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college students

Do College Students Need An Estate Plan?

Do College Students Need An Estate Plan? Graduating from high school and preparing for college is a very exciting time in a young adult’s life. For most graduates and their parents, estate planning is probably the last thing on their minds. Short of graduation gifts and dorm necessities, most graduates do not have much in the way of assets to protect, so why would they need an estate plan?

Estate planning doesn’t always focus on property and what might happen to minor children if their parents were to pass. Prior to your child turning 18 years old, you are used to making all health care decisions for your child. While you may seek the minor’s input, health care decisions for minor children are ultimately made by his or her parents. A reality of adulthood in America is that once children reach the age of majority, which is 18 in most states, their parents are no longer entitled to access their medical records and make decisions on their behalf. At this time, a parent is no longer entitled to their child’s health care records and information and it’s likely that medical professionals or care providers may refuse to even consult with parents.

The Health Insurance Portability and Accountability Act (HIPAA) protects the private health care information of patients. Because of this, parents are unable to access health care data, unless his or her child has executed an Advance Health Care Directive. When a child is away at school and falls ill or otherwise needs medical attention, most parents assume that they will be contacted and will have the rights and responsibilities to direct care. In fact, parents may be surprised that an 18-year-old is protected under federal HIPAA law and medical professionals will deny health care information to parents. Waiting until a medical event occurs, when a child may be incapacitated, even temporarily, is too late. He or she will be unable to consent to access of their health records or authorize a parent to make decisions on their behalf. Thus, it is imperative for your college student to have a properly executed Advance Health Care Directive.

Additionally, your adult children should also have a will and a Durable Power of Attorney. A Durable Power of Attorney is a “springing” document which allows the named agent to make financial decisions if your adult child is unable to make financial decisions. The power of attorney does not “spring” into action until the person who drafted it becomes incapacitated.

While this may seem like an uncomfortable conversation to have with your child, this type of conversation and preparation of these necessary legal documents will make your child less apprehensive about planning and you will both be prepared for any eventuality. Leading by example and having an open conversation about the importance of estate planning is a necessary part of your child’s new adulthood.

Read more related articles here:

3 Estate Planning Documents Every College Student Needs

Protecting Your College Student with Estate Planning

Also, read one our previous Blogs here:

How Can I Help with My Grandchild’s College Tuition?

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.

marital trust

What Is a Marital Trust?

If you’re married, you may be wondering what happens to your assets once you or your spouse passes. The answer to that question depends on various factors, including whether or not you have a marital trust.

Marital trusts have multiple benefits for beneficiaries, including asset allocation and tax benefits, and are worth considering in your estate plan.

A marital trust is an irrevocable trust that lets you transfer a deceased spouse’s assets to the surviving spouse without incurring any taxes. The trust also protects assets from creditors and future spouses the surviving spouse may encounter.

Additionally, when the surviving spouse dies, the assets in the trust are not included as part of their estate—which will keep the taxes on their estate lower.

Similar to other trusts, there are three parties involved in setting up, maintaining and ultimately passing along the trust, including a:

  • Grantor. The person who establishes the trust
  • Trustee. The person or organization that manages the trust and its assets
  • Beneficiary. The person who will eventually receive the assets in the trust once the grantor dies

A marital trust also involves the principal, which refers to the assets initially put into the trust. These assets can be investment products that generate income for the beneficiary over time.

A marital trust is a useful tool that minimizes tax implications for married couples who are high-net-worth individuals (HNWIs).

Using a marital trust essentially doubles the couple’s estate tax exemption limit. Estate tax refers to the federal tax that must be paid on someone’s estate after they die. The estate tax limit refers to how much of an estate will be tax free.

In 2022, the estate tax limit is $12.06 million, which means utilizing a marital trust would essentially double that amount to $24.12 million. Essentially, about $24 million of a couple’s net worth would be shielded from estate taxes by taking advantage of a marital trust.

Suppose a grantor passes $5 million to a surviving spouse through a marital trust, for example. The surviving spouse can pass an additional $19 million to the couple’s children through the same trust—tax free—because of the doubled estate tax limit benefit of using a marital trust.

A marital trust is also beneficial since it can provide income to the surviving spouse, tax free. However, the grantor may set a limit on how much can be withdrawn from the trust over time. Only a surviving spouse can be a beneficiary of a marital trust; once the surviving spouse dies, the trust will then be passed on to whomever the first spouse’s will governs.

When Should You Consider a Marital Trust?

If keeping wealth within your family after you pass is important to you, then a marital trust is an estate planning tool that will ensure individuals outside of your family do not have access to the wealth. You can put a variety of assets into a marital trust, including property, retirement accounts and investment accounts.

There are other types of spousal trusts, including a qualified terminable interest property trust (QTIP), bypass trust and spousal lifetime access trust. These different trusts have varying tax benefits and require the assets to be used in certain ways. Consult with an estate planner and certified public accountant to learn more about these different types of spousal trusts.

Pros and Cons of a Marital Trust

There are multiple advantages to using a marital trust, including that they:

  • Double your estate tax exemption amount to $24.12 million
  • Provide income and financial stability to the surviving spouse
  • Keep assets within the family
  • Protect assets from creditors and potential new spouses
  • Can provide financial stability to the remaining beneficiaries once the surviving spouse dies

Like any financial tool, however, there are also downsides of using a marital trust. Those downsides include that they:

  • Are irrevocable trusts, meaning once they are established, it’s extremely difficult to dissolve them or change their terms
  • Only offer up to $24.12 million in estate tax exemption
  • Require transferring assets into the trust, which can be a lengthy process

Bottom Line

A marital trust can be a beneficial estate planning tool that will take care of your surviving spouse after you’re gone. By using this strategic tool, you can essentially double the amount of your estate that won’t be taxed at a federal level. You can also ensure that your wealth stays within your family by transferring assets into a marital trust.

Marital trusts require extensive tax and asset planning, so be sure to consult with a certified public accountant in addition to an estate planner when creating one.

