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FACTS EVERY TRUST BENEFICIARY SHOULD KNOW

 

FACTS EVERY TRUST BENEFICIARY SHOULD KNOW

By Patricia M Angus

After years of working with families to establish trusts, and with individual trust beneficiaries, it has become clear to me that there is a need for better understanding by the
persons creating trusts and, more import a n t l y, by beneficiaries, about what a trust is, and how trusts work.

I r o n i c a l l y, the beneficiary, who is the very person for whom a trust is established, is often quite confused about fundamental trust concepts. In my view, the education of family members, especially beneficiaries, is as important as the creation of legal structures and the proper investment of assets to ensure the preservation and growth of family wealth and enhance the beneficiary’s life.

F u r t h e r, legal and financial advisors, as well as trustees, should assist beneficiaries in the educational process. This article summarises some fundamental issues that advisors can and
should strive to teach their clients. The process should begin when a trust is created and continue for its duration. This will help the beneficiary better understand the trust and how the beneficiary can play an active role in its administration.

O b v i o u s l y, this list hardly begins to address the complex set of issues that each trust entails. Hopefully though it can guide advisors as they raise their awareness and assist beneficiaries in the
process.
1.Terms of the trust agreement. A beneficiary should receive a copy of the trust agreement, or at least relevant parts of it, from the trustee.
The trust agreement provides a set of instructions for the trustee and guidelines for the beneficiary.
The trustee should also provide a summary (oral or written) of the trust and be available to answer questions about its terms. It is only by reference to
the specific provisions of the benefic i a r y’s own trust that the beneficiary will fully understand how they apply to him or her.

Key parties

The trust agreement defines the key parties to the trust relationship:
• the “grantor” or “settlor” contributes funds to the trust and generally sets its terms;
• the “trustee” is the individual, bank or trust company who is responsible for holding the trust funds and implementing its terms;
• the “beneficiary” is a person who is to receive current benefits (income and/or principal) from the trust;
• the “remainderperson” is anyone who is entitled to receive trust property when it terminates. The beneficiary should seek clarification on what the trustee can or must do with trust income and principal. Often, the agreement states that the trustee is to pay income to a particular b en e f i c i a r y. This is generally annually or more frequently. It may also provide that principal is to be paid at certain ages or from time to time in the trustee’s discretion. A trustee who has discretion over payment of trust income and/or principal is subject to certain standards that determine when payments can be made:
• under a broad standard, the trustee may pay principal for any reason, or not at all;
• a more restrictive standard might state that principal may be paid for the emergency needs of the beneficiary.
The beneficiary and trustee should discuss openly the types of payments that can be made. By helping a beneficiary understand the essential vocabulary and concepts of the trust relationship, an
advisor can increase the chances that the beneficiary will be able to truly benefit from the trust.

Read more related articles at:

Naming a beneficiary: What you need to know

What is a trust beneficiary?

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.

Business succession

8 Keys to Passing Down a Family Business

8 Keys to Passing Down a Family Business

8 Keys to Passing Down a Family Business. Learn how to transfer a family business to the next generation.

When it comes to transferring a business to a new generation, do not improvise.

At least half of the companies in the U.S. — even those listed on the stock exchange — are family businesses, according to Harvard Business School.

These businesses are not only “the backbone of the American economy,” but also tend to perform better than nonfamily companies during economic crises, says Pramodita Sharma, a professor at the University of Vermont School of Business and an expert in family businesses.

But what happens when the founders decide to retire and hand over the reins to a new generation? For many family businesses, that involves one of the most complex processes and generates the most challenges.

3 Pitfalls to Avoid

A successful transition

Henry Suárez had a career in the pharmaceutical industry. His last job was as an executive for Upjohn (now Pfizer). In 1990, at 50, he decided to go out on his own and created Suiphar, a drug distributor. He started the business with his three sons.

That was the first step in a successful generational transition, years before it happened. The sons not only learned the details of the business, but also contributed to creating the company. “My father always got us involved in his business, ever since we were just kids,” said Jaime E. Suárez, a board of directors member of Suiphar group and company shareholder along with his two brothers, Henry H. and Luis A. The three of them have equal shares.

Eight years ago, their father gave them control of Suiphar, a group of nine companies with headquarters in Sunrise, Fla., and offices in five Latin American countries, including a production plant in Bogota. The company generates annual revenue of almost $50 million.

The Suárez family’s generational transition was successful for several reasons: The sons were trained to run the business; they had a clear interest in the company; and they had earned their participation through effort and not simply by being the boss’ sons. They contributed their own capital and effort to the enterprise.

