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chronic care

Planning For Chronic Illness Is Not Just For The Elderly

Planning For Chronic Illness Is Not Just For The Elderly

Planning For Chronic Illness Is Not Just For The Elderly. A common misconception is that estate and financial planning for chronic illness is an elder law or elder abuse issue. This myth is not true. Martin Shenkman explained in an e-mail, “Sixty percent of those living with chronic illness are age 18-64. The characterization of all this planning as elder law or elder abuse makes it harder for those who are young and have chronic health issues to find help. Our society doesn’t focus on this situation.”

While some elderly experience chronic illness, it is not exclusive to them. Chronic illness can happen to any one of any age and proper estate planning just makes sense to protect you or a loved one now and in the future. With chronic illness somestimes comes incapacity, the inability to make decsions on ones own. In the case of becoming incapacitated, one will need a trusted representative to handle their financial and healthcare affairs. Proper estate planning can ensure that a persons wishes are met provided they become incapacitated and unable to decide for themselves.

Whether a person with a chronic illness is young, middle aged, or elderly, there is a need for proper estate planning at least at the simplest of levels. Powers of attorney can help one establish trusted personal representatives to help administer their affairs in case of incapacity. Because laws vary from state to state and upon different circumstances, it is wise to seek legal counsel when trying to establish powers of attorney and other estate planning documents.

Read more related articles at:

Estate Planning Musts When You Or A Or A Loved One Has A Chronic Illness

Supporting Older Patients with Chronic Conditions

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.

 

Wills and Trusts

Do I Need A Trust If I Have A Will?

Do I Need A Trust If I Have A Will?

A will and a trust are two different estate planning tools. Consider a will like a high-level set of instructions to be used after you pass away. You generally use a will to name the executor of your estate and guardianship for your children. Although you can leave assets to your heirs in a will, it’s not an efficient way to do so, which is why many individuals utilize a revocable living trust. Unfortunately, trusts are often thought of as a tool for only the super-rich, which is one of many misconceptions about trusts that can make this planning strategy underutilized by the everyday affluent.

What is probate?

Probate is a legal process where certain assets that were owned in the individual’s name are distributed by the court. The court will use the will to help guide their distributions and other decisions, but a will can be contested and there’s no guarantee your wishes will be followed.

A retirement account won’t go through probate unless no (living) beneficiaries were named. Life insurance proceeds will also skip probate provided beneficiaries were named (assuming the beneficiary wasn’t your estate). If you have a payable on death (POD) or transfer on death (TOD) on your bank account, then it will generally bypass probate as well. Typically, assets held jointly with rights of survivorship, community property, or tenancy by the entirety will also avoid probate if the joint owner is also living.

Essentially, assets that don’t pass directly to your spouse or heirs include most anything else that you own outright that doesn’t pass via beneficiary designation or a type of joint ownership mentioned above. This can include a bank account, brokerage account, home, car, art, and even interests in a privately-held business.

All probate assets will have to go through probate court before they’re distributed according to your will (if you had one) or at the court’s discretion. Because the probate process can be long and costly, many investors choose to avoid probate whenever possible.

A revocable living trust can help solve many of these problems

Using a revocable living trust instead of a will means assets owned by your trust will bypass probate and flow to your heirs as you’ve outlined in the trust documents. A trust lets investors have control over their assets long after they pass away.

Here are a couple of examples of how a trust can provide additional control and protection of assets after death:

 

  • You and your spouse have two adult children, currently ages 20 and 22. You also have a taxable brokerage account worth $1.5 million. You could put the account in your revocable trust so after you died the account would first go to your spouse and then to your kids if your spouse is no longer living. However, rather than have your kids inherit the money outright, maybe you want to give them each half when they turn 25 and the rest at age 35. Perhaps you also wish to give the trustee discretion to make additional distributions to help pay for a wedding or education before reaching the age milestones. It’s totally up to you.
  • Now consider the above example, but you and your spouse also have older children from previous marriages. Depending on your wishes and the dynamic of your family, you may not wish to give your spouse full control over the brokerage account when you pass, fearing your kids from your first marriage may not receive an inheritance at all. In this scenario, a trust could provide options for you to ensure all your loved ones are taken care of.

 

Trusts can provide tax planning opportunities

Assets held in your revocable trust remain under your control during your life. Because of this, assets are also taxed no differently than if they were owned outside of your trust. At death, certain assets are still eligible for a step-up in basis, even if they’re held in a revocable trust at the time of your death.

Trust planning can also reduce estate tax. The federal estate tax exemption in 2020 is $23.16M and portable between spouses. A handful of states also have a state-level estate tax. Massachusetts has one of the lowest estate tax exemptions in the country—currently $1M—and unlike the federal exemption, it isn’t portable. A credit shelter trust or marital trust could be used after the passing of the first spouse to preserve the exemption.

In this example, assets up to the exemption amount (using $1M as an example) would flow from a decedent’s living trust to a credit shelter trust and any remaining assets would flow to another trust, such as a family trust. If the surviving spouse died later in the year, the credit shelter trust would generally not be included in the taxable estate, which can reduce or eliminate estate tax at the state level altogether, provided the remaining gross estate is $1M or less.

Final word on trusts

Trusts can be a powerful tool to help you accomplish a wide range of goals during your lifetime and long after. Like the rest of your estate and financial plan, you’ll need to periodically revisit your strategy with your attorney to ensure alignment with your current situation, goals, and laws. As evidenced recently with the passing of the SECURE Act, legislative changes do happen which may require you to revisit your plan. For many investors, the relatively small amount of additional upfront work and cost to set up and fund a trust is well worth the benefit to you and your loved ones down the road.

Read more related articles at:

Will vs. Trust: What’s the Difference?

Consumer Pamphlet: The Revocable Trust in Florida

Also, read one of our previous Blogs at:

Do I Need a Revocable Living Trust?

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.

Estate Planning 26

Estate Planning Made Easier

Estate Planning Made Easier

What Is Estate Planning?

