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Thursday, July 20, 2017

Same-Sex Couples and Real Property | Marriage Rights Didn’t Eliminate Your Need to Plan

Summary: In almost any situation, any contested estate that ends up in litigation involves an estate plan where something went wrong. Sometimes, that “something” is a flawed plan. Sometimes, it is the absence of any plan at all. If you look at most estate litigation cases, you will find that the litigation could have been avoided, or the chance of litigation at least reduced, by taking a more pro-active approach and planning more fully and properly for the distribution of one’s estate. 

Almost everyone needs an estate plan, but fewer than 50% of people actually have one. Regrettably, a lot of heterosexual couples have historically underestimated the important of planning many mistakenly believing that the laws of intestacy are sufficient to handle the distribution of their estates. They want their assets to go to their surviving spouse and their kids; the laws say that intestate estate should be divided among the surviving spouse and surviving children, so an estate isn’t necessary, they erroneously believe.

Same-sex couples, however, have been told for many years about their uniquely high need for planning. With the law in many places, prior to the U.S. Supreme Court’s marriage ruling in 2015, disallowing same-sex marriages, same-sex partners were strongly warned that a plan is extremely important as your will or living trust may be your best (or even only) way to ensure that you leave behind the legacy you want for your surviving partner. Now that marriage is an option, and is an institution to which many same-sex couples have availed themselves, proper estate planning remains very vital for many same-sex couples.

Sadly, many people in same-sex marriages or same-sex relationships have experienced discrimination and estrangement, even from close relatives, as a result of their personal lives. While planning is very useful for any gay or lesbian person, married or unmarried, it is especially so for these people whose relationships and marriages have caused rifts within their immediate family.

As an example, imagine a gay couple, Stephen and Edward, who have lived together in North Carolina for nine years. They share a home outside just outside Charlotte and got married on New Year’s Eve, 2015. Neither has an estate plan. Stephen is estranged from his parents, who strongly disapprove of his personal life and marriage.     

If Stephen were to die, Edward would be much better off than he would’ve been two years ago (when he’d have received nothing from Stephen’s estate,) but there are still problems that result from the intestacy process. North Carolina law says that the parents of a deceased person (even if he’s married) can be entitled to a sizable chunk of the estate. Specifically, Edward would get the first $100,000 of personal property. For all of Stephen’s personal property in excess of $100,000, Edward would be forced to split that wealth 50-50 with Stephen’s parents – the same people who had cut Stephen out of their lives for marrying Edward.

When it comes to real estate, it potentially becomes even more complicated. The law in North Carolina says that surviving parents gets ½ of all of the deceased’s real estate. Unless Stephen and Edward structured their home’s deed to say “joint tenants with right of survivorship” or modified their deed after they married to say “tenants by the entirety,” then the law will view each spouse as owning 50% of the house and Stephen’s parents as entitled to ½ of Stephen’s half, meaning Stephen’s estranged parents now own 25% owners of Edward’s home. This can lead to all kinds of problems, possibly including Edward’s having to pay Stephen’s parents (in order to buy out their 25% share,) or even potentially a forced sale of the home.

The way to avoid this is to take prompt and pro-active action and get an estate plan. If you’re married, you cannot disinherit your spouse, as that is not allowed by the law. Beyond that limitation, however, there is a wide spectrum of options available to you regarding how you structure your estate plan. For example, while you cannot disinherit your spouse, you can disinherit your parents, even if you live in a state (like North Carolina) where the intestacy laws would stand to give surviving parents a substantial portion of your wealth. By getting a detailed estate plan composed and executed, you can make sure you leave behind the legacy 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





     

Monday, July 17, 2017

Knowledge is Power | Get an Estate Plan so Everyone Knows Your Estate Planning Preferences

Summary: In almost any situation, any contested estate that ends up in litigation involves an estate plan where something went wrong. Sometimes, that “something” is a flawed plan. Sometimes, it is the absence of any plan at all. If you look at most estate litigation cases, you will find that the litigation could have been avoided, or the chance of litigation at least reduced, by taking a more pro-active approach and planning more fully and properly for the distribution of one’s estate.    

A recent example of planning gone wrong that led to a family going through the court system was a case from the Tampa, Florida area. Yehezkel and Tami were a couple living in Israel who married in a religious ceremony in that country in 1981. They had a son and a daughter together, then divorced in 1985.

Tami and the kids moved to Florida. Yehezkel remained in Israel, where he met another woman, Mali. By 1990, Yehezkel and Mali were living together, and remained together until Yehezkel’s death in 2013. They had four kids together, ran businesses together and generally held themselves out as husband and wife, even to their friends and family.

