Building Legacies that Last Estate Planning and Elder Law

Will SAFE Act Really Make Seniors Safe?

Elderly woman looking serious

“In an attempt to take a step toward countering some of the negative impact of elder financial abuse, the government recently passed the Senior Safe Act in May 2018, as part of a bipartisan banking reform set of laws. “

Elder abuse costs millions of Americans an estimated $2.9 billion annually. The expectation is that these numbers are only going to increase, as the scams targeting the elderly become more and more sophisticated. This is according to Forbes in ““After SAFE Act Passage, The Battle Against Elder Financial Abuse Remains Far From Over.”

The aim of the Senior Safe Act is to encourage financial institutions of all kinds to play a larger role in fighting against elder financial abuse. The law, which was modeled after the Senior$afe program created in Maine, requires financial institutions to train employees on detecting activities that may indicate elder abuse is occurring. If the employees are trained, the Senior Safe Act also provides a reporting process and liability protection for those who report the possible abuse.  It is thought that the liability protection would make those individuals reporting the possible abuse more proactive.  However, there are still some problems with this.

Some advisors report being reluctant to report any client who seems to be suffering from mental deficiencies or elder abuse. The problem, advisors say, is that they are not trained and won’t feel confident in making a judgement about competency. Some court cases have put the onus on the advisor, when selling certain products or strategies but advisors lack both the training and the ability to make a medical diagnosis of senior clients. Without the ability to identify competency, it is very likely that any reporting will only take place well after the elder financial abuse has taken place.

Another issue is that family members or friends are typically the ones who commit elder financial abuse. The victim usually does not want to press charges, fearing that the person will become angry with them and withdraw their emotional support. Being dependent upon the same person who may have perpetrated financial abuse, puts the elderly person in a no-win situation.

Elder abuse prevention, financial and otherwise, should start years in advance, at the first signs of declining physical and mental health. It should begin with a plan for managing financial assets and having the proper legal documents in place, including a will, power of attorney, general durable power of attorney, healthcare directive and other estate planning documents.

By being proactive while the individual is still relatively well and healthy, it may be possible to create protections that will be crucial later in life. Speak with your estate planning attorney now, to make sure that your estate plan is in place, so you and your family are protected.

Reference: Forbes (July 23, 2018) “After SAFE Act Passage, The Battle Against Elder Financial Abuse Remains Far From Over”

 

Estate Planning for the Separated

Two recent celebrity deaths highlight a potential issue in estate planning. What happens when a couple does not get divorced but separates amicably?

Bigstock-Family-Couple-Relationships-Cr-5604405The recent deaths of fashion designer Kate Spade and celebrity chef Anthony Bourdain have elicited an outpouring of grief.  They both committed suicide, which came as a shock to friends, family and fans. However, they both also share something else in common.

At the time of their passing, they were both separated from their spouses. That highlights a peculiar issue in estate law as Forbes discusses in "Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated."

If Spade and Bourdain had gotten divorces, then their spouses would not be entitled to any portion of their estates. If the spouses were included in the estate plan, they would be constructively written out by a court. However, that does not happen when a couple is separated.

The spouse of the deceased retains full rights to the estate. That means if there is no estate plan, the spouse will normally receive the entire estate through the laws of intestate succession. If there is an estate plan, then the spouse receives anything the plan says he or she gets. If the spouse does not receive enough of the total assets of the estate, then the spouse can elect to take his or her spousal elective share (the amount of which varies between states).

Of course, both Spade and Bourdain might have been perfectly fine with their spouses receiving their assets. They did after all choose not to divorce, but instead to separate.

Reference: Forbes (June 12, 2018) "Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated."

 

Michael Jackson Estate Sues Disney

The Michael Jackson estate has seen so much litigation that it should probably get bulk discounts for court and lawyer's fees. The latest litigation has the estate suing the Walt Disney Company. MP900387776

There might never have been a more contentious estate than that of Michael Jackson. Every few months, just when it seems things have died down, the estate is back in the news because it has been sued or is suing someone itself.

The latest case is over a documentary produced by the Walt Disney Company. In the documentary, footage of Jackson's children was used and short clips of two of his songs were also included. The estate claims this is copyright infringement and that Disney did not even ask permission to use the material.

Disney claims it did not need permission, because it was making a documentary. TMZ reported on this case in "Michael Jackson Estate Sues The Walt Disney Co. You've Got Balls For Exploiting MJ's Kids!!"

