If one spouse has significant debt, you may not want to combine finances or make any joint purchases. These decisions need to be made upfront so everyone is clear on what to expect.
  • Decide what you want to happen when you die. You and your future spouse need to figure out to whom each of you want(s) your estate to go when you die. If you have children from a previous marriage, this can be a complicated discussion. There is no guarantee that if you leave your assets to your new spouse, he or she will provide for your children after you are gone. There are a number of options to ensure your children are provided for, including creating a trust for your children, making your children beneficiaries of life insurance policies, or giving your children joint ownership of property. Even if you don’t have children, there may be family heirlooms or mementos that you want to keep in your family. Again, open discussions can prevent problems in the future.
  • Consult an elder law or estate planning attorney. Even if you don’t have a lot of valuable assets, you should consult an attorney, especially if you have children. You will definitely need to update your last will. You may also need to update or create other estate planning documents such as a durable power of attorney and a health care proxy. If you have significant assets, a prenuptial agreement may be appropriate. In addition, the attorney can help you decide if a trust is necessary to protect your children’s interests.
  • Change your beneficiaries. You may want to change the beneficiaries on your life insurance policy, annuity, and/or retirement plan. If you are divorced, however, you may not be able to change some of the beneficiaries. Bring your divorce decree with you to the attorney so he or she can make sure you do not violate the decree. If you can’t change your beneficiaries, you may want to buy additional life insurance or retirement plans that will include your new spouse.

The most important thing to remember is to be open and honest with your future spouse and your family members about your wishes.

What are the estate planning considerations in a second marriage later in life?

Many widows and widowers simply do not like living alone after their beloved spouse dies. As widows and widowers increasingly meet and decide to get remarried, they need to be aware of important estate planning considerations. As the life expectancy of people in the United States dramatically increases, the reality of second and third marriages becomes more likely. Widows and widowers are increasingly likely to meet and decide that a second marriage is an excellent way to avoid spending their golden years alone.

Remarriage can be one of the best decisions for an aging person. However, a remarriage later in life (often) creates a unique set of legal questions. For example, many older clients take for granted that their adult children will inherit from them when they pass away. The reasoning behind this assumption is because the majority of their property and life have been spent with their previous spouse, who was a co-parent to his or her children, and the one who helped to build or sustain the family assets.

However, a new marriage means that the marital property is governed by the laws of the new marriage. If there is no prenuptial agreement, then the surviving spouse would, under the laws of New Jersey, inherit at least one-third of the estate. This means that the adult children from the first marriage might be in for a rude awakening. A large part of the children’s inheritance might be “swallowed up” by the second spouse’s right to inherit one-third of her new husband’s estate.

The problems that are created by second marriages should not be taken lightly. It is important to talk these things through with your future spouse. Chances are, he or she also wants to make sure that adult children receive assets. If you don’t have a frank discussion with your would-be spouse, you may end up causing your loved ones a great deal of heartache and confusion as they struggle to figure out what would be best and what you would have wanted.

What is the Elective Share?

If a spouse dies, then the surviving spouse may elect to take a one-third share of the deceased’s estate. This is called an elective share. Basically, a spouse can’t be disinherited. The surviving spouse has a right to his or her elective share in the estate of their deceased spouse. The only way that a surviving spouse can be completely disinherited is through a prenuptial agreement, where both spouses can agree to waive any claims to an elective share of each other’s respective estates.

Your elective estate includes not only property in your name alone, but also most assets with beneficiary designations such as bank accounts, securities, IRA accounts, your interest in jointly-held property, annuities, certain interests in trusts, the cash value of life insurance, and even property that you might transfer to a child during the one-year period preceding your death. In other words, you cannot easily ignore your spouse’s rights to his or her elective share. Many clients ask me how the surviving spouse will be able to claim his or her share if the assets are left in trust for a child. The answer is that the surviving spouse can file a probate proceeding and force the child to return the assets to satisfy the elective share obligation.

Why is it important to have a prenuptial agreement for a second marriage?

Due to an increased life expectancy, a 50% or higher divorce rate in the United States, and an increasing amount of second marriages, prenuptial agreements are now widely accepted. It is very important for individuals to approach the idea of a prenuptial agreement with an open mind. It must be emphasized that a prenuptial agreement does not mean that you are planning to get a divorce, or that you do not trust your new spouse. Instead, couples are now recognizing the seriousness of their upcoming commitment to marriage. Moreover, couples are now communicating their concerns for the future financial security of their other relatives and are expressing their respect for the hard-earned assets and accomplishments of their future spouse.

