Estate planning attorney of Legacy Assurance Plan of America for Wills,Trust & Avoid Probate

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Friday, February 16, 2018

Don’t Leave Your Legacy to Chance… Always Make Sure You Have a Fully Updated Plan

Summary: Your estate plan is your legacy. Your legacy is too important to leave open to uncertainty. That’s why it is so important to make sure that you have a proper and complete estate plan in place and that you review (and update, as needed) your plan regularly. With periodic reviews, you can ensure that your plan, including not only your will and living trust, but also your powers or attorney, living will, pay-on-death accounts and transfer-on-death assets are sufficiently updated to ensure that all of them will work together harmoniously to carry out collectively the goals and desires that you want. 

Here’s an example from Tennessee of the risk of uncertainty. The court case surrounding the estate of a man named Stephen contains a somewhat familiar estate planning lesson, but with a bit of a twist. In August 2001, Stephen enrolled a retirement plan for Nashville-Davidson County metro employees. Within his plan documents, Stephen designated his wife, Mary Beth, as the beneficiary.

Just eight months later, though, Stephen and Mary Beth divorced. As happens with many divorce cases, the spouses worked out something called a “marital settlement agreement,” which is a settlement of issues (such as, for example, property division or alimony) that would otherwise need to be decided by the judge. In this couple’s agreement, which the court approved, Stephen got “all right, title, and interest in ‘all retirement that he may have through his employment.’”

Almost 12 years after the divorce, Stephen died. In the intervening 12+ years between his enrollment in the retirement plan and his death, Stephen never executed a beneficiary form other than the original one that named Mary Beth as his beneficiary. So, when he died, two very distinct entities made claims to the retirement plan seeking to receive the payout: one by Stephen’s estate and one by his ex-wife.

The case went to trial and the trial ruled in favor of Stephen’s estate, concluding that the settlement agreement signed as part of the divorce had the legal effect of revoking the original beneficiary designation, which meant the proceeds belonged to the estate. (Whenever you have an account that allows you to name a beneficiary but you have no valid beneficiaries named, then it generally goes to your probate estate.)    

The case wasn’t over, though. Mary Beth appealed… and she won. The appeals court explained that the only way to revoke a beneficiary designation was to use the process dictated by the plan. Stephen’s plan stated that, to make changes or revocations, the plan participant (in this case, Stephen) was required to send a written request to the plan administrator detailing the changes he wanted to make. In other words, Stephen’s plan had no provision for automatic revocations through court documents like divorce settlement agreements. That meant that the original beneficiary designation was still valid and Mary Beth was the rightful recipient of the plan proceeds.

Stephen may have not wanted Mary Beth to receive those funds. Stephen may have though that the resolution of his divorce case with Mary Beth took care of all that. One of the big “take aways” from this is… don’t assume. Make sure that you have a complete plan in place, including your will, powers of attorney, advance directive, living trust and non-probate transfer accounts. Also make certain that all parts of your plan, including your beneficiary designations, are routinely reviewed and updated as necessary to reflect your current wishes and life circumstances.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan







Monday, February 12, 2018

“I Wouldn’t Be Caught Dead…” | How To Take Control Now to Plan Your Final Arrangements

Summary: In many ways, final arrangements are to help the living. Whether it is a moving funeral or a beautiful grave memorial, these things help the living as they seek to honor and remember the departed. One way you can help your loved ones who will survive you is by taking control of your final arrangements. With clear instructions from you regarding how you want your final arrangement handled, your loved ones can proceed with confidence that the decisions they make as they memorialize you are ones that will honor you by reflecting your values and desires. With this confidence, your loved ones can gain a degree of peace of mind in an otherwise unavoidably stressful time. 

Whether you live in Florida, Georgia, Arizona or any of a number of other places, there’s a chance you’ve seen it as you drove down the road. The billboard depicts an older woman in a straw hat, a multicolored purse and a garish pink or orange dress with large white flowers. The caption atop the billboard somberly warns, “You always said you wouldn’t be caught dead in that dress. You’d better tell them now.”

This humorous billboard is typically used to advertise the services of a funeral home or mortuary. The implication these advertisements seeks to convey is something of a public service announcement. If you have certain desires and opinions regarding your funeral, burial or other final arrangements, it is important to communicate those wishes, while you’re still alive, to the people who will be handling those arrangements after you’re gone. If you have preferences but fail to tell anyone, then you may be placing yourself at risk of being… caught dead in that dress you always said you wouldn’t be caught dead in.