 

Read more related articles here

What Is a Marital Trust, and How Does It Work?

Marital Trust vs. Family Trust

Also, read one of previous Blogs here:

What exactly, Is a Marital Trust and How Does It Work?

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.

 

Farmer and his son

What Is a Farm Succession Plan?

What Is a Farm Succession Plan?

You’ve worked hard to build your farm into a successful business. And leaving the future accomplishments of your hard work to chance isn’t an option. That’s why a farm succession plan is a critical part of passing your farm down to the next generation. With appropriate preparation and planning, you’ll be ready to turn the reins over to your successor, which may be your children or grandchildren, when the times comes.

Definition of Farm Succession Planning

Your farm or ranch is your legacy, and you probably want that legacy to continue when you no longer can run the farm yourself. Farm succession planning is the process of passing on the ownership of your farm to another person — typically to the next generation of your family. Having a succession plan in place makes that transfer as smooth as possible and it’ll help determine the future of your farm.

What to Know about a Farm Succession Plan

Ideally, your farm succession plan will help you reach your financial goals upon retirement, so your plan should include the amount of income you and a spouse will need for your retirement. It’s important to calculate this number to help you determine what obligation the business has for you as a retiree in order for your business to not be adversely affected financially.

The success of a farm succession plan requires a developed, thought-out strategy for the transition. An important decision you’ll make is choosing what to do with your farm. Consider the following for your succession plan:

  • Transfer time – determine when and how long this transfer process could actually take and the time to share knowledge and shift responsibilities of managing the farm business.
  • Good communication in these arrangements is a vital link in the success of the farming business.
  • Farmers commonly transfer or sell ownership to a family member or members. For non-farming heirs, consider leaving them with equal settlements of money, stock or other assets.
  • Instead of completely handing over ownership, you can rent or lease your land and equipment.
  • You can sell or contract your property to non-family members.
  • Carefully liquidate your assets by auctioning equipment, livestock or selling your land.

What Do You Want Out of Your Farm Succession Plan?

The right plan helps protect your farm by ensuring everything you’ve worked for stays in the right hands. It’s far more than a financial arrangement. It’s a roadmap for growth and security. But the right plan takes time to develop. It’s a process that’s unique to every farmer and every family. And it all starts with honest communication and trust.

Ask yourself these questions to help you determine what you want to get out of the plan.

  • Do I want the farm to stay in the family?
  • If the family member is taking over the operation, am I confident they have the knowledge and skills to keep it running?
  • Do I want the farm to remain operational after the transition?
  • Do I want to stay involved in business decisions regarding the farm after the transition?
  • What kind of income will I need for retirement and health care costs?

Open communication is key for an effective succession plan. Thinking about these questions will help you have a better understanding of what you want, so you can clearly talk through your concerns and expectations with your family or people involved to help prevent misunderstandings.

Transferring Ownership

Maintaining your farm is an intricate operation, and transferring ownership isn’t quite as easy as handing over a set of keys. When it comes time for your successor to take over, you’ll want to have these important details figured out.

Land. Now that you know who you are transferring ownership to, how will you do it? Will you be gifting your land to your family members or selling it? Transferring ownership upon death is also a common option because you’ll still be able to use your property and earn income from it throughout your retirement years.

Equipment. Are you going to sell your equipment to your successor or transfer ownership to them? You can also choose to lease your machinery to your successor, but make sure to agree upon who will pay for repairs.

Breeding livestock. Transferring your livestock can also be done in a number of ways. If you have breeding livestock, you can choose to sell all or a portion of your herd with payments made in installments. Or, go the roll-over route, where you’ll still own the breeding herd and share joint ownership of the offspring with your successor.

Feed and market livestock. You can choose to sell or give your feed and market livestock to your successor. If you go this route, make sure you’re doing so at the low point of the feed inventory or between the sale and replacement of the market livestock. You can also choose to have your livestock inventoried, meaning you’ll receive the inventory value of the livestock upon its sale, and you’ll divide the remaining proceeds between you and your successor.

Before making any definitive decisions, be sure to consult with a tax professional to understand the tax implications of your transfers.

Assemble Advisors

Strategically planning the succession of your farm takes time — and the right guidance. Actively involve your lawyer, accountant, financial planner and your American Family Insurance agent to help you build a successful farm succession plan. Though your family will probably be heavily involved with the decisions, having unbiased perspectives can help neutralize conflicts that may arise.

In creating a farm succession plan, you’re able to implement your family’s vision and intentions with purpose. You want to ensure that your farm continues operating with adequate economic capabilities to financially support multiple generations for years to come. Ready to protect the future of your farm? Use these seven steps to build a plan you can feel good about.

Read more relatable articles here :

Farm Succession Planning

Understanding farm succession planning

Also, read one of our previous Blogs at:

What Do Farmers Need to Create an Estate Plan?

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

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

 

 

right of survivorship

What Does Right of Survivorship Mean?

What Does Right of Survivorship Mean?

What Does Right of Survivorship Mean?  It is a right granted to joint property owners that ensures the transfer of one owner’s stake to the remaining property owner(s) in the case of his or her death.The best way for owners to gain this right is by specifying that they want to be joint tenants with right of survivorship (JTWROS) either when initially registering a land title or when transferring a land title with a Survivorship Deed.

What are the benefits?

Depending on your circumstances, it can benefit you and your joint tenant(s) because it ensures that:
  • Surviving tenants automatically acquire property: When you and your joint tenant(s) own a property with rights of survivorship and one of you passes away, the property can skip the probate process because the surviving tenant(s) automatically acquire the deceased’s portion.
  • Tenants can’t transfer their interest in the joint tenancy: When you and your joint tenant(s) each own an equal interest in a property, you can’t transfer your interest to someone else and leave the joint tenancy intact. As a joint tenant, if you sell your interest, the joint tenancy ends and the property is owned as a tenancy in common.

What does it apply to?