The following are the eight most important aspects in the generational transition of a family business, according to several experts.

1. Business plan

The transition from one generation to the next must be thoroughly planned. “The family must meet to define where the company is now and where it wants to go in the future: the technology it will need, what will be the capital requirements, and what type of human resources will be needed, among other subjects,” says Wayne Rivers, president of the consulting firm Family Business Institute. “This is part of a business plan that, in 95 percent of the cases, [the companies undergoing this process] don’t have.”

Jaime E. Suárez adds: “When we transitioned, we did the strategic planning for the company for the 2010-2015 period. And it’s a plan we revise every five years.”

2. Real commitment

The new generation must never think that their place in the company is guaranteed because they are part of the family. Working for a family business must be an opportunity, and the owners must be very clear about the employment conditions of their children — from benefits to performance policies — to avoid giving the rest of the employees the wrong perception, says Paul Karofsky, a family business consultant.

 

3. Corporate governance structure

Every company must have a professional management system. Establishing a board of directors composed of industry experts, attorneys, accountants and others from outside the family will lead to better decisions. However, “having a good board of directors that includes mom and dad as advisers is essential,” says Greg McCann of McCann & Associates, a consulting firm specializing in family businesses. A small business that cannot afford to have a board of directors with paid professionals can have a board of advisers made up of relatives, friends, attorneys and accountants.

4. Gift or sale?

A common dilemma is whether the new generation should get stock as a gift or should contribute capital to buy the company. “The most advanced usually have a combination of both in the transition plans,” Sharma says. “Showing economic commitment to the company is important for the company’s success throughout the generations.” For Suiphar, the commitment from the second generation was clear from the beginning because the sons worked with the father to create the company.

5. Preparation

The generation taking over must receive the training required to take control. The generation giving up ownership needs a plan that clearly defines the conditions of their exit, and whether, for example, they will remain as advisers or keep a position with specific duties. “In my experience, the time needed to make sure all parts are ready for a successful transition is between five and 10 years,” McCann says.

6. Management first, then ownership

Transferring the company to the next generation is not only a matter of naming the children as owners. The first step is transferring the management of the company and ensuring that the new generation is trained to lead the business. “When the new leadership is strengthened and it is shown that they are competent, then the property transition process can begin,” Rivers says. If needed, professional managers can be hired until the relatives are ready to take over complete control of the business.

7. Resolution of conflicts

All families have problems and conflicts to be resolved. Karofsky says it is vital to remove interpersonal conflicts from the day-to-day operations of the business and to define ways for the family to resolve differences. Conflicts not only “can destroy the family, but also the business,” he says. According to Jaime Suárez, it is fundamental to have a family pact, a document that governs how relatives behave inside the business and within the family, and “how conflicts are resolved among family members.”

8. Key documents

The generational change process includes documents that family businesses should pay attention to. According to Karofsky, they are:

  • Family pact: Establishes the terms and restrictions for a family member to be able to transfer their shares of stock. It also establishes the rules to join and leave the company, how conflicts will be resolved, educational requirements, and compensation and promotion policies.
  • Will: Specifies what will happen with the stock if a shareholder dies.
  • Code of conduct: Establishes the rules of behavior for family members within the company and information-confidentiality matters.

Read more related articles at:

Four Considerations When Passing The Family Business To The Next Generation

Transferring Power in The Family Business

Also, read one of our previous Blogs at:

How to Start Family Business Succession – The Earlier the Better

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.

asset protection

Asset Protection Planning

Asset Protection Planning

Which United States jurisdictions allow for the creation of asset protection trusts?

Domestic asset protection trusts are permitted under the laws of Alaska, Delaware, Hawaii, Missouri, Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Virginia and Wyoming.

What other areas of law should an estate planning attorney be familiar with before practicing asset protection planning?

In addition to a working knowledge of taxation and business entities, an estate planning attorney wishing to engage in asset protection planning should be familiar with general concepts of bankruptcy law and creditor/debtor law. Specifically, knowledge of how applicable fraudulent transfer/conveyance laws apply to proposed planning (either under the UFTA or UFCA) is absolutely essential.

Who should consider establishing an asset protection trust?

Asset protection trusts are typically established by individuals in high risk occupations (i.e., doctors and real estate developers) and very wealthy individuals that realize they are targets for creditors due to their net worth. Asset protection trusts can also be used in lieu of a prenuptial agreement.

Are there any tax reasons to establish an asset protection trust?

In certain situations an asset protection trust can be used to eliminate or reduce the imposition of state income taxes. An asset protection trust may also be used to remove assets from a grantor’s estate while still allowing the grantor to potentially benefit from the trust assets.