Of course, taking control and planning for your final arrangements can achieve much more than just ensuring that you’re not buried in unattractive clothing. Planning can also ensure that your loved ones know exactly what you truly want, and your family won’t have to guess about what your actual goals were. This can include your choice of cemetery, whether you’ll be buried or cremated and what type of funeral service or remembrance ceremony you’d like to have.

If you don’t communicate your wishes, you’ll probably be adding to your loved ones’ stress at what will already be a stressful time. With some families, there may be a risk that, without preferences clearly stated and communicated, the surviving loved ones might fight regarding how the final arrangements should be completed. Even if you have a harmonious family and arguments are not a problem, your final arrangements may still be stressful if you haven’t communicated your desires, as your loved ones worry and fret regarding whether or not the choices they’re making on your behalf match the ones that you would have made if you were making them yourself.

There are various ways to get your wishes put down into writing. Indiana, for example, has a recognized legal document called a “Funeral Planning Directive.” It is somewhat similar to an Advance Directive (Living Will,) except that it covers the creator’s final arrangements. Most states do not have an official legal document dedicated strictly to final arrangement planning. However, there are ways to incorporate your final arrangement preferences into your estate plan, even if your state doesn’t have a recognized legal document for funeral planning. Including a set of instructions to your loved ones regarding final arrangements that you keep with estate plan, for example, may provide valuable comfort, insight and guidance. 

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan









Friday, February 9, 2018

How Court Cases Can Offer Lessons in ‘What Not to Do’ in Estate Planning

Summary: Others’ estate plans, especially those published in legal opinions, can be very instructive. They can, in a lot of circumstances, offer very helpful lessons in what NOT to do when it comes to estate planning. Whether it is a plan that is less than complete, the absence of any plan at all or a plan that has documents that are in conflict with one another, the stories of others’ problems that end up in court can help remind you to make sure that you have a plan that is complete, consistent and optimized to meet your needs.  

When court cases are published in the law books, they help judges in future cases to make decisions that follow the precedents established by those cases that came before. Estate planning court cases serve an even greater benefit. Many estate planning court cases can provide valuable lessons to anyone who has created, or is considering creating, an estate plan. While some cases involve plans that worked well, unfortunately a lot of cases are the result of planning gone wrong. Much like some TV shows teach viewers what NOT to do when it comes to anything from cooking to home design to clothing choices, a lot of estate planning rulings are the “what NOT to do” stories of estate plans that went awry.

Take, for example, the estate of Leeanna, a woman who lived in the Tacoma, Washington area. Leeanna had four children and a husband, Jim, all of whom survived her when she died in 2012. When Leeanna died, there was uncertainty about whether or not she had created a valid estate plan prior to her death. The woman’s daughter, Heather, went to court asking a judge to make a legal determination and pronouncement that Leeanna died intestate (meaning that she had no valid estate plan.)  

Whether or not Leeanna died intestate or not mattered a great deal because of the nature of the assets that Leeanna owned. In addition to the things Leeanna owned in Washington, there was the family home in Cabo San Lucas, Mexico. After Leeanna’s death, Jim sought to sell the Mexican property. Under the Mexican rules of intestate succession and heirship (meaning the system for distributing assets in estates with no valid estate plans controlling them,) property distributes to a deceased person’s children. So, if Leeanna died with no plan (as Heather maintained,) then Heather and her siblings owned the place in Cabo, Jim had no legal right to that property and he could not sell the home.

Jim argued to the court that it didn’t matter whether or not his wife had a will. According to Jim, both he and Leeanna signed a community property agreement. In some states like Washington, there exists the option of signing something called a community property agreement, which can serve as means for avoiding probate. This document can say that all of a person’s assets are community property, which means that all of the property goes directly to the surviving spouse upon the death of the first spouse. Jim’s argument was that he and Leeanna had such an agreement so, upon her death, he owned everything, including the Cabo San Lucas property.

Eventually the case wound through the legal system and all the way to the state Court of Appeals, with Heather receiving an unfavorable ruling. While it is possible that the result was the one that Leeanna would have wanted, the path taken to go that point was something that was less than ideal.

The case of Leeanna’s estate is a reminder of two key things when it comes to estate planning. The first is the vital importance of making sure that all of your documents work toward the same goal. While this woman may have had only the community property agreement, most complete plans involve multiple estate planning documents. If you have a document like a community property agreement (if your state allows them) and you have a will and you have a living trust, for example, is essential that you review these documents periodically to make sure that they are maintained in a way that they will work together harmoniously to achieve your objectives.

