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contesting a Will

What Are the Grounds for Contesting a Will?

What Are the Grounds for Contesting a Will?

Ignoring State Law, Lack of Capacity, Undue Influence, and Fraud

You can’t challenge or contest a will simply because you don’t like its terms. There are four legal reasons for a will contest in most states, and it can be very difficult to prove any one of them. That translates to a great deal of expense in many cases, from attorney’s and expert’s fees to court fees. But if one of these four reasons for a contest does exist, a last will and testament can be invalidated.

It’s not a matter of invalidating just one provision. The entire will is effectively thrown out, and the estate proceeds as though the decedent had never left a will at all.

 

The Will Wasn’t Signed in Accordance With Applicable State Laws

Each state has very specific laws governing how a last will and testament must be signed. For example, the will must be signed by the testator—the person who created and is leaving the will—in the presence and hearing of at least two witnesses in Florida. The testator and the witnesses must be in the same room at the same time, and each must sign the will while the others are watching.

It’s easy to assume that a will that’s executed in an estate lawyer’s office will be signed with the proper legal formalities, but this isn’t always the case. Failing to sign a will in accordance with applicable state laws is the first and foremost reason why a will is contested, and it’s also the most common reason why a will is found to be invalid.

The Testator Lacked Testamentary Capacity to Sign a Will

“Testamentary capacity” means that the testator understands the nature and value of her “bounty” or assets and that she understands the natural objects of that bounty—who should logically inherit her assets. She must understand the legal effect of signing a will.

State laws dictate the threshold that must be overcome to prove that a testator lacked testamentary capacity, and the bar isn’t usually set very high. For example, a person can show signs of dementia in some states yet still be considered to have the testamentary capacity to sign a will.2 She understands the necessary details, even if her memory and mind are slipping in other areas.

The testimony of the witnesses to the will signing becomes crucial in cases such as this. Absent a doctor’s visit or an adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove.

The Testator Was Unduly Influenced

People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer?

Mere nagging, threats, and verbal abuse aren’t enough to establish undue influence. Proving it typically involves actions such as consulting with the testator’s attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends.

As with lack of testamentary capacity, undue influence is very difficult to prove.

The Will Was Procured by Fraud

A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it’s a deed or a power of attorney. She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud.

This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing. But fraud is nonetheless a separate ground for a contest.

The problem with proving that a will was procured by fraud is that the testator can’t be questioned about what he thought he was signing, and this is where state laws come into to play. The witnesses must be asked what they thought the testator was signing.

The will might be declared invalid if the testimony of the witnesses doesn’t add up, but more likely because it wasn’t signed properly, not necessarily because it was procured by fraud.

Read more related articles at:

Where There’s a Will …

Also, read one of our previous Blogs at:

Can I Prevent a Will Contest After I’m Gone?

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

 