Although many people look at a prenuptial contract as rather “unromantic,” the reality is that individuals in middle and later life are likely to have more significant assets than younger couples. Additionally, older clients often have important financial obligations in the form of alimony or child support payments, hard-earned estates they wish to leave to their children, and emotional baggage from their previous marriages. In order to provide a solid foundation for their future marriage, clients should consider sorting through their finances. They should also create a plan for how they will merge their economic as well as their emotional lives.

No one should jump into the serious business of marriage. There are some very harsh consequences that can occur if a person does not carefully plan for economic ramifications. Life is not always a fairytale romantic experience. At this stage of life, single people should carefully prepare a detailed and comprehensive prenuptial agreement that addresses every aspect of their financial life.

RETHINKING RETIREMENT PLANS IN A SECOND MARRIAGE

In a blended family, one or both spouses may have a sizable retirement account such as an IRA. One practice is to name the other spouse as primary beneficiary of the IRA, with the account owner’s children as secondary beneficiaries. This approach is common in first marriages, in which the children are the offspring of both spouses, but it can lead to trouble in a blended family.

EXAMPLE 1: David Jennings has $500,000 in his IRA. He names his wife Christine as the primary beneficiary and his two children from a prior marriage as the secondary beneficiaries. Thus, if Christine predeceases the children, they will inherit the IRA. Even if Christine does inherit the account, the balance will pass to David’s children at Christine’s death.

There are two flaws in this strategy. First, Christine can tap the IRA at will as long as she takes the required minimum distributions. She can take out all $500,000 at once, pay the income tax, and then either spend the money or give it to, among others, her own children from her previous marriage.

Second, in this example, Christine is a surviving spouse and sole beneficiary of David’s IRA. Under the tax code, Christine can roll over David’s IRA to her own new or existing IRA (no other beneficiary can do this). Then Christine can name any beneficiaries she wishes, such as her own children.

In either scenario, there is no guarantee that David’s children will see a penny of his $500,000 IRA.

How can David avoid this outcome if he wants to provide for Christine and his own children? One tactic is to divide his $500,000 IRA into two $250,000 IRA’S. He can designate Christine as the beneficiary of one IRA; his children can be co-beneficiaries of the second IRA. Alternatively, David can leave the entire $500,000 IRA to his children, who can stretch out required minimum distributions over their longer life expectancy and thus enjoy extended tax deferral. If David adopts this plan, he can leave other assets to Christine, depending on the size of his estate and her financial needs.

TRAPS FOR UNSUSPECTING SPOUSES FOUND IN SOME TRUSTS

In blended families, spouses also may use trusts in their estate planning. The first spouse to die might leave assets in trust for the surviving spouse, who will get the trust income and also might have some access to the trust principal. At the surviving spouse’s death, remaining trust assets may pass to the children of the spouse who funded the trust. Some trusts of this nature can be qualified terminable interest property (QTIP) trusts and defer estate tax.

Trusts can play a valuable role in estate planning. Again, though, trusts can cause problems in blended families. With the arrangement described previously, the trustee might face a conflict between investing for current income (which would benefit the surviving spouse) and investing for long-term growth (which would benefit the trust creator’s children). In addition, the children may have to wait for many years before receiving any inheritance if the first spouse to die leaves all of his assets to such a trust.

Dividing the estate might be a better solution. Some assets could be left to the surviving spouse and some to the children, outright or in separate trusts. If the spouses fear that such a plan would leave insufficient amounts to the beneficiaries, they might buy life insurance and increase the total estate value.

Second Marriages and Financial Liability for Nursing Home and Long Term Care Costs

Beware… if you remarry, you cannot escape personal financial responsibility for the nursing home and long-term care costs of your spouse regardless of a prenuptial agreement. Federal law and NJ law clearly mandate that if you are married (even for one day) both spouses are jointly liable for the costs of long-term care of the other until or unless divorced. You may have amassed two million dollars before you married your second wife, but if she requires a nursing home at a cost of $11,000 per month, you are responsible for her payment to the nursing home.