The second is the importance of making sure that you have a complete plan tailored for your needs. If you are someone who owns property in multiple states (or multiple countries,) you may very possibly be someone who would obtain a larger-than-normal benefit from avoiding probate. For example, if you have property in multiple states, you might be someone who would derive a very high benefit from an estate plan that includes a living trust. By working with experienced legal counsel, you can get a plan that will help your family reduce delays, stress and expenses after you’re gone.         


This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan





Monday, February 5, 2018

Making Sure Your Estate Plan is Customized to Do What You Want



Summary: Having a proper and complete estate plan is about more than just making sure that you have all of the documents needed for your plan. It is also about making sure that the documents you have are customized to achieve the estate planning goals you have. By working with an experienced estate planning attorney, you can get the well thought out plan you need to provide peace of mind for you and your loved ones.  

Generally, if you have done very much research about estate plan, you probably know that there are certain documents that go into a complete estate plan. These include your will, your financial power of attorney, your healthcare power of attorney and your advance directive or living will (although some states combine these last two into one document.) Many complete plans also include a living trust to provide for the added benefit of avoiding probate.

Getting a complete plan, especially as a senior, is about more than just getting those documents. It is about getting the RIGHT version of those documents to best meet your needs. As noted above, people who desire to avoid probate may strongly consider including a living trust (or trusts) in their plans, while those who don’t value avoiding probate might not. Similarly, the nature of your goals and preferences may alter, not the number and type of documents in your plan, but the language that is (or is not) included within those documents.

Here’s how that can work with a hypothetical case: Jane Doe is a widow with four children. Jane’s health is declining. Her youngest daughter, Mary, moved in with Jane 10 years ago to provide in-home care for the mother. Because Mary has provided 10 years of care for no charge, Mary’s siblings agree that Mary should eventually receive Jane’s house. Jane, who is on Medicaid, recently broke her hip is now going to have to go to a nursing home to stay. The siblings want to transfer the title of Jane’s house to Mary now, with Mary’s brother, John, (who is Jane’s agent under her financial power of attorney) handling the transfer on Jane’s behalf.

Certainly, this family has many things to consider. They must make sure that, in making this transfer, they don’t do anything to jeopardize Jane’s Medicaid benefits. However, assuming that the family can do the transfer without causing Medicaid eligibility problems and assuming that all of the siblings remain “on the same page” about the transfer, there may still be a problem that would totally prevent the transfer. Depending on how Jane’s financial power of attorney is worded, John may not have the authority to sign over the house to Mary. Many financial powers of attorney do not give the agent named within them the power to make gifts of the assets owned by the principal (which is the person who is giving the powers or, in this case, Jane.) If John signs a deed in favor of Mary without property authority, that could cause problems for him, Mary and Jane.

Of course, in other situations, you may not want to have a provision in your financial power of attorney that gives your agent the authority to gift away your assets. You may prefer that your agent not have that much power over your assets. The key point is that each person’s power of attorney could be different based upon his or her individual needs. That’s why you need to make sure all of the documents in your plan are optimized for your needs, and are reviewed periodically to make sure that they remain ideally structured and worded to achieve what you want.   

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan


        


Friday, February 2, 2018

How Long-Term Non-Marital Relationships Can Cause Problems if You Don’t Have an Estate Plan


Summary: Having an estate plan in place can provide you with many benefits. It allows you to indicate what your goals are, and remove any uncertainty about who should or should not take from your estate. To avoid the problems of unintended disinheritance, uncertainty and all-too-avoidable court litigation, take control by getting a complete plan in place and making sure that your plan is periodically reviewed and updated as needed. By getting a plan, you will have the peace of mind that comes from knowing that you have benefited your loved ones by taking control of your legacy and making clear exactly what your wishes are.

Your estate plan is your legacy. Your estate plan creates your legacy by indicating whom you wish you remember and acknowledge through the distribution of your wealth. When you have an estate plan that is complete and ideally tailored to meet your needs, you can rest easy knowing that you have taken control over your legacy and ensured that your assets will be distributed according to your intentions. When you don’t, and you have no plan, then the opposite is often true. When you have no plan, you have no control and the lack of planning often opens the door to uncertainty and uncertainty often means court battles.

As an example, look at the estate of Dennis, a man who lived in a small town in the middle of Pennsylvania. Dennis died in early 2016. His online obituary says that he was survived by his two sisters, a brother and his fiancée, Jeannette.