elder abuse

ELDER ABUSE: WHEN A FAMILY MEMBER CAUSES HARM

ELDER ABUSE: WHEN A FAMILY MEMBER CAUSES HARM

“Every person, no matter how young or how old, deserves to be safe from
harm by those who live with them, care for them, or come in day-to-day
contact with them.” — American Psychological Association
For many older persons, family represents comfort and belonging, and
home is typically considered a safe environment. However, 25 years ago
this country finally recognized a national hidden problem called “elder
abuse and neglect.” The term elder abuse and neglect, or elder
mistreatment, usually implies that a family member is doing something
hurtful to an older relative – physically, emotionally, or financially. These
hurtful actions might occur only once, periodically, or frequently. They can
be done purposefully or accidentally and can result in mild, moderate, or
severe pain or suffering. They usually occur in the older person’s own
home. If this unacceptable behavior is happening to you, you are not alone
– these hurtful things are happening to over 1 million older Americans each
year. Help is available.
Who Is Likely To Be Hurt by a Family Member?
Anyone age 60 or older might be a victim of elder abuse. Victims are men
and women from all ethnic backgrounds and financial situations (rich,
middle class, and poor). They can be healthy or sick, with or without
memory problems. The person sitting next to you in the doctor’s office, on
the bus, or at a religious service could be an elder abuse victim. This
person could be you.
Who Hurts Older Relatives?
Any family member could be abusive or neglectful, but the most likely to act
this way are adult children. They are likely to live with the parent they are
abusing and to be financially and emotionally dependent on the parent,
making for a strained and difficult – and, at times, dangerous – relationship.
Other abusive family members may be spouses, adult grandchildren, or
other relatives, such as nieces, nephews, cousins, stepchildren or stepgrandchildren, or siblings. It is not unusual to still love the family member
who is being hurtful. This person could be you.
2
What Are Some Examples of Elder Abuse and Neglect?
Every situation is unique. Examples of types of mistreatment are:
1) Mrs. Rose’s 37-year-old son, Derek, who has a drug problem, pulled a fist full of his
mother’s hair out of her head during an argument when she refused to give him money.
• Physical Abuse is any behavior that results (or is likely to result) in
injuries to the body, such as bruises, cuts, or broken bones.
Examples include hitting, pushing, beating or forcibly restraining.
These behaviors also instill great fear in the person being hurt.
2) Mr. Koff’s 44 year-old-mentally ill daughter, Karen, threatened to rip the phone out of
the wall and nail his bedroom door shut while he sleeps if her father didn’t let her
boyfriend spend the night.
• Psychological/Emotional Abuse is any verbal or non-verbal
behavior that causes fear, mental anguish, or emotional pain.
Examples include name-calling, “the silent treatment,” insults, threats,
isolating the individual or treating him/her like a child, and controlling
behavior.
3) Mrs. Goffard’s 21-year-old granddaughter, Ivy, sold her grandmother’s jewelry
without permission and used the money to pay back a debt to her friend.
• Financial Abuse/Exploitation is any behavior that causes you harm
through the illegal or improper use of your funds, property, or assets.
Examples include coercing the change of a will, bank account, or
property transfer, using cash or credit cards without permission or
knowledge, or forging signatures on checks.
4) Mrs. Noonan’s 32-year-old stepson forced her to watch pornography with him and
exposed himself.
• Sexual Abuse is any behavior that hurts you sexually or includes
unwanted sexual content without your consent. Examples include
inappropriate touching, fondling, or kissing, rape, taking photographs
in sexually explicit ways, or exposing you to explicit sexual content
without your approval.
5) Mr. Simon is cared for by his overwhelmed 51-year-old daughter,Tasha, who often
yells at him. She blames her father for ruining her life and is frequently too busy or
“forgets” to give her father dinner.
• Neglect is when a caregiver fails to provide basic care needs,
resulting in bedsores, dehydration, poor hygiene, or poor nutritional
status. Examples include withholding food, water, clothing,
medication, or help with personal hygiene, or abandonment.
3
How Does an Older Person React When Abuse Happens?
Feeling guilty, anxious, confused, ashamed, or fearful is a very common
reaction to abuse or neglect. You may also become depressed because
you see yourself and/or your situation as hopeless and you may begin to
avoid others. Many older people do not speak up about what is going on in
their own home, which can lead to even more abuse. Sometimes they
suffer the pain in silence because of such mistaken beliefs as:
• “Family matters are private and should stay that way.” If you
believe this, then you are less likely to seek help. But without help,
chances are that the abuse and/or neglect will worsen.
• “I have no one to turn to who can help.” It is easy to believe that
nobody is available to help, especially since your relative may be
isolating you from others. But there are people who will care about
you and help you – perhaps a neighbor, friend, doctor, nurse, clergy
member – if you can find a way to let them know you are unhappy at
home.
• “The abuse is my fault.” The natural inclination is to blame oneself
for the abuse or neglect in order to feel more in control of a situation
that is out of your control. Also, part of the self-blame may come from
feeling guilty, often a common reaction to being mistreated. You may
believe that you did something wrong and therefore you somehow
caused the abuse. But no matter what happened in the past – even if
you made mistakes you deeply regret – it is never okay for someone
to hurt you.
• “The consequences of speaking up are worse than keeping
quiet.” You may be concerned that if you tell an outsider about your
situation, you will have to move from your home or, perhaps, live
alone. Or you may become confused about the appropriate action to
take because of the impact on your family if you report it to the
authorities. Speaking up does not automatically mean strangers will
control your life. It does increase the likelihood that you will find
someone who can help you problem-solve workable alternatives.
• “I’m so ashamed and embarrassed that my own family member
could be behaving in an abusive or neglectful way.” Older people
often are ashamed about the mistreatment they are experiencing, so
they avoid telling anyone about it. Feeling ashamed usually comes
from a fear that others will judge you or your family member harshly if
they knew what was happening, and believing their criticism would be
4
too difficult to tolerate. But there are many people who would want to
help you and who would not judge you or your relative(s). You just
need to ignore those people who do not understand and keep
speaking up until you find those who do.
• “I’m afraid if I break the “family secret,” the person hurting me
will get back at me in a way worse than what is happening now.”
Being afraid that the abuser will retaliate is a real concern. However,
doing nothing will rarely end an abusive situation; in fact, it usually
gets worse. When seeking help, be sure to discuss your very real
safety concerns so that a safety plan can be developed to fit your
particular circumstances.
How Do I Tell If I Am Being Abused or Neglected?
When in a difficult family situation, it can be hard to recognize the signs of
abuse or neglect. In general, if you’re feeling as if you have a secret “too
big” to talk about, feeling guarded or scared when someone asks about
your well-being, or feeling like you’re hiding something—you need to ask
