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Friday, July 29, 2016

The Risks of DIY Estate Planning: Sometimes the Smallest Errors Can Have the Biggest Impacts


Summary: When you set out to plan your estate, it is important not to fall victim to the pitfalls that can come with undertaking this task by yourself. An skilled estate planning team can be your biggest asset, with experienced professionals who can explain your options, recommend a strategy and help you put that plan into motion. With this team on your side, you can avoid the potentially dangerous legal consequences that can come from things as small as a single misused word, and the stress, expense and delay that often occur as a result of those negative consequences.  

In a great many endeavors, success is predicated on having a group of people who work together seamlessly as one. Whether you're talking about a special forces military unit or a sports team, winning involves a collection of people each with unique skills working together toward a shared goal. Estate planning can be like that. A fully integrated collection of professionals, working as one team, can help you to achieve the full success of your plan. Going it alone, on the other hand, can be extremely risky. An California woman's estate plan, and the problems surrounding it that eventually led to a recent court challenge, highlight this fact.      

In the early 1990s, Ethel Hinz was a mother of two children and two grandchildren in her early 80s with no estate plan. In November 1991, Hinz's daughter died at the young age of 54. Motivated by this, Hinz decided to create an estate plan. Three weeks after the daughter's death, Hinz sat down and drafted a will by hand. In her will, Hinz named her son as her executor. She also named the son as the "sole heir" of her estate. The woman's will made no mention of her two granddaughters (who were both children of her deceased daughter.)

Less than six months after she hand-wrote and signed this will, Hinz died. The son went to court and was appointed executor. Fast forward to 2009, and Hinz's probate estate was still not closed. In April of that year, the son died. During the 17-year period that the estate was open, the son had married. After his death, the son's wife asked the court to distribute all of Hinz's assets to her. The wife had a problem, though, which was Hinz's use of that word "heir." If Hinz had declared her son to be her "sole beneficiary" or "sole devisee," the son's wife would have had no problems.

But that isn't what Hinz wrote and, in the law of estate planning, the word "heir" has a specific and special meaning. What's more, the son wasn't Hinz's sole heir. By the law's definition, Hinz had three heirs: the son plus both of the granddaughters. As Hinz's estate was worth around $10 million, this lack of clarity led to litigation. The son's wife tried to persuade the courts that, when Hinz had written "sole heir," she was, in reality, intending to name the son as the sole beneficiary of her estate. The granddaughters, meanwhile, argued that Hinz was merely identifying the son as her sole surviving child and that the law entitled them to split one-half of their grandmother's estate.

The trial court that heard the granddaughters' will contest agreed with them that the will was ambiguous and, after hearing evidence about Hinz's true intent, ruled in favor of them. The son's wife took the case to the California Court of Appeal. That court decided that the will was not ambiguous and that Hinz's clear intent was to leave everything to her son.

It seems plausible that the decision reached by the appeals court matched Hinz's true intent; namely, to leave everything to her son. In this case, though, if we assume that Hinz really did mean for the granddaughters to take nothing, either outcome could be looked at as a "losing" one. One outcome would have involved the granddaughters getting 50% of the estate, contrary to Hinz's wishes. The other outcome, which is the one that did take place, involved Hinz's estate planning goals coming to fruition, but only after the stress, expense and delay of a trial and an appeal. Both of these "losing" outcomes could have been avoided with a more precisely worded will that avoided the misuse of the word "heir." Such a more carefully-worded document was something Hinz likely could have obtained from most any attorney familiar with estate planning law.

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

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8039 Cooper Creek Blvd
University Park, Florida 34201
844.306.5272 (Phone)
@assuranceplan
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Tuesday, July 26, 2016

Trust Planning for Married Couples and Dealing with the Death of a First Spouse

Summary: Living trusts can serve essential roles in their creators' estate plans. They can provide many significant benefits and they can be customized in a great many ways to achieve estate planning goals. Some of these customization choices are specific to married couples' trusts. A married couple's trust can, in the aftermath of a first spouse's death, give the surviving spouse either very broad or extremely narrow degrees of control over the assets that have been funded into the trust. It is vital to communicate to your estate planning attorney exactly what you want from your trust, so that you can ensure that the trust you create matches your goals. 

