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asset protection

Asset Protection Planning

Asset Protection Planning

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

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

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

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

Who should consider establishing an asset protection trust?

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

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

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

Read more related articles here:

Make Your Estate Creditor-Proof

How to Protect Your Assets From a Lawsuit or Creditors

The 2021 Florida Statutes

Also, read one of our previous Blogs at:

How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery

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

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

incapacity

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

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

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

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

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

How Do Courts Decide Who to Appoint as a Guardian?

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

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

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

The law also directs courts to consider the following:

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

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

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

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

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

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

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

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

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

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

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

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

Read more related articles at:

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

Guardianship in Florida

Also, read one of our previous Blogs here:

No One Knows The Time Or Hour…Incapacity Planning

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

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

prince phillip

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

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

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

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

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

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

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

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

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

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

Creation of A Funeral Plan

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

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

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

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

Straightforward Process

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

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

Corona

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

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

Written By: Daniel Cobb, Managing Editor

Date Updated: June, 2022

Key findings: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advanced Healthcare Directives Motivated by Covid-19

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

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

Read more related articles at:

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

Estate Planning During the Pandemic

Also, read one of our previous Blogs here:

How Can Estate Planning Protect Me from COVID-19?

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

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

 

Medicaid

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

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

 

New Medicaid Look Back Rules

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

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

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

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

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

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

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

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

Read more related articles at:

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

What is Florida Medicaid?

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

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

 

gun trusts

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

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

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

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

What is a Title II (class 3) weapon?

 

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

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

Why not use a corporation or LLC?

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

Read more related articles here:

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

Gun Collections Pose Special Estate Problems

Also, read one of our previous Blogs here:

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

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

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

special needs senior

Caring for Seniors with Special Needs

Caring for Seniors with Special Needs

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

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

Read more related articles at:

What services are available to the disabled elderly?

Program of All-Inclusive Care for the Elderly

Also, read one of our previous Blogs here:

Special Needs Trusts and How They Can Benefit Seniors

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

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

 

death taxes

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

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

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

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

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

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

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

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

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

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

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

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

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

Johnny Depp

Depp-Heard Trial Brings Up Postnups In The Worst Way. But They’re Still A Good Idea.

Depp-Heard Trial Brings Up Postnups In The Worst Way. But They’re Still A Good Idea.

Couples who didn’t sign a prenuptial agreement should get a postnuptial one as life changes.

Believe me, as a divorcée — and coach for women during and after the ordeal — I know that. We all take the plunge with dreams of unconditional love, a warm home and the financial security of being part of a couple. It’s just that marriages don’t last almost half the time, and being realistic about this is crucial. That’s why women — and men for that matter — who didn’t sign a prenuptial agreement should get a postnuptial one as life changes.

We don’t have to look far to see how marriages unravel. It’s playing out live on television during the Johnny Depp-Amber Heard defamation case, in which Depp is suing his ex-wife Heard on the grounds that she defamed him when she wrote an op-ed in The Washington Post about being a survivor of domestic abuse. Heard has denied the allegations and filed a defamation countersuit against Depp for $100 million, claiming he is leading a smear campaign against her.

If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.

The couple didn’t have a prenuptial contract, and Depp claimed during the ongoing trial that when he brought up a postnuptial agreement, which is drawn up after a couple is married instead of before, it sparked a violent fight.

“I tried to calm her down and say that I was not out to screw her over or put her in a position that was uncomfortable. These were stock, normal things to do,” Depp testified about his discussion with Heard about a postnup, but he claimed the confrontation just escalated. In her testimony, Heard said she was the one who initiated a postnuptial deal.

Whoever’s idea it was, it’s safe to assume that a postnup wouldn’t have saved Depp and Heard from the acrimony of their post-divorce lives or kept them out of the courtroom. But that doesn’t mean it wouldn’t have been useful as they negotiated their split, or that it’s not helpful for other couples. While the prenup gets more attention, the mention of a postnup in the Depp-Heard trial could bring more attention to a tool many couples could benefit from.

The key difference between a prenuptial agreement and a postnuptial one is simple: timing. A postnuptial agreement is a legally binding document drafted after the marriage vows that addresses the terms of a divorce. Just like prenups, postnups can specify who walks away with what property following a death or divorce, as well as specify the amount of alimony. They also can safeguard who inherits family wealth or protect business property and income.

Too often, women aren’t secure when a marriage dissolves.

“None of us had protected ourselves in this way,” I thought on the drive home from a recent meeting of a divorced women’s support group I run. Not a single one.

We had all entered our marriages assuming our partner had our back, everything would work out and we didn’t need financial protection from the person who claimed to love us the most. We certainly didn’t require a “business-like” formal prenuptial contract when we were in love! As years passed and some women decided to stay home with the kids, they thought it was a joint decision with their husbands — never considering the personal consequences if the team split up.

“I’ve been taking care of the house and the family while he built his career in Manhattan, but now that we’re splitting, what do I do?” asked a woman at the meeting who is in her late 50s and had given up her career when she had children. She was far from alone.

When new issues and problems come up, a couple who don’t see a need for a prenup could find a postnup useful. One sadly common issue is infidelity. If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.