yourself why you desperately don’t want others to know or see something
going on in your life.
Another sign might be your relative becomes angry with you if you talk to
others (especially about family problems). Be concerned if your relative
does not “allow” you to go out, have people over, talk freely with others in
person or on the phone, meet privately with your physician, or read your
own mail. Also, if you are doing things like hiding bruises or injuries, doctor
hopping or avoiding visits with family or friends, this could signify that
something is quite wrong.
If any of these things are going on for you, allow yourself to consider the
possibility of abuse or neglect, and seek help.
What Should I Do If A Family Member is Hurting Me?
Many communities have victim assistance programs that offer hotlines,
counseling, and support groups. Counselors can provide different kinds of
help, depending on what you want and need. They can provide emotional
support and practical advice, create a plan for safety, and link you to other
resources. Other community programs you might need, depending on your
situation, can include legal advice, telephone reassurance calls, safe
housing, court protection, money managers, and/or respite programs. If
you are being hurt by a family member:
• Remember that safety is a priority. Call 911 for help as soon as
you feel intimidated and before the situation at home becomes too
5
dangerous or unmanageable. Often people do not think their situation
constitutes an emergency until it is too late to get to the phone.
• Remind yourself over and over that you deserve to live in an
environment free of fear and pain. This may be hard to believe,
especially if a loved one has been putting you down. It is important to
counteract these messages by telling yourself repeatedly that you
have the right to live free from harm.
• Talk to someone. Perhaps start by talking with a trusted friend or a
family member not hurting you. Remember: If you choose to talk with
a professional (like a physician, nurse, social worker, mental health
worker, or the police), they may be required by state law to report
your situation to Adult Protective Services. (Laws differ from state-tostate.) If you are uncomfortable with this possibility, before you tell a
professional anything about your situation, ask, “If an older person
wants to tell you something private about a conflict in the family, will
you be able to keep the information confidential, or will you have to
tell someone else?” If the answer is “I will have to tell someone else”,
decide if you want to talk about your situation with that person.
Sometimes mistreated older people find the best place to start getting
help is with a hotline counselor because of the anonymity you will
have.
• Keep talking to people until you get the help you need. It is likely
that the abuse will not only continue, but also will get worse over time
if you do not involve others to help you. Sometimes the first person
you speak to will not know what to do or say. Try someone else, even
though this may not be easy to do.
• Do not focus on labels. It may be hard for you to hear a member of
your family labeled as an “abuser” or it may be upsetting to hear
someone call you a “victim”. This is understandable. The most
important thing, however, is to focus on getting help for your situation.
Worrying about the label can distract you from this goal.
• Accept help. Accept this help for yourself. However, you may want
to also find help for your family member. You can start to collect
names of resources that may be of help to your abusing relative.
Seek service information from the people helping you, as well as,
advice on how best to get this information to your relative.
6
Where to Get Help
National Resources
National Committee for the Prevention of Elder Abuse. A
comprehensive Web site for information about elder abuse, including how
to report abuse, what services are available to stop abuse, and how to find
those services in your community. Phone: 1-202-682-4140.
Web site: www.preventelderabuse.org
National Domestic Violence Hotline. Provides support counseling for
victims of domestic violence and referrals for support services. The hotline
operates 24 hours a day, 365 days a year. All calls are confidential.
Callers can also talk anonymously. Phone: 1-800-799-7233.
United States Administration on Aging (AOA). This Health & Human
Services Department supports a range of activities to raise awareness
about elder abuse. Phone: 1-202-619-0724. Web site: www.aoa.gov
The following programs are funded by the Administration on Aging:
• The Eldercare Locator. This resource connects older Americans
and their caregivers with sources of information on state and local
assistance services for older adults, including those concerned about
suspected elder abuse. Phone: 1-800-677-1116.
Web site: www.eldercare.gov
• National Center on Elder Abuse. This site answers all questions
about elder abuse – who to call if abuse is suspected, what to expect
when you report abuse, prevention methods, and what can be done
to stop elder abuse. Its website includes a state-by-state listing of
statewide toll-free telephone numbers to call to report elder abuse.
Phone: 1-202-898-2586. Web site: www.elderabusecenter.org
New York State Resources
Adult Protective Services (APS). State laws give state and local Adult
Protective Service (APS) agencies the responsibility to protect and provide
services to “vulnerable, incapacitated, or disabled adults.” You can call
APS to report your own situation and ask for help. Most Adult Protective
Service agencies are located in the phone book in the state government
section. In New York State, call 1-800-342-3009 to find the Adult Protective
Service office in your area.
7
New York City Resources
New York City Department for the Aging, Elderly Crime Victims
Resource Center. The Center’s primarily bilingual caseworkers provide
counseling services to abuse and neglect victims, as well as any other
needed help or information to victims. Calls are confidential. Callers can
also talk anonymously. Phone: 1-212-442-3103 or 1-212-442-1000.
Web site: www.nycagainstrape.org/resource_26.html
Safe Horizon’s Domestic Violence Support and Hotline. This non-profit
program provides a range of assistance to victims, such as: counseling,
support groups, information about legal rights, advocacy with the police and
the courts, assistance with emergency housing applications, transportation,
emergency cash, food, and referrals. The 24 hour, toll-free, all-language
Domestic Violence Hotline can help victims of domestic violence find
appropriate support and shelter services. All calls are confidential, and
callers can also talk anonymously.
Domestic Violence Hotline: 1-800-621-4673.
Web site: www.safehorizon.org
Weinberg Center at the Hebrew Home for the Aged at Riverdale.
Provides shelter and support to persons over the age of 65 experiencing
any type of abuse or neglect by a family member, friend, or caregiver
including self-neglect.
Phone: 1-800-567-3646. Web site: www.hebrewhome.org
Online Resources
Stop Abuse For Everyone (SAFE). This site suggests ways for abused
persons, including elder abuse victims, to find help, such as joining an
online support group. It also maintains a domestic violence resource list
that is user built and consumer rated. Web site: www.safe4all.org/help
CornellCARES. Weill Medical College of Cornell University, Division of
Geriatrics and Gerontology provides an easily accessible Web-based
directory of NYC mental health providers. Some specialize in elder abuse.
Web site: www.CornellCARES.com
This resource provides brief, general information about this health care topic. It does not
take the place of specific instructions you receive from your health care providers. For
answers to other questions consult your physician or other health care provider.
Copyright NewYork-Presbyterian Hospital 2006. All rights reserved.