Generally, the right of survivorship only applies to residential or commercial property held in joint tenancy with a right of survivorship. A joint tenant may benefit from holding the right of survivorship on a property, such as a:
  • Single-family house
  • Townhouse
  • Duplex
  • Condo
  • Apartment
  • Piece of land
  • Farm

How does the it work?

You and your joint tenant, such as your spouse, can each establish the right of survivorship when initially purchasing a piece of property by including the correct terms in your land title. In most states, you can ensure the right of survivorship for all joint tenants by including JTWROS on the title after your names.
However, if you already own a property and want to transfer partial ownership to another party, you can use a Survivorship Deed to establish the right of survivorship.

Does it override a Last Will?

Yes. Generally, the right of survivorship will take precedence over a Last Will and Testament if the jointly-owned property is distributed wrongfully in someone’s estate plans. Therefore, you shouldn’t list any property in your Will that you and another person(s) jointly own with the right of survivorship.
Once there is one surviving owner with sole ownership of the property, that owner has the right to distribute or pass on the property through a Last Will. At this point, they are no longer a joint tenant and can distribute the property as they desire through their Will.
The laws surrounding the right of survivorship may depend on your state. Check with your local laws to confirm how the right of survivorship impacts your Last Will and property.

What is the difference between joint tenants with the right of survivorship and tenants in common?

Joint tenants with the right of survivorship are two or more people who own an equal interest in a property. When one person dies their interest passes automatically to the surviving joint tenant(s).
In contrast, tenants in common can own unequal shares in a property and have no right of survivorship. If one owner dies, their interest in the property is distributed according to their Last Will and doesn’t automatically transfer to the other owners of the property. Tenants in common can transfer their interest in the property to an heir after their passing.

Who grants it?

The grantor is the person (or persons) who transfers a property title and grants the right of survivorship. If you already own a property and want to transfer equal ownership and the right of survivorship to another person, such as a spouse, you are both a grantor and a grantee. In this instance, your spouse is only a grantee.
Conversely, if you purchase real estate or property with someone and become joint tenants with the right of survivorship at the beginning of your tenancy, you have effectively given each other this right.
Read more related articles at:

What Are Joint Tenants With Right of Survivorship

Also, read one of our previous Blogs at:

Avoiding Probate in Florida

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.

Child Trust

7 Tips For Setting Up A Trust For Your Children

7 Tips For Setting Up A Trust For Your Children

When creating trusts, parents are faced with tough decisions about how to leave their assets to their children. While each person needs to consider their own situation and unique children, there are a few general issues that everyone should consider.

Assets of minor children should always be held in trust. You do not want children under 18 inheriting assets. While they are under 18, their guardian or conservator will control the money for them. If you’ve already decided that your sister Sally will be a wonderful guardian for your children because she has a great relationship with your kids and a cozy home, think carefully about if she will also be a strong guardian of their money. If her afternoons are spent shopping and her finances are in disarray, it is best to leave the kids’ inheritance in the hands of a more qualified trustee.

Being 18 is not easy. In most states, the guardian has to turn over control of the assets to the children once they turn 18. When you are 18, an inheritance of $3 million seems like it will last a lifetime. And it can, if you are prudent and live frugally. But most 18-year-olds will use up the trust money on a lifestyle that they cannot afford. Flash forward 20 years and the 18-year-old is now approaching 40, with little money left and no means to support himself.

Consider a lifetime trust. Another important issue is whether you should distribute the monies to the children outright when they reach a certain age. First, if you give your children the right to withdraw trust money, it becomes their own money and is subject to their creditors as well as their divorcing spouse. Keeping the monies in trust for the child’s lifetime will provide better liability protection. The trustee would have discretion to distribute money, but the child would never have a right to demand chunks of cash. This is the best approach if you are concerned that a child has creditors or may divorce in the future. For example, if your child receives a $5 million inheritance and has no prenuptial agreement, that money will be a marital asset subject to division.

Protect your “problem” child. Giving a large sum of money to a child with a substance abuse problem (drug addiction, gambling, etc.) could have fatal consequences. The only way to protect a child from himself is with a lifetime trust.

Giving your kids a longer leash. If you are confident your child could handle the money and want to turn it over to her at a certain age, the best practice is to distribute it in stages. A typically scenario is giving the child one quarter of the assets at age 25, one half of the remainder at age 30 and the rest at age 35. This distribution could comprise any ages or percentages you choose. Another suggestion is to bring the child on a as co-trustee at age 25 so he gets used to managing the trust money.

Planning for a child’s death. What happens to the trust money if the child dies and there are still monies held in trust? You can direct that the monies go to her children, if any, or to your remaining children. Some people will give their children special powers to direct where the money goes when the child dies. These are called “powers of appointment.” The thought is that after you are long gone, your child should have flexibility to alter the distribution of the trust money among the child’s own children. After all, your grandchildren may end up with some of the same issues you considered in planning for your children – creditors, divorcing spouses and addictive behavior. Your child should have the flexibility to change the trust distribution if needed. You can also give your child the ability to leave the trust money to his spouse. Some people feel strongly against this, but if your child has a loving spouse and they are living prudently, perhaps you would want her to be able to live in the same lifestyle she enjoyed when your child was alive.

There is a lot to consider when leaving assets in trust for children. Don’t let the considerations overwhelm you or keep you from planning. You can always defer to your attorney’s suggestion and then make adjustments to the trust over time as your decisions solidify.

Read more related articles at:

How to Create a Trust for a Child

How Trust Funds Can Safeguard Your Children

Also, read one of our previous Blogs at:

CAN A TRUST PROTECT YOUR CHILD’S INHERITANCE?

 

Elder Abuse

Elder Abuse, Neglect, and Financial Exploitation.

Elder Abuse Neglect and Financial Exploitation

How to Report Elder Abuse in Florida

To report elder abuse by phone, call the Florida Department of Elder Affairs 24/7 at 1.800.962.2873 (800.96.ABUSE). Press 2 to report suspected neglect, exploitation, or abuse of the elderly.

