Estate Planning Lawyer

How Do I Find the Right Estate Planning Attorney?

When looking for an estate planning attorney, many people feel more comfortable with getting a personal referral, than by trying to find an attorney on their own.

While a referral from friends can be a good start to finding an experienced attorney, it may not be enough to cultivate a successful working relationship, says The San Francisco Business Times in the recently published article, “Guide to finding an estate planning attorney who is right for you.”

  1. Identify the type of estate planning attorney needed. Many people can use the services of an estate planning attorney to draft wills, powers of attorney, healthcare directives and basic trusts. However, some situations require an attorney with certain focuses. For example, those who are concerned about maximizing benefits for beneficiaries with special needs or who are interested in programs like Medicaid or addressing long-term care may want a practitioner who concentrates in elder law.
  2. Interview your short list. See if there’s a fee for a “meet and greet” before you schedule a meeting. Most attorneys welcome the opportunity to meet with potential clients.
  3. Ask practical questions. At the introductory meeting, ask procedural questions rather than asking for specific legal advice. You may want to ask about topics such as relevant experience, preferred methods of communication and points of contact, billing practices and whether the attorney has the bandwidth (capacity) to work on your issues.
  4. Make an assessment after the meeting. After the interview, assess how the meeting went. Ask yourself the following questions:
  • Did he respond in a timely manner?
  • Did you understand the answers he gave you?
  • Did you feel comfortable asking follow-up questions?

If you weren’t totally comfortable with this first meeting, you may never develop the type of open conversation that’s critical to have with your estate planning attorney. You don’t need your estate planning attorney to be your best friend, but you do need to trust them with your family’s future. If one does not suit you, continue looking until you find one who is a good fit.

  1. Move ahead. If you felt good and liked the attorney’s approach, go ahead and move forward.
  2. Get all the fee info out in the open. An estate planning attorney will usually prepare fee engagement letters that sets out the scope of services and billing practices. If your attorney doesn’t give this type of letter for you to review and sign, ask her to put the fee agreement in writing. Make certain that you understand the letter. If you have questions, get answers before signing.

Reference: San Francisco Business Times (January 4, 2019) “Guide to finding an estate planning attorney who is right for you”

Should I Use an Online Will Service?

More than 50% of Americans don’t have a will, according to a 2017 survey by Caring.com. Spelling out how your assets should be divided, is an essential start to estate planning that can be easily overlooked.

A U.S. News & World Report’s article asks “Should You Make a Free Will Online?” According to the article, before writing your will or using an online service, you need to know the legal requirements in your area. In many instances, this is best left to a legal professional in your state.

There are plenty of online tools that will help you create a will. However, before clicking on a website’s promise, you need to evaluate the available options. There are three main ways to write a will:

  1. Do it yourself;
  2. Use a do-it-yourself program; or
  3. Get help from a qualified estate planning attorney.

If you draft a will on your own, you’ll need to be absolutely certain you understand all of the applicable probate, tax and property laws in your state.

If you use an online service, you’ll have access to software that walks you through the process. In this case, you’ll need to be sure that the software company has all the applicable laws covered, as required for your state. You also want a program that lets you make updates later, if your situation changes.

However, if you engage the assistance of an experienced estate planning attorney, you’ll have the opportunity to have an expert help you think through the details. The result will be a well-drafted will. Yes, it will cost a bit more, but for many situations—like those with blended families, families with minor children, complex investments, or property in several states—it’s worth it.

Remember that the probate laws can vary widely from state to state. For example, the basic form requirements may allow a handwritten will in some states, but in other states the will must be typewritten. Some states require only two witnesses, and others require that the will be witnessed, notarized and typed.

If you have a larger estate or heirs with medical conditions, it may be wise to work with an attorney who can counsel you on the best solutions for your situation. For example, if you have a child with special needs receiving government benefits, you should have an attorney create a trust so their inheritance doesn’t negatively impact their benefits.

You should also use an attorney if you want to reduce your exposure to probate fees. Some people transfer their assets into a revocable living trust, so they are not subject to probate fees. An online service can’t give you this type of attention or personalized service.

If you have a complex situation, you may end up paying less by using an attorney. An experienced estate planning attorney has helped numerous families. He or she can offer insight into setting up guardians for minor children or appointing an individual to be in charge of the distribution of the estate. There are frequently estate and gift tax considerations about which the average person doesn’t know or monitor.