Revocable living trusts are extremely useful estate planning tools. They can provide their creators with many benefits, including potential protection in the event of mental incapacitation, as well as the peace of mind that comes from knowing they have saved their loved ones the possible delays, expenses and logistical challenges of probate administration. Living trusts also have the advantage of being highly customizable. With that ability to customize, though, comes the responsibility of ensuring that the way in which you construct your trust matches what you really want. Failing to do so can leave to financial difficulty or litigation. 

A Michigan married couple's trust recently demonstrated this. The couple, Otto and Margaret Meyer, established their living trust in 1993. The trust stated that, upon the death of either spouse, the trust became irrevocable and that the beneficiary provisions in the trust could no longer be changed after that event. The husband died in 2005. At that time, the trust called for each of the couple's four children to receive 25% of the trust assets. Six years later, the wife signed an amendment that would have given the couple's property in Lawrence Township, Michigan to one son, James, and 1/3 of the remaining trust assets to each of the other three siblings. After the wife died in 2013, James, who was also the trust's successor trustee, attempted to distribute the trust assets, including transferring 100% ownership of the Lawrence Township property to himself.

The other three siblings went to court to challenge this action. The trial court agree with them, ruling that the 2011 amendment, executed after the husband's death was invalid. James appealed, but he lost. The appeals court ruled that the trust agreement was clear and unambiguous in its statement that the trust could only be amended if the amendment was approved by both spouses and that the trust became irrevocable, with no changes to the beneficiary provisions allowed, upon the death of either spouse. Under those clear terms, the wife had no power to make the changes she tried to make in 2011 after her husband had died.

In this case, we cannot know whether the Meyers really wanted to prohibit the surviving one of them from making the kind of changes that the wife tried to enact after her husband died. Perhaps the trust functioned exactly as the couple had planned for it to work when they established it in 1993. Possibly, though, the trust was more restrictive than they really intended. Either way, the Meyer family's case showcases how important it is to inform your estate planning attorney in a clear way what you want from your estate plan and how you want your living trust to work. There are lots of options and techniques available to your attorney, as long as you've communicated your goals clearly and completely to him or her. 

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






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Friday, July 22, 2016

Communication is Key When Creating an Unequal Distribution in Your Estate Plan


Summary: For some families, setting up the distribution percentages in your estate plan, whether contained in a revocable living trust or a will, are very simple. In those straightforward cases, the plan will likely call for your entire estate to go to your spouse upon you death and, upon his/her death (or if he/she predeceases you,) then in equal proportions to each of your children. In other families, the distribution instructions are not so simple. Regardless of the reason, if you have unequal or other unusual distributions you desire to make to your loved ones in your estate plan, it is important to create a plan carefully and thoughtfully, and to communicate with your family about your estate planning goals to avoid the potential problems that can come with a surprise that only comes to light after you're gone.  

While it is almost always a good idea to avoid leaving the fate of your estate in the hands of a decades-old law drafted by the legislature of the state in which you live, intestacy laws can be instructive in a certain way. For instance, consider the distribution rules for intestate estates. They call for a deceased person's intestate estate to go to some combination of the surviving spouse and/or the surviving children. If the children inherit a part (or all) of the estate, they each take an equal share. These laws exist because, historically, that's the way that many people, when they decided to create a will or other estate plan, would divide up their wealth.  

But in real life, especially today, things can be more complicated. Perhaps, as you are contemplating creating a plan, you have a combination of children and stepchildren. Maybe you have a mixture of children with whom you are very close and children with whom you have virtually no relationship. Alternately, maybe you have some children who have always been very financially independent while others have required a greater degree of monetary help from you. Any of these situations might motivate you to decide to create an estate plan with uneven distributions.

One circumstance where you may want to give very careful thought to creating an unequal distribution is if one of your children has special needs. If your family is in such a situation, you will likely want to consider creating a special needs trust for that child. You may have certain assets that may make sense to fund into that trust (such as your house if the child with special needs still lives at home.)  This goal of taking proper care of that child with special needs may mean giving him/her a larger share of your wealth, especially if his/her other siblings are financially well-off. 

