Total Counsel Law Group

Complete Your Financial Plan with Estate Planning

“The wish to leave our heirs with a legacy is powerful. Don’t leave them without an estate plan.”

If you are among those who haven't put together a basic estate plan, you should make every effort to accomplish this in 2019. Your family and friends will thank you.

The Minneapolis Star-Tribune’s recent article, “No financial plan is complete without a basic estate plan” reports that, while Americans are living longer, it was emphasized in a session at the American Society on Aging’s 2019 conference in New Orleans that 56% of Americans don’t have a will.

The basic list isn’t particularly daunting. Talk to an experienced estate planning lawyer to create a will to get your affairs in order.

You should also sign a health care directive and a durable power of attorney. It is also important to decide where you want to be buried or cremated.

You should discuss your late-life goals and desires with your family, relatives and close friends. This gives everyone a better idea about your values and thinking. An estate plan makes things much less stressful on your family.

Many people want to leave at least some money to their loved ones. However, instead of waiting for death to pass on assets, more people are now deciding to “give while living.”

For example, grandparents can help to fund their grandchildren’s education expenses. Nearly two-thirds of people 50 years and older are giving some financial support to family members, according to a survey by the financial services firm Merrill Lynch and demographic consulting firm Age Wave.

Since you are already thinking about your life while devising an estate plan, it is important to understand that far more valuable than your money and assets is your accumulated experience, knowledge and skills. You can tap into your experience later in life to help others succeed.  Your experience and judgment can help family members decide how to have both purpose and a paycheck.

Perhaps you can serve as a mentor for those in your community in areas where you have some expertise?

The desire to leave our families with a legacy is powerful. Don’t leave them without an estate plan.  Remember that giving of our experience can make a significant difference to the community around us.

Reference: Minneapolis Star-Tribune (May 4, 2019) “No financial plan is complete without a basic estate plan”

What Are the Six Most Frequent Estate Planning Mistakes?

“Let’s talk about death. Specifically–have you planned what will happen after yours?”

it is a grim topic, but it is an important one. Without a legal will in place, your loved ones may spend years stuck in court proceedings and spend a lot in legal fees to settle your estate.

The San Diego Tribune writes in its recent article, “6 estate-planning mistakes to avoid,” that without a plan, everything is more stressful and expensive. Let’s look at the top six estate-planning mistakes that people need to avoid:

No Plan. Regardless of your age or financial status, it’s critical to have a basic estate plan. This includes crafting powers of attorney for both healthcare and finances and a living will.

No Discussion. Once you create your plan, tell your family. Those you’ve named to take care of you, need to know what you’ve decided and where to find your plan.

Focusing Only on Taxes. Estate planning can be much more than just about tax avoidance. There are many other reasons to create an estate plan that have nothing to do with taxes, like charitable giving, special needs planning for a family member, succession planning in the event of incapacity and planning for children of a prior marriage, to name just a few.

Leaving Assets Directly to Children. If you leave assets directly to your children or grandchildren under age 18, it can cause unintended custodian or guardianship issues. Minors can’t own legal property, so a guardian will be appointed by the court to manage the property for them, until they reach age 18. If you don’t name a guardian, the court will appoint one for you and that person may have very different ideas about how the account should be managed and invested.

Making Mistakes with Ownership and Property Titles. With many blended families, you may want to preserve assets from an inheritance as your own separate property or from a prior marriage for your children. There are many tax consequences and control issues in blended families about which you may not be aware.

Messing Up Your Trust. Many people don’t properly fund or update their trusts. An unfunded trust doesn’t do anyone any good. Assets that aren’t titled in the name of the trust don’t avoid probate.

Finally, be sure to review your estate plan regularly, as your circumstances change.

Reference: San Diego Tribune (April 18, 2019) “6 estate-planning mistakes to avoid”

What’s My Plan If I’m an “Elder Orphan?”

“’Elder orphans’ is a new term coined to describe 22 percent of Americans over the age of 65 who lack someone, like a family member to take care of them.”

Roughly 66% of those over 65 need some form of long-term care help, and the majority will depend on a spouse, partner, or their children for assistance.

WFMZ TV’s recent article, “The single senior life: Elder orphans,” asks “what if they have none of the above?”

While you're still healthy, you should make plans, in the event you find yourself in need of the help that is traditionally provided by a family member. There are solutions, but they require planning.

The first step is to hire an elder law attorney to create the documents to protect you, if you become incapacitated. Designate a friend, a physician, or clergy member to make medical decisions and detail your wishes for your healthcare.

Anyone 18 years or older should have at least a durable power of attorney and a healthcare surrogate.

The next task is to consider where you want to live, like a neighborhood that is near public transportation, so you are not housebound. Begin looking at senior communities or assisted living facilities, and home-help services.