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role of the executor

What Am I Taking On When I Agree To Be Someone’s Executor?

Should You Accept the Job of Executor of Someone’s Will?

February 11, 2020

If you’ve been asked to serve as the executor of someone’s will, you should feel honored. It shows the person has a lot of faith in your integrity, as well as in your ability and organizational skills to carry out his or her last wishes.

But just because you’ve been offered the role doesn’t mean you should automatically accept it. Agreeing to take this on is hardly the same as offering to drive your neighbor to a doctor’s appointment or watering their plants while they’re away.

Fulfilling your legal duty as an executor could take weeks, months or, yes, even years to unwind, depending on the complexity.

So, once the flattery of being asked to be an executor wears off, take some time to do a little research so you can make an informed decision as to whether you should accept this important assignment.

Here are some issues to consider:

What does an executor do?

The primary role of an executor also called a personal representative, is to settle the state of a person who has died. The executor must pay off all debts and taxes the deceased owed and then make sure that what remains ends up in the rightful hands of those designated in the will.

It seems straightforward, right? But it can get complicated if the will is no longer current, the assets of the deceased are hard to locate, or the will is contested.

Phone calls, visits to courthouses, unearthing financial statements and sending out registered letters are just some of the unglamorous tasks that executors can expect to perform. In essence, you could be sorting through decades of someone’s financial life and acting as the estate’s legal representative.

Being an executor is a lot easier, of course, if the deceased’s affairs are in good order and you know where to locate all the documents you need, such as bank accounts, titles, insurance policies and so forth. It can take significantly longer if you must chase these things down.

Though many people perform the role of an executor, even if they are not a lawyer or have no legal background, you might find that the estate you’re dealing with is so complicated that you might want to consult with a professional.

Along those lines, before agreeing to serve as an executor, perhaps you and the person asking you to take on the role could meet with an attorney who can point out potential pitfalls or other issues that may have not been properly addressed by the will or estate. A will written several years ago, for example, may no longer reflect the current intentions of the person asking you to be the executor. An outdated will that shows conflicts could be more easily contested.

It starts with the will

A will is like a road map for executors, and knowing what it contains can aid you greatly with your work. Pore over it, page by page, with the person who wants you to take on the role. This proactive approach will help you understand the deceased’s intentions about a whole range of concerns, such as the desired distribution of financial assets or the care of their pets. Make sure you know where the will is kept and how you can access it quickly.

Ideally, the document has named the individual to serve as executor. Upon the decedent’s death, the executor must file a petition with the probate county where the decedent resided. The original will, along with a fee, must be submitted to the court with the petition. The court reviews the will to ensure its validity before granting its formal appointment.

However, if all the person’s assets are held in a trust or accounts have been jointly titled with another person, it might be possible to skip probate.

Distribute the inheritance

After debts and taxes are paid from the estate, the executor can begin the job of distributing assets to the people named as beneficiaries in the will. If the will calls for any real estate holdings to be sold, it’s the executor’s job to maintain the home and continue to make mortgage, utility and insurance payments until it’s sold off.

Executor compensation

Many executors perform their duties without compensation, especially if they are one of the estate’s beneficiaries. But executors can get paid for their work, and this arrangement is more common if the executor is a person outside the family or if settling the estate requires significant expenses such as travel or filing court documents.

The executor’s fee is typically a small percentage of the estates value,  around 2 to 4 percent, though the amount varies by state. If the estate is unusually large, the percentage might be less. On the other hand, if there are extraordinary circumstances, such as overseeing the sale of the decedent’s real estate, litigation costs defending the estate, tax disputes, and so forth, the executor might be paid more.

Another option is for the person writing their will to limit the fees to a specific dollar amount. Or the person may specify the payment of reasonable fees based upon state law.

Typically, executors can expect to get paid once the estate is settled. If they incur out-of-pocket expenses, such as utilities, property taxes, insurance, storage fees, etc., before the estate is settled, they can usually reimburse themselves during the course of their estate administration. But again, compensation is a subject that should be clearly spelled out before accepting an executorship. Spending down any estate monies can be an area of great sensitivity, especially if heirs believe their inheritance was reduced because of your executorship.

Watch out for family strife

The period after the death of a loved one, especially if it’s unexpected, can be emotionally charged. Seemingly innocent decisions about who gets mom’s wedding band or dad’s gold watch can devolve into scorched-earth family battles.

The potential for such a powder keg may be reason enough to graciously turn down the assignment. If you’re an executor outside the family, whatever you do — even if it’s the right thing — may be viewed with suspicions by the family or other potential heirs. On the other hand, if you’re an heir, others might suspect you of taking more than your fair share of the estate given your access to it. Keep a paper trail of all the money you spend in settling the estate in case you’re questioned.

That said, if you have a good idea of what to expect and believe you can take the incoming heat (perhaps that’s exactly why you were selected for the role), then you should not be deterred by looming family squabbles or protests.

Please note, however, that executors have a legal responsibility to act as a fiduciary. If they don’t, they could be exposed to legal liability. If they are negligent in performing their duties, such as filing tax returns or allowing insurance policies to lapse, they could be held personally liable for the financial consequences. If you’re worried about letting things fall through the cracks, consider hiring a lawyer or accountant to help keep you abreast of all the tasks that could come your way.

Should you serve as an executor?

The decision to serve as an estate’s executor is a personal one. It depends on whether you believe you have the time, skillset and temperament to perform the duties well. Ask the person who invited you to take on this awesome responsibility to restate why he or she believes you are the best person to fill this role.