There was one (not-so-small) problem: Yehezkel and Mali never went through a religious marriage ceremony. In Israel, the only way to be considered married is to marry in a religious ceremony. Israel has what’s called “reputed spouses” or “Known in Public,” which means that a couple is reputedly known in public as husband-and-wife, though not actually married. This was what Yehezkel and Mali’s relationship was.

This subtle distinction was very important in this case because of one other not-so-small problem: Yehezkel had no estate plan. When he died, his daughter from his first marriage went to a probate court in Florida and opened a case to administer her father’s intestate estate. She alleged in her claim that she, her brother and her four half-siblings were her father’s only heirs at law and that, under Florida’s intestacy laws, they were entitled to split 100% of Yehezkel’s estate.

Mali contested the daughter’s claim. She argued to the judge that she qualified as a surviving spouse and was entitled to a statutory spousal share of Yehezkel’s estate under Florida law. The trial judge sided with Mali, but the daughter appealed and the appeals court ruled against Mali. The only way to be considered married in Israel is through religious marriage. Yehezkel and Mali didn’t do that. No matter how close their relationship came to approximating marriage, they weren’t husband and wife in the eyes of Israel. As a result, that meant Florida law could not extend spousal rights to Mali in this country. She wasn’t Yehezkel’s legal wife and wasn’t entitled to a spousal share.

Legal experts might agree (or might disagree, as lawyers are prone to do) regarding whether this outcome was proper in terms of applying the law. However, it feels potentially problematic on the personal side. Yehezkel and Mali shared a home, shared a family, shared businesses – shared a life – for nearly a quarter-century. Does it seem likely that Yehezkel actually desired that Mali receive nothing from his wealth after he died? In many families, the answer would likely be “no.”

Perhaps Yehezkel thought that his relationship with Mali qualified as marriage and that there was no need for an estate plan. This estate and the litigation that ensured illustrate that there’s almost always a good reason (or many good reasons) to get a plan.

Maybe Yehezkel desired that Mali receive nothing from his estate. Under Florida law (or the law of any U.S. state,) that wouldn’t have been possible if Mali had been his wife (as disinheriting spouses is not allowed,) but is allowed if the partner is a “reputed spouse” as a opposed to a legal spouse (as was the case here.) Regardless, an estate plan potentially could have resolved some uncertainties and ambiguities, thereby possibly creating at least some greater chance that litigation could have been avoided.
  

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





  


Thursday, July 13, 2017

The Essential Important of End-of-Life Planning with a Complete Estate Plan

Summary: Many people procrastinate estate planning. For some, the thought of these plans is uncomfortable. “End-of-life planning” can be one of the most uncomfortable areas within estate planning, but it is also one of the most important. One of the most important thing your plan can do for you is ensure that, when you are near the end of life and cannot make your own decisions, that the person making those decision for you is doing exactly what you’d want done.

There are many pieces that go into your estate planning puzzle. Most people, when they think about estate planning, they think about their will or living trust. In other words, they think about wealth distribution. Of course, there is much more that goes into truly complete estate planning. One of these other areas is end-of-life planning. It is an area that many people don’t like to think about, much less talk about and plan for, but it is an absolutely vital area of your estate plan. For most people, their end-of-life planning wishes are put in writing in either their advance directive (a/k/a “living will”) or in their power of attorney for healthcare.

Inside these documents, the law gives you the opportunity to name someone, who will be known as your “surrogate” or “agent,” who is tasked with working with your healthcare providers and making your end-of-life decisions if you are in a position where you are unable to make those decisions for yourself.

Getting these documents in place is a vital part of ensuring that your end-of-life planning preferences are realized. This is, however, not the end of the process. A study recently released by the Yale University School of Medicine offers a clear representation of what else is involved, and how often people come up short. The study results showed a massive communication gap between those surveyed and their surrogates. According to a press release from the university, only around 20% of the surrogates could accurately state what the person’s preferences for life-extending treatment actually were. 

That is why communication is as important as having a plan written down on paper. In order to make sure that your healthcare surrogate actually makes the decision you wanted them to make – whether that decision is order the continuation of life-prolonging care, or that decision is to end the provision of that care or that decision is somewhere in between (such as providing only pain medication or only pain medication and nourishment) – you need to be sure that both of you are only the “same page.”

This means having an open and frank conversation about a very uncomfortable but very vital topic. Remember when you and your child had “the talk” when your child reached puberty? For some, this conversation (whether your surrogate is your child or someone else) may be no less awkward, but it is definitely no less important.