A somewhat unique strategy is to “adopt” a family, where a single elderly person agrees to leave his assets to a family who will help as they age and until they pass. Be careful about the family you select, to avoid any elder financial abuse.

Another way to stay connected is via social media, like Facebook. Carol Marak, the editor of SingleCare, started a group for elder orphans. The group already has more than 35,000 members.

It's critical that you develop a social network. Think about becoming a member of a class, volunteering somewhere, or taking up a hobby—something that will give you regular exposure to a new group of people on an on-going basis.

Some people who do have families lack close connections with their own flesh and blood, and if that is the case, while you may not be an elder orphan, you still need to create a plan to protect yourself as you age.

Reference: WFMZ TV (March 7, 2019) “The single senior life: Elder orphans”

Why is Estate Planning so Important for Cancer Patients?

“What is the importance of estate planning and advance health care directives for cancer patients?”

We’ve said that estate planning is important for everyone. However, it can be especially important for cancer patients. While some believe estate planning is only for the wealthy, that’s not the case: it’s an important part of everyone’s overall financial and legal strategy.

The Santa Maria Times’ recent article on this subject asks, “What is the importance of estate planning, advance health care directives?” As the article explains, estate planning is just having a plan in place that addresses how you’d like to see your estate—including assets, pensions, real estate, and more—distributed, in the event of incapacitation or death.

First, you should create the necessary legal documents and a clear financial plan. A cancer diagnosis is a life-changing event for the patient and her family. A significant component of getting and staying healthy is eliminating stress. From the moment you first receive the diagnosis, there are critical decisions that must be made on a regular basis. Estate planning can help to decrease much of that stress.

Even if you set up your estate planning years ago, your documents should be reviewed periodically, especially after a life-changing event like a cancer diagnosis.

Another important document is the Five Wishes Living Will. This document states your personal, emotional, and spiritual needs—along with your medical wishes. Originally created by the American Bar Association’s Commission on Law and Aging and experts in end-of-life care, this document lets you specify your wishes, if you become seriously ill. It can be a real gift for those you love.

Your complete estate plan may include the following:

• A medical power of attorney and advance directives to physicians that designate a trusted person to speak for you, if you are unable to do so, even temporarily;
• A written document specifying your wishes about medical care and treatment;
• A review of all assets, including retirement accounts, investments, or bank accounts;
• A power of attorney for financial decisions; and
• A list of instructions and organizing information, so you can focus on recovery.

With an estate plan in place, along with careful planning and support, a cancer patient can achieve a feeling of well-being, even while confronting this life-threatening illness.

Reference: Santa Maria Times (February 18, 2019) “What is the importance of estate planning, advance health care directives?”

Why Is Everyone Retiring to Florida?

“It is no surprise to us that people would want to retire in Florida.”

A recent report by WalletHub ranks Florida as the best place to retire in terms of affordability, health-related factors and overall quality of life. According to the U.S. Census’ 2017 Population Estimates Program, roughly a half-million Miami-Dade County residents are over the age of 65, and by 2040, 1 in 5 Americans will be over the age of 65, according to the annual report produced by the Administration for Community Living.

Advances in medicine are helping with longevity, but various improvements in diet and lifestyle have also helped, says The Miami Herald in the article “Plan now on ways to take care of yourself through a long retirement.”

It’s important to keep your lifestyle through retirement, and it’s an essential part of any financial plan. You’ll need to budget for plans or services that help you in your later years, such as everyday tasks, medical care, or even where you live.

Take some time to consider how you want your later years to look, like where you would want to live—whether that’s at home (possibly with live-in help) or in an assisted-living facility. With our longer life spans, we encounter more significant health risks, like cognitive issues. According to research, 37% of people over the age of 85 have some mild impairment and about one-third have dementia. The Alzheimer’s Association says that 540,000 people aged 65 and older reported living with Alzheimer’s in Florida in 2018. Roughly 15% of those in Florida hospice care had a diagnosis of dementia in 2015. Therefore, you can see why it is critical to think about this now and communicate your long-term needs to your family.

As we get older, the ability to maintain a lifestyle we like, can become a financial challenge. This is especially true, if we also face an unexpected health condition. Making wise decisions now, can have a dramatic impact on what those later years will look like. Saving for a lengthy retirement can help you prepare to face any potential issues that may arise.

Making provisions for your family and leaving a legacy, isn’t always an easy task. However, the financial security of your family may depend not only on how you manage your wealth today, but also on how you protect and preserve it for the future. Your estate plan can help you prepare now to provide for your loved ones in the future.

Talk to your family and your estate planning attorney about these issues and ensure that your legacy planning is up to date, by regularly updating your will, trust, or advanced medical directives.