Having them clearly state their motivation for your selection can serve as reassurance that you are indeed the right person for the job and also help you fend off possible challenges or complaints by those unhappy with the decision.

If you are chosen to be an executor, consider it a great honor. But at the same time, keep in mind that it is also a great responsibility.

We hope this article has given you some help with things to think about. Of course, every situation is different. This information is intended to be general and educational in nature, and should not be construed as financial or legal advice.

Read more related articles at:

What Is Required of an Executor?

Step-by-Step Guide to Estate Administration for Personal Representatives in Florida

Also, read one of our previous Blogs at:

Things to Know About Being an Executor

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

elder lady

Can Women Slow Mental Decline?

Can Women Slow Mental Decline?

New research shows that women who work during early adulthood and midlife have slower rates of memory decline later in life, than women who didn’t work outside the home.

Money Talk News’ recent article entitled “Here Is How Women Can Slow Mental Decline” reports that the National Institute on Aging aided the study financially. It was published in Neurology, the medical journal of the American Academy of Neurology.

More than 6,000 women ages 55 and older reported their employment, marriage and parenthood statuses between ages 16 and 50. The participants also did word recall memory assessments every two years over an average of 12 years.

The researchers evaluated rates of memory decline later in life, which is one measure linked with dementia. They found that women who worked — regardless of marriage and parenthood status — had a slower average rate of memory decline later in life.

Further, after age 60, the average rate of memory decline was 50% faster among women who didn’t work for pay after having children, compared with working mothers.

The study’s author Elizabeth Rose Mayeda of the UCLA School of Public Health said that even mothers who took a time off when their children were young and then returned to work had slower rates of memory decline later in life.

They also found that the exact timing of a woman’s time in the workforce wasn’t significant.

Mayeda explains in an American Academy of Neurology announcement:

“Rates of memory decline were similar for married working mothers including those who consistently worked, those who stayed home for a few years with children as well as those who stayed home many years before returning to the workforce, suggesting that the benefits of labor force participation may extend far into adulthood.”

Other demographic characteristics — including race, childhood socioeconomic status and level of education — didn’t explain the relationship between work history and memory decline.

Mayeda remarked that cognitive stimulation, social engagement and financial security could be possible explanations for why working for pay is associated with slower rates of memory loss.

Reference: Money Talk News (Feb. 2, 2021) “Here Is How Women Can Slow Mental Decline”

Read more related articles at:

In women, age-related cognitive decline may start sooner than we think

Protecting against cognitive decline

Also read one of our previous Blogs at:

Smart Women Protect Themselves with Estate Planning

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

 

protect trust

Act Quickly to Protect an Estate

Act Quickly to Protect an Estate

For most families, the process of estate administration or the probate of a will starts weeks after the death of a loved one.  However, before that time, there are certain steps that need to be taken immediately after death, according to a recent article “Protecting an estate requires swift action” from The Record-Courier. It is not always easy to keep a clear head and stay on top of these tasks but pushing them aside could lead to serious losses and possible liability.

The first step is to secure the deceased’s home, cars and personal property. The residence needs to be locked to prevent unauthorized access. It may be wise to bring in a locksmith, so that anyone who had been given keys in the past will not be able to go into the house. Cars should be parked inside garages and any personal property needs to be securely stored in the home. Nothing should be moved until the trust administration or probate has been completed. Access to the deceased’s digital assets and devices also need to be secured.

Mail needs to be collected and retrieved to prevent the risk of unauthorized removal of mail and identity theft. If there is no easy access to the mailbox, the post office needs to be notified, so mail can be forwarded to an authorized person’s address.

Estate planning documents need to be located and kept in a safe place. The person who has been named as the executor in the will needs to have those documents. If there are no estate planning documents or if they cannot be located, the family will need to work with an estate planning attorney. The estate may be subjected to a probate proceeding.

One of the responsibilities that most executors don’t know about, is that when a person dies, their will needs to be admitted to the court, regardless whether they had trusts. If the deceased left a will, the executor or the person who has possession of the will must deliver it to the court clerk. Failing to do so could result in large civil liability.

At least five and as many as ten original death certificates should be obtained. The executor will need them when closing accounts. As soon as possible, banks, financial institutions, credit card companies, pension plans, insurance companies and others need to be notified of the person’s passing. The Social Security Administration needs to be notified, so direct deposits are not sent to the person’s bank account. Depending on the timing of the death, these deposits may need to be returned. The same is true if the deceased was a veteran—the Veteran’s Affairs (VA) need to be notified. There may be funeral benefits or survivor benefits available.

It is necessary, even in a time of grief, to protect a loved one’s estate in a timely and thorough manner. Your estate planning attorney will be able to help through this process.

Reference: The Record-Courier (Oct. 17, 2020) “Protecting an estate requires swift action”

Read more related articles at:

Estate Planning Essentials: 8 Steps to Protect Your Family

Best Ways to Protect Your Estate and Inheritances from Taxes

Also, read one of our previous Blogs here:

Share Your Estate Plan Now to Protect Your Family When You Are Gone

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

Marital Trust

What Is a Marital Trust and How Does It Work?

What Is a Marital Trust?

Before we explain the marital trust fund, you should be aware of some common terminology you will come across in the process. Below, we define some of the most common.

Trust grantor: The person who establishes the trust.

Beneficiary: The surviving spouse who benefits from the marital trust upon the death of the trust grantor. Within the framework of a marital trust, the surviving spouse must be the sole beneficiary who can receive trust assets during his or her lifetime.