Read more related articles at:

Yours, Mine and Ours: A Checklist for Blended Family Finances

Remarried With Children? 5 Estate Planning Mistakes to Avoid

Also, read one of our previous Blogs here:

Estate Planning for Blended Families

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

digital assets

Prepare a Digital Estate Plan for Future Caregivers

Prepare a Digital Estate Plan for Future Caregivers

How to provide the information they’ll need to manage your online data

My mother kept a little black book. Not the fun kind filled with suitors’ phone numbers; rather, a binder that contained her accounts, passwords and ongoing bills. When an out-of-the-blue cancer diagnosis took my mom from independent woman to completely disabled within weeks, the book was my caregiving road map. It held information that she very suddenly could not remember nor convey, but that I needed to keep the gears of her life turning.

With the book, I kept the utilities on at my mother’s house, paid her mortgage and other bills, and handled insurance, work benefits and disability applications. When she died, the book helped me liquidate her assets, finalize her debts, and share the news of her passing through her email accounts and social media.

My mom’s estate planning legal documents did not include a digital plan, which was not uncommon in 2010 when she made her will. So, even though she told me I had permission, I had no true legal authority to access her online accounts and digital property. Her foresight in creating the little black book helped me get by, but there is certainly a better way and many more options for digital planning today than there were even a few short years ago.

Why digital planning matters

Our digital assets (websites we own, blogs, art, music, writing, business websites, cryptocurrency and so much more) and digital information (email, social media and banking accounts) exist in our digital devices such as our computers and smartphones.

Most states have passed laws that give a person’s family or executor the right to access and manage digital assets, information and devices after the person dies. But it is imperative to write out clear instructions for your family/executor and to keep the instructions updated to help them handle your final affairs.

Equally important is that we give someone authority to access and manage digital assets and information before we die. Here’s why: In many households, adults split the duties. One opens utilities accounts and pays those, another handles the car insurance, and so on. Family members may keep separate bank accounts that receive direct deposits or cover certain bills. In one-member households, the individual handles everything and usually in their name solely. Whether living independently or with others, many of us don’t think about who would take over (and how!) if we were suddenly unable to handle our day-to-day life due to a medical crisis or catastrophe.

Perhaps because of that, 1 in 3 caregivers say a top caregiving challenge is locating passwords and accounts, and 49 percent don’t have legal authorization to ask providers (such as banks, credit card companies, email services) to disclose any details or give them access to known accounts. You cannot simply ask a provider for permission to handle another person’s digital life; criminal and data privacy laws prevent providers from giving access and information away. A caregiver without proper paperwork is unlikely to be successful without court intervention. A thorough digital plan can prevent headaches and unnecessary expenses for our future caregivers.

 

Dos and don’ts for crafting your digital plan

  • Prepare (or revise) your estate planning documents to address digital assets and information. Ensure that all your documents (wills, powers of attorney and trusts) authorize somebody to be your “agent” for your digital life and your executor for your digital estate. For example, your documents may include language giving your chosen person authority to “access, control, use, cancel, deactivate, or delete Digital Accounts and Digital Assets, and to access, control, use, deactivate or dispose of Digital Devices.” This makes sure your caregiver would not be essentially hacking into your accounts by using your password and login information, but truly has legal consent to do so.
  • Back up your data, frequently. Have an automatic backup on your files scheduled regularly. Keep a storage account with an online custodian. Store important items on external devices as another layer of preservation.
  • Inventory your accounts and maintain an updated list of login information and passwords.
  • Don’t keep that list in a document on your computer titled “passwords.doc” or in your email account. Consider creating an online vault for such sensitive information. If it’s too much to manage an updated list on your own, use one of the excellent password management tools that create, remember and fill in passwords automatically.
  • Identify legacy contacts and inventory agents where allowed for your social media and professional accounts.
  • Revisit your business shareholder or operating agreements. If you have a corporation or an entity like an LLC, write a succession plan that addresses business digital assets.
  • Write a letter of instruction for your future caregivers and executors and say how you want your digital life handled. Should assets be transferred to a colleague, friend or family member? Are there accounts you’d prefer to be deleted or memorialized? Don’t leave room for doubt; write it out and remove the guesswork.
  • Be like my mom. Organization helps caregivers tremendously, and she was nothing if not organized. To this day, I am exceedingly grateful for that.
  • But also, don’t be like my mom. She used one password — “Ginbabe” (what can I say, she enjoyed a good martini!) — for 85 percent of her accounts and probably didn’t know she was creating a major identity theft risk. Be sure to keep your passwords fresh and varied or use a password manager.