It’s just what it sounds like: a process, in which you decide what to do with all aspects of your estate. The plan is a set of instructions for others to know what to do with your assets when you die (or become incapacitated). The idea of quantifying and delegating everything of monetary value in your life can be overwhelming, but there are only four steps:

Take Inventory

Any property held in your name or in your living trust, as well as portions of any properties you hold jointly with others, is part of your “estate.” In addition to cars you own, homes you bought and all the items in them, your accounts and policies will also pass on or pay out to others when you are gone.

This will include any life insurance or retirement plans (like IRAs and pensions), or annuities. Even if you already have policies like these in place, you’ll want to collectively review who you’ve assigned as a beneficiary for each one. Once you have a sense of all your assets and liabilities, you’ll be in a great position to discuss next steps with experts in estate planning.

Consult Trusted Experts

Experts in estate planning can help you create a big picture of what will happen to your wealth when you are no longer here. An estate planning attorney will work with you to design key documents, including your will, which describes your wishes regarding asset distribution. In certain cases, your attorney may suggest making a trust, which gives someone else the right to hold title to your assets or property.

A financial advisor, on the other hand, will be able to manage the investments and retirement plans that grow your wealth, as well as the insurance policies that protect you and your loved ones from financial devastation when you die, or if you should require long-term care.

Both of these experts, as well as CPAs, can help you determine whether your plan is foundational, or more advanced. At minimum, most estate plans include endowments, property ownership, disability protections, chosen executors for financial and health decisions, and careful records of all your posthumous wishes.

Put A Plan In Action

Once all aspects of your estate have been accounted for and everything feels right to you, you’ll review your beneficiaries, account titles and insurance coverages collectively. Then, you’ll sign all legal documents. Attorneys, financial advisors and CPAs who handle these matters for you now ought to be people you’ll want on the job in the years to come.

Regularly Review Your Plan

Once you have an estate plan in place, it will still shift as much as your life does. Moving, grandchildren, death of a beneficiary, divorce, or changes to your income, business or asset portfolio could all affect your vision for the future. Even tax laws can change, affecting how you would want your money to be distributed. It’s important that whichever experts you work with, you trust them to help you through all that might happen.

Options For Incapacity

Perhaps the most uncomfortable case to be prepared for is one in which you can no longer manage your own affairs. But trusted experts can help you arrange to have some powerful tools ready. A lawyer can help you create a general durable power of attorney (GDPOA), a health care proxy or a living will. The power of attorney is a state-based legal document that assigns someone you’ve chosen to handle your finances. You can appoint the same or another person to handle your medical information and decisions with a health care proxy. A living will, also state-based, provides instructions to withhold resuscitation in conditions where you would be unable to share your wishes with others yourself.

A financial advisor can help you pick the right kind of disability income insurance. Disability benefits often come as a rider (such as an accelerated benefit rider, or ABR) with your life insurance plan, but they can also be attained as a separate—sometimes tax-free—policy. These benefits ensure that the financial burden of incapacity won’t derail all your other plans for your estate.

Reducing Estate Taxes

Gift and estate taxes can put a damper on your plans for your surviving wealth. The current federal estate tax rate is 40%, and state laws allow for additional taxes to be assessed. This is a daunting figure, but there is a “lifetime exclusion amount” that can be passed on to your beneficiaries free of charge. Because of the unlimited marital deduction and a provision called “portability,” surviving spouses can also be exempt from these taxes within their own lifetimes. Your spouse can take advantage of the provision by electing portability on your post-mortem estate tax return within nine months of your passing, but your own exclusion amounts will only be passed on if your spouse does not remarry.

Within your lifetime, there is also an “annual exclusion amount” for gifts up to $16,000, and there is no limit to how many beneficiaries you can give this amount each year, tax-free. If your spouse does a “gift split” with you, you can double this figure. If you make your gift to a trust, you can designate the trust to multiple beneficiaries with multiple annual exclusions, or even purchase life insurance inside the trust, removing the entire death benefit from your taxable estate. The lawyers, CPAs and financial advisors you count on all can guide your family through challenging processes like these.

Read more related articles here:

5 steps to create an estate plan

Estate Planning: 16 Things to Do Before You Die

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.

 

estate planning

Will Your Estate Plan Be Followed?

Will Your Estate Plan Be Followed?

Many people put a lot of time into developing their estate plans. That’s especially true when they try to establish legacies that will last for two additional generations or more. Whether these legacies are for their families through trusts or for broader society, such as through charitable foundations, you don’t want to waste all that time and effort spent defining a legacy and determining how to establish it.

Sometimes an estate owner goes overboard and the effort ends up backfiring. When an estate plan becomes too detailed or restrictive, it might not be followed. Before executing an estate plan with restrictions or detailed rules for the future, consider the case of Albert Barnes and his estate plan.

A general rule is you can put almost any restrictions and rules in your estate plan, as long as they aren’t against public policy and don’t encourage violations of the law. But there always are exceptions to legal rules.

When someone leaves money to charity or with the intent it will benefit more than one generation, often attached are some instructions or directions about how the money is or isn’t to be used. These are known generally are directed trusts or directed bequests. Sometimes they are called conditional bequests.

The idea is that the intended recipient has to agree to follow the directions in order to receive the bequest, and the beneficiary can lose the bequest if the conditions aren’t followed over time. But beneficiaries can skirt the rules and sometimes courts allow them to ignore some or all of the directions.

The estate of Albert Barnes is an extreme case, but it shows the potential pitfalls of putting strict limits on how an inheritance can be used.

Barnes was a chemist who became very wealthy from an invention. He used his wealth to accumulate a widely-admired art collection, estimated to be worth $25 billion or more today.

Barnes died in 1951 in a car accident, and his widow passed in 1966. They didn’t have children. The art collection was Barnes’ pride and joy. Though Barnes was an art enthusiast and avid collector, he had little respect for the professional art community, especially the museums and officials in his neighboring Philadelphia.