Trustee: The person, persons or organization that manages trust assets. The trustee transfers property to the beneficiary. A marital trust must have at least one named trustee in order to be valid.

Principal: The assets initially put into the trust. As these can be investment products, the trust can generate income during the beneficiary’s lifetime.

How Does a Marital Trust Work?

You can establish a marital trust with the help of an attorney who specializes in estate planning.  The trust document must specify all assets and property held in the trust. This can include nearly anything of value. That includes stocks, bonds, mutual funds, cash and physical property.

Upon the death of the trust grantor, trust assets pass on to the surviving spouse tax free. This means the IRS won’t level federal estate taxes on those assets. So neither spouse owes taxes on the transfer. This is made possible through the Section 2056 of the Internal Revenue Code (IRC), also known as the “marital deduction rule.”

The surviving spouse can receive income from the trust as well as principal. The trust grantor can give the trustee the right to transfer some of the trust’s principal or initial investment to the surviving spouse if a special need arises. The trust creator can also give the surviving spouse “general power of appointment.” This allows the surviving spouse to instruct the trustee to transfer trust assets. However, the grantor may limit the withdrawal to a set amount.

In most cases, the trust assets pass on to the couple’s children or other family members when the surviving spouse passes. However, the rules of different types of marital trusts dictate whom can be named beneficiary after the surviving spouse’s death. More on that later. For now, let’s explore some more of the estate planning benefits that a marital trust offers.

Why Establish A Marital Trust?

A properly drafted marital trust can provide a family with significant tax benefits. As we mentioned, a spouse can transfer assets to a surviving spouse tax free.

In the case of a marital trust, the IRS subjects the remaining trust assets to federal estate taxes when the surviving spouse passes. However, a couple can take advantage of the federal gift and estate tax exemption. This is the amount that you can pass on to heirs before you’d ever owe an actual estate tax.

The new tax laws that recently went into effect recently basically doubled that rate. It climbs with inflation each year. So for 2019, an individual can shield $11.40 million from estate taxes. But the portability provision in the tax law allows a couple to combine their exemptions. So with careful estate planning, a couple can protect up to $22.80 million from the IRS.

Here’s how it works in the case of a marital trust. Suppose the grantor passes on $10 million to the surviving spouse through a marital trust. Let’s say the surviving spouse ends up passing on $15 million total to the couple’s children through that same trust.

Even though the surviving spouse breached his or her individual exemption, it doesn’t cross the couple’s combined exemption ($22.80 billion for 2019). But without the presence of a marital trust, the surviving spouse’s remaining estate would have paid federal estate tax on the transfer amount that exceeded the individual exemption.

Nonetheless, the federal gift and estate tax exemption hike is set to expire at the end of 2025 unless Congress takes action to make it permanent. And the tax laws can change even more in any married couple’s lifetime. So it’s always wise to seek the help of a qualified financial advisor and estate planning attorney when managing a marital trust.

QTIP Trust

A Qualified Terminable Interest Property (QTIP) trust is a type of marital trust often used when a grantor has children from different marriages. The surviving spouse still serves as the initial beneficiary. But upon the creation of the trust, the trust grantor can designate a specific beneficiary or beneficiaries. This may include children from another marriage, grandchildren or anyone else.

During the surviving spouse’s lifetime, however, this beneficiary must receive the income the QTIP generates at least annually.

As you can see, one of the main benefits to the QTIP is that the trust creator can designate the additional beneficiaries rather than the surviving spouse.

How to Establish a Marital Trust

Because a trust can be a complex entity, it’s wise to seek the help of a qualified attorney who is versed in estate planning. A financial advisor and a certified public accountant (CPA) can also help you navigate the tax rules and asset-management decisions.

Read more related articles at:

4 Common Types of Spousal Trusts

Marital Trust Vs. Family Trust

Also, read one of our previous Blogs at:

Should a Husband and Wife have Separate Trusts?

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

digital assets

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

 

As the world goes increasingly digital, many of us have amassed sometimes large collections of non-physical assets such as digital photos, music, movies, eBooks, cryptocurrencies and more on our computers, smartphones, portable media players, hard drives and other devices. Although they are in an electronic format, these assets often have personal or financial value, which can make them part of your estate. And that means they should be included in your estate planning.

What are digital assets?

 Your digital assets are anything of value that exists solely on your digital devices or in your cloud-based storage accounts. In other words, they can be the files or information accessed through or stored on the internet, in on-line accounts and in files stored on your computer. These may include, but are not limited to your:

 

  • digital photos

 

  • electronic subscriptions
  • digital music files

  • eBooks

  • digital commercial movies

  • intellectual property

  • cryptocurrencies

  • digital medical records

  • emails

  • artwork and manuscripts

  • home videos

  • blogs

These assets may have been purchased (e.g., eBooks, music files, Bitcoin) or created by you (e.g. logos, artwork, personal photos, manuscripts).

What is digital asset estate planning?

 Digital asset estate planning recognizes digital assets as a property right and addresses the process of cataloging, organizing, accessing and planning for the disposition of these non-traditional assets after death or incapacitation.[1]

Are online banking and brokerage accounts digital assets?

No. While these accounts may be online, the assets held in these accounts are not considered digital assets.

Why is it important to include digital assets in estate planning?