One woman I know, who asked that her name not be used out of privacy concerns, entered a postnup after her attorney suggested one following her husband cheating. She and her ex signed the agreement as they were thinking about reconciling because she wanted to be protected if it happened again. And it did.

“I am happy I had it,” she told me. “Divorces are emotional and such a difficult journey, so this is something that can alleviate some of that.”

She had two words for people who are considering a postnup but may be on the fence: “Protect yourself.”

I wish I had.

In a world where women’s reproductive rights could be taken away, our family court system is broken and women still earn 82 cents for every dollar men earn, when a woman sacrifices for the “team” (because she usually is the one who does) she absolutely must be compensated for that. This is especially important because “more than one in three families headed by unmarried mothers lived in poverty in 2019,” according to the National Women’s Law Center. If you’re a woman and think you’ll get a fair shake in divorce court that includes some kind of compensation for your selfless contribution to the family unit, think again.

“The family court system is awful. The one with the most money wins, or it comes down to the luck of who you get as a judge,” asserted Sandra Radna, a divorce attorney in New York. “It doesn’t always seem to be fair.”

That’s where a legal agreement that addresses developments that cropped up after starry-eyed lovers tied the knot comes in. “As soon as you give up financial control to your spouse, you give up your independence,” Radna told me. “And once you are put in that position, it’s hard to reverse it.”

The American Academy of Matrimonial Lawyers has seen an increase in couples signing postnuptial agreements these days. Half of divorce attorneys said they were drafting more of them in the organization’s 2015 survey. The most common issues covered were property division, alimony or spousal maintenance, and retirement accounts.

“One reason to have a postnuptial is to address something that had not been considered before,” Cary J. Mogerman, president of the American Academy of Matrimonial Lawyers and a practicing attorney in St. Louis, told me. “It has to be something in which both parties have an interest. Some enter into an agreement like this to save an already troubled marriage where circumstances are putting pressure on the viability of that partnership.”

Read more related articles at:

Amber Heard claims Johnny Depp refused to sign a prenuptial agreement with her

Johnny Depp and Amber Heard Disagree on Why There Wasn’t a Prenup Before Marriage

Also, read one of our previous Blogs here:

Don’t Be Like Johnny Depp, Get a Prenup

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.

 

financial advisor

7 Mistakes People Make When Choosing a Financial Advisor

7 Mistakes People Make When Choosing a Financial Advisor

Choosing a financial advisor is a major life decision that can determine your financial trajectory for years to come.

A 2020 Northwestern Mutual study found that 71% of U.S. adults admit their financial planning needs improvement. However, only 29% of Americans work with a financial advisor.1

The value of working with a financial advisor varies by person and advisors are legally prohibited from promising returns, but research suggests people who work with a financial advisor feel more at ease about their finances and could end up with about 15% more money to spend in retirement.2

Consider this example: A recent Vanguard study found that, on average, a hypothetical $500K investment would grow to over $3.4 million under the care of an advisor over 25 years, whereas the expected value from self-management would be $1.69 million, or 50% less. In other words, an advisor-managed portfolio would average 8% annualized growth over a 25-year period, compared to 5% from a self-managed portfolio.3

1.

Hiring an Advisor Who Is Not a Fiduciary

By definition, a fiduciary is an individual who is ethically bound to act in another person’s best interest. Fiduciary financial advisors must avoid conflicts of interest and disclose any potential conflicts of interest to clients..

2.

Hiring the First Advisor You Meet

While it’s tempting to hire the advisor closest to home or the first advisor in the yellow pages, this decision requires more time. Take the time to interview at least a few advisors before picking the best match for you.
3.

Choosing an Advisor with the Wrong Specialty

Some financial advisors specialize in retirement planning, while others are best for business owners or those with a high net worth. Some might be best for young professionals starting a family. Be sure to understand an advisor’s strengths and weaknesses – before signing the dotted line.
4.

Picking an Advisor with an Incompatible Strategy

Each advisor has a unique strategy. Some advisors may suggest aggressive investments, while others are more conservative. If you prefer to go all in on stocks, an advisor that prefers bonds and index funds is not a great match for your style.

5.

Not Asking about Credentials

To give investment advice, financial advisors are required to pass a test. Ask your advisor about their licenses, tests, and credentials. Financial advisors tests include the Series 7, and Series 66 or Series 65. Some advisors go a step further and become a Certified Financial Planner, or CFP.
6.

Not Understanding How They are Paid

Some advisors are “fee only” and charge you a flat rate no matter what. Others charge a percentage of your assets under management. Some advisors are paid commissions by mutual funds, a serious conflict of interest. If the advisor earns more by ignoring your best interests, do not hire them.
7.

Not Hiring a Vetted Advisor

Chances are, there are several highly qualified financial advisors in your town. However, it can seem daunting to choose one. Do your research. Reach out to other professionals for referrals.

Read more related articles at:

Don’t make these 6 mistakes when choosing a financial adviser

Choosing-a-financial-advisor-five-mistakes-to-avoid

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.

Also, read one of our previous Blogs here:

A Financial Advisor’s Role in Estate Planning

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