Reference: U.S. News & World Report (January 9, 2019) “Should You Make a Free Will Online?”

Why Did the Hawaii Attorney General Oppose a Change to the Trust of a Hawaiian Princess?

Attorney General Russell Suzuki claimed in a court filing that 92-year-old Native Hawaiian princess Abigail Kawananakoa’s amendment to her trust is too complex and invalid based on a prior court ruling, according to The Honolulu Star-Advertiser.

The Clay Center Dispatch reports in the recent article, “Attorney general opposes Hawaiian princess’ trust amendment,” that Judge Robert Browning ruled last fall that Kawananakoa doesn’t have the mental capacity to manage her $215 million trust, after she suffered a stroke in 2017. The judge appointed First Hawaiian Bank to serve as trustee and removed Jim Wright, her longtime attorney who stepped in as trustee following her stroke.

Kawananakoa has indicated that she is feeling okay. She fired attorney Wright and then married Veronica Gail Worth—her girlfriend of 20 years.

Kawananakoa is considered a princess, because she is a descendant of the family that ruled the islands before the overthrow of the Hawaiian Kingdom in 1893.

The princess inherited her wealth as the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of the state’s largest landowners.

The Hawaiian princess says she also wants to create a foundation to benefit Hawaiians and exclude board members appointed by Wright. She previously created a foundation to benefit Native Hawaiian causes.

“I will not contribute any further assets to that foundation because I do not want those individuals having anything to do with my trust, my estate and any charitable gifts I make during my lifetime or at my passing,” she said in the amended trust.

Her current foundation has requested a judge to appoint a guardian for Kawananakoa.

In his filing, Attorney General Suzuki wrote that the proposed changes will substantially alter the estate plan Kawananakoa executed before her mental capacity came into question.

In this case, the state represents the public interest in the protection of the trust’s charitable assets, Suzuki said.

A court hearing on the trust amendment is scheduled for next month.

Reference: The Clay Center Dispatch (January 3, 2019) “Attorney general opposes Hawaiian princess’ trust amendment”

What is a Blind Trust?

A blind trust is designed to eliminate any real or perceived conflicts of interest.

A blind trust can be revocable. That means the grantor or creator of the trust can change it later. It also can be irrevocable, meaning it can’t be modified or terminated.

Investopedia says in the article “How to Establish a Blind Trust” that while the concept of putting assets into a trust and then giving up all knowledge and control of those assets might sound a bit draconian, in certain situations, it can make perfect sense.

Blind trusts are most commonly used in the political community, but this vehicle can also be quite valuable in other situations.

To avoid any conflicts of interest, a blind trust may be used by retiring or retired business owners and executives who keep large amounts of company stock and may be interested in politics, charitable work, or board membership that requires them to act objectively.

A blind trust also may be a good idea when a person suddenly comes into a large, unexpected sum of money and wants to keep the matter private (e.g., lottery winners).

Creating a blind trust requires an attorney to draft a document that the creator signs to give full power of attorney over the trust assets to an independent, third-party trustee. An experienced trust attorney is the best professional to handle this, because there are state and federal laws governing the creation of blind trusts.

When the trust is drafted, you can provide input like what the investment objective of the trust will be. However, after that, you stop communicating with the trustee and have no further information on how the trust’s assets are being handled.

You also must select the right trustee. It should be someone who’s honest and investment savvy, and if you’re trying to separate yourself from your investments, it should be a person with whom you’re not close.

Reference: Investopedia (May 25, 2018) “How to Establish a Blind Trust”

A Will is an Essential Component of Estate Planning

Drafting a will is a fundamental and essential component of estate planning.

Drafting a will with an experienced estate planning attorney helps avoid unnecessary work and perhaps some stress, when a family member passes away. A will permits the heirs to act with the decedent’s wishes in mind and can make certain that assets and possessions are passed to the correct individuals or organizations.

The Delaware County Daily Times’ recent article, “Senior Life: Things people should know about creating wills,” says that estate planning can be complicated. That’s the reason why many people use an experienced attorney to get the job done right. Attorneys who specialize in estate planning will typically discuss the following topics with their clients.