Read more related articles here:

Make Your Estate Creditor-Proof

How to Protect Your Assets From a Lawsuit or Creditors

The 2021 Florida Statutes

Also, read one of our previous Blogs at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

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.

incapacity

What is the Process to Declare Someone Incapacitated or Incompetent in Florida?

What is the Process to Declare Someone Incapacitated or Incompetent in Florida?

The process for declaring someone incompetent or incapacitated begins with filing a Petition to Determine Incapacity with the court (Fla.Stat. §744.331(1)).

The Court will then appoint an examining committee to assess the mental and physical condition of the person who is allegedly incapacitated (Fla.Stat. §744.331(4)).

Depending on the report presented to the Court, a hearing will be conducted wherein testimony and other evidence is heard, and the Court decides if the alleged incapacitated person is actually incapacitated and then whether a guardian is necessary.

How Do Courts Decide Who to Appoint as a Guardian?

When a person is declared incompetent by a Florida court, the judge often is presented with conflicting applications by different persons, often family members of the incompetent person, who propose to be the guardian and look after the financial and medical affairs of the incompetent.

Although Florida judges are afforded wide discretion in these difficult decisions, there are some statutory guidelines regarding the considerations in the appointment of guardians.

Florida law directs that a person related by blood or marriage receives preferential treatment.

The law also directs courts to consider the following:

  • “(1) Subject to the provisions of subsection (4), the court may appoint any person who is fit and proper and qualified to act as guardian, whether related to the ward or not.
  • (2) The court shall give preference to the appointment of a person who:
  • (a) Is related by blood or marriage to the ward;
  • (b) Has educational, professional, or business experience relevant to the nature of the services sought to be provided;
  • (c) Has the capacity to manage the financial resources involved; or
  • (d) Has the ability to meet the requirements of the law and the unique needs of the individual case.
  • (3) The court shall also:
  • (a) Consider the wishes expressed by an incapacitated person as to who shall be appointed guardian;
  • (b) Consider the preference of a minor who is age 14 or over as to who should be appointed guardian;
  • (c) Consider any person designated as guardian in any will in which the ward is a beneficiary.
  • (4) If the person designated is qualified to serve pursuant to s. 744.309, the court shall appoint any standby guardian or preneed guardian, unless the court determines that appointing such person is contrary to the best interests of the ward.” Fla. Stat. § 744.312.

Even though the statute directs that “a person who is related by blood or marriage to the ward” receives preference in the appointment; the inquiry does not end there. The court also has the discretion to give preference to a non-relative who possesses particular experience or ability to serve as guardian. See, e.g., Treloar v. Smith, 791 So. 2d 1195 (Fla. 5th DCA 2001) (finding that while next of kin are given first consideration, the statute does not mandatorily require that such an appointment be made; rather, the statute specifically provides that court may appoint any person who is qualified, whether related to the ward or not).

Moreover, it is the best interest of the ward that trumps other considerations in the appointment of a guardian. See, e.g., In re Guardianship of Stephens, 965 So. 2d at 852 (“The best interests of the Ward — which include choosing a qualified guardian for the Ward — come first. Family member preference in and of itself is secondary, regardless of how well qualified the family members are.”).

Third District Upholds Palm Beach Probate Court’s Appointment of Guardian Not Related to the Ward by Blood or Marriage

These principals were recently examined by the Florida Third District Court of Appeals when it reviewed the decision of a Palm Beach County Probate Judge in Morris v. Knight, 34 Fla.L.Weekly D321a; –So.2d–; 2009 WL 321586, February 11, 2009 (Fla.3rd DCA) which involved an appeal of Judge Karen Martin’s decision to appoint a guardian over Estelle Pratt Barker, a ninety-seven-year-old woman who was found to be incapacitated.

Judge Martin of the Palm Beach County Probate Court was faced with three individuals who petitioned for guardianship and control of Ms. Barker’s person and property: Ms. Glinton, who is Barker’s first cousin; Ms. Morris, whose mother is Barker’s first cousin; and Mr. Knight, who is a neighbor and friend of Barker. A hearing was held on the three competing petitions.

The testimony revealed that Glinton and Morris were related to Ms. Barker, however, there was also testimony from Barker’s attorney that in the thirty years that he served Barker, she never talked about or came in with any family member except Ms. Morris.

Regarding Knight, Glinton asserted that he used Barker’s money to purchase a new car for himself and that he had been Baker Acted for mental illness. Glinton, however, could not offer any evidence of such allegations during her testimony, and the court thus found them to be false. The court also determined that Glinton made other representations not supported by evidence and ultimately found her unfit to serve as guardian.