Another situation facing some families that can be potentially thorny is the total disinheritance of a child. If you make such a decision, it is important to ensure that you word your estate planning documents carefully. The law allows a child who is left nothing and not mentioned in a parent's plan documents to argue to a judge that the parent merely omitted, or forgot, to include a distribution to him/her. In that case, the child may receive the percentage called for by your state's intestacy laws, which could be quite large, depending on your family situation. Whether you decide to leave this child $0, $1 or some other nominal amount, it is important to acknowledge the child's existence in your plan. Your estate planning attorney can guide you in mentioning this child in the proper way. 

Once you've made a decision to create an uneven distribution, it is important communicate with your family whenever possible. Conveying your reasons now may avoid problems down the road. Your reasons are valid and your distribution choices are yours to make, but a child or other relative whom you've scheduled to receive a reduced portion may not be expecting this result and, sometimes, loved ones met with such an unexpected, unexplained and surprising result may respond by launching a lawsuit in court to challenge the legal validity of your plan. Communicating now may lessen the shock and reduce or eliminate the chance of court involvement. 

While communicating directly with your loved ones during your lifetime about the reasons for your distribution decisions is, if feasible, often a good idea, you should be very careful about conveying the reasons for your choices in your estate planning documents. When creating your plan documents, it is wise to discuss the inclusion or exclusion of such explanations with your estate planning attorney. An experienced estate planning attorney can describe for you the advantages and drawbacks of putting in, or taking out, such explanations. In some cases, the inclusion of too much explanatory language can potentially be harmful, as it may give a disgruntled loved one greater ammunition in a court challenge.

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






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Tuesday, July 19, 2016

Dealing With an Estate that Spans Beyond the Borders of the US


Summary: In today's world, with the availability and affordability of travel across the continent or the globe, it is now more than ever a truly global society. The impacts of this evolution span to many areas, including estate planning. If you have assets in multiple states or countries, it is important to understand how the differences in the laws of each place may impact you. When you cross borders, you should take the necessary steps, including a thorough estate plan review, to ensure that your true and current estate planning goals and objectives will be carried out when you die.    

At each of the Walt Disney Theme Parks and Resorts, there exists an amusement ride that reminds us all that "It's a Small World After All." Today, this is truer than it's ever been. If you have an estate that spans multiple US states or even multiple countries, you should be very certain to create an estate plan that is properly constructed to ensure that your wishes are carried out.

An example where things did not go smoothly was brought to light in a Florida court case from late 2015. An Argentine woman, Elena Isleno, died in Miami-Dade County with assets in both Argentina and the United States. She had two wills: a first one created in New York in 2007 and second one, created four months later, in Argentina. The woman's New York will distributed all of her US possessions to a collection of relatives and friends living in the US and Argentina. The will from Argentina purported to distribute all of the woman's assets (in both countries) and named a completely different set of relatives and friends as recipients of the woman's wealth. The will from Argentina also said that it revoked any previous wills that Isleno had signed, which would have included her New York will.   

After Isleno died in 2012, the beneficiaries named in the New York will sought to admit that document to probate in Florida. Unsurprisingly, the beneficiaries under the Argentina will challenged this and sought to admit the South American document. The laws of Florida say that, in most cases, a foreign will may be admitted to probate in that state if the will complies with the laws of the country where it was created. Florida law has two exceptions: holographic (handwritten) wills and nuncupative (oral) wills. In Florida, foreign wills of these types are never allowed. However, as long as Isleno's will was neither handwritten nor oral, and complied with Argentine law, it would have controlled the distribution of all of the woman's assets.

However, Isleno created her will in Argentina by reciting her wishes to an Argentine notary, who wrote down what the woman said, read it back to her and then, after Isleno approved it, the notary executed the document. Isleno never signed it. That, as it turned out, was what decided the case. This way of creating a will qualified as an oral will, the Florida Court of Appeal in Miami decided. As a result, that meant that the Argentine will was not valid in Florida and the beneficiaries under the New York will were free to go forward with probating the New York will and receiving the woman's US assets in accordance with the terms set out in the New York will. (The beneficiaries under the Argentine will were free to go forward with probating that will in Argentina and receiving the woman's Argentine assets in accordance with that document, but could do nothing about Isleno's US assets.)