In his will, Barnes established a foundation that would own and manage his art collection. But he established a lot of rules for the foundation to follow in perpetuity.

He directed that the art never would leave the facility he built for it in the Philadelphia suburbs. It also had to be displayed exactly as he arranged it at the time of his death. No pieces could be lent to other museums, and tours couldn’t be arranged to display the pieces elsewhere.

In addition, the art would be available for public viewing only one day a week and the amount that could be charged for admission was limited.

Over the following decades, the trustees of the foundation periodically went to court to have various restrictions changed or eliminated for being impractical or outdated.

Ultimately, a court ruled the collection could be moved permanently to the museum district in Philadelphia and be controlled by the art establishment Barnes disliked.

The court said the trustees showed that it was impossible to maintain the collection with the restrictions in place. The foundation needed more money to protect the collection, keep it intact, and ensure it is used for education purposes as Barnes wanted. The general purpose of using the collection for education purposes overruled the specific directions in the will.

While the Barnes case involved a charitable foundation, the same principles can be applied to a bequest to a family member or a trust for the benefit of family members.

The key lesson of the Barnes case is that it’s difficult to anticipate all the things that could happen in the future when developing an estate plan. The longer you want the legacy to last and the more you want to control how assets are used, the more difficult it is to achieve the goals. That’s why many estate planners discourage specific directions for or restrictions on bequests, especially when there is a trust or charitable foundation that is expected to last for generations.

Planners often recommend that general principles and goals be established instead of detailed rules. Many estate planners now also recommend that charitable trusts and foundations be required to terminate their operations and distribute all their money and assets after a certain period of time has passed.

Read more related articles here:

Reviewing & Updating Your Estate Plan

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

Also, read one of our previous Blogs here:

Don’t Just Rely on Luck with Your 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.

 

special needs child and mom

How Having A Child With Special Needs Impacts Your Retirement Planning

How Having A Child With Special Needs Impacts Your Retirement Planning

Caleb Harty CFP

Forbes Council

 

How Having A Child With Special Needs Impacts Your Retirement Planning. Having a child with special needs can come with all sorts of unique challenges from a financial and estate planning standpoint. Public benefits, for example, can play a huge role in anticipating how much money your child will need down the road in your later years as well as when you’ve passed away. Many of these public benefits are “means tested,” which often puts a financial restriction on how much money that individual can have in their name, so careful financial and estate planning is necessary. For more information on public benefits, please visit or contact www.benefits.gov. What’s less understood and talked about, in my experience, is the impact special needs planning can have on someone’s own retirement planning.

When our firm works with clients on their retirement planning, we have conversations with them to try to figure out what their expenses will be so we can make sure they’ll have enough income to replace their paychecks once they’re done working. We also look at their assets to make sure they’ll have enough to hopefully not outlive them and keep pace with inflation by prudently investing. Lastly, we look at all of the risk management components (i.e., “what can go wrong”) such as needing long-term care insurance, the stock market dropping just as retirement begins, a spouse passing away and so on. These are all critical conversations to have, of course. If someone has a child with special needs, all of that still needs to be done, but now we need to on top of that plan for not just the parent’s needs but also the child’s making things far more complex.

For many families, providing financially for their kids ends a year or two after college. However, for a parent of a child with special needs, that financial assistance may never end. Furthermore, there’s a good chance the child will be living with their parents well into the parents’ retirement (like my brother-in-law with Down syndrome does). This will likely impact the income these families will need. If they would have needed $80,000 per year to retire comfortably, they now may need $100,000 or more to provide for their child’s various needs, such as therapies, hobbies, transportation, etc. If the choice is made to have the child live apart, like in a private-run group home for example, the cost can be substantially higher; I’ve seen food/housing/supervision around $4,000 per month and in some cases depending on the level of care required it could be much more than that.

I’ve had people say they “don’t want to do retirement planning” and would rather just focus on their “special needs planning,” at which point I say it’s almost impossible to separate the two. This is because in addition to the above points, another huge factor is Social Security. When a parent decides to collect their Social Security, they need to consider what different scenarios could mean, including delaying and getting more but having to spend down assets in the meantime, taking into account their life expectancy and other factors. If someone has a child with special needs and that disability began before age 22, the child may be eligible for Social Security disability insurance. This amount is generally half of the parent’s Social Security payment in retirement, in addition to what the parent receives. When the parent passes, the amount increases to three-fourths. This is a huge deal in calculating income now for the child during the parents’ retirement and ultimately after the parents have passed away. All of a sudden, that Social Security decision became much more complicated, and there are now multiple life expectancies and other issues to weigh in.

So what can parents do to prepare for retirement while taking into account their child with special needs? First, it’s critical that parents perform a budget analysis — not just of what their retirement income needs will be, but also what it may cost to provide for their child. Once they know these two figures, they can work with their financial planner to try to reconcile them by figuring out what assets and income streams would be best suited.

Also, it’s important to remember that different assets get taxed at different levels. Traditional 401(k) plans and individual retirement accounts, for example, are not taxed until withdrawal and can potentially be problematic to leave to a special needs trust. Life insurance and other select assets are generally income tax free and can be a more efficient asset to fund a child’s lifetime needs via their trust. As parents are planning for their retirement, they should carefully look at their entire picture and figure out which assets should be funded and which shouldn’t be.

These are just a few of the ways having a child with special needs can impact your retirement planning. From figuring out how much income you’ll need, to when and how to optimize Social Security benefits for the entire family, there are many factors to carefully consider along the way. 

Read more related articles at:

How to plan for retirement when you have a child with special needs

It’s Complicated To Plan For Two Generations.

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 3

I Live In Florida, Do I Need A Gun Trust?

I Live In Florida, Do I Need A Gun Trust?

Summary: A gun trust is a legal entity that has special rules and provisions built into it that ensure the trustee and beneficiaries of the trust do not violate the National Firearms Act (NFA). Violating federal gun laws, even by accident, could result in loss of firearms, a prison term of up to 10 years, and fines up to $10,000.