The testimony revealed that Mr. Knight had known Barker since he was a child visiting his grandmother who lived across the street from Barker in the 1960s. “Knight is a former U.S. Marine and retired sanitation worker for the City of West Palm Beach. He has also worked as a mental health technician and as an aide in a nursing home. He now receives both Veteran’s Administration benefits and a pension from the City of West Palm Beach. At trial, Knight stated that from about 1999 to 2002, Barker’s family did not visit her much. Knight would see Barker come out on the porch of her home around 7:00 a.m. each day and sit alone all day. Knight began stopping by to bring Barker coffee and food, to visit with her, and to wash her clothes and clean her house. When Barker’s doctor made the decision to place Barker in a nursing home, Knight continued to visit her there six days a week for two hours each day. Knight testified that he intends to continue visiting Barker, washing her clothes, and bringing her snacks whether he is appointed guardian or not.”

“Grace Morrow (“Morrow”), an adult protective investigator with the Department of Children and Families, described Barker and Knight’s relationship as being “like a mother-son relationship.” Morrow also added that Knight was always there for anything that she or Barker needed and that Barker was happy with Knight’s care and companionship.”

Judge Martin of the Palm Beach County Court denied Morris and Glinton’s petitions for guardianship and appointed Knight as Barker’s guardian. The court considered the fact that Morris and Glinton are related to Barker, but did not find that fact to be dispositive. Instead, based on Knight’s fitness to serve as guardian and Barker’s demonstrated wish to entrust her care to Knight, the court determined Knight to be the most appropriate person to serve Barker’s best interests.

The Court of Appeals agreed with Judge Martin. Applying the abuse of discretion standard of review, the appellate court confirmed Judge Martin’s decision.

Read more related articles at:

How to Get Power of Attorney for Your Elderly Parents in Florida

Guardianship in Florida

Also, read one of our previous Blogs here:

No One Knows The Time Or Hour…Incapacity 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.

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning

What Prince Philip’s Death Shows Us About The Importance Of End-Of-Life Planning Since his death , Prince Philip has been remembered around the world as a model of service and a loyal and loving husband. His over 70 years in the public arena as a member of the Royal Family has many feeling that a beloved member of their own family has passed.

While memorials and tributes continue to pour in, one thing is clear:  Prince Philip had clearly defined wishes regarding how he wished to pass as well as his funeral plan. In his case, as an important state figure, it was a requirement. In many ways the ritualistic nature of that plan is allowing many to remember the Prince and all he accomplished.

While this type of planning might only seem fit for royalty, it is actually something that all of us can accomplish with our estate planning documents. Specifically, our health care directives can help us with end-of-life planning and funeral planning, and the process is quite simple.

Despite the importance of these documents, The Palliative and Advanced Illness Research Center at Penn Medicine found in a 2017 study that only one-third of all Americans have such a document for end-of-life care. Further, there is a higher level of engagement for older Americans versus younger individuals. For such an important decision, there is room for greater improvement in obtaining these documents.

A health care directive is a legal document that allows an individual to name an agent to make medical decisions for them if incapacitated. Upon death, it gives the agent the ability to manage the decisions regarding the body.

When most people think of health care directives, they typically think of pain relief and interventions. The circumstances of Prince Philip’s passing serve as an example of additional features that can be added to a health care directive.

Prince Philip was able to pass away at home in Windsor Castle. In the final two months of his life, he spent a significant amount of time in hospital. After his death, it was revealed that his final wish was to die at home. Fortunately, that wish was fulfilled.

But Philip’s wish is not unique to royalty. Many do not want to end their lives in hospital if it can be avoided, and the health care directive is a powerful way to express this. An individual can add to their directive that they wish to die in their home rather than in the hospital. While fulfilling this wish might not be possible depending on the circumstances, for the agent, it is helpful to have a clear directive about what an individual wants as they pass away.

Creation of A Funeral Plan

Further the health care directive can help design a funeral plan. Funeral planning has been around for centuries, but in modern day estate planning, one’s wishes have often been relegated to a simple directive of burial or cremation within the health care directive.

For many people, these directions are not adequate. Today, individuals are embracing the idea of giving more detailed plans for their funeral. These directions can include a variety of instructions. Some  people may choose to identify the type of religious service, hymns and speakers at the funeral. Others may choose to lay out details for the final event they will plan for their loved ones. As a result, funeral plans can consist of elaborate parties and ceremonies that an individual would want to have as their final goodbye.