Reference: Miami Herald (February 1, 2019) “Plan now on ways to take care of yourself through a long retirement”

Do I Need a Health Care Directive?

“If you want to make sure someone other than your estranged spouse is able to plan your funeral, you need to have a new Health Care Directive put in place.”

Kate Spade and Anthony Bourdain were both separated from their spouses at the time of their deaths. Although it’s believed that these separations were amicable, the couples still weren’t legally divorced. This can make for some interesting estate planning issues.

Forbes’s recent article, “Kate Spade, Anthony Bourdain And Estate Planning When You Are Separated” explains that when spouses decide to divorce, it’s usually a legal process. However, it’s becoming more common for spouses to remain permanently separated but not divorced. This is a gray area for both family law and estate law, where many don’t realize the legal implications.

Although the details of Kate Spade’s separation aren’t known, Bourdain’s separation from his second wife are, and his situation is a common one. He and his estranged spouse were together for years, but their work and other commitments caused them to move in separate directions. They had one child, whom they wanted to co-parent together.

However, with his untimely death, it brings up an odd result: his estranged spouse is his beneficiary.  She will also be the owner of his legacy. In terms of immediate issues, she controls his remains and his funeral. Bourdain’s mother told the media that she was unsure of funeral plans with his estranged spouse still legally his next of kin. She said, “Although they are separated, she’ll be in charge of whatever happens.”

While this might be okay for the Bourdain family, in the event you consider a permanent separation, it may be wise to consider the pros and cons of an estranged spouse’s rights. When you get married, spouses are given rights previously unavailable to them in their single status with their partner.  Separation doesn’t mean your spousal rights are immediately wiped out. Only a final divorce decree can fully terminate spousal rights. If there’s a death prior to a divorce, in most situations the surviving spouse will have legal control.

Even if the separation is amicable, there are a few things to consider. Make sure someone other than your estranged spouse is able to plan your funeral. To do that, you need to have a new Health Care Directive put in place. That’s a legal document, in which a person specifies what actions should be taken for their health, if they’re unable to make those decisions. It also address the disposition of the body in the event of death. Include your funeral plans in your health care directive and make sure the relevant people have copies of it, especially when there is a separation. In contrast to changing beneficiary designations or your estate plan in a divorce proceeding, you can make a new directive, and you aren’t required to name your spouse.

If you make a change, alert the key people. You and your estranged spouse should consider all the areas where spousal rights exist. It should be part of your planning process as you work through separation issues.Bbe sure your family law attorney and estate planning attorney also communicate with each other.

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

 

Please Pass the Cranberries and Get Your Important Documents in Order!

“A gift you can give your family and yourself is having all of your financial paperwork organized.”

Thanksgiving week is a time to celebrate and gather around the table with our families. CBS Boston’s article, “Our Families: The Important Papers,” suggests that it’s also an opportunity to talk about your family and money. Some questions to ask include, what if something happens to you … does someone know where all the important papers are located?

It’s a wise plan to have a responsible person in your life who can access your important papers at every age. You should also make sure that your important paperwork is organized and filed so they can find it, so they don’t have to ransack your home looking for these documents.

Begin by making a list of important people and their contact information.  You should also make the list of where the important documents are located.

Think about this for a minute: you live in State A, and your widowed sister lives in State B. If something should happen to your sis, you may be hundreds of miles away. Do you have the phone numbers for her friends and the next-door neighbor? What about a list of the important people in her life. How about her doctor’s info? Get that contact information, just in case you need it.

OK, now think about what would happen if you had an accident in another state while visiting this week for Thanksgiving and needed someone back home to find your important documents. Are you organized and prepared so you could tell them exactly where to find them? Could they pay the bills while you were in the hospital out of state?

Next, think about your estate planning. If you don’t have a will when you pass away, your assets will be divided by a judge according to the state statutes.

Make sure you’ve talked to an estate planning attorney about a durable power of attorney and a health care proxy. These are important because a power of attorney lets someone to act on your behalf legally and financially if you become incapacitated. A health care proxy allows someone to make medical decisions for you, if you are unable to do so.

For more information on estate planning, please visit our website here

Reference: CBS Boston (November 21, 2016) “Our Families: The Important Papers”

Are Your “Not Dead Yet” Documents in Order?

“Estate and succession planning is complex. Although it will take hard work and hours to complete, it will help you alleviate anxiety for your family and business.”

AgPro’s recent article, “4 Estate Planning Documents You Need Beyond a Will,” asks: What if you get hit by a bus tomorrow?