To report elder abuse online, click “Report Abuse Online NOW

You will be asked to provide details on the alleged incidents, people involved, and other relevant information.

Reporting elder abuse can be done completely confidentially.

Elder Abuse: The Role of DCF

The Florida Department of Children and Families (DCF)Division of Adult Protective Services screens and investigates all reports of elder abuse (1-800-96-ABUSE or 1-800-962-2873). Click on the link for multiple ways to report elder abuse. While almost 20% of Florida’s population is over the age of 65, DCF investigates claims of abuse of caregivers too, not only, vulnerable adults, but all those with special needs as well (e.g. autism, intellectual disabilities, blindness, ambulatory difficulties, traumatic brain injury victims and others who are unable to fully take care of themselves).

‍Important Elder Abuse Definitions

In fact, Florida statutes define a “vulnerable adult” as a person age 18+ whose ability to perform normal activities of daily living and/or to provide for his/her own care or protection or are impaired due to a mental, emotional, sensory long term physical or developmental disability or brain damage, or due to the infirmities of aging.

Florida Statutes defines “caregiver” as a person who has been entrusted with or assumed responsibility for frequent and regular care of or services to a vulnerable adult (on a temporary or permanent basis) who has a commitment, agreement, or understanding with that person that a caregiver role exists.

So there needs to be some kind of relationship between a “caregiver” and “vulnerable adult” in order for DCF to investigate the claim for elder abuse. For example, if someone randomly pushes a vulnerable adult in a parking lot; that would not meet the caregiver’s definition and DCF would not investigate that kind of “elder abuse” (rather, the police should be involved).

Elder Abuse Laws in Florida

Florida Statutes, Chapter 415, is the Adult Protective Services Act. This statute mandates that the Florida Department of Children and Families commence an investigation within 24 hours of being reported if just the allegations warrant so.  If the report is serious enough the statute provides for immediate onsite protective investigation. An investigation into the allegations may not take longer than 60 days.

Florida Statues, Chapter 825 provides that aggravated abuse of an elderly person or disabled adult is a 1st-degree felony. Neglect that causes significant bodily harm, disfigurement, or disability is a 2nd-degree felony.

Elder Abuse Prevention Coordinators have been established by statute and can be contacted at the following locations:

Miami Alliance for Aging | 305.670.6500 | 760 NW 107th Avenue, Suite 214, Miami, FL 33172

Aging & Disability Resource Center of Broward County | 954.745.9567 | 5300 Hiatus Road, Sunrise, FL 33351

The Florida Department of Elder Affairs has a legal hotline to provide free legal advice to eligible seniors over 60 years old: 888.895.7873.

‍Elder Abuse, Neglect, and Exploitation

Abuse: any willful or threatened act by a relative, caregiver, or household member, which causes or is likely to cause significant impairment to a vulnerable adult’s physical or emotional health. Abuse includes omissions.

Neglect: failure or omission on part of the caregiver or vulnerable adult (self-neglect should also be reported)to provide care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult. Importantly, no “intent to harm” is required to meet this definition. The caregiver reported to DCF doesn’t always have the intent to harm; sometimes they are in over their heads and need help. DCF will refer such caregivers to the potential services available to them to assist in caring for the vulnerable adult.

Exploitation: knowingly, or by deception or intimidation, obtaining or using (or attempting to obtain o ruse) the vulnerable adult’s funds, assets, or property for the benefit of someone other than the vulnerable adult. The exploiter is usually someone in a position of trust and confidence and one who knew or should know that the vulnerable adult lacks the capacity to consent.

‍Who commits the crime of elder abuse?

According to DCF reporting, the majority of elder abusers are relatives of the vulnerable older adult! Almost 30% of these cases involve the children of the senior citizen. But a significant portion, about 20% of reported elder-abuse cases occur in an institutional setting.

The Florida Department of Elder Affairs has produced some materials discussing ways to understand the signs of, and protect against, various types of elder abuse. Elder abuse includes physical abuse (whether in the form of violence or neglect), emotional abuse, identity theft, and financial exploitation.

Elder abuse can also come in the form of nursing home negligence – especially in the case of bedsores/decubitus ulcers. If you suspect nursing home negligence, resulting in serious injury, contact our office.

Elder Law Attorney Resources

To check on reviews and reports of elder abuse for a particular nursing home or assisted living facility, click here: http://www.floridahealthfinder.gov/facilitylocator/facloc.aspx

To check complaints, regulatory actions, and disciplinary history of a financial advisor, click here: http://brokercheck.finra.org/

Adult Protective Services Investigation Process

Dial the number (or click the link) above to be able to report elder abuse online. The report will be screened to see if the allegations, if true, would satisfy DCF’s definition of elder abuse. If so, a formal investigation is commenced within 24 hours of the initial report/call.

If the reporter is told that what they are reporting does not meet criteria, and they truly believe that elder abuse is happening, they should ask to speak with a supervisor.

Most elder abuse victims are visited, in person, by a DCF investigator within that initial 24 hour period. The investigator is looking for signs of abuse, neglect, or exploitation and will refer to services if necessary. The investigator is assessing risk for harm or risk of future harm. For example, if a bank blocked a questionable transaction ad reported the possible financial elder abuse, while the potential abuser’s attempt to steal money was unsuccessful (as the bank blocked the transaction), the “risk of future harm” is great.

All elder abuse investigations must be complete within 60 days.

The Adult Protective Services investigator will conduct a background check into the alleged victim and abuser (looking for patterns of, or a propensity towards, similar abuse) and determine if other agencies need to be involved or if law enforcement should accompany the investigator to visit with the victim.

When they visit the victim they will always conduct at least part of the investigation by speaking with the victim in private if there are other residents or caretakers in the same household.