It seems like gun trusts are everywhere these days. You can’t go into an online forum or physical gun shop where they deal with silencers or other more heavily regulated items and not hear someone talking about gun trusts. There’s a lot of lingo that gets thrown around pertaining to trusts: grantor, settlor, trustee, responsible person, revocable, irrevocable, and more.

Deciding whether or not to use a gun trust is just one of the many important decisions that must be made when it comes to buying a suppressor, an SBR, or a machine gun. So what, exactly, is a gun trust? Why do they matter, and how did they get so popular? We’ll cover all of that and more in this article.

A gun trust is a legal entity that has special rules and provisions built into it that ensure the trustee and beneficiaries of the trust do not violate the National Firearms Act (NFA). Violating federal gun laws, even by accident, could result in loss of firearms, a prison term of up to 10 years, and fines up to $10,000.

Gun trusts are sometimes called NFA Trusts because they are most often used when it comes to items that are subject to the NFA. Firearms that are subject to the restrictions and laws of the NFA include short-barreled rifles (SBRs), suppressors, machine guns, and short-barreled shotguns (SBSs).

How Gun Trusts Work

A gun trust is a revocable trust created to hold title to your firearms and other NFA-regulated items. Because the trust is a legal entity, it becomes the legal owner of the guns or other items that are either transferred to or originally purchased by the trust.

However, this doesn’t mean that you don’t have control over your guns and accessories. The person who creates the trust is called the grantor or settlor, and the items within it are ones that they have purchased through the trust for their own use and specific people of their choosing.

Usually, this person is named to manage the trust for the trust’s other authorized users and beneficiaries. Because the trust is revocable, the grantor can make changes to, or even void entirely, the trust agreement at any time before the grantor’s death. This includes adding and subtracting people from the list of trustees. When the grantor dies, the trust becomes irrevocable, and an alternate trustee manages the trust for the individuals who become the beneficiaries after the grantor passes away.

Advantages and Disadvantages of Gun Trusts

As with all things related to firearms and the law, there are advantages and disadvantages to using gun trusts. We’ll take a look at some of each to help you decide what might be best for you.

Advantages of Using a Gun Trust

NFA items have their own set of special legal rules that apply to them, and things can get real complicated real quick when life (or death) gets in the way. If you’ve got a gun trust set up, it can help mitigate and guide how things unfold when it comes to those items.

  • Items can be used by multiple people
  • Avoid the probate process
  • Confiscation protection

Disadvantages of Using a Gun Trust

If we’re being completely honest, there really aren’t many disadvantages to using a gun trust. Instead, there are just a few things to consider and keep in mind. They’re not really disadvantages in our view, but they aren’t advantages either, so this is where there’s being categorized.

  • You’ll do more paperwork
  • It’s not a fast track to approval
  • Photo and fingerprints are required

How to Set Up a Gun Trust

Unless you’re a lawyer, there’s a good chance that you don’t completely understand all of the “legal-ese” that goes into setting up a gun trust – and that’s perfectly fine. No one expects their car mechanic to know how to do open heart surgery either.

Instead, the best way to set up a trust is to have a lawyer or another company with experience in setting up trusts (like our sister company, Silencer Central) do it for you. In this scenario, the actual legwork required by you is minimal. You decide the name of the trust, who will be included in it, what items will be included in it (you can put non-NFA guns in here, too), and then sign off on all the paperwork, get fingerprinted, have your photo taken, and submit it all to the ATF.

Do I Need a Trust to Purchase an NFA Item?

No, you do not need a gun trust to purchase NFA items. Because trusts aren’t one-size-fits-all, they may not be right for every potential buyer. As a result, plenty of NFA items are sold each and every year that are registered in the name of the individual owner. One option isn’t necessarily better than the other – just different.

Whether you use a trust or not has zero impact on your actual purchase of the item. It doesn’t make it cost any more or less and it doesn’t add or subtract any meaningful amount of paperwork to an already cumbersome process

What’s the Cost of a Gun Trust?

The cost of a gun trust varies widely. There are a lot of websites online that offer to set up trusts for you and their costs are all over the place. The same goes for using an in-person attorney to set up a gun trust. The cost will vary from attorney to attorney.

Read more related articles here:

National Firearms Act

Moving to Florida with firearms? Here’s what you need to know.

Also, read one of our previous Blogs here:

Gun Collections Pose Special Estate Problems

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.

 

 

 

intestate

Your Parent Didn’t Have A Will: What Should You Do Now?

Your Parent Didn’t Have A Will: What Should You Do Now?

  • Make a diligent search for a will. Look through your parent’s records and file cabinets, talk to their close friends and other relatives, ask their accountant and any lawyer they worked with in the past. Look around the house for business cards of lawyers, accountants or financial advisors. They may have gone to a lawyer and not told you about the appointment. I cannot tell you how many times a client has told me, “I have a will, but it’s old.” Wills are not like cartons of milk; they don’t have expiration dates. If you have found an “old will” – and it was not revoked by your parent – it is the will that will be probated.
  • Check to see if mom or dad had a safe deposit box. The will may be in the safe deposit box. This poses a particular challenge because the authority to get into the safe deposit box may be in the box. If you are fortunate, mom or dad will have named you as a signatory on the box and you will be able to access it. If not, you will have to adhere to your state’s laws in order to gain access to the box. Some states allow you to bring a special petition to gain access to the box. Other states will require a full probate petition in order to gain access.
  • Gather a list of your parent’s assets, financial statements and tax returns. It is particularly helpful to have financial statements covering the date of death. If mom died on March 19, you should gather up all of the financial statements that cover the entire month of March. Date of death values of assets will be needed for probate and estate tax returns. Financial statements will often indicate ownership of the account. If there was a joint owner of the account, the ownership will most likely pass to the surviving joint owner and probate of that asset may not be needed. The same is true if the account had a “POD” – Payable on Death – listed. The asset gets paid on death to that named person listed and avoids probate.
  • Make an appointment with a lawyer. This can be your parent’s lawyer, your lawyer or a new lawyer you have been referred to by a trusted advisor. Just because dad used his old college buddy for his legal needs does not mean that you have to use that same lawyer to administer his estate. If you are the person in charge of dealing with the estate, you can hire whatever attorney you like to advise you. I caution you not to use the lawyer who helped with the purchase of your home or handled your best friend’s divorce to assist with the estate. Hire someone who has experience with trusts and estates law. You wouldn’t go to a dermatologist to perform your heart surgery. Likewise, you should not hire a real estate lawyer to administer your mother’s estate.

