Building Legacies that Last Estate Planning and Elder Law

Grave Trippers

Small-business-idea-3New York brothers Vincent and Robert Gardino have a very unusual hobby. They like to visit old cemeteries and seek out the final resting places of people who were once minor celebrities while they were alive, but who have been mostly forgotten about by history.

The brothers have developed a lively banter when they visit these graves and discuss the lives of the deceased between themselves.

Their banter is entertaining enough that it could soon be coming to your television, as The New York Times reports in "Like 'Car Talk,' but With Dead People."

The brothers are developing a television show for PBS that will feature the two of them visiting the graves of people all over the country. The proposed name for the show is "Grave Trippers."

While at first glance, this might not sound like an interesting show, the brothers are being compared to the brothers on NPR’s Car Talk.

If their banter is that lively and entertaining, this show could be a good watch for anyone interested in history and the lives of people in the past.

It should also have plenty of discussion about the historical graves themselves and presumably what happened to the people's possessions when they passed away, if there is anything interesting about the estates.

Reference: New York Times (Sep. 21, 2017) "Like 'Car Talk,' but With Dead People."

Estate Planning Attorney

Troubled Public Pensions

MP900404926Public employees in the U.S. count on their pensions to provide for them in retirement.

While most private companies have moved to 401Ks, public employees still have the old pension system.

Because of these pensions, they are often not eligible for Social Security.

However, for decades, these pensions have been underfunded, since governments have preferred to spend money elsewhere.

The problem is severe and not isolated to just a few public pension programs, as the Economist reports in "American public pensions suffer from a gaping hole."

The biggest source of the problem appears to be that administrators have preferred to use projection methods that are unrealistic. More realistic projections would require governments to make greater contributions.

There are no popular options to fix this problem.

Taxpayers do not want to pay more, so governments can meet their pension obligations.

Public employees do not want to contribute more of their paychecks to the pensions.

Current and future pension beneficiaries also do not want to see their benefits cut.

Something will have to give to address the public pension problem adequately.

If employees cannot rely on their pensions, then they might not be able to retire as planned, unless the
federal government intervenes and covers the pension shortfalls.

People who are no longer able to work, could find themselves forced to retire and also unable to meet
their expenses.

Reference: Economist (Oct. 5, 2017) "American public pensions suffer from a gaping hole."

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Little Things That Cause Estate Problems

Bigstock-Extended-Family-Relaxing-On-So-13907567When families fight over estates, it is not always over things of great importance. They often fight over the little things.

Much of the discussion about how to avoid family feuds over estates focuses on major items. The focus is on making sure that everyone gets his or her fair share of the estate's wealth, so they will be satisfied and not challenge the estate.

That is an important discussion, but little items of personal property can also be a problem, as CNBC discusses in "7 Ways that cheap Tweety Bird figurine can screw up your estate."

Potential problems include:

• Items that do not have great monetary value can still have great sentimental value to family members. If two people want the same item, it can be difficult to resolve that dispute.

• Do not tell anyone verbally they can have a piece of personal property without putting that in writing in your estate plan. If other people want the same item, the person you want to have it will have no way of proving that you said they could have it.

• Do not just let your family divide all your assets between themselves when you pass away. It is most likely that they will fight over who gets what.

• Even if you have given someone access to a safety deposit box and told them they can have the contents after you pass away, you still need to make that official in your estate plan.

• Make sure that any unusual items have been planned for, such as digital media accounts and frequent flyer rewards.

• Items regulated by the government can be complicated. You should plan accordingly.

• Your executor will need to have the authority to change the locks on your door. You would be surprised how often people simply walk in and help themselves to items that they want.

Reference: CNBC (Oct. 10, 2017) "7 Ways that cheap Tweety Bird figurine can screw up your estate."

There Is Not Time to Do It Later

TEREUy1vSfuSu8LzTop3_IMG_2538Most people do not think something bad is going to happen to them any time in the near future.

Healthy people have this belief that they will be able to continue with their lives without any problems.