The investigator will also speak to other sources of information(banker, primary care physician, neighbors, other caregivers, prior caregivers, family, etc…)

The investigator will determine if any other services are needed and available to the victim while assessing the risk for future harm. If DCF believes that a vulnerable adult has been abused, neglected, or exploited and is in need of protective services but lacks the capacity to consent to protective services, DCF can petition the court for an order authorizing the provision of services. Fla.Stat. 415.1051. They can also remove from the premises and arrange for transportation to an appropriate medical or protective services facility.  An emergency petition for protective services must be heard by the court within four days of filing the petition.

But if there are assets, it would be better for a family member or friend to file for emergency temporary guardianship because a guardian can do so much more than DCF.

‍What to Report when Reporting Elder Abuse

While one can report elder abuse anonymously, doing so can make it difficult for the investigator to follow up and ask important questions about the abuse. Prepare to provide as much of the following details as possible:

1.      Name, age, sex, physical and behavioral description, and location of the abuse victim.

2.      Names, addresses, phone numbers of victim’s family members.

3.      Names, addresses, phone numbers of each alleged perpetrator and the alleged abuser’s relationship to the victim.

4.      Names, addresses, phone numbers of the victim’s caregiver (if different than the alleged abuser).

5.      Description of physical and/or psychological injuries involved or signs of harm.

6.      Who else might have information related to the alleged abuse.

7.      Any other information the reporter feels is relevant.

Anonymity is revealed only if a false report is made(because that is illegal, not to mention a waste of the state’s resources that could have been put towards a case with merit) or if the reporter provides permission.

‍Criminal and Civil Consequences of Elder Abuse

Fla.Stat. 772 provides treble damages for civil theft.

There is a violation of Fla. Stat. 825.103(1)(A) if:

·        Victim is elderly, the suspect is in a position of trust/confidence/has a business relationship, and suspect obtained funds/assets/property.

There is a violation of Fla. Stat. 825.103(1)(B) if:

·        Victim is elderly, victim lacks the capacity to consent, suspect obtained (or endeavored to obtain) funds/assets/property to benefit someone other than the victim, and suspect knew or had reason to know that victim lacked capacity.

There is a violation of Fla. Stat. 825.103(1)(C) if:

·        Victim is elderly, the suspect is guardian/trustee/agent under POA, suspect breached fiduciary responsibility which resulted in unauthorized sale/transfer/misappropriation of victim’s property.

There is a violation of Fla. Stat. 825.103(1)(D) if:

·        Victim is elderly, suspect misappropriated, misused, or transferred (without authorization) money from a personal, joint, or convenience bank account.

o  Fla.Stat. 825.103(1)(d) defines exploitation as the misappropriation, misusing, or transferring without authorization money belonging to an elderly person from an account in which the elderly person placed the funds, owned the funds, and was the sole contributor or payee of the funds.

o  This is so a joint account holder (who contributes nothing to the account), who perhaps starts off only paying bills of the elderly owner but then decides to withdraw funds and buy a Ferrari for themselves, can still be charged for exploitation.

There is a violation of Fla. Stat. 825.103(1)(E) if:

·        Victim is elderly, suspect stands in the position of trust or is a caregiver, suspect intentionally or negligently failed to effectively use victim’s income or assets for the necessities required for the victim’s support or maintenance.

Fla. Stat. 825.103(2) presumes exploitation when there is a transfer of money over $10,000 by a person 65 years old or older to a non-relative whom the transferor knew for fewer than two years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services.

Fla. Stat. 825.103(4): Asset Seizure: if a person is charged with financial exploitation for more than $5,000 and property believing to the victim is seized from the defendant pursuant to a search warrant, the court will hold an evidentiary hearing to determine whether the older adult’s property was unlawfully obtained. If so, the court may order it returned to the victim for restitution purposes before trial.

‍Elder Abuse Statistics

DCF investigated 52,858 reports of elder abuse in the 2015-2016 fiscal year.

·        18.7K involved self-neglect

·        17.2K involved inadequate supervision

·        11.2K involved exploitation

·        9.5K involved physical injury

Most common forms of elder abuse in an institutionalized setting

Not surprisingly, the largest category of nursing home/ALF abusers come from the employees of the institution.

·        3.7K involved inadequate supervision

·        2.9K involved physical injury

·        1.4K involved medical neglect

·        1K involved environmental hazards

·        .3K involved exploitation

Most common forms of elder abuse while the elder is living at home

Perhaps more surprisingly is that the senior citizen’s own child is most likely to be the alleged abuser.

·        5.7K involve self-neglect

·        5.7K involve exploitation

·        5.7K involve inadequate supervision

Read more related articles at:

Elder Protection Programs

Adult Protective Services

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ELDER ABUSE: WHEN A FAMILY MEMBER CAUSES HARM

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Make Your Estate Creditor-Proof.

Make Your Estate Creditor-Proof.

Here’s how to ensure assets go to your heirs.

Ensure your assets go to directly to your loved ones instead of through probate.

When you pass away, the tax man isn’t the only one who can take a bite out of the assets that you leave behind for your loved ones.

Whether it is cash, real estate, retirement money or other funds, inherited assets can suddenly come up for grabs in a number of scenarios when creditors and others come calling.

Experts say you can often make your estate creditor-proof by avoiding probate, which is designed to pay off creditors. Here’s a primer on four ways to avoid probate and prevent outsiders from snatching the money you’ve left for your heirs. These measures protect your relatives if they ever get sued, file for bankruptcy or go through a nasty divorce after you’ve died.

1. Create a trust

Establishing a trust is not only a key way to skip probate court, it can also prevent the assets you’ve spent a lifetime accumulating from going to predators who might slap your heirs with lawsuits.

Scenario: A 77-year-old man died of cancer. He had a will that left $250,000 to his 26-year-old granddaughter, whom he intended to help buy her first home. Two years after her grandfather’s death, the granddaughter got into a minor car accident. The other driver wasn’t hurt but sued anyway, eventually winning a big chunk of the young woman’s $250,000 inheritance.

“The trust can specify that the money only be used for certain purposes, like the education, care or support of a specific beneficiary. This way, there can be no payout to creditors,” Gross says.