The lawyer will review the information you have gathered and will advise you what next steps are needed. At this stage, a lawyer is generally looking to see if probate will be necessary. If all of the assets were owned jointly with a surviving joint owner or had a named beneficiary, there may be no need to probate. In most states, the ownership passes by operation of law to the surviving joint owner or the named beneficiary. This is often the case with life insurance, IRA’s and 401K’s. If, however, there is an asset in mom’s name alone, such as a home or a bank account, probate will be needed for that asset. Since there is no will, you will need to bring a petition under the laws of the state where mom died (or where she owned assets) asking the court to appoint you as Personal Representative (or Administrator) of the estate. This is called an intestate estate, which means mom or dad died without a will. The beneficiaries will then be determined by state law, which dictates who inherits the money.

Of course, most of this can be avoided if your parent creates an estate plan, including a will, before they die. Unfortunately, just like we didn’t always listen to their advice when we were growing up, they often do not listen to ours.
Read more related articles here:

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

Also, read one of our previous Blogs at:

What Does it Mean to Die Intestate?

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 planning

How To Create a Strong Succession Plan for Your Business

How To Create a Strong Succession Plan for Your Business

Are you thinking about retiring from business? Or maybe your business is finally going well and you want to make sure it continues the way you want it to. Business succession planning can help you establish the next line of leadership, maintain continuity, and preserve your wishes for your business into the future.

Key Takeaways

  • A succession plan is a general plan for continuity of a business in a change of ownership in planned or unexpected situations.
  • The goal of a succession plan is to keep the business running smoothly during and after a transition.
  • A major part of a succession plan is legal documents with language that guides transitions.
  • The best time to create a business succession plan is immediately and then update it often.

 

Why You Need a Business Succession Plan

A business succession plan isn’t a separate document that the owner puts together. It should be primarily part of your business’s legal structure and be included in the governing documents of your business from the get-go. Think of a succession plan not as just determining who will succeed you, but as a continuity plan, to be used in case of both planned transitions and unexpected disruption, like a public health or economic crisis.

The key pieces of your succession plan are:

  • Identify possible successors
  • Consider the value of your business and how to improve it
  • Include tax and estate planning
  • Anticipate uncertainty
  • Decide how to transfer ownership

 

Preparing for Your Succession Plan 

Begin your business succession planning by looking at the governing documents of your business and making changes to include your specific wishes for what happens if you no longer run the business.

If your business has several owners, like a partnership or limited liability company (LLC), you’ll need to make sure the governing documents take into account changes in the business structure if an owner leaves, dies, or is divorced.1

The specific governing documents for each type of business include:

A sole proprietorship has no governing document, which means you need to create a written record of your wishes for your business with the help of an attorney, as part of your overall personal estate planning. These documents might include a will or revocable trust.34

A succession plan and an exit strategy are slightly different. Both are plans to deal with planning for business changes, but an exit stegy focuses more on the decision to close or sell the business.

 

Choosing Your Successors  

The key to a business succession plan is to consider how you want the management and control of your business to look in the future.

In an email interview with The Balance, attorney Haley Ayure said that a complicated part of business succession planning is figuring out who should make the decisions in the future, and how to control that after you’re no longer involved with the business. This is tied to ownership and the governing documents because the owners typically vote to appoint directors, managers, and officers if they are not going to make business decisions themselves.

In a family business, for example, the ownership interests of a parent might pass to a child upon the parent’s death. Unless the governing documents say otherwise, the child might then have the ability to appoint themselves as the manager or officer.

 

What To Include in Your Plan 

The language in a partnership agreement delegates specific instructions on what to do in the event of a dispute, a termination, a death, or other life-changing scenarios. This language ensures that your wishes will be carried out regardless of circumstance.

In an email interview with The Balance, attorney Nance Schick explained that, when changes occur, a partnership agreement can be a great guiding document. A few examples may include:

  • A dispute resolution clause that could provide the steps necessary to resolve conflicts among partners
  • A termination clause that can provide the steps necessary for resignation or removal
  • Additional provisions that detail limitations on ownership by heirs or other outside parties, and what to do if a partner becomes disabled or dies

Without a clear, written agreement on such terms, business ownership can pass to multiple beneficiaries who may have no experience or interest in the business.

If you aren’t sure you need a business succession plan, consider that the cost of hiring a lawyer to draft good documents may be much less expensive than a legal battle with family or business partners in court.

 

How To Ensure a Strong Succession Plan 

Here are some other tips for creating a succession plan that will keep your business successful after you leave.

Decide Who Will Run the Business

Decide what role you want to play in your business during the transition and afterward. Do you want to remain in a position of authority, and if so, how long? Or maybe you want to leave a legacy by serving as a consultant or board member after you leave active management.

Run a Financial Checkup

One quick way to spot financial weaknesses is to run some financial ratios for your business and to analyze them in comparison to industry standards. Look especially at long-term indicators like solvency ratios that measure the ability of a company to pay its debts and liquidity.

Get a Business Valuation

business valuation will help you spot weaknesses and fix them. You will need to find an accredited business valuation appraiser for this task, to be sure they are following standards. Check the website of the American Society of Appraisers to search for an appraiser.