They do not think they will have an accident. They do not think they will get seriously ill. They know these things could happen, but believing that they are imminent is paranoia.

The problem with this thinking is that it leads people to put off estate planning. People put off their initial estate planning, but they also put off making necessary changes to the estate plans they already have.

The latter can be as big of a problem, as the former the Sunshine Daily Coast reports in "Fix your will before it's too late."

What is the problem with putting off making necessary changes to an estate plan? Once you have a plan that is the one a court will follow, until you change it.

If you have stated in your will that someone should inherit your property and you change your mind for whatever reason, the change has no legal effect until you actually create a new will.

If something happens to you before you create that new will, then the person you do not want to inherit the property actually will.

It is never a good idea to procrastinate in any area of estate planning.

Instead of putting things off, see an estate planning attorney as soon as the needs arises.

Reference: Sunshine Coast Daily (Oct. 2, 2017) "Fix your will before it's too late."

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Everyone Can Get a Trust

TrustsMost people probably first learned about trusts in a history class.

The idea of trusts is often introduced when we study the presidency of Teddy Roosevelt. He is famous for speaking out against the trusts of his day and beginning to break them up.

The trusts being talked about in history, were the vehicles of extremely wealthy people that were used to hold their assets. The biggest trusts had immense economic power and near full control over some industries.

Because of this history, people often still think of trusts as things that very wealthy people get and use.

However, trusts are now for everyone, as the Times Herald-Record discusses in "Trusts are no longer just for the wealthy."

There are all kinds of trusts available today. They can be created for many different purposes.

Trusts can be used to make inheritances in blended families less contentious. They can also be used to hold inheritances for minor children. Trusts can be as simple as being nothing more than a convenient way to avoid the potentially costly and time-consuming probate process.

Because trusts are so versatile, almost anyone can benefit from a trust.

If you would like to know how you might personally benefit from getting one, talk to an estate planning attorney about your needs and what types of trusts can help meet those needs.

Reference: Times Herald-Record (Sep. 28, 2017) "Trusts are no longer just for the wealthy."

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Changing a Special Needs Trustee

Special Needs TrusteeSpecial needs trusts offer substantial benefits for those people who have them.

They allow a beneficiary to have access to income, while remaining eligible for government benefits.

However, in exchange for that benefit, the trusts are very restricted. They must be created in hyper-specific ways and the beneficiary's ability to control the assets in the trust is limited.

Technically, the beneficiary cannot distribute or manage the trust assets.

That means a third-party trustee is needed.

If the trustee is not up to the job or intentionally mishandles the trust, it can be difficult for the beneficiary to change the trustee, as the Wills, Trusts & Estates Prof Blog discusses in "Can the Beneficiary of a Special Needs Trust Change the Trustee?"

Special Needs TrusteeA beneficiary of a special needs trust can petition a court to have the trustee removed and another appointed. However, this can be a difficult process and many people with special needs are not able to handle the complex legal issues of filing a petition with the court, let alone arguing for a trustee change.

This could potentially stick a beneficiary with a bad trustee and no recourse.

It is, therefore, important that special needs trusts be drafted with this problem in mind.

Trustees must be chosen carefully and, in cases where the beneficiary is of diminished capacity, it should be clear on who else can petition to change the trustee.

Reference: Wills, Trusts & Estates Prof Blog (Sep. 27, 2017) "Can the Beneficiary of a Special Needs Trust Change the Trustee?"

 

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Bank Hit with $4 Billion in Punitive Damages

Estate PlanMax Hopper is not a well-known figure. However, he became a wealthy man during his time as an executive at American Airlines.
He was best known for creating an innovative reservation system.

At the time of his death, his estate was valued at $19 million.

Unfortunately, he did not have an estate plan.

The bank JPMorgan was chosen to administer his complex estate. However, Hopper's widow and her stepchildren grew angry at the way the bank was handling the estate and accused it of delaying distributions for its own benefit.

They sued in a Dallas court.

A jury recently came down with a verdict.