In some states, such as Florida,living trusts are commonly used. These trusts are called “revocable” because you control them and can change them at any time while you are alive. Once you die, however, your living trust becomes irrevocable (since you aren’t alive to revoke it), and the trust is a separate legal entity.

In New York and New Jersey, people typically create testamentary trusts, Gross says. This type of trust is created by the terms of a will, and the trust only takes effect upon a person’s death.

Both types of trusts can contain specific language and provisions that prevent your beneficiaries’ creditors from seizing any trust assets.

Unlike wills, “trusts are not a matter of public record. They’re a tool for maintaining privacy,” says Reid Abedeen, a partner at Safeguard Investment Advisory Group LLC. “In addition, trusts are much more difficult to contest than a will.”

A final advantage of a trust over a will is that a will has to go through probate, which is expensive and time-consuming. Probate costs can eat up more than 3 percent of an estate. So if you bequeath $1 million through your will, your heirs could pay more than $30,000 in probate expenses and wait a year or more for their inheritances.

2. Handle retirement assets appropriately

Be careful with how you pass along retirement assets such as IRAs and 401k plans. Creditors can sometimes go after those monies if one of your loved ones winds up in bankruptcy court.

Scenario: A 62-year-old mom died of diabetes and left her $100,000 IRA to her only daughter. Five years after receiving the inheritance, the daughter ran up a lot of credit card debt and filed for bankruptcy. She claimed the inherited IRA was exempt from her creditors, but the bankruptcy court disagreed and that money was used to pay off the debt.

How to prevent this: Leave IRAs to beneficiaries in a separate IRA trust to keep the funds away from creditors.

“The Supreme Court ruled in 2014 that any time a child or grandchild inherits an IRA, it’s no longer protected from creditors,” says Pat Simasko, head of Simasko Law and Simasko Financial in Mount Clemens, Mich.

By creating a stand-alone IRA trust for children or grandchildren to inherit an IRA, your offspring “will have access to the money, but creditors won’t,” he says.

Fortunately, married couples don’t have to worry about this problem. Under current law, if Mom dies with an IRA, Dad is allowed to receive her IRA assets as a “spousal rollover” and the funds are protected from outsiders.

3. Safeguard life insurance proceeds

Money held in a life insurance policy is protected from creditors, so any death benefit or cash value is protected and will go directly only to the individuals or organizations you name as beneficiaries.

But once life insurance proceeds are distributed as cash to your beneficiaries, the funds are open to attack from anyone, including your child’s conniving ex-spouse.

Scenario: A couple in their mid-80s has spent a lifetime together working hard and saving money. They have $1.5 million in life insurance and have told their three sons that each of them will receive $500,000 in insurance payouts. The youngest of the three sons is going through a bitter divorce with his estranged wife. The soon-to-be ex-wife has already told her lawyer about her spouse’s anticipated inheritance, and she feels entitled to a piece of it.

How to prevent this: To thwart a bitter ex from trying to lay claim to your kid’s inheritance, safeguard the life insurance by putting it an irrevocable life insurance trust (ILIT).

An ILIT is a tool specifically designed to own life insurance. Just like other trusts, the ILIT has a trustee, beneficiaries and precise terms for distributions.

“You can add protective provisions, like a spendthrift clause and a discretionary distribution clause, to keep the insurance proceeds from your beneficiaries’ creditors,” Gross says.

A spendthrift clause prohibits the trustee from transferring trust assets to anyone other than the beneficiaries. That includes an ex-spouse, creditors or even the IRS. “A spendthrift clause also says no beneficiary is permitted to assign, pledge or sell any interest in the trust — whether trust principal or income,” Gross adds.

If the trustee believes the distribution would be wasted or claimed by the beneficiaries’ creditors, a discretionary distribution clause gives your trustee the right to withhold income and principal distributions that would otherwise be payable to the beneficiaries.

4. Title bank accounts and assets properly

If you own joint assets or name beneficiaries on your accounts and assets, a creditor cannot seize what you leave behind after you die. Instead, the money will go directly to the person(s) listed on the accounts. But for the unsuspecting who haven’t titled their assets properly, there are pitfalls.

Scenario: A 58-year-old married traveling salesman died of a sudden heart attack. There was an $80,000 bank account in his name alone that had to be probated. His wife later discovered a $60,000 credit card balance, about which she knew nothing. It turns out the husband had a girlfriend on the side. After he died and the bank account went through probate, the wife was forced to use those bank funds to pay off the credit card bills.

How to prevent this: Make sure the spouse is named as a beneficiary on the bank account, which keeps the asset from having to go through probate. “If Dad dies and Mom is on the [bank] account, it’s hers,” Simasko says.

Adding beneficiaries to financial accounts is another creditor-busting move, since those assets avoid probate upon the death of the first account owner. But in this instance, it’s the deceased person’s creditors that won’t get access to the money, not the creditors of the beneficiaries.

Instead of having a joint owner listed on the title of certain accounts, a variation on this technique is to have a named beneficiary listed on your accounts, such as a 529 plan that may be for the benefit of a grandchild’s college education.

Another way to bypass probate and pass along the money to your heirs is to choose a payable-on-death (POD) or transfer-on-death (TOD) account designation. This differs from a joint tenant or co-owner arrangement because your heirs only have access to the fund after your death. Joint tenant and co-owners have access to the funds while you are alive.

“You deserve the peace of mind in knowing that your life’s economic work will be executed as specified, and your family will be grateful to you for not leaving them with the headache of trying to sort out your estate,” Abedeen says.

Read more related articles here:

How To Protect Your Assets From Lawsuits Or Creditors

The 2022 Florida Statues: Notice to Creditors. Filing of Claims.

Also, read one of our Previous Blogs here:

How Can I Protect Assets from Creditors?

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.

generationn skipping trust

Passing Assets to Grandchildren Through a Generation-Skipping Trust

Passing Assets to Grandchildren Through a Generation-Skipping Trust

Passing assets to your grandchildren can be a great way to ensure their future is provided for, and a generation-skipping trust can help you accomplish this goal while reducing estate taxes and also providing for your children.