Finally, for those who are socially conscious, funeral plans can be the last chance to embrace their ideals. From being buried in an environmentally friendly mushroom suit that will disintegrate back into the earth to having ashes spread among the trees in a beautiful setting, many are choosing these more thoughtful funeral arrangements.

Regardless of the wishes, having these detailed plans can help the family grieve and honor the deceased’s last wishes. They can also alleviate potential family tensions about what the plans should be.

Straightforward Process

Obtaining a health care directive is a straightforward process. Since groundbreaking cases in the 1990s and 2000s, all fifty states offer a form for residents to fill out to state their wishes for end-of-life planning. They are often downloadable from the state website.

As the pomp and pageantry of Prince Philip’s funeral unfold over the next week, it might be a good time to complete and sign a health care directive to help detail how you’d like your end-of-life and funeral plans to play out.

Corona

1 in 5 People Who Died of COVID-19 Did Not Have an Estate Plan

1 in 5 People Who Died of COVID-19 Did Not Have an Estate Plan

Written By: Daniel Cobb, Managing Editor

Date Updated: June, 2022

Key findings: 

  • 1 in 5 Americans had no estate plan established before dying of a serious case of COVID-19.
  • Americans who survived a serious case of COVID-19 are 66% more likely to engage in estate planning than others.
  • 41% of Americans who witnessed a loved one battling a serious case of COVID-19 have established a will, compared to only 29% who’ve never had first- or second-hand experience with a serious case of COVID-19.

The COVID-19 pandemic has had a massive impact on our world that we are still coming to grips with today. We were unprepared for the challenges and changes that have occurred in the last two years, both collectively and individually. Many people were not properly prepared when COVID-19 hit, including their end-of-life planning.

A new survey released by Caring.com shows that 1 out of 5 Americans had no estate plan in place before dying from COVID-19, leaving loved ones to not only grapple with their loss, but also the stress and difficulties caused by not having estate planning documents.

“Dying without an estate plan significantly adds to the burdens carried by loved ones after a death,” says Patrick Hicks, General Counsel and Head of Legal at Trust & Will. “A complete estate plan may allow loved ones to bypass probate and many administrative hassles after a death. Additionally, having an estate plan can even be a source of comfort in a time of emotional turmoil and provide loved ones with clear instructions on the decedent’s last wishes. For many, this provides a sense of purpose that can overcome feelings of helplessness and loss that often follow a death.”

Covid Casualties: 1 in 5 Americans Had No Estate Plan Before Dying

In a survey conducted in partnership with Pollfish in early 2022, Caring.com surveyed 1,000 Americans who lost a family member (immediate or extended) to a serious case of COVID-19 to ask if their loved one filed any legally recognized estate planning documentation prior to their death. Nearly half (44%) said their loved one either hadn’t filed any documents or they weren’t aware of any. Among those who did have an estate plan in place, 23% percent established a will, 18% a living trust and 16% a different kind of estate plan.

The news isn’t all grim, however. The seriousness of COVID-19 served as a wake-up call for many. Nearly half of all those who’ve had a serious case of COVID-19 (such as hospitalization, long-term effects, death, etc.) have estate planning documents – that’s a 66% increase compared to those who haven’t had first- or second-hand experience with a serious case of COVID-19.

This year, Caring.com’s annual estate planning survey asked respondents whether they or a loved one had a serious case of COVID-19, and whether COVID-19 motivated them to engage in estate planning. Below are the results of our annual survey as it relates to the impact of COVID-19 on estate planning.

Methodology
This report is based on two separate surveys – both conducted in early 2022. The first was conducted in partnership with Pollfish, and surveyed 1,000 Americans who lost a family member due to COVID-19. The second survey is our annual estate planning survey that was conducted in partnership with YouGov and surveyed 2,600+ American adults. For more information on this survey’s methodology and to see the full results, read the 2022 Wills and Estate Planning Study.

COVID-19 Is Motivating Americans to Get a Will – Especially After Contracting COVID-19

Nearly Half of all Those Who Had a Serious Case of COVID-19 Now Have Estate Planning Documents

Caring.com’s 2022 Estate Planning Study found that those who had personal experience with a serious case of COVID-19 (either themselves or a loved one) are much more likely to have a will than those who haven’t come face to face with the dangers of COVID-19. 48% of those who had a serious case of COVID-19 said they have a will, while 42% of respondents with second-hand serious COVID-19 experience have an estate planning document. Conversely, only 29% of Americans without first or second-hand experience with COVID-19 said they have a will, living trust, or any estate planning document – that’s a 66% decrease from those who’ve had first-hand experience with the virus.