Review Company Policies

According to Ayure, reviewing company policies is important in making sure your succession plan does what you want it to. Prepare by setting your policies in place now. These may include setting criteria for positions and having job descriptions for key positions, up to and including CEO, board members, and managers, and setting policies for reviews and promotions.

Review and Update Your Plan

Creating a succession plan isn’t just a “one and done” proposition. Set up regular reviews of the plan to see what’s changed, both inside and outside your company. Tax laws change frequently, so you’ll need to consult a licensed tax professional and an attorney to make changes in documents.

 

Frequently Asked Questions (FAQs)

 

What is business succession insurance?

Business succession insurance isn’t available, but you can use life insurance to provide benefits to co-owners of a business. For example, a partnership or the partners can buy a life insurance policy on other partners (not themselves). If a partner dies, the policy pays death benefits to the business or the other partners. The proceeds then go to the insured’s family members or heirs, while the living partners continue to own the business.5

A business can also get a key person insurance policy on a business owner or key executive. This insurance protects the business if the insured dies unexpectedly. This type of insurance is very helpful in a small business that might have trouble surviving the death of a founder or owner.6

 

When does business succession planning need to be done?

Small business owners should do business succession all through the life of their business. A succession plan isn’t just for retirement, but for unexpected emergencies or just a general review of the business.

Create a succession plan as soon as possible and review it at least once a year. Consider changes in the economy, employment, taxes, and the legal landscape. Get a new business valuation every few years to make sure the value is up to date. Consider the changes in the structure of the business, and in the plans of the owner.

Read more related articles at:

What is business succession planning?

Why Your Company Needs a Succession Plan

Also, read one of our previous Blogs at:

Did Robert Redford Have a Business Exit 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.

 

disabled voting

7 Ways New Voting Laws Can Affect People With Disabilities.

7 Ways New Voting Laws Can Affect People With Disabilities.

7 Ways New Voting Laws Can Affect People With Disabilities. A July 13, 2021, Opinion piece in the Washington Post, by Katrina vanden Heuvel, offered a rare look at a comparatively neglected aspect of the current fight to preserve voting rights: safe, flexible, and accessible voting for people with disabilities. It’s a perspective well known in the disability community, but seldom covered as strongly in the “mainstream” press.

As states take action to more tightly regulate and restrict voting methods, many within the disability community and outside it are taking notice, and see significant risks ahead to disabled people’s right and access to the vote.

“There are hundreds of anti-voter bills in states across the country that would present barriers to disabled people voting privately and independently,” says Dom Kelly, founder and leader of Fair Fight Action’s Disability Council. He adds, “Most of the new anti-voter laws we have seen enacted in a number of states will make voting more difficult for disabled folks.”

These threats are not solely or even primarily targeted against voters with disabilities, though the new and proposed measures themselves would significantly hamper disabled people’s actual access to voting. The more familiar focus has been on two intersecting and overlapping trends:

 

  1. Making voting more difficult and cumbersome in ways that disproportionately affect Black voters, other voters of color, and low income voters.

Measures prompted by a conviction, repeatedly shown to be unfounded, that voter fraud is a significant problem –– an idea vastly intensified by the mostly partisan belief that the 2020 Presidential election was “stolen” from Donald Trump through voter fraud.

These are not separate problems from voting accessibility for disabled people. Many disabled voters are also people of color, low income, and have other marginalized identities that make their voting status additionally fragile. And disabled voters are no less invested in secure and honest vote-counting than anyone else.

But some of the specific ways that disabled people in particular may see their access to a free and independent vote damaged aren’t widely recognized or understood right now, except by the disability community itself and some of its advocacy organizations.

toolkit on voting rights and access from the American Association of People with Disabilities and the #RevUp disabled voter registration campaign identifies several types of measures that directly affect disbaled voters’ access to an unfettered and independent vote, including:

 

  • “Restricting access to mail-in voting
  • Increasing voter ID requirements
  • Reducing opportunities to vote
  • Reducing voter registration opportunities
  • Limiting the availability of ballot drop boxes
  • Purging registered voters”

 

Dom Kelly of Fair Fight Action, who has Cerebral Palsy himself, notes that these threats are not remote or speculative. He cites already passed and pending measures in Florida, Georgia, and Texas that would add layers of repeated bureaucracy to vote by mail requests, and in some cases narrow the criteria and raise the bar for disabled people to even qualify to vote by mail. A Texas proposal would even permit poll watchers to go so far as to enter a disabled person’s vehicle to watch them fill in their ballot in curbside voting. This takes vigilance to extreme and intrusive lengths that are hard to imagine any voter tolerating, even if it was the only practical way they could cast their vote.

Here are 7 types of policies, considered in some states, already passed in others, that hinder disabled people’s ability to vote freely, independently, and safely. Again, 7 Ways New Voting Laws Can Affect People With Disabilities.

1. Voter ID requirements

The most frequently used form of photo identification is a driver’s license. And a higher proportion of disabled people than average don’t drive, and don’t have a driver’s license. This creates another bureaucratic task for many disabled people, the need to acquire an acceptable form of ID.

While this may seem like a small task to most observers, it’s important t0 remember that bureaucratic tasks themselves are often harder for disabled people, who may encounter barriers in finding transportation to government offices, difficulty completing forms, and even complications sending and receiving postal mail.

For many people with disabilities, additional voter ID requirements simply add another layer of logistical difficulty in the voting process –– another choke point where a disabled person’s drive to vote can be disrupted.

2. Eliminating or reducing early voting

As already noted, many disabled people can’t simply hop in the car and drive to their local polling place when the moment is convenient for them. Many must rely on public transportation, long treks over streets and sidewalks of unreliable accessibility, and help from friends, relatives, or neighbors.

That is why it is often even more difficult for disabled people to complete multi-step logistical tasks, like getting to and from a polling place, when it can only be done on a particular day in a limited time. Early voting over a span of days makes it easier to schedule or reschedule transportation, and any assistance that a disbaled person might need.