JPMorgan was ordered to pay the plaintiffs $5 million in actual damages and $4 billion in punitive damages, as Bloomberg reports in "JPMorgan Ordered to Pay More Than $4 Billion to Widow and Family."

It is very likely courts will greatly reduce this punitive damage award, since the Supreme Court has previously ruled that punitive damages must be proportional to actual damages.

Nevertheless, this case highlights an important point.

Estate administrators can be held liable, if they do not faithfully carry out their duties.

The jury in this case believed that the bank was guilty of fraud, breach of fiduciary duty and breaking a fee agreement.

JPMorgan is a sophisticated entity that should have known better.

Estate administrators with less experience would be wise to seek the assistance of an attorney to help them make sure they do not run afoul of the law.

Reference: Bloomberg (Sep. 26, 2017) "JPMorgan Ordered to Pay More Than $4 Billion to Widow and Family."

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GOP Tax Plan Includes Estate Tax Repeal

Taxes1The Trump administration and Congressional Republicans are very slowly inching toward tax reform. It
has not always been clear what type of reforms they might be considering.

Many different possibilities have been discussed.

However, they have now released a joint framework that gives an idea of their main priorities.

Advocates for a repeal of the estate tax will be pleased to know that a complete repeal of the tax is
included in the framework, as Forbes reports in "Trump GOP Tax Reform Framework Calls For Estate Tax
Repeal."

Despite including a repeal of the estate tax the framework is curiously silent on the gift tax, which
normally goes hand in hand with the estate tax.

If the ideas in the framework were eventually to become law, that would mean pre-death transfers
could still be taxed, while post-death transfers to the exact same people would not be.

Of course, releasing a framework for reform is not the same as passing legislation.

There is a long way to go before the estate tax is repealed and the issue is likely to be contentious in
Congress.

Reference: Forbes (Sep. 27, 2017) "Trump GOP Tax Reform Framework Calls For Estate Tax Repeal."

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Social Security Representative Payee Program

Social SecurityOne of the many problems which families of the elderly have to face, is that the elderly person can lose the ability to handle his or her own finances.

Through no fault of their own, they forget what bills they need to pay.
They give money to people to whom they should not give it.
They are susceptible to scammers.

Some of these problems can be handled with a general durable power of attorney. However, many families worry that because the Social Security check still comes in the name of an elderly person with dementia, the money might still be lost.

However, that worry is unnecessary, since Social Security has a program that can help in these situations, as Forbes discusses in "The Social Security Program For People With Dementia."
The program is the Social Security Representative Payee Program.

It allows someone else to receive the benefit checks of a Social Security payee as a representative.

It is a little known program that has been around for almost as long as Social Security itself.

For families that know about it and use the program, it can provide a great relief.

Unfortunately, it can be a bit of a challenge if one wants to sign up.

It requires a lot of paperwork to be submitted.

For that reason, people who are interested in using the program, might want to first consult with an elder law attorney.

Reference: Forbes (Sep. 26, 2017) "The Social Security Program For People With Dementia."

 

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Wills Need Probate

2last willHow wills actually work, is not understood by everyone.

Many people think that if something is written down in a will, then everything is settled. They think all that is required is for the beneficiary to show the will to whoever is holding the property the beneficiary is to inherit.

That is not the way it works at all.

Unfortunately, the misperception is common.

In fact, estate attorneys are used to hearing this from people named in wills, who think it all works that way and are upset when they discover that it does not.

The Times Herald recently discussed this in "Wills won't work without probate."

A will is only a bunch of words on paper that have no real legal authority, until the will is filed with a
probate court.

The court must then agree to accept the will as representing the valid wishes of the deceased.

Once that is done, the probate court appoints a personal representative for the estate.

That personal representative is then charged with carrying out the directives in the will, under the
supervision of the court.

This can result in a long and often expensive process.

It depends on the size of the estate, the ability of the personal representative and whether there are any
challenges to the estate.

Of course, this can all usually be avoided by speaking to an estate planning attorney about getting a
trust instead of a will.

Reference: The Times Herald (Sep. 22, 2017) "Wills won't work without probate."

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