A little action goes a long way to managing, protecting and preserving your digital assets and information. Thoughtful digital planning is something that we all easily can do to create the road map and authority needed for our loved ones and caregivers to help us in life and beyond.

Read more related articles here:

Why You Should Think About Your Digital Assets Before You Die

Estate planning for the digital era

Also, read one of our previous blogs here:

WHY YOUR DIGITAL ASSETS NEED A PLACE IN YOUR ESTATE PLAN!

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Elder Trusts

Living Trusts and How They Help Seniors

Living Trusts and How They Help Seniors

It’s unfortunate that seniors are frequently common targets for financial abuse and scams. Sadly, the elderly are often taken advantage of by strangers – and sometimes even their own family members. That’s why it’s important that planning is in place to help seniors protect themselves and their assets.
As we age, it can become increasingly difficult to manage our assets. Most of us will, at some point, need assistance with these details to help ensure that our financial and other assets aren’t depleted. If you or an aging loved one are looking for ways to safeguard assets, a Living Trust is often the best way to do so. Living Trusts allow seniors to rest assured that their finances and assets are managed by a trusted person.
What is a Living Trust?
Living Trusts help protect and manage the assets of those who cannot do so themselves due to age, illness, or disability. Many seniors assume that a will is the only protection they need. However, trusts are designed to safeguard the assets of the living, while wills only outline what happens to a person’s assets when they pass away. Furthermore, wills must go before a probate court, while Living Trusts allow beneficiaries to avoid probate after their loved one’s passing.
To establish a Living Trust the owner, or grantor, places assets within the trust. The grantor then appoints a trustee to manage it and names beneficiaries to receive the assets of the trust when the time comes.
There are different types of Living Trusts. Below are three types of trusts and the ways these trusts can benefit seniors.
1. Testamentary Trust
A Testamentary Trust protects an elderly person’s assets when a spouse dies. Assets of the deceased are transferred into a trust – enabling the appointed trustee to make all financial decisions regarding those assets. This helps a surviving spouse by protecting him or her from fraud or mismanagement of assets. Trustees can help the surviving senior generate income from remaining assets via sales or investments and take advantage of tax benefits.
2. Revocable Living Trusts
A Revocable Living Trust safeguards seniors by making it more difficult for non-trustee family members to mismanage money or assets. The grantor (senior) can amend or revoke the trust at his or her own discretion without the consent of the beneficiary. This type of trust allows the grantor to stay in control of assets by either serving as a trustee or appointing one. In this case the grantor, serving as trustee and beneficiary of the trust, appoints a successor in the event he or she becomes incapacitated or dies. This appointed person is then responsible for disposal of the trust’s assets.
3. Irrevocable Living Trusts
An Irrevocable Living Trust is one that cannot be changed or revoked by the trustmaker. This means that the grantor/trustmaker gives up his or her rights to the assets once they are transferred. Seniors over 65 who are eligible for Medicaid often choose to transfer assets into an Irrevocable Living Trust to avoid having to dispose of assets in order to remain eligible for Medicaid coverage or long-term care benefits. Once assets are in an irrevocable trust, they cannot be counted for Medicaid eligibility purposes, but there could be a penalty for transferring assets to an irrevocable trust.
An elder law attorney can assist in determining the best way to set up this type of trust and how to best transfer assets based on Medicaid stipulations. An Irrevocable Living Trust can provide income for seniors and their spouses. It also protects their property and other assets from being seized to pay for medical costs, without impacting Medicaid eligibility. This type of trust can also remain in place for a surviving spouse after the grantor’s death.
The sooner assets are placed in an Irrevocable Living Trust the better, as a penalty will be assessed by Medicaid during the first 5 years the trust is in existence (if Medicaid is required during that time).
Ultimately, Living Trusts give seniors more control over their assets than a will, allowing them to set parameters and stipulations and appoint a trusted advisor to help them make decisions.
Read more related articles at:

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

end of life planning

End-Of-Life Planning Is A ‘Lifetime Gift’ To Your Loved Ones

End-Of-Life Planning Is A ‘Lifetime Gift’ To Your Loved Ones

Talking about death makes most of us uncomfortable, so we don’t plan for it.