And if logistical problems crop up, or a disabled person doesn’t feel well on the day they originally planned, early voting means they are more likely to be able to try again on another day. A single day of voting offers little or no margin for error or mishap –– another way disabled people’s path to a vote can be narrowed or even closed off.

3. Narrowing options for mail-in and absentee voting

While many disabled people feel strongly about voting in person, others have always used absentee voting, rather than risk potential problems at inconsistently accessible and poorly staffed polling places. In fact, one of the long-standing implicit arguments against making polling place accessibility a priority is the idea that a disabled person can simply vote by absentee.

In their report on disabled voter participation in the 2020 election Lisa Schur and Douglas Kruse of Rutgers University found that the expansion of available mail-in voting in some states helped increase disabled voter turnout.

While absentee voting shouldn’t be offered instead of accessible polling places, it should always be as free and simple an option as possible, as it reduces many of the logistical and scheduling problems with on-site, Election Day voting. Scaling back the expansion of mail-in voting, or making it even harder than before the pandemic, would close off yet another more accessible method of voting for people with disabilities. It’s a step that seems even less necessary considering the fact that absentee ballots has been a part of the voting process for many decades. It is a time-tested method, not a radical new idea.

4. Eliminating ballot drop-boxes

While mailing an envelope is in some ways easy and low-cost, few people these days use postal mail, and many don’t have stamps on hand, or have easy access to a mailbox or post office. Drop boxes are another option for disabled people to deliver absentee ballots, and may be more reliable than postal delivery.

Using a drop box can be easier than mailing in certain circumstances. And again, more options is always better for disabled people than fewer.

5. Prohibiting on-site aide for people waiting at the polls

Disabled people who do go to properly accessible polls with fully trained poll workers usually find it a relatively easy, in-and-out process. But some districts in some areas are chronically overrun with voters, resulting in long waits in line.

Almost any kind of disability makes waiting for a long time to vote exponentially harder, and for some outright impossible. A disabled person with every intention to vote may well simply go home if they literally cannot face a 2 hour wait in line. And once you give up on Election Day, there may be no other way to vote. The small window of opportunity is closed.

Being able to get a drink of water or a snack from a volunteer can make a big difference, or all the difference. From this perspective, prohibiting this kind of basic, non-political aide to people at the polls seems not just petty, but a real deterrent to voters with disabilities.

6. Paper-only ballots

One idea that enjoys wide bipartisan support is a “return” to paper-only ballots. This is seen as more secure than voting involving machines or electronics. And paper ballots are understood to be less prone to tampering, especially for those who have an instinctive distrust of digitial and internet technology.

But paper ballots pose a specific problem for some disabled voters.

As the National Council on Independent Living notes:

“A paper ballot mandate would not allow for complete privacy and independence for voters with disabilities. It prohibits fully digital voting which allows voters to read, mark, verify, and return their ballot completely electronically.“

Paper ballots are not reliably accessible to blind and visually impaired voters, or those who physically can’t make a paper ballot with a pen. And current paper ballot proposals don’t adequately address this problem, including the paper ballot provisions in the For The People Act, which in other ways would protect the right to vote and voting accessibility. The fact than this otherwise very promising and progressive bill still fails to ensure accessibility for all disabled voters is unfortunate but not uncommon. Disability activists have to remain vigilant at all times in the legislation process, no matter which party or ideology they are working with.

7. Making Election Day a holiday

It’s not only more “restrictive” measures that would harm disabled people’s access to voting. Even measures fully intended to make voting easier for everyone could have perverse effects on disabled voters.

Many disabled people have no other way to get to the polls than to use public transportation. Many others rely on personal care staff and other government workers in the community to be able to complete multi-step tasks outside the home.

That’s why making Election Day a holiday could actually make getting to the polls and back harder for disabled people who depend on workers who will themselves have the day off to vote. It’s another example of a well-intended idea that has the right goal, but lacks key input from the disability community.

Almost any changes in voting laws and regulations that add steps and requirements, or narrow options for how and when to vote, will discourage disabled people from voting. Even when these changes don’t actually prevent a disabled person from voting, they make voting harder.

When you tell a disabled person that there’s only one acceptable way to do a thing, at a very specific time and place, that poses a very real accessibility problem. It’s the same when you add more steps to any task. Disabled people in particular need to be able to do typical things in different ways, with fewer intermediate steps. It’s different for every disabled person of course, but more options, fewer steps is fundamental to just about every aspect of disabled life, including the fundamental right and indispensable civic function of voting.

Like most other disabled activists, Dom Kelly wants voting systems that ensure disabled people’s right to vote “privately, independently, and fairly.”

His vision for voting that is truly accessible to people with disabilities includes:

 

  • Being able to choose how to cast their votes from among several options of location, timing, and method;
  • Proper training for poll workers so they treat disabled voters with due respect and ensure a smooth and independent voting experience;
  • Disabled people involved in designing truly accessible and independent voting systems that encourage voting rather than just meet “the bare minimum” of technical accessibility.

 

None of this is incompatible with secure voting free from undue influence. And all of it is essential to making sure eligible disabled people have both the right and practical access to vote. Now you know the 7 Ways New Voting Laws Can Affect People With Disabilities.

Read more related articles at:

New restrictions causing roadblocks for voters with disabilities

New Voting Laws May Impact Those Who are Disabled

Also, read more one of our previous Blogs here:

New Data Shows Support For The Equality Act Including Those With Special Needs.

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.

 

Executor

You’re An Executor…Now What?

You’re an executor…now what?

By MassMutual Staff

You’re An Executor, Now What? Being trusted with handling a loved one’s estate is an honor. It’s also a taxing job at the best of times, mentally and, often, emotionally as well.

Those in the role of executor should focus on staying organized and should not shy away from reaching out for help to ease the process as much as possible. And if you have not yet created your estate plan, or even just drafted a will, it’s never too soon to make sure your survivors will have what they need to get your estate taken care of according to your wishes.