Isleno's estate points out the importance of regularly updating and maintaining your estate plan. Certain events should almost always trigger a review of your plan. Making changes and crossing state or national borders are two such instances. A careful review of Isleno's plan, especially the changes she made while she was in Argentina, could have revealed the fact that her Argentine will was not valid in Florida. This discovery could have led to the creation of necessary documents, such as, for example, a Florida will that mirrored the Argentine will. This potentially would have avoided the need for drawn-out and expensive litigation and the potential frustration of the woman's true estate planning goals.

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






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Friday, July 15, 2016

Court Case Highlights Possible Risks of Pay-on-Death Accounts in Estate Planning


Summary: Estate plans can employ many different tools to accomplish the desired goals. In some plans, a pay-on-death account can help achieve those ends. As with any estate planning technique, it is important to understand the potential risks associated with using pay-on-death accounts in your plan and make sure that your plan uses the tools that make the most sense for meeting your needs.

A recent North Carolina case recited what happened when an 11th-hour pay-on-death (POD) account did not meet the state's statutory requirements for such accounts. Although the money eventually was distributed to the desired person, the case still highlights the possible pitfalls of using POD accounts in estate planning.

The case centered on the estate plan of James Nelson of Boone, NC. Nelson's plan included a revocable living trust, which he had funded. In early October 2008, Nelson wanted to change his estate plan. He called his credit union to move $85,000 from an account held by his trust into a new account. The new account had Nelson as the owner and had, as its POD beneficiary, Nelson's daughter, Martha, who also lived in Boone. 

The credit union employee, recognizing Nelson's voice, created the necessary paperwork and sent it to Nelson, who signed the paperwork. The following Christmas Eve, Nelson died. The credit union informed the daughter that the account had transferred to her, and she withdrew the $85,000. 

Nelson's other two children sued. The trial court in the case agreed with the disgruntled children that the POD account Nelson attempted to create at the credit union did not comply with all of the statutory requirements that North Carolina law imposes. The trial court went on to decide, however, that what Nelson had done was to create a type of common-law trust called a "Totten" trust, or a tentative trust. The trust had, as its beneficiary, Nelson's daughter, Martha, and its contents consisted of the $85,000.

The disgruntled children appealed, but they lost. The North Carolina Court of Appeals agreed with the lower court that the transaction Nelson attempted to complete with a POD account was enough to recognize the creation of a separate tentative trust for the benefit of the one daughter. 

In Nelson's case, he may not have had the opportunity to communicate his wishes with his other two children (as he died less than three months after he originally began trying to move the $85,000.) But his case nevertheless points out the importance of communicating with one's beneficiaries, especially when those beneficiaries are your children and you are leaving them unequal amounts of your wealth. Sometimes, communicating the reasons for your decisions can help stave off a court challenge after you're dead.

Additionally, setting up the sort of POD account arrangement Nelson attempted can create certain other risks. If his daughter Martha had predeceased him, and if he placed no alternate beneficiaries on the account, then that $85,000 would flow not back into his trust but rather into his probate estate, possibly requiring the completion a probate administration in order to distribute it. An amendment to Nelson's living trust potentially could have accomplished the same end without exposing the funds to probate.

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






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Tuesday, July 12, 2016

How Trust Planning Can Help When You're a Divorced Parent of a Minor Child


Summary: Estate plans can come in many different varieties to accommodate a wide array of planning needs. If you have a minor child or a child with special needs, making sure you have an estate plan should be a priority. If are no longer married to the father/mother of your child, an estate plan can help you ensure that you have the exact people you want caring for your child and managing your child's wealth, even if those are different people.

As you may know if you've much research on estate planning, your estate plan can offer you and your family more benefits than just providing instructions regarding the distribution of your wealth after you die. An estate plan can also help you create a "roadmap" for the care and support of your minor child or children (or child with special needs). 