Before we lived in a digital world, bequeathing one’s assets was often simpler. Let’s say you wanted to leave a valuable album collection to a nephew who shares your taste in jazz. You could stipulate in your will that your albums get physically passed along to that nephew.

But imagine that you purchased all those albums digitally, and they live on a hard drive or in your personal computer, along with other digital assets you also want to bequeath. How do you ensure that the right beneficiaries get the specific assets you want them to have? Digital estate planning provides a way to organize those assets, a means for a designated person to access them after your death or incapacity and a path for their disposition.

Can’t I just give my passwords to my heirs so they can access my digital assets?

 You may be able to if the assets you own (such as photos or manuscripts) are on your personal devices. If your loved ones get along well with each other, everything may be disbursed just as you intended. However, if there could be any questions about what goes to whom, it’s always best to get your wishes legally documented.

What’s more, when it comes to online accounts, giving out your personal information, such as your user names and passwords, to allow someone else to access them may not be legal, depending on the Terms of Service of the website and various state and federal laws. And without proper planning, the company may not be required to provide anyone else with access to the site.

I see your point. So what should I do next?

Over 40 states have now put in place a legal framework that allows the user of a website to control the access to and disposition of digital assets. To help make sure you’re complying with a governing statute in your state, you’ll first want to create an inventory of all your digital assets. Use the list provided above as a starting point. If you have digital assets that are valuable, whether sentimentally or financially, you’ll need to make decisions on who will get access to them should you die or become incapacitated and how and to whom they should be passed along.

Next you should consult with an estate planning lawyer. Bring up your specific wishes on how and to whom you want those assets distributed. You’ll also need to make it clear how your loved ones and/or the personal representative of your estate will gain access to your digital assets if you die or become incapacitated. It’s important to make sure you have a plan in place that complies with the statute in your state that addresses this unique form of assets.

At Modera, we take into consideration a wide range of issues in our clients’ financial world, offering guidance and support for issues you bring to us, and for those you might not have yet thought of. We also can work closely with your other financial advisors, such as your attorney and your CPA, as well as your loved ones, to help see that your financial life is going according to plan. If you’d like to discuss this or any other financial topic that interests you, please get in touch.

Read more related articles at:

Estate planning for the digital era

Estate planning for digital assets

Also, read one of our previous Blogs at:

Digital Assets Need to Be Protected In Estate Plans

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

 

moving in parents

What Should I Remember when My Parents Move in with Me?

What Should I Remember when My Parents Move in with Me?

Among adults living in someone else’s household, 14% were the parent of the head of household in 2017. That number is an increase from 7% in 1995, according to the Pew Research Center.

“While the rise in shared living during and immediately after the recession was attributed in large part to a growing number of millennials moving back in with their parents, the longer-term increase has been partially driven by a different phenomenon: parents moving in with their adult children,” according to the Pew report.

US News and World Report’s recent article entitled “When Your Elderly Parents Move In With You” says that if your children also return home after college, you might wind up supporting your children and your parents at the same time.

The critical thing to do is to make a plan. Discuss your goals, the finances and the possibilities, which includes in-home care or nursing home care. Let’s look at how to care for aging parents in your home.

Get Financially Prepared. When Mom and/or Dad moves in, it will add new costs to your budget. In addition to health care for aging parents, the most disruptive implications are often the financial cost of supporting another dependent and having the space to accommodate them in the household. Talk about whether your parent will be contributing Social Security income or other retirement assets toward household expenses.

Think About Hiring Extra Help. Caring for a parent with significant health problems who needs help with basic living tasks can quickly become overwhelming for an adult child with children and work responsibilities. An aging parent might need around-the-clock care. A home health aide could be brought in during work hours or there’s also adult day health care services. However, these costs can add up. It’s not uncommon for the child who is caring for a parent to scale back his or her own career to accomplish both tasks.

Plan Before They Move In. Begin the discussion about the transition as early as you can. It can be doubly stressful to be executing a move in the middle of a crisis or urgent situation, like a health emergency or the death of a parent.

Remember that your parent in the house means you may need to schedule their activities and medical appointments. This can take time away from normal family routines.

Reference: US News and World Report (Aug. 30, 2020) “When Your Elderly Parents Move In With You”

Read more related articles at:

Things You Should Consider When Your Elderly Parents Move In With You

When Your Elderly Parents Move In With You

Also, read one of our previous Blogs at:

Helping Elderly Parents to Live Safely at Home

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

older workers

Can Older American Workers Help Alleviate Workforce Needs

The April 2020 unemployment rate for workers 55 and older rose to 13.6 percent though many of these Americans want to work. COVID-19 restrictions and associated layoffs account for some unemployment increase, but so does the lack of employment opportunities among older Americans.

A coexisting challenge in the US is that senior living facility operators struggle to retain a reliable workforce to provide care to their senior residents. Other American industries can also benefit from increasing older workforce opportunities, such as manufacturing and the food service/hospitality industry, where they face labor shortages. Helping older Americans retool skills that address specific market labor shortages solves two problems with one group of workers.

Senators Bob Casey (D-PA) and Tim Scott (R-SC) may simultaneously solve helping older workers find employment and the senior living industry’s challenge of finding and keeping competent workers. The chairman (Casey) and ranking member (Scott) of the Senate Special Committee on Aging have written a letter asking the US Department of Labor to prioritize the support of older workers. Additionally, the head of the National Council on Aging wants the Department of Labor (DOL) to establish an “Older Workers Bureau.”