The first thing an executor of will duties should keep in mind is this: It takes time.

“Handling an estate is very slow,” said Paul Viren, president of the National Association of Estate Planners and Councils, in an interview. “People’s lives can be complicated, even in the simplest of situations. It’s first gear the whole way.”

What does an executor do?

At the core of an executor’s role is figuring out what the decedent’s assets are, and then what to do with them.

Some of the most common duties include:

  • Finding the deceased person’s assets and manage them until they are distributed to inheritors.
  • Deciding whether or not probate proceedings are needed.
  • Figuring out who inherits property.
  • Filing the will (if any) in the local probate court.
  • Handling day-to-day details.
  • Setting up an estate bank account.
  • Using estate funds to pay continuing expenses.
  • Paying debts and taxes.
  • Supervising the distribution of the deceased person’s property.

This process can be more or less complex, depending on the decedent’s family and financial circumstances.

Figuring out who gets what

The first step, Viren said, is to “take a deep breath. There’s no proverbial clock ticking. It’s not a race. Better to be organized and disciplined than to try to rush through to the end.”

Organization is key when dealing with an estate, and an inventory is an executor’s best friend. Start by taking stock of the assets you’re dealing with.

Assets generally fall into two categories: those that go through probate, and those that don’t.

Things like IRAs, retirement savings plans, and life insurance policies go directly to the beneficiary, as do Payable- or Transferable-on-Death accounts, and most trusts. Naming a beneficiary generally allows an asset to bypass probate, which makes the transfer easier, although challenges can happen if a beneficiary designation doesn’t look right.

“Take for example having an ex-wife listed as the beneficiary on a life insurance policy,” Viren said. “Was it a court order as part of the divorce settlement that the ex-spouse stay listed on life insurance? Or was the beneficiary designation just never updated after the split?”

To determine the fate of probatable assets, start by looking at the will, if there is one. Probatable assets tend to be less cut-and-dry than those with a named beneficiary, and each unique situation must be handled appropriately depending on what’s on the table.

Titled assets, like a car or a house, would have to transfer or be sold. Non-titled assets (which are pretty much everything else) need to be re-homed or disposed of. Heirlooms or other precious items should be dealt with according to the decedent’s wishes, and a will can help to settle disputes that might crop up in the absence of clear direction on who should receive them.

“If the decedent owned a business,” asked Viren, “how do we deal with management of that business? Who runs it until it can be sold or shut down or whatever’s going to happen? If the person had non-business responsibilities, like liability for children from a prior marriage, how is that handled?”

Dealing with claims on the estate

But even when a will exists, it often doesn’t capture the full picture. While the will states the decedent’s intent for the distribution of his or her property, claims on the estate must also be dealt with.

The executor must determine and pay debts from the estate and file the decedent’s final taxes before any remainder can be distributed to heirs. Depending on the situation in the decedent’s final days, especially if the death was sudden or unexpected, this may include sorting through medical insurance and bills.

“Figuring out who’s responsible can sometimes be tough,” Viren said. “Dealing with people saying ‘I’m owed money from the estate’ can be challenging,” especially if unexpected claims arise.

And that’s not just because of the stress of keeping everything in the estate accounted for. Underneath the logistical tangle lies the emotional component. Dealing with an estate may benefit from organization, but in many cases the executor is also family or otherwise close to the deceased, and it can be difficult to stay organized in the wake of losing a loved one.

“They’re in a stressful situation, their world has been turned upside-down, and they have to deal with managing what’s left behind. It can be a lot,” said Viren.

But if it all seems overwhelming, remember that handling an estate is generally not something the executor does alone.

Help for estate executors

There are a number of people who generally need to be involved when deciding where the decedent’s money goes, and a key component to successful estate management is the step that Viren refers to as assembling the team.

“Generally, the core team consists of the CPA, the attorney, and any family members key to the situation,” Viren said. It can also include insurance, medical or HR professionals, depending on the circumstances around the death and claims surrounding the estate.

This team can help the executor stay on track and make good decisions. Communication is key, Viren cautions, both among the team members and also between the team and the family to make sure there are no hidden agendas or underlying suspicions.

“Most people named executor aren’t trained to deal with this sort of thing,” said Viren. “That’s where the team can help.”

In addition to having a team for support, executors are generallyentitled to some type of compensation, which may also help to ease the burden of taking on the management of an estate. But if the prospect is still too overwhelming, executors do have the option to resign from administering the estate, after which the probate court will assign someone else to step in.

Make it easier on your executor

Processing an estate tends to be easier when everything is in order, so creating an estate plan can go a long way toward helping your executor handle your final affairs after you’re gone.

“An estate plan doesn’t have to be complex,” said Pete Lang, founder and president of Lang Capital in South Carolina. “However, everyone should take the time to help ensure that their financial and personal affairs are in order prior to their death.”

Creating a will is an excellent first step, and it’s important to keep it — and beneficiary designations on any eligible accounts — updated as time goes on. Viren also recommends creating a password list to streamline the handling of your digital presence, as well as an emergency document with everything from your blood type to emergency contacts and doctor information: whatever would help your family handle an emergency of any size. (RelatedWhat my loved ones need to know)

The most important documents you leave behind, though, may not be the legal ones.

Viren tells his clients to create handwritten love letters to family and leave those sealed envelopes with the legal documents so your family will have something from you that’s not an asset assignment. He highlights this as a chance to remember happy things, express your love, or even to ask for forgiveness, because families aren’t perfect. This is the personal, human side of a legacy and shouldn’t be overlooked in the process of estate planning.

“No matter where the journey takes us, it all starts with a love letter,” Viren said. “It should end with love letters too.”

Read more related articles at:

What to Do When You’re the Executor

How to Prepare to Be an Executor of an Estate

Executor of a Will Checklist: Your Step-by-Step Guide

Also, read one of our previous Blogs at:

Choosing the Right Executor

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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