Prevalence of Estate Planning by Exposure to a Serious Case of Covid-19

According to Patrick Hicks, this trend is not unexpected. “Many people who lack an estate plan have fallen victim to the belief that they do not need an estate plan yet, or estate planning can be deferred until later. Experiencing a severe illness or a death in the family often helps individuals recognize the importance of having a plan in place before it is needed.”

Young Adults Are Most Motivated to Engage in Estate Planning Due to COVID-19

Our study found that 18-34 year-olds are the most motivated by COVID-19 to engage in estate planning, with nearly 1 in 3 (29%) taking further steps to obtain estate planning documents.

Both middle-aged and senior U.S. adults are less likely to be motivated by COVID-19 to engage in estate planning. Only 22% of those in the 35-54 age group have taken further steps in estate planning because of COVID-19. This number drops even further for older adults – only 13% of those who are 55 or older were motivated by COVID-19 to take action to get a will.

Percentage of Age Groups Motivated by Covid-19 to Act on Estate Planning

Americans Are More Likely To Talk To Loved Ones About Estate Planning After A Close Encounter With COVID

Nearly 1 in 3 Americans Who Experienced a Serious Case of COVID-19 Were Motivated to Discuss Estate Planning

Although having or witnessing a serious case of COVID prompted many Americans to engage in estate planning, even those who didn’t follow through were at least prompted to start the conversation about estate planning – a crucial first step.

“Communicating about your estate plan and your wishes can be incredibly helpful in ensuring your wishes are known and carried out in the way you have chosen,” says Hicks. “For many, starting the conversation about estate planning is a way to break through the unease of discussing death and mortality. Those conversations help identify preferences and priorities that can then be reflected in a written estate plan. Additionally, these conversations can help communicate those choices to loved ones.”

Those who had (or know someone who has had) a serious case of COVID are more than three times as likely to talk to a loved one about planning their estate than those who haven’t experienced COVID first or second-hand. 30% of those with first-hand experience said COVID-19 motivated them to start the conversation, while only 8% of those without any personal experience said COVID-19 encouraged them to talk about getting a will with a loved one.

Has Covid-19 Motivated You to See a Greater Need for Estate Planning?

Battling A Serious Case Of COVID-19 Serves As A Major Motivator For Americans To Establish an Advanced Health Care Directive (AHCD)

Those Who Personally Battled COVID-19 Were Four Times More Likely to Say it Motivated Them to Obtain an AHCD

Individuals who had a personal experience with a serious case of COVID-19 were more likely to seriously consider and obtain an Advanced Healthcare Directive (AHCD). Only 6% of those without a personal experience of a serious COVID-19 case said that the pandemic prompted them to discuss an ACHD with a loved one. Meanwhile, nearly four times as many people (22%) who had a first-hand experience said this motivated them to start the AHCD discussion.

The trend holds true for those who decided to put their research and discussions into action and actually obtain an AHCD – only 4% of those without personal experience said that COVID-19 motivated them to get an AHCD, while 16% of those with first-hand experience said the same.

Advanced Healthcare Directives Motivated by Covid-19

Overall, only 15% of Americans have an AHCD – less than half the number of those who have a will. Meanwhile, nearly 1 in 5 don’t even know what an Advanced Health Care Directive is.

According to Patrick Hicks, this is worrying because an AHCD is a critical component of a proper estate plan. “Advance care planning — planning for medical treatment during one’s lifetime — is an essential piece of an estate plan. Between continued advances in medical technology and the ongoing impacts of COVID-19, an AHCD is more important than ever before. Many who have created an estate plan find that the decisions made in an AHCD are among the most critical decisions in the entire estate plan.”

Read more related articles at:

67% of Americans have no estate plan, survey finds. Here’s how to get started on one

Estate Planning During the Pandemic

Also, read one of our previous Blogs here:

How Can Estate Planning Protect Me from COVID-19?

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

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

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

 

New Medicaid Look Back Rules

If this sounds familiar, you’re right—recent years have seen many extensions of rules regarding Medicaid. But for New Yorkers, this most recent change to Medicaid Community Based Care is a result of a New York State’s 2022-2023 budget and not the pandemic.

There has always been a five-year lookback period for Medicaid applicants seeking coverage for long-term nursing home care. Any transfer or sale of assets within a five year makes an applicant ineligible and nursing home costs have to be paid by the person or the family until the person spends down enough of their assets to become eligible.

The look-back is now being applied to Medicaid Community or Home Care. This is a first for New York State, and it requires seniors to do advance planning if they wish to receive Medicaid Community and Home Care services and protect their assets.