That’s a big mistake, because if you don’t have an end-of-life plan, your state’s laws decide who gets everything you own. A doctor you’ve never met could decide how you spend your last moments, and your loved ones could be saddled with untangling an expensive legal mess after you die.

Betsy Simmons Hannibal, a senior legal editor at legal website Nolo, puts it this way: Planning for the end of life isn’t about you. “You’re never going to really get the benefit of it. So you might as well think about how it’s going to be a lifetime gift that you’re giving now to your parents or your partner or your children. It really is for the people you love.”

Here are some simple, practical steps to planning for the end of life. These tips aren’t meant to be legal or medical advice, but rather a guide to ease you into getting started.

1. Name an executor.

If you’re an adult, you should have a will, says Hannibal. Estate planning is not just for the rich. “It’s not just about the value of what you own. It’s also the feelings that you and your loved ones have about what you own.”

If you own lots of valuable stuff — real estate, trust funds, yachts — you probably need a lawyer.

The first thing you do is name (in writing) a person whom you trust to take care of everything when you die. In most states that person is called an executor; in some they’re called a personal representative.

Hannibal says it’s a good idea to choose someone from your family. “The most important thing is that you have a good relationship with them — and also that they have a good attention to detail, because it’s a lot of work to be someone’s executor.”

An executor would have to, for example, find all your financial assets and communicate with everyone you’ve named in your will. It’s a big ask, so Hannibal says just be upfront. She suggests asking the person directly, “Would you be comfortable wrapping up my estate when I die?”

2. Take an inventory.

List everything you own, not just things that are financially valuable — such as your bank accounts, retirement savings or car — but also those things that have sentimental value: a music or book collection, jewelry, furniture. Then list whom you want to leave what to.

If you have young children, name a guardian for them. Choose carefully, because that person will be responsible for your child’s schooling, health care decisions and value system.

Hannibal says pets are considered property under the law, so she suggests naming a new owner so that the state doesn’t do it for you.

Digital accounts are also part of your property. This includes social media accounts, online photos, everything in, say, your Google Drive or iCloud, online subscriptions, dating site profiles, credit card rewards, a business on Etsy or Amazon. Hannibal suggests keeping a secure list of all those accounts and the login and password details. Let your executor know where the list is.

Just as you write out specific instructions about your physical belongings, be clear about what you’d like to happen with your online information.

She says it’s better not to have a handwritten will, because proving you wrote it will require a handwriting expert. So keep it simple. Just type out your wishes and have two witnesses watch you sign and date it. Then have them do the same. Hannibal says by signing it, “they believe that the person who made the will is of sound mind, and that’s a pretty low bar.”

You don’t need to file your will anywhere; neither do you need to get it notarized for it to be legally binding. And don’t hide it. Hannibal says just tell your executor where you’ve kept a copy.

Remember that your decisions will change over time. So if you have a child, buy a house or fall out with a family member, update your will.

3. Think about health care decisions.

Your will takes care of what happens after you die. An advance directive is a legal document that covers health care and protects your wishes at the end of your life.

There are two parts to an advance directive. The first is giving someone your medical power of attorney so the person can make decisions for you if you can’t. The other part is called a living will. That’s a document where you can put in writing how you should be cared for by health professionals.

Jessica Zitter is an ICU and palliative care physician in Oakland, California. She says that we’ve become experts at keeping people alive but that quality of life can be forgotten.

She has seen thousands of situations of loved ones making difficult and emotional decisions around a hospital bed. It’s worse when family members disagree about a course of action.

You know the saying “The best time to plant a tree was 20 years ago. The second best time is now”? Zitter says with the coronavirus in the news every day, more people are realizing that these end-of-life conversations are important. “That tree was always important to plant. But now we really have a reason to really, really plant it. … That time is now.”

You may have heard of Five Wishes, which costs $5 and will walk you through choices, or Our Care Wishes, which is free.

4. Name a medical proxy.

Pallavi Kumar is a medical oncologist and palliative care physician at the University of Pennsylvania. Kumar says the most important medical decision you can make is to choose a person who can legally make health care decisions for you if you can’t. This person is sometimes called a medical proxy or a health care agent. Naming the person is the first part of the advance directive.