Having this talk accomplishes two major things. One, it helps iron out any potential communication gaps about your desires, which, as the Yale survey shows, occur far too frequently. Two, it allows you and your surrogate to ensure that you are both comfortable with that person acting on your behalf. If, for example, you’ve decided that you want, in certain situations, to have life-prolonging care stopped, you need to be sure that the person you’re considering as your surrogate is prepared to do that job. She may have emotional or religious reasons why making such a decision would be difficult for her. Now is the time to get all this “on the table,” to make sure you choose wisely in selecting your surrogate (for the benefit of all of you.)   


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, July 10, 2017

Your Estate Plan Caregiver | Working to Make Sure Your Wishes are Honored


Summary: Caregivers and the people for whom they care often have very close contact. This closeness may create a desire in that patient to include a caregiver in his/her estate plan. Whether the caregiver is a relative or a non-relative, this objective can be challenging sometimes, and requires careful estate planning to ensure that the goals are reached.  

For many people, they may spend more time with their caregivers than with all of their children and grandchildren combined. Naturally, this closeness of proximity can lead to personal closeness sometimes. In those situations,  patient may come to view a caregiver as an extension of his/her family and wanted to include a distribution to the caregiver in his/her estate plan.

If that caregiver is a non-relative, you may decide you want to include him/her in your plan. If that caregiver is a relative, such as a child or a grandchild, your plan may already include that relative, but you might decide you want to honor your relationship with that relative by giving him/her a larger portion of your wealth than your other children/grandchildren.

In this, as with any non-traditional estate plan objective, there are two things that are key: communication and careful planning. In many families, it may be helpful to sit down with all of your immediate family and explain your planning objectives and why they are what they are. Remind your family of all the time and effort your caregiver has expended and selflessness he/she has shown, and explain why it means so much to you to honor that in your plan. The laws in some states have been changed to make estate plan contents much easier for the challenger to win where the beneficiary in dispute is a caregiver. (Illinois, for example, made changes to its laws in 2015 that make it very easy for a relative to win a contest against a caregiver if the distribution the caregiver was to receive amounted to more than $20,000.)

Planning is also vital. If you are planning to create an uneven distribution among relatives (such as favoring a caregiver child/grandchild over other children/grandchildren,) or making a distribution to a non-relative caregiver, there may be ways to increase your odds of accomplishing your goals successfully. In some states, it may help you to use a living trust in your estate plan. In most places, living trusts generally offer more privacy than traditional wills and are generally harder to contest successfully than wills. If you anticipate a challenge (even after communicating with your loved ones,) this tool may be helpful to achieving your goals.

In other states, though, other techniques may be preferable. As noted above, some states (like Illinois in 2015) have altered their laws to make it somewhat difficult for a patient’s plan to reward a caregiver to survive a plan contest. In states like that, your estate planning attorney may have important advice on how to achieve your desires. You may be able to reduce the odds of a successful challenge by creating written documentation that establishes proof that you were competent and that your plan represents your genuine desires, free of any duress, fraud or undue influence. Alternately, your attorney may be able to suggest other options, such as providing a gift to your caregiver during your lifetime, which would avoid the pitfalls of these new laws (as they generally apply only to death transfers...      

In the end, this type of plan requires many of the same things that most any plan does: clear communication, careful planning and working with the right experienced estate planning attorney. 


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.comwww.legacyassuranceplan.com


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




Thursday, July 6, 2017

Getting a ‘Sturdy’ Estate Plan to Survive the Challenges that May Lie Ahead


Summary: Successful estate planning requires many things. Two of these things are being pro-active and then remaining diligent. You have to be pro-active in going out and securing a complete and well-thought-out plan, and then you have to remain diligent in completing any necessary documents to make any changes you desire in your plan. If you do these things carefully with a reliable estate planning attorney, your plan can withstand many challenges.    

Many times, court cases involving estate plans are the result of something going very much wrong. Sometimes, though, there are cases where the deceased person has a solid plan and it survives a court challenge. A couple of years ago, a case came before the Court of Appeals in Arizona that involved such a plan. The creator of the plan was a Tucson-area woman who, in her early 70s, decided in 2000 to get her affairs in order. Her 2000 plan included a revocable living trust, a pour-over will and powers of attorney.