The estate does have a duty to protect any copyrights entrusted to it. If someone were to make a movie and use an entire Michael Jackson song in it, then the estate would need to file a lawsuit, if the song had been used without permission. However, in this case the estate might be a little overzealous.

Copyright does allow for the use of material without permission, if that use falls under the fair use doctrine. Doctrine normally does allow for short clips of material to be used and more material can be used, if it is done for educational purposes.

Reference: TMZ (May 30, 2018) "Michael Jackson Estate Sues The Walt Disney Co. You've Got Balls For Exploiting MJ's Kids!!"

 

Why You Need an Estate Planning Attorney

Why You Need an Estate Planning Attorney

MP900400337You might think that you do not need professional assistance for your estate plan because you know who you want to get what. There is more to estate planning than that.

It is actually easy to create an estate plan for yourself. You can simply write your own will, directing who should get what pieces of property.  If you execute that will properly with witnesses and signatures, your will can be probated.

If you are not certain that is the best idea and would like a little bit more help, download some prepared forms to fill out from an online service at a low cost. The ease of doing that might make you think that an estate planning attorney is not necessary.  However, there are other reasons to see an attorney, as the Huntsville Item points out in "Do you really need an estate planning attorney?"

Those other reasons include:

  • The estate planning attorney knows about property law and how different types of property are handled differently by courts. If you do not get this correct in your will, your estate can face difficulties.
  • There are different types of estate planning documents that do different things. Estate planning attorneys can help you pick the right ones for your unique circumstances.
  • Estate taxes are still a concern at the federal level for many people and in several states. A professional is needed to properly plan around them.
  • The attorney can also help craft your estate plan in a way that compliments your other financial goals, often including paying less in taxes.

Reference: The Huntsville Item (May 21, 2018) "Do you really need an estate planning attorney?"

 

Planned Giving

Giving-to-charity2One of the ways that you can leave a good legacy behind, is to provide money to charity in your estate plan.

Your worth is likely more than the sum total of your assets. You have worth that does not have any direct monetary value. Your capacity to like and love your friends and family cannot be given a monetary value, for example. However, in estate planning, it can often seem like the only thing you will have left at the time you pass away, are assets that have monetary value and need to be given to other people.

You cannot give away your capacity to love after death. However, that does not mean your other value has to be left out of your estate plan completely. You can use your estate plan for planned charitable giving, as the Nashua Telegraph discusses in "Planning to give and leaving a lasting legacy."

Planned giving is simply making provisions in your estate plan that a certain amount of money or a percentage of your estate's assets should be given to charity. It is a popular option for people. It is popular not only with the wealthy, but also with people of more modest means who want to leave something behind for good causes.

There are several different ways you can make charitable donations a part of your estate. Some are as simple as a few lines written into a will and others are for more complicated, including setting up special trusts for the purpose. An estate planning attorney can help you choose the best way to do so.

Reference: Nashua Telegraph (May 20, 2018) "Planning to give and leaving a lasting legacy."

Estate Planning, Wills, Trusts

What are Digital Assets?

It is important to include your digital assets in your estate plan.  However, you need to know what they are. Wi9yf7kTQxCNeY72cCY6_Images of Jenny Lace Plasticity Publish (4 of 25)

In the last few years, digital assets have received considerable attention in estate planning. There have been lawsuits filed over access to them, after someone passes away. There have also been legislative attempts to provide greater access to them for estate administrators.

Estate plans now almost have to include plans for what to do with digital assets. However,  many people are still confused about what digital assets even are. There are actually four different basic categories of digital assets people might need to consider, as the Xenia Daily Gazette points out in "Estate Planning and Digital Assets," including:

  • Things that exist only digitally but that have some monetary value. This can include things like domain names for websites and cryptocurrencies.
  • Another category includes digital accounts that provide access to things that have value in the real world. If you access your bank account online, the information about that access is a digital asset.
  • Another potential asset includes messages meant to communicate digitally with others, including emails or social media posts.
  • Finally, there is another category of digital assets that includes things like photos and videos stored digitally.

Reference: Xenia Daily Gazette (May 21, 2018) "Estate Planning and Digital Assets."

 

Your Executor Is Important

One of the simplest things that you can do to help prevent your estate from facing difficulties, is to make the right choice about who your executor should be. MP900309139

People who get wills, normally put a lot of thought into how they would like their property to be distributed after they pass away. It is very important to them, that their wishes are carried out and everything goes to the appropriate heirs. However, often relatively little thought is put into who should make sure it all happens.