After October 1, 2022, anyone applying for Medicaid Home Care benefits will be subject to at least a 15-month lookback. It’s also possible the person and their spouses will have to provide records of up to 2.5 years before the application date.

The lookback period is not as long as for long-term nursing care, but this will still have a negative impact on those who need Medicaid Home Care.

We can’t stress this enough: As of right now, there is NO look-back or penalty period for Medicaid Home Care benefits. This includes home health aides, adult day care and community based services.

If you are considering applying for Medicaid for a loved one or for yourself, you need to act now. Once these rules change, you or your loved one may lose their eligibility. The time to plan for this care is today. Not tomorrow, not next week.

In time, the Medicaid Home Care lookback period will increase to 30 months, and an additional month will be added until the period for asset transfer records reaches 2.5 years.

Read more related articles at:

Medicaid’s Look-Back Period Explained: Exceptions & Penalties

What is Florida Medicaid?

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.

 

gun trusts

There are many great reasons to own Title II weapons in a Trust.

EVEN WITH ATF41F, there are still many great reasons to own Title II weapons in a Trust:

  • Flexible & gives peace of mind
  • Multiple person ownership
  • Add new owners at any time
  • Property protection
  • Abiliy to pass trust assets to future generations
    (Not just your children, but their children and their children)

In the state of Florida, civilians are legally allowed to own restricted weapons, known as Title II weapons, which are sold by Class 3 dealers. However, certain procedures must be followed to ensure that ownership of these weapons complies with state and Federal Law.

What is a Title II (class 3) weapon?

 

  1. Short Barrel Rifles (any rifle with a barrel length less than 16″, or overall length less than 26″)
  2. Short Barrel Shotguns (any shotgun with a barrel length less than 18″, or overall length less than 26″)
  3. Suppressors
  4. Fully Automatic Firearms (any weapon which shoots automatically more than one shot by a single function of the trigger)

In order to legally own a Title II weapon, approval must first be given by the ATF. This approval comes in the form of a “tax stamp”, which is affixed to the form that you will send to the ATF requesting permission to own the weapon. If you are building a Title II weapon, (for example, if you are building a short barrel rifle from an existing lower receiver), you will send a Form 1 to the ATF. If you are purchasing an existing Title II device, (for example, a suppressor), then you will send a Form 4 to the ATF.

Why not use a corporation or LLC?

Some clients have stated that they would rather use a corporation or LLC for owning their weapons. This is a poor choice for several reasons. If you currently own a corporation or LLC, and would just like to add items to your entity, you must remember that if you are doing business through your entity, and that business gets sued, your weapons will now be considered assets of the company and are exposed to possible forfeiture. Even if you are never sued, chances are one day you will either want to sell or close your business, but owning Title II weapons will complicate issues greatly (if you are selling your business that owns a few suppressors, chances are you will have to then draft a gun trust and pay a $200 tax stamp for each item you own to transfer your suppressors from your company to your trust). If you do not currently have a corporation or LLC, then remember that there are annual filing fees, and all information about your company is public record.

Read more related articles here:

Own a Gun? Careful: You Might Need a Gun Trust

Gun Collections Pose Special Estate Problems

Also, read one of our previous Blogs here:

Bequeathing And Inheriting Guns: What To Do With Firearms When Someone Dies

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.

special needs senior

Caring for Seniors with Special Needs

Caring for Seniors with Special Needs

Seniors with disabilities make up about 72 percent of the population of people over the age of 80 in the U.S. Some of these disabilities may be lifelong issues, such as intellectual or physical disabilities they’ve had from birth. Others may be the result of illness or injury, while others are related to advanced age. Home care and assisted living care providers need to be aware of seniors’ disabilities and how to accommodate them:

  • Discuss their senior’s condition with the senior’s physician to determine how best to meet his or her needs.
  • Have the same discussion with the senior’s family to learn how they’ve cared for the senior over the years. Find out what works and what doesn’t, and what the senior is accustomed to.
  • Develop an individualized care plan for that senior that addresses his or her individual rehabilitation or maintenance needs.
  • Work to include the senior in activities and social events as much as possible. Adults with disabilities often feel excluded, and this feeling often compounds as they age and the limitations of growing old cause further isolation.

Read more related articles at:

What services are available to the disabled elderly?

Program of All-Inclusive Care for the Elderly

Also, read one of our previous Blogs here:

Special Needs Trusts and How They Can Benefit Seniors

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.