“Think about the person in your life who understands you, your goals, your values, your priorities and then is able to set aside their own wishes and be a voice for you,” she says. You want someone you trust who can handle stress, in case your loved ones disagree on what to do.

5. Fill out a living will.

After you’ve chosen your medical proxy (and named a backup), you need to think about what kind of care you want to receive. There’s no right or wrong; it’s very personal. The document that helps you do that is called a living will. It’s part two of the advance directive.

A living will addresses questions such as “Would you want pain medication?”; “Do you want to be resuscitated?”; and “Would you be OK being hooked up to a ventilator?”

Kumar says she asks her patients what’s important to them and what their goals are. For some with young children, it means trying every treatment possible for as long as possible, no matter how grueling.

“They would say, ‘If you’re telling me that a chemotherapy could give me another month, I want that month. Because that’s another month I have with my 6-year-old.’ “

Other patients might want the exact opposite. “They would say, ‘I’ve gone through a lot of treatments and I … feel I’m not having as many good days with my kids. So if the disease gets worse, I want to spend that time at home.’ ”

Kumar says even among patients who are very sick with cancer, fewer than half have had conversations about how they want to die. So talk about your wishes. Once you’ve filled out the advance directive forms, share your decisions with your medical proxy, your loved ones and your doctor.

6. Don’t forget the emotional and spiritual aspects of death.

How you want to die is personal and about much more than just the medical aspect. For some, it’s about being at peace with God; for others, it’s being kept clean. Still others don’t want to be left alone, or they want their pets close by.

Angel Grant and Michael Hebb founded the project Death Over Dinner to make it easier for people to talk about different aspects of death as they eat. “The dinner table is a very forgiving place for conversation. You’re breaking bread together. And there’s this warmth and connection,” says Grant.

Some of the emotional and spiritual questions people talk about are “You were just in a big quake and death is imminent. What are you concerned about not having done?”; “What do you want to be remembered for?”; and “If you could have any musician play at your funeral, who would it be?”

Grant says reflecting on death automatically forces you to think about your life. “That’s the magic of it,” she says.

“We think it’s going to be morbid and heavy. But what these conversations do is they narrow down our understanding of what matters most to us in this life, which then gives us actionable steps to go forward living.”

Grant doesn’t believe a “good death” is an oxymoron. “A good death is subjective, but there are some things that I have heard over and over again for many years at death dinners. … A good death is being surrounded by love, knowing you have no emotional or spiritual unfinished business.”

Read more related articles here:

What to know about end-of-life planning

Getting Your Affairs in Order

Also, read one of our previous Blogs at:

Why Estate Planning Is Crucial When Reaching End Of Life

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Medicaid Look Back Period

Medicaid Look Back Period 2022

Medicaid Look Back Period 2022

The majority of nursing home residents receive some Medicaid assistance. When considering nursing home care or other senior living decisions, knowing about the Medicaid look-back period helps reduce the possibility of penalties or disqualification from Medicaid for a period of time.

Learn about the Medicaid look-back period and how it potentially affects you or your loved one considering senior care or senior living options.

What Is The Medicaid Look Back Period?

The Medicaid look back period likely seems confusing for some individuals, particularly with changes made in recent years.

If you or your family member needs nursing home care, the individual must meet requirements for limited income and assets to qualify for Medicaid coverage for nursing home costs. Medicaid, a “last-resort” means of paying for nursing home costs, requires that a nursing home resident first use other means of paying for care before Medicaid begins providing coverage.

Medicaid helps make sure money and assets are not simply transferred to avoid paying out-of-pocket when a person has the means to pay at least some of the costs associated with nursing home senior care and senior living services. Medicaid does this in part by using the “Medicaid look-back period” to determine if there are violations of rules regarding transfer of assets.

The agency considers or “Looks back” over the previous five years to see if any assets were sold for less than true asset value, given away or otherwise transferred within the same time period when determining eligibility for Medicaid coverage and any violations that restrict or delay eligibility.

How Does The Medicaid Look Back Period Work?