The person in charge is the executor. Instead of thinking about whether the person they are choosing is the right person, many people just pick a close friend or relative. This can be a very big mistake, if the person does not know what they are doing, as Forbes points out in "Choosing an Executor for Your Estate."

The executor of your estate will have a lot of work to do. There are often important tax decisions that need to be made quickly. The executor needs to determine what assets you have at the time you pass away.  However, they cannot just give those assets to the people you want to have them.

First, they need to go to probate court and be officially appointed to administer the estate. They will then need to determine, if you had any debt when you passed away. That debt normally needs to be paid out of your assets, before any property can be distributed.

Your executor needs to be someone who not only has the time to serve in the capacity, but also can handle administrative and financial tasks well. Put some thought into this important decision.

Reference: Forbes (May 16, 2018) "Choosing an Executor for Your Estate."

 

Why You Need an Estate Plan

If you think that you do not need an estate plan because you do not have very many assets, then you do not understand that estate planning is not just about your property. Mac-glasses

There are millions of Americans who do not have very many assets that need to be distributed after they pass away. It is not the case that they are all poor. Many of them are just younger people who have not yet lived long enough to accumulate assets.

People often think they do not really need estate plans, if they are young and with limited assets. In some sense they are correct.  If people do not own any real estate and do not have any other valuable property, it will not be too difficult for their families to handle their estates. However, estate planning is about more than that, as the Times Herald-Record discusses in "Everyone can benefit from an estate plan."

Almost all estate plans today also include some legal documents that are traditionally considered elder law documents. Despite the term "elder law", even young people need these documents because they are really about planning for disability.

That is planning for the possibility that you could have an accident or illness that does not kill you.  However, it can leave you legally incapacitated, even if it is only on a temporary basis. These documents include a health care power of attorney, so someone else has the authority to make health care decisions on your behalf.  It also includes a general durable power of attorney, so someone else can handle your finances, if you are unable to do so.

Reference: Times Herald-Record (May 17, 2018) "Everyone can benefit from an estate plan."

 

Joint Tenancy Is a Bad Idea

Bigstock-Elder-Couple-With-Bills-3557267Adding a child as the joint tenant of your home to avoid probate is always a very bad idea.

Some bad ideas in estate planning never seem to go away. No matter how many times estate planning attorneys try to tell people that the ideas are bad, people continue to make the same mistakes.

One common mistake is when people try to do their own estate planning to get around probate. For example, a widow may add an adult child as a joint tenant on the deed to her home. While it is true that if all goes according to plan, the child will inherit the house after his mother passes away without the need for probate. This approach can be a bad idea.

Why? Normally, the trouble comes because the child has a creditor who can attach the home to pay off the child’s debts.  However, there are other potential issues, as was recently discussed in the Napa Valley Register in "Can new wife inherit home?"

In this case, a married couple added their daughter to the deed as a joint tenant. The wife passed away, which made the father and daughter co-owners of the home. The father then remarried to a much younger woman.

The daughter refused to give up ownership and allow for a new deed allowing the new wife to inherit the home. When the father passes away, the daughter will inherit the home and be free to throw the new wife out if she wants.

Instead of looking for ways to avoid probate on your own, go to an estate planning attorney for assistance. The attorney can give you better ways to accomplish your goals and help you avoid these types of problems.

Reference: Napa Valley Register (April 5, 2018) "Can new wife inherit home?"

 

Tell Someone about Your Advanced Medical Directives

MP900448483If you have a health care power of attorney and living will, you should make sure that someone you trust knows where to find them.

It is very easy to get advanced medical directives today. You can often get living wills and health care powers of attorney as part of the process of admission to a hospital. If you tell a doctor about your wishes, it is often good enough for the doctor to make a note of them in his or her notes. However, getting those documents at a hospital or by telling a doctor can be a problem.

The system of medical records used in the U.S. does not make it easy for doctors to know that you have expressed your wishes ahead of time, especially when they actually need the information as The New York Times reports in "You've Detailed Your Last Wishes, but Doctors May Not See Them."

There is a potential way to mitigate the possibility that this problem will happen to you. Get your living will and your health care power of attorney ahead of time, by going to an estate planning attorney. These documents are routinely created as part of the estate planning process.

Once you have created the documents, you should store them in a secure place.  However, do not stop there. Make sure that someone you trust knows where to find the documents. That person can then get them when needed, to the doctors providing care for you.

This is not a perfect plan that will work all of the time, but it is better than relying on the current system of medical records.

Reference: New York Times (March 27, 2018) "You've Detailed Your Last Wishes, but Doctors May Not See Them."