 

death taxes

Where Not To Die In 2022: The Greediest Death Tax States

Where Not To Die In 2022: The Greediest Death Tax States

Where Not To Die In 2022: The Greediest Death Tax States. Should death be taxing? Amid budget surpluses, states started slashing income taxes last year. But only two have made significant changes to their estate or inheritance taxes so far. Last year Iowa legislators decided to phase out the state’s inheritance tax by January 1, 2025. And this year Nebraska legislators made pro-taxpayer tweaks to its inheritance tax for deaths occurring on or after January 1, 2023.

Other jurisdictions have lessened the tax bite for dying in 2022—through previously scheduled changes or inflation adjustments. But some, without inflation adjustments, are still taxing estates at levels that haven’t budged for years, meaning more families are getting surprise death tax bills. In one of those states—Massachusetts—Democratic legislators are pushing for changes to spare more estates from the tax as part of a broader tax reform package this summer.

In all, 17 states and the District of Columbia levy estate and/or inheritance taxes. Maryland is the outlier that levies both. If you live in one of these states—or might retire to one—pay attention.

These taxes operate separately from the federal estate tax, which applies only to a couple of thousand estates a year valued at over $12.06 million per person. (That number is set to drop roughly in half on January 1, 2026, when the Trump tax cuts that temporarily doubled the base exemption from $5 million to $10 million expire.) While few individuals need to plan around the federal estate tax, the state levies all kick in at much lower dollar levels, often making it a middle-class problem.

Consider the current state estate tax in Massachusetts. The $1 million estate tax exemption hasn’t been adjusted for inflation since 2006, so it can hit the heirs of middle-class folks who have seen their houses and retirement accounts appreciate. “You can be real estate rich with a modest home, and your estate could be subject to this,” says Scott Cashman, a tax manager with Bowditch & Dewey in Worcester, Massachusetts. “It’s becoming more of an issue every year.” If the $1 million exemption amount set in 2006 had been adjusted for inflation, it would be closer to $1.5 million today.

Say a widow or widower died with a house worth $535,000, a $200,000 bank account, a $350,000 retirement account, and a $15,000 car, for a $1.1 million gross estate. Assuming $50,000 in deductions, the estate tax would be $20,500, he calculates. (There’s no estate tax when assets are left to a spouse, but in this case the heirs are children.) If the house is worth $1 million, however, the tax would be $65,360— one third of the cash in the bank. Adding to the pain is what’s known as the cliff: Once the $1 million mark is crossed, the estate tax applies to everything over $40,000. “I don’t know if most legislators understand that,” he says.

A bill introduced by Democratic state senators would double the Massachusetts exemption amount to $2 million and only levy tax above that amount, removing the dreaded cliff. “We have such a surplus now, this is the time to do it,” says Cashman. “There’s broad-based support for reform.”

Inheritance taxes—levied in six states—can kick in at far lower levels, with the exemption and tax rate depending on the heir’s relationship to the deceased. In New Jersey, for example, if you leave your estate to a Class D beneficiary—including a nephew or non-civil-union partner—they’re taxed at 15% on assets up to $700,000 and 16% on assets above $700,000.

In Nebraska, lawmakers this year fell short of inheritance tax repeal but succeeded in chipping away at the state’s inheritance tax. The new law, effective January 1, 2023, cuts the top tax rates (from 18% to 15%, for example) and increases the exemption amounts (from $10,000 to $25,000, for example). It also eliminates inheritance taxes for heirs under 22, and it makes unadopted step-relatives taxed at the lower rate for nearer family members and not the higher rate for unrelated heirs. “Lawmakers wouldn’t agree to a general phasedown of the tax at this point that would apply to everyone, but they were willing to accept that if a younger person were to inherit property or cash (and we can use a lot more young residents and entrepreneurs in Nebraska) that it’s not in the state’s economic interest to take any of it away from them,” says Adam Weinberg, communications director with the Platte Institute, which is continuing its effort to repeal the inheritance tax in Nebraska.

Meanwhile, Connecticut, the least taxing of the estate tax states, is on schedule to increase its exemption to $9.1 million in 2022, and then to match the federal exemption for deaths on or after January 1, 2023. In an unusual nod designed to keep the richest taxpayers in the state, Connecticut has a $15 million cap on state estate and gift taxes (which represents the tax due on an estate of approximately $129 million).

Other states with 2022 changes: Washington, D.C., reduced its estate tax exemption amount to $4 million in 2021, but then adjusted that amount for inflation beginning this year, bringing the 2022 exemption amount to $4,254,800. Several states, which all have set their exemption amounts at different base levels, also see inflation adjustments for 2022. Maine’s is $6,010,000, while New York’s is $6,110,000. In Rhode Island, the 2022 exemption amount is $1,648,611.

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