Like many living trusts, Julia’s originally called for her trust assets to be distributed, upon her death, to her three sons. Like many people, Julia’s preferences evolved over the years. As her goals changed, she dutifully created amendments to her trust to reflect these new objectives. In January 2012, Julia changed her trust’s distribution instructions. Instead of her assets going in equal shares to her three sons, she amended the trust agreement to give certain specific bequests to her children and then to split the reaming trust assets 50-50 between two of her grandsons (both children of her son, Eric.) The trust named Eric as the first successor trustee.

Unexpectedly, Julia died one month later in a massive house fire that destroyed the home and much of her personal property. Eric began that task of administering the trust and distributing the remaining assets when his two brothers began a challenge to the plan, which led the family into litigation.

The brothers argued that the law required the trial court to determine what assets were in the trust and what rights each of the children and grandchildren had. The trial judge ruled against the brothers, upholding the validity of the trust as amended. The appeals court also issued a ruling affirming that trial court decision.

The brothers’ challenge, according to the courts, never identified a valid factual dispute. The facts of the case were not in dispute with regard to the amended trust’s calling for the two other brothers to receive only certain specific bequests from the trust’s assets. Upon the mother’s death, the other brothers did not dispute that Eric, as successor trustee, made those bequests to his brothers. In one court filing, the brothers made an allegation that Eric had improperly manipulated the mother, but because the brothers did not advance this argument in the proper way, the courts refused to consider that argument. This meant that the estate plan, as amended, had withstood the challenge and would be carried out.

In this case, the deceased was pro-active and diligent. She got a plan with a living trust and a pour-over will. As her needs and goals changed, she made changes to her plan (in the form of trust amendments.) Because she took these steps, her objectives she wanted to achieve were carried out.  

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, July 3, 2017

Estate Planning and the Beloved Animals in Your Life

Summary: For many people, the animals in their lives occupy an extremely important place in their hearts. With that in mind, the law now gives pet owners more options than ever to ensure that, if they become incapacitated or pass away, then their animals will receive the quality of care they’d want, and receive it from a caregiver they know that they can trust. If you have animals in your life whose care you want to plan, the law gives you many options to help you achieve this important estate planning goal.

If you have kept up with celebrity news over the years, you may have heard the stories. Famous hotel magnate Leona Helmsley left her dog, Trouble, $12 million in her estate plan… Muriel Siebert, the first woman to hold a seat on the New York Stock Exchange, left her Chihuahua $100,000… Fashion designed Alexander McQueen left behind $81,000 for his three dogs…

While these stories may make for interesting celebrity gossip, don’t let them mislead you. You do NOT need to be a multi-millionaire to need to include your furry family members in your estate plan. If you have an animal (or animals) whose care after your death you want to ensure, then you potentially have a need for pet-related estate planning.

The more unique your situation is, the greater your need for a plan. Let’s say you have five great loves in your life: your three kids and a pair of cats. Your cats are inseparably bonded to each other emotionally. Your kids include a daughter in Paris, a daughter in Singapore and a son who lives in the U.S. but travels all the time for work. In cases like this, planning serves two essential needs: it allows you to identify the right person – a person who provide a steady and stable home for the cats, and who will provide that care for BOTH of the cats, together. 

Additionally, the more uncommon your animal, the more important it is to plan. If you have horses, for example, planning is highly important. Sure, a lot of people love horses, but chances are, most of your friends and family lack the resources or the knowledge to provide a proper home for a horse. On the other hand, let’s say you have a beloved pet python. Again, planning is exceedingly important, because odds are high that most of your loved ones will lack the knowledge and/or the desire to serve as a proper caregiver for a snake.

Even relatively easy-to-care-for animals (like cats and dogs) may not be so easy if your fur-baby has food allergies or other chronic medical conditions. Whether you’re planning for dogs, cats, fish or an iguana, the law has more options than ever to customize your planning. Today, all 50 states’ laws legally recognize the validity of pet trusts. With a pet trust, you can have the peace of mind that comes with control. Your pet trust will allow you to select the proper caregiver and then name that caregiver by appointing them as the trustee of your pet’s trust. You can also fund assets into your pet’s trust to ensure that your four-legged (or two-legged or zero-legged) friends get the quality of care that you’d want them to have for the rest of their natural lives.         

In addition to providing for the right home for your pets, and the proper financial support, your estate plan can also help offer guidance on the care of your pets. It can answer questions like: What happens if my preferred caregiver ceases being able to provide care for my pets? If my pet becomes gravely ill, how should the decision regarding euthanasia be approached? Like estate planning provisions for yourself, estate planning provisions for your pet can be customized in a wide array of ways to meet the needs of you and your fur-babies.

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