The Senator’s letter asks Labor Secretary Martin Walsh to provide information about how his department is tracking trends in the sorts of jobs older workers perform and how the department can help older American workers navigate available opportunities. The letter further requests information about the DOL and the Biden administration’s collaboration using apprenticeship initiatives and other existing programs to train older workers with new skills to reenter the workforce. Finally, the Senators seek to understand partnerships between the DOL and the private sector to advance older American worker employment opportunities.

A recent Senate Aging Committee hearing entitled “A Changing Workforce: Supporting Older Workers Amid the COVID-19 Pandemic and Beyond” calls for a bureau within the labor department to “look holistically at older worker issues across the federal government” and “identify and coordinate existing federal resources, identify and work to eliminate barriers to working longer, and disseminate promising employment and training practices” according to witness Ramsey Alwin. Alwin is president and CEO of the National Council on Aging (NCOA) and further discussed the need for federal resources to promote public-private partnerships.

The reintroduction of the Protecting Older Workers Against Discrimination Act on March 22, 2021, is a bipartisan bill seeking to strengthen age discrimination protection and make court justice easier for older workers to obtain. The NCOA also supports the Protect Older Job Applicants Act, which seeks to reinforce and expand the rights of older workers. Whether this legislation becomes law remains to be seen; however, there is a refocus on the benefits that hiring older workers bring, not only for the workers themselves but for the market sectors that employ them.

Many older Americans live healthy and productive lives well into their senior years, opting to stay employed as a matter of choice as well as those who do so out of necessity. Drawing from this pool of mature workers can address workers’ shortages and retention problems in senior living facilities and other healthcare sectors. The impetus for those Americans 55 or more who want to work in combination with public-private innovation and updated training could redress labor shortage issues across America.

We help older Americans with their estate planning and care-related planning needs. If you or a loved one would like to discuss your particular situation in a confidential setting, please give us a call.

Read more related articles at:

https://www.dol.gov/agencies/odep/program-areas/individuals/older-workers

https://www.govinfo.gov/app/details/BILLS-116hr8381ih

Also, read one of our previous blogs at:

Pennsylvania Creating Uniform Background Check Process for Those Working with Older Adults

Review your Estate Plan

If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

 March 19th, 2019

How frequently you should review your estate plan depends on how old you are and whether there has been a significant change in your circumstances. If you are over age 60 and you haven’t updated your estate plan in many decades, it’s almost certain that you need to update your documents. After that, you should review your plan every five years or so. But if you’re younger, you don’t need to do so nearly as often.

Age

Here are a few age ranges and what they mean in terms of estate planning:

18-30   Everyone needs a durable power of attorney, health care proxy and HIPAA release so that they have people they choose to step in and make decisions for them in the event of incapacity.

30-40   Once you begin accumulating assets, get married, and have children, it’s important to create an estate plan to care for your loved ones in the event of your death. It also can’t hurt to update your durable power of attorney, health care proxy and HIPAA release, since the people you may have appointed at 18 (your parents?) may not be the people you want in these roles at 35.

40-60   Unless there’s been a change in your circumstances, and assuming you’ve set a good plan in place during your 30s, you probably don’t need to review your estate plan during your 40s and 50s.

60-70   Once you’ve hit your 60s, it’s time to take a look. Your children are probably grown. You may have grandchildren. And, hopefully, you’ve accumulated some wealth. The people you appointed to step in in the event of incapacity when you were 35 may not be in a position to assist when you’re 65. You may have retired or are contemplating doing so. And, unfortunately, the chances of disability or death increase with every year.

70+   Now it’s time to review your plan every five years or so. Changes happen — to your health and that of your loved ones, to the tax laws, to the programs supporting long-term care or disability care. It’s important to have a plan in place and to adjust it as circumstances change.

Change in Circumstances

While the timeline above outlines when you should review and perhaps update your estate plan, it needs to be supplemented by the following potential changes in circumstances that would warrant a review of your plan to see if it still meets your goals and needs:

  • Marriage. You’re likely to want your assets to go to your spouse and to name him or her to be your agent in the event of incapacity.
  • Divorce. Likewise, if you get divorced, you probably won’t want your assets to go to your ex-spouse or to rely upon him or her to step in if you were to become incapacitated.
  • Children. Once you have children, you’ll want to provide for them and to name someone to step in as guardian in the event of your death or incapacity and that of their other parent, if any. Generally, once you have a plan in place you do not have to update it if you have more children.
  • Disability. If you or someone who would inherit from you becomes disabled, you will need to plan to protect and manage your assets, whether for yourself or for your beneficiaries.
  • Wealth. If you accumulate sufficient assets to exceed the thresholds for state and federal estate taxes — $11.4 million federally — you may want to plan to reduce or eliminate such taxes.
  • Moving. If you move to a new state or country, it will be important to have your estate plan reviewed to make sure it works in the new jurisdiction.

In short, until you reach age 60 or 70, reviewing your estate plan every five years probably is overkill. But do so whenever you have a change in circumstances such as those listed above. If you’re over 60 and haven’t updated your estate plan in many years, now’s the time. Then, having a review every five years is definitely a good rule of thumb. This is why If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60

Read more related articles at:

4 Reasons to Review Your Will

7 Reasons It’s Time To Update Your Estate Plan

Also, read one of our previous blogs at:

Do You Think Everything Is All Set with Your Estate Plan?

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