A generation-skipping trust allows you to “skip” over the generation directly below you and pass your assets to the succeeding generation. While this type of trust is most commonly used for family, you can designate anyone who is at least 37.5 younger than you as the beneficiary (except a spouse or ex-spouse).

One purpose of a generation-skipping trust is to minimize estate taxes.  Estates worth more than $12.06 (in 2022) have to pay a federal estate tax. Twelve states also impose their own estate tax, which in some states applies to smaller estates. When someone passes on an estate to their child and the child then passes the estate to their children, the estate taxes would be assessed twice—each time the estate is passed down. The generation-skipping trust avoids one of these transfers and estate tax assessments.

While your children cannot touch the assets in the trust, they can receive any income generated by the trust. The trust can also be set up to allow them to have some say in the rights and interests of future beneficiaries. Once your children pass on, the beneficiaries will have access to the assets.

Note however, that a generation-skipping trust is subject to the  generation-skipping transfer (GST) tax. This tax applies to transfers from grandparents to grandchildren, even in a trust. The GST tax has tracked the estate tax rate and exemption amounts, so the current GST exemption amount is $12.06 million (in 2022). If you transfer more than that, the tax rate is 40 percent.

The trust can be structured to take advantage of the GST tax exemption by transferring assets to the trust that fall under the exemption amount. If the assets increase in value, the proceeds can be allocated to the beneficiaries of the trust. And because the trust is irrevocable, your estate won’t have to pay the GST tax even if the value of the assets increases over the exemption amount.

Generation-skipping trusts are complicated documents. Consult with your attorney to determine if one would be right for your family.

Read more related articles here:

Generation-skipping tax: How it can affect your estate plan

Generation-Skipping Trust

Also, read one of our previous blogs here:

What is a generation-skipping trust?

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Aaron Carter

Tragically Aaron Carter ‘died without a will’ leaving the state to decide who will inherit his assets.

Tragic Aaron Carter ‘died without a will’ leaving the state to decide who will inherit his assets including his $800,000 house which he had put on the market shortly before his deathSinger did not write a will, meaning California will decide who inherits estate
Sources say Carter was not in strong financial health at the time of his death
His $800,000 Lancaster house had been put up for sale but is now off market

Aaron Carter died without leaving a will meaning the state of California will decide who will inherit his assets, it has been revealed.

The 34-year-old, who passed away earlier this month, had been advised by his attorney to make a will, particularly after the birth of his 11-month-old son Prince.

The singer shared Prince with his on-again, off-again fiancée Melanie Martin, who started their rocky relationship in 2020.

The LA County Department of Children and Family Services were forced to get involved because of the domestic disputes between the tumultuous couple, and removed Prince from their home.

He has been living with Martin’s mother since September, reports TMZ.

The star had put his Lancaster home up for sale for around $800,000 in the weeks prior to his death but it has now been taken off the market

In California, the child normally inherits their single parent’s estate if they die without a will.

But sources said Carter was not in a strong financial position when he was found dead in his home on November 5.

If a sale goes ahead, Prince would likely have security in any equity it brings.

Last week, Martin was seen moving her stuff out of his home.

Since January 2020, Carter and Martin had a rocky relationship leading up to the birth of their son on November 22, 2021.

The singer told DailyMail.com in August that the two weren’t together and were done for good.

It’s unclear what the relationship status of the pair was leading up to Carter’s death was – but Martin released a statement and called him her ‘fiancée.’

The couple were on and off in their relationship. Carter had split from fiancée Martin just one week after they welcomed their first child together in 2021
Martin could be seen crying outside Carter’s California home after he was found dead
She wrote: ‘My fiancée Aaron Carter has passed away. I love Aaron with all my heart and it’s going to be a journey to raise a son without a father.

‘Please respect the privacy of my family as we come to terms with the loss of someone we love greatly.

‘We are still in the process of accepting this unfortunate reality. Your thoughts and prayers are greatly appreciated.’

Carter filed custody of their son and a petition for protection at the Antelope Valley Courthouse in Los Angeles County earlier this year.

At the time, he accused Martin of ’emotional distress, anguish, shoving, & scratching’, and claimed she used the threat of suicide to abuse him ’emotionally.’

One of the last people he texted was his manager Taylor Helgeson, telling him he was optimistic about the future and the release of his new music.

Helgeson recalled his final conversation with the I Want Candy singer the night before he died – and his thrill about the release of his new album he planned on recording in Los Angeles this month.

‘He was so excited, he was extremely optimistic,’ Helgeson told The US Sun. ‘It was a few years since we released Love, and he felt ready to do another one… it was the first time in a while that I’ve seen him so excited. He had more [to give], and he didn’t quit.’

Taylor Helgeson, Aaron Carter’s manager, revealed the singer last texted him on November 4 about his excitement to record his new album.
The night before Carter died, he had invited a friend to his home to begin recording for his new album – but the friend never made it
In one of Carter’s final messages to Helgeson on November 4, he had texted his manager to check in.

Helgeson said he asked the singer how he was doing. To which he responded: ‘I’m just headed back to the house. I was in L.A. All good though. Things are looking up.’

Carter later looked over the songs for his new album and added: ‘Holy s****! The new album, what the f***? This is definitely a Grammy!’

The manager responded: ‘Yeah, and you deserve it.’

‘Huge! Our best work yet,’ Carter last said at 6.32pm, Helgeson told The Sun.

Carter would later call Helgeson – but he was unable to answer because he was on a plane. The singer then called another friend and invited him over to his Lancaster home to begin recording vocals for the album.

‘From what I heard, that was around 9.30pm,’ Helgeson said. ‘But he never made it to the house.’

The singer was set to record his new album this month with Denmark producers.

Carter was set to record the album that he called Grammy material alongside producers from Denmark in Los Angeles this month

Carter began acting out of character leading up to his death, including missing important meetings

Helgeson said Carter felt as if he could handle all the issues in his life.