With an estate plan, you can nominate the person (or people) you want to be your child's guardian. By engaging in this type of estate planning, you can rest assured that the person or people caring for your child after your death is someone who wants to have that job, and with whom you and your child are comfortable.

Also, you can make sure, through your estate planning, that your child will be properly cared for financially. Establishing a trust of which your child is the beneficiary can achieve that end. Additionally, a trust of which your child is the beneficiary can allow you to ensure that your child does not receive too large an inheritance at too large an age. You can structure your child's trust such that she receives distributions at points you set up. That way, you can ensure that your child does not, for example, receive one large lump-sum of cash at age 18. You can instruct the trustee to issue payments at various points, such as a 21st, 25th or 30th birthday, college graduation or marriage.

Creating a trust for your child is especially helpful if your child has special needs and receives benefits from government programs that include needs-based qualifications for eligibility. Without a trust, a direct inheritance from you could cause your child to lose her continued eligibility for these programs. 

Estate planning for your child's care can be especially important for families where you and the child's father/mother are divorced. Perhaps your preference, in the event of your death, would be for your ex-spouse to serve as your child's guardian, but you do not want your "ex" to control the money you desire to leave for the benefit of your child. A carefully constructed estate plan can address all of these concerns. The law does not require that the person you name to serve as the guardian of your child be the same as the person you designate as the trustee of your child's trust. So, for example, you could name the child's father as the guardian, but could also name another trusted family member, like your brother, sister or parent, to function as the trustee of the trust. This is, of course, just one option available in order meet all of your family's needs.

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






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Friday, July 8, 2016

How Your Estate Plan May Help You Avoid 'Living Probate'


Summary: Avoiding the probate process upon death, with its possibility of time delays, expenses and loss of privacy is one goal that drives many people to create an estate plan. However, a comprehensive estate plan can accomplish that and so much more, because there is more to complete estate planning than just having a plan for dealing with probate (or avoiding it). A thorough estate plan can also provide the necessary documentation needed to avoid, or minimizing the chances of, having to deal with a guardian and/or conservator, and ensure that you are in control both in life and after death. 

Many people, when they speak of "avoiding probate," are referring to the probate procedures that occur after you die. However, an estate plan that is comprehensive enough to help you avoid "living probate" -- the proceedings that can occur in a probate court during your lifetime -- can also provide you and your loved ones immense benefits. With a proper plan for minimizing the chances of going through living probate, you can save your loved ones not only time and money, but also stress and anguish, while ensuring that you are in control, even after you are no longer able to speak for yourself. In one recent case from Florida, a man's estate plan's thoroughness, including its inclusion of advance directive documents, proved vital in thwarting an effort to have a court-ordered guardianship created.

At some point in his life, Burton Adelman made the decision to create an estate plan. The man's plan wisely addressed more than just what objectives he wanted carried out after his death. The plan also addressed the issue of living probate. The documents in the man's estate plan covered living probate by specifying that his ex-wife, Ruby Adelman, was to serve as his attorney-in-fact, as his healthcare surrogate and as his trustee.

Some time later, one of the man's grandnieces went to court asking the trial judge to appoint a professional guardian over the man. In some states, like Florida, the court must make two determinations before the judge can appoint a guardian. First, the court must conclude that the person over whom the guardianship would be appointed is, in fact, mentally incompetent. However, it does not stop there. The court must also analyze the specifics of the case and determine whether or not a "less-restrictive alternative" to guardianship exists.

In Adelman's case, although he was deemed incompetent, his estate plan offered the court precisely the sort of "less-restrictive alternative" the law contemplated. The estate plan named the ex-wife as the person the man wanted to manage all of his affairs, both financial and personal, in the event that he could not make decisions for himself. The ex-wife was able and willing to assume these responsibilities. Because the man's plan offered a seamless scheme for handling the decision-making process in the event of his mental incapacity, guardianship was unnecessary in his case.

Estate planning is important for many reasons because an thorough estate plan can accomplish so many things for you. A complete estate plan can not only give your loved ones directions regarding your preferences and goals after you die, it can also provide essential instruction for how you want your affairs handled while you are still alive but unable to make those decisions for yourself.

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






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