The Centers for Medicare & Medicaid Services (CMS) explains that when applying for Medicaid to pay for nursing home care and other services associated with senior care while in a nursing home, the Medicaid eligibility worker asks if the individual recently gave away any assets such as vehicles or money. The representative also asks if the person sold property for less than its fair market value at the time of the sale within the past five years.

This transferring of assets usually results in a penalty, meaning that the person seeking senior living at a nursing home is ineligible for Medicaid, “For as long as the value of the asset should have been used” to pay for the nursing home care.

The site uses the example that if nursing home care costs $5,000 per month and the individual transferred $10,000, then the person is ineligible for Medicaid for two months. The penalty begins the month of the Medicaid application, not the month the individual transferred the property.

The individual then potentially qualifies for Medicaid benefits after the Medicaid look back penalty ends. That qualification is contingent upon the person not transferring any assets in any months while serving the initial look-back period penalty.

What Happened To The Three Year Medicaid Look Back Period?

It is true that the Medicaid look-back period was initially three years in most states. The CMS reported on the new regulations, effective February 2006, after the passing of the Deficit Reduction Act of 2005.

The DRA brought about several changes to the Medicaid look-back period. California, which still abides by its 30-month look-back period, became the only state not to extend the look-back period from three years to five years.

This potentially affects many people seeking nursing home senior care paid for by Medicaid, perhaps leaving some individuals to consider other means of paying for senior living options.

Another rule that changed is the fact that the Medicaid look-back period previously started with the day you transferred your assets. Now it begins 60 months prior to the date the person applies for Medicaid.

Are There Ways To Avoid Medicaid Look Back Period Penalties?

There are several exceptions to penalties for transferring assets during the Medicaid look-back period. If your transferred asset is a home and you transferred title to your spouse, there is no penalty. If your child lived with you for at least two years before you enter the nursing home and that child provided care to you during that period so you could continue living at home, you also avoid the penalty. If you have a child under age 21 who is blind or totally and permanently disabled under state-specific guidelines or if you transferred the home to your sibling who has an equity interest in that home and lived there for at least a year prior to your entering a nursing home there is no penalty.

NOLO points out that other exempt assets include household goods, personal effects, one automobile and some pre-paid funeral plans.

When considering nursing home senior care and senior living, make sure you avoid improper transfer of assets and know other guidelines of the Medicaid look-back period.

Read more related articles at:

Understanding the Medicaid Look-Back Period and Penalty Period

Understand Medicaid’s Look-Back Period; Penalties, Exceptions & State Variances

Also, read one of our previous Blogs at:

MEDICAID ALERT: New Medicaid Community Care Look Back Rules Start October 1, 2022

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

Financially independent Woman

Why Being Financially Independent is Critical for the Women of Today

Why Being Financially Independent is Critical for the Women of Today

Are there any ways for women to gain financial independence?

Invest to gain financial independence

Women have become more independent than ever before, and while they continue to shatter norms, it is essential they understand how to grow their wealth and ensure they are at par with men. Most women find it hard to manage their money, due to lack of guidance and scattered resources.

Investing is the first step to gaining financial independence for women. What’s also important to understand is that putting your money into the right instruments is as important as other aspects. That’s because there are several events in a women’s life — motherhood, taking care of elders in the family, and more — that may lead her to take a career break. Under such circumstances, having financial security acts as a security blanket.

Also, investing early is a good step. That’s because people have a higher risk appetite in the initial stages of their careers, as compared to the later stages. Moreover, women must start placing themselves first, before taking into consideration others’ needs. It is critical to build a safety corpus that includes a diverse range of investments to secure future needs, especially with greater exposure to risks, including inflation.

A Financial Advisor is an important key professional for anyone. We work with Financial Advisors on a daily basis and understand it can be difficult to find one that best suits you, your individual needs, desires, and general outlook. If you need a Financial Advisor, we can help match you with one who shares your outlook, will understand your financial vision, desires, and needs, and help you get to where you want to be to start helping you preserve your Legacy now. Call us at 904-880-5554 or e-mail us at: [email protected] .

 

Read more related articles at:

Why a Woman Needs To Be Financially Independent

Financial Independence: Why Money Is Most Important For Married Women…

Also, read one of our previous Blogs at:

Wealthy Women Face Challenges in Estate and Tax Planning

Click here to check out our On Demand Video about Estate Planning.

Click here for a short informative video from our own Attorney Bill O’Leary.

 

 

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