‘This album was going to be him owning everything,’ Helgeson said. ‘He was going to take accountability, and he felt that was going to be the best way to do it.’

‘He wouldn’t miss a show for anything if he could help it,’ Helgeson told the news outlet. ‘In the last few weeks, he missed some things, and that was so uncharacteristic of him, and I was upset.’

At the time, Helgeson presented Carter with an intense, custom-built rehab program as he began to fall off the wagon. He even confronted Carter when the star went on Instagram live stream and was seen ‘huffing.’

Carter previously admitted to having a huffing addiction but told Helgeson that it wasn’t real.

In a previous interview with DailyMail.com, his public relations aide Holly Davidson revealed the pop star wanted to resolve his children’s custody battle before he went to rehab.

‘I want to be better and I am trying to be better, but I cannot do it now,’ he told Davidson, of ITC PR.

‘He set his priorities as trying to deal with the courts over his son, the new music and life,’ the aide told DailyMail.com. ‘Then he wanted to go to rehab.’

Carter had been in a long-running custody battle with on-again/off-again girlfriend Melanie Martin, the mother of his 11-month-old son Prince.

The rehab plan was devised with addiction consultant Brenden Borrowman, co-founder of Utah drug treatment center ReBoot. According to its website, ReBoot uses ‘time-proven military behavioral science’ to develop self-worth and positive behavior.

Borrowman said that Aaron was ‘savable’. ‘I truly believe that,’ he previously told DailyMail.com.

Read more related articles at:

Aaron Carter ‘died without a will’ – leaving decision on who gets his house & inheritance up to the state

AARON CARTER DIED WITHOUT A WILL

Also, read one of our previous Blogs here:

10 CELEBRITY ESTATE PLANNING MISTAKES

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Inheritance

Chicago man’s $11 million estate to be divided among 119 distant cousins who never knew him

Chicago man’s $11 million estate to be divided among 119 distant cousins who never knew him

 

This may be the largest unclaimed U.S. estate ever, attorney tells Block Club Chicago. Here’s how to dig for an inheritance that might be waiting for you.

Joseph Stancak lived a quiet life in his Chicago bungalow, and on his boat named “Easy.” Stancak — who never married or had children and had no close relatives — died in 2016 at age 87, according to Block Club Chicago. Now, after a long hunt by estate attorneys, an $11 million inheritance will be divided among 119 distant relatives who never knew Stancak.

Now, as reported by local news site Block Club Chicago, a team of lawyers is preparing to distribute Joseph Stancak’s estate among 119 relatives, some in North America and some in Europe, and all of them distant cousins. After taxes, each heir will get around $60,000, the news report said. Not a single one had ever heard of Stancak until the estate lawyers consolidated scores of accounts, filled in his family tree and tracked down dozens of surprised relatives.

Rudy Quinn, president of Linking Assets Inc., a company that finds unclaimed money, told Block Club he believes this is the largest unclaimed estate in U.S. history.

Although Quinn told Block Club it’s not entirely clear how Stancak grew his nest egg, the Illinois Treasurer’s office told the news outlet that mutual-fund investments SPX, 4.29% were a significant part of the mix. Stancak, who was 87 when he died, did spend some of his money during his lifetime, including on a boat named “Easy.”

According to the report, Stancak’s six siblings had all died before him, and none of them had living children. In the end, the family tree that the attorneys put together went “five generations deep.”

The 119 heirs to Stancak’s millions are in Poland, Slovakia, the Czech Republic, Germany, the United Kingdom and Canada. Stateside, they reside in the Chicago area, as well as Iowa, Minnesota, New Jersey and New York.

Many people think that estate and will planning is only for the elite. Nothing could be further from the truth. If you have an asset — and that can be anything from a bike to a private airplane — you need to create a will. Stancak, whom neighbors in Gage Park, near Midway Airport, described for the Block Club report as having lived a “quiet life,” may have felt he had no one to leave his fortune to, and he apparently made no plans to bequeath money to a charity or any special causes.

For most people, “not making a will is a sure way to tarnish your memory, unleash family conflict and waste money on lawyers and taxes that would have gone to your heirs,”

Relatives — whether close or distant — may also have to contend with various federal and state laws if they’re left to disentangle an inheritance.

A person who dies without a will is said to have died intestate, and the intestacy laws of the state where the person resided will decide how bank accounts, real estate, securities and other assets will be divided. Real estate located in a different state than where the deceased person resided is handled according to the intestacy laws of the state where it is located.

‘Not making a will is a sure way to tarnish your memory, unleash family conflict and waste money on lawyers and taxes that would have gone to your heirs.’

— Morey Stettner

If the court cannot identify a rightful heir or heirs, assets and property are absorbed by the state.

Currently, states, federal agencies and other entities collectively hold more than $58 billion in unclaimed cash and benefits. That’s roughly $186 for every U.S. resident, although not all that money can be directly linked to estates.

Wondering if you might have a claim to a relative’s estate?

If you think you might have a claim to a deceased relative’s estate, a good place to begin your search is at Unclaimed.org, the website of the National Association of Unclaimed Property Administrators (NAUPA). This free site contains information about unclaimed property held by each state. You can search every state where a loved one lived or worked to see if anything shows up.

MissingMoney.com also has a multistate database, which you can search by just entering your name.

And the federal government offers this free resource, with links to governmental and other entities that you can explore if you believe you have money coming from an estate or have claims to other property or benefits.

If you hit a dead end with these searches but still believe you are entitled to an inheritance, hiring an attorney familiar with the process in the state where the deceased person lived may prove beneficial.

The search may not be as “Easy” as Stancak’s boat suggests, but it could well be worth it.

Read more related articles at:

Chicago Man Secretly Dies with $11 Million in His Estate — 119 Distant Relatives Share His Riches

A Chicago Man Quietly Left Behind $11 Million — The Largest Unclaimed Estate In American History

Also, read one of our previous Blogs at:

WHAT HAPPENS WHEN SOMEONE DIES WITHOUT A WILL?

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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