Estate planning attorneys advise you to make your estate plan match your current situation, rather than “what-if’s” that may or may not occur many years in the future. If you get hit by a bus, you might die or you might not, so you need a portfolio of “not dead yet documents.” In addition to a will and/or a trust, the documents should include the following:

Power of Attorney. Signing this document means that you give a trusted agent the power to act on your behalf if you become incapacitated. You can also create two separate powers of attorney: one that gives authority to a business partner to make decisions concerning your farm or company; and one naming a spouse or family member to handle your personal finances.

Living Will. This document states your intent that, under certain circumstances, you want medical efforts to be withheld or withdrawn and that you want to be allowed to die naturally with only medication and procedures necessary for comfort and to alleviate pain. A living will can reduce some of the stress and burden from family members, in the event that they have to make an end-of-life decision.

Healthcare Directive. This is a life-prolonging procedure declaration and is the opposite of a living will. It states your intent for healthcare providers to use and continue all life-prolonging procedures that might possibly extend your life.

Health Insurance Portability and Accountability Act (HIPAA) Release. When a loved one or agent needs to access your otherwise private medical records, he or she needs to have your HIPAA release that authorizes him or her to have access to your medical records. This eliminates any bureaucratic red tape or delay if someone needs to make healthcare decisions.

This set of documents is critical to creating a comprehensive plan and to prevent unneeded stress on your family.

For more information on estate planning, please visit our website here

Reference: AgPro (November 21, 2016) “4 Estate Planning Documents You Need Beyond a Will”

Planning for Incapacity is Wise Move

“At any age you can become incapacitated or have a temporary illness.”

Many of us are not very proactive in estate planning or aware of the issues of elder law, even though we know that eventually we will all face incapacity and/or death. The Arizona Jewish Post’s article, “Estate planning and elder law benefit all ages,” reminds us that life can change in mere seconds.

Estate planning and elder law attorneys say that everyone needs these three documents—a will, a health care power of attorney, and a financial power of attorney.

A will. If you die with no will, state law has a pecking order as to who will inherit your assets, starting with your spouse and children. A valid will must be signed by the person who wrote it, witnessed by two non-relatives who saw them sign and notarized as to the identity of the signer and witnesses.

Your will should name a personal representative, otherwise known as an executor. This should be done far ahead of time to be certain that they are willing and able to undertake the task. Let this person know the location of a copy of your will.

A living will details your end-of-life choices. Without authorized directions, your family may not be able to make the decisions you’d want. A living will can also include funeral wishes.

A medical power of attorney gives the individual you select, the authority to make health care decisions for you, if you’re incapacitated.

A financial power of attorney lets your appointed agent make financial decisions, pay your bills and take charge of your bank accounts, if you’re unable to do so.

A revocable living trust is a document that lets you assemble all of your assets in one place. The assets must be retitled to the trust, not to you as an individual. A trust can help with out-of-state real property or leaving money to a child with special needs who is receiving means-tested government benefits. When you die, the assets in the trust aren’t subject to probate, and are distributed as you instructed in the trust.

Speak with an experienced estate planning attorney for personalized advice that considers your assets, divorces, stepchildren and many other factors.

For more information on estate planning, please visit our website here

Reference: Arizona Jewish Post (December 2, 2016) “Estate planning and elder law benefit all ages”

Give a Trusted Agent the Power of Your Power of Attorney

“What is power of attorney?”

“Life is full of the unexpected,” says The Villager, in a recent article, “Power of attorney protects loved ones.” However, even though the future is unpredictable, doesn’t mean that we can’t prepare for it. To that end, estate planning is important, and creating a power of attorney can be critical to protecting financial resources and other assets.

A power of attorney (or “POA”) is a document that allows a person to designate a person or organization to manage his or her affairs in the event he or she is unable to do so. The specific laws for creating a power of attorney vary based on the state where a person lives, but there are some basics common to all.

Without a POA for financial, medical, and other pertinent information, family members may be unable to act without court intervention. In those cases, the state may appoint a person to make decisions for an individual, if there is no POA.

The main types of POA are the general power of attorney, health care power of attorney, durable power of attorney and special power of attorney. While some of the responsibilities in these documents can overlap, there are some legal differences. A durable power of attorney concerns all of the appointments involved in general. The document will remain in effect or take effect, if a person becomes mentally incompetent. Certain powers of attorney may terminate at a specific time.

Depending on the terms of the document, an agent appointed through a power of attorney may make decisions in the following areas for an incapacitated individual: banking, the sale or purchase of property, filing tax returns, coordinating government-supplied benefits, deciding medical care and making estate-planning decisions.

Although a power of attorney document can be a fairly simple document that can be completed on your own, it’s best to work with an estate planning attorney to get a firm understanding of the intricacies of this important document.

For more information on estate planning, please visit our website here

Reference: The Villager (December 14, 2016) “Power of attorney protects loved ones”