Jeannette, however, went to court and argued that she was much more than just a fiancée. She contended that she and Dennis had been, for several decades, “common law” spouses. Jeannette’s argument in court was that, because Dennis had never created an estate plan and died intestate, and because she was Dennis’s surviving spouse and he had no surviving children, she was entitled to the entirety of Dennis’s estate.

In court, Jeannette testified that she and Dennis began dating in 1974 and the couple moved in together in 1987. Shortly after that, according to Jeannette, the couple exchanged rings that were meant to symbolize that their relationship was “forever.”

Not all states acknowledge common-law marriage as legal, but Pennsylvania does. Pennsylvania, though, creates a fairly high legal hurdle for proving to a court that a relationship constitutes a valid common-law marriage. Ultimately, that hurdle worked against Jeannette in her case. On certain forms like medical records, Dennis listed his younger sister as his next of kin, gave Jeannette as his emergency contact but described her only as a “friend” and used as his official address an address that was not the home in which he and Jeannette alleged lived together. Additionally, Dennis and Jeannette did not file joint tax returns, they did not share joint bank accounts and Jeannette had never taken Dennis’s last name. All of these things amounted to evidence that the relationship was not a common-law marriage. This led the trial court and an appeals court to rule against Jeannette.

The outcome triggered by this case made a dramatic difference. If Jeannette would have won, she would have received 100% of Dennis’s assets as his surviving spouse. Because she lost, Dennis’s surviving heirs were his three siblings who split the contents of his estate. Jeannette had no legal relationship to Dennis and, as a result, got nothing.

There is no way to know what Dennis’s actual goals for his estate were, as he passed away with no plan to dictate what he wanted. While it is possible that he may not have wanted Jeannette to get everything, it is also distinctly possible that he did not want her to get nothing, either. However, that’s exactly what happened because he had no plan. Everyone has a need for a plan, but certain groups of people have even higher needs for plans. People involved in long-term committed relationships but whom are not married are definitely one of these groups. The law generally makes no accommodations for these relationships, meaning that your partner is, in the eyes of the law, a stranger and entitled to nothing from your estate.




Monday, January 29, 2018

Including Powers of Attorney in Your Complete Estate Plan

Summary: Some people think that a simple will is enough to give them the basic estate plan that they need. While a will is better than no plan at all, a complete plan contains more and can do more to protect you. One element of every complete plan is the inclusion of powers of attorney. These documents can help give you the peace of mind that comes from knowing that, if you cannot make decisions for yourself, the person who will be speaking for you is the person you specifically wanted to do so.

While the rate of people developing dementia in this country has declined overall in the last few years, the news is not all good. The popular medical website webmd.com reported on a study published in the American Journal of Preventive Medicine that revealed that, although the overall rate has dipped, rates remain higher in rural areas of the country. Another conclusion of the study was that the incidence of cases of dementia is expected to double by 2050 due to the Baby Boomers.

Whether or not you are a Baby Boomer, dementia is a possibility for which everyone needs to prepare themselves. One aspect of this preparation is estate planning. There are two powers of attorney that will appear in most any complete estate plan. One is the healthcare power of attorney. This document allows you to name the person (your “agent” or “attorney in fact”) who will make your personal, medical and other healthcare decisions on your behalf in you cannot make them for yourself due to dementia or another form of incapacitation. (The law also allows you to structure your power of attorney such that the designated powers become effective immediately, as opposed to upon the event of your becoming incapacitated.)

As with any power of attorney, it is important to choose your agents carefully and thoughtfully. Your agent under your healthcare power of attorney may have considerable decision-making authority, including determining whether or not your will enter a nursing home. Additionally, in some states, one document covers both the traditional functions of a healthcare power of attorney and a living will, meaning that your agent could also have power over your end-of-life decisions. 

Another part of most every complete estate plan is the financial power of attorney, which allows the person you name in the power of attorney document to make decisions regarding your wealth and your assets. This power of attorney can grant very broad or limited powers, depending on the language in your document. You can give your agent the power simply to do maintenance activities like paying your bills, or wide-ranging authority like buying and selling assets in your name.

Another way to ensure that the management of your assets is handled seamlessly should you become incapacitated by dementia is the revocable living trust. A living trust allows you to name yourself as the initial trustee who manages all of the assets that you place within the trust. Then, should you become incapacitated, the trusteeship of your living trust will transition from you to the person you named in the trust document to serve as your successor trustee. A properly funded and maintained living trust may help you and your family avoid the need for a conservatorship, which can be an intrusive, expensive and stressful court action.    

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com


This article written and published by:
8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
#legacyassuranceplan