  • Assets: Create a list of known assets and determine which of those are covered by the will and which have to be passed on according to other estate laws, such as through joint tenancy or a beneficiary designation, like life insurance policies or retirement plan proceeds. A will also can dispose of other assets, such as photographs, mementos and jewelry.
  • Guardianship: Parents with minor children should include a clause regarding whom they want to become the guardians for their underage children or dependents. (For more about this, download Mastry Law’s FREE report A Parent’s Guide to Protecting Your Children Through Estate Planning.
  • Pets: Some people use their will to instruct the guardianship of pets and to leave assets for their care. However, remember that pets don’t have the legal capacity to own property, so don’t give money directly to pets in a will.
  • Funeral instructions: Finalizing probate won’t occur until after the funeral, so wishes may go unheeded.
  • Executor: This individual is a trusted person who will carry out the terms of the will. She should be willing to serve and be capable of executing the will.

Those who die without a valid will become intestate. This results in the estate being settled based upon the laws where that person lived. A court-appointed administrator will serve in the capacity to transfer property. This administrator will be bound by the laws of the state and may make decisions that go against the decedent’s wishes.

To avoid this, a will and other estate planning documents are critical. Talk to an estate planning attorney or download a FREE copy of our estate planning book, Failing to Plan is Planning to Fail.

Reference: The Delaware County Daily Times (January 7, 2019) “Senior Life: Things people should know about creating wills”

Here’s More Insight into Why Estate Planning is Critical

Fox 5 NY says in the article “Why estate planning is important regardless of your age or wealth” that this is great time to begin talking to your loved ones about estate planning, especially older relatives and parents.

The key to a successful discussion depends upon the right approach.

Try to always make suggestions, rather than demands. One great way to start the conversation with family members, is to mention what you’re doing. You might say something like, “I just took care of my own estate planning. Have you done anything? Maybe we should talk about it.” That might get the conversation rolling.

Many people believe that, as they get older, they need a will. However, that’s just one piece of the puzzle: core estate planning includes a will, power of attorney, health care surrogate and asset protection.

For most of us, the asset we most want to protect is our home. One of the best ways to do that is through a trust. Depending upon the type of trust you use, it may also have tax advantages, could protect your home during a healthcare crisis and protect your home from your children’s creditors.

You also need to find people you trust to help with finances and health care. A power of attorney is a legal document in which you grant a person the authority to handle finances on your behalf.

Similarly, a healthcare surrogate is an individual who makes healthcare decisions, if you get sick or are in an accident and can’t make decisions for yourself.

You can use one person to do both or separate individuals for each role. You can opt for a family member or a trusted friend. However, either way it should probably be a younger person, who won’t be dealing with the same aging issues as you.

You should also note that your will doesn’t cover everything. Make certain that any beneficiaries designated in your retirement plans or life insurance and any additional names on joint bank accounts are current. The beneficiaries you appointed by a designation form will get the money in those accounts, no matter what it says in your will.

If all of this sounds a bit complex, don’t worry because an experienced estate planning or elder law attorney can help you with all of the forms and all of your questions. Just understand these three things before you visit an elder law firm: your assets, whose names are on the accounts and your wishes.

Reference: Fox 5 NY (December 12, 2018) “Why estate planning is important regardless of your age or wealth”

Here’s Why You Need an Estate Plan

It’s always the right time to do your estate planning, but it’s most critical when you have beneficiaries who are minors or have special needs, says the Capital Press in the recent article, “Ag Finance: Why you need to do estate planning.”

While it’s likely that most adult children can work things out, even if it’s costly and time-consuming in probate, minor young children must have protections in place. Wills are frequently written, so the estate goes to the child when he reaches age 18. However, few teens can manage big property at that age. A trust can help, by directing that the property will be held for him by a trustee or executor until a set age, like 25 or 30.

Probate is the default process to administer an estate after someone’s death, when a will or other documents are presented in court and an executor is appointed to manage it. It also gives creditors a chance to present claims for money owed to them. Distribution of assets will occur only after all proper notices have been issued, and all outstanding bills have been paid.

Probate can be expensive. However, wise estate planning can help most families avoid this and ensure the transition of wealth and property in a smooth manner. Talk to an experienced estate planning attorney about establishing a trust. Individuals can name themselves as the beneficiaries during their lifetime, and instruct to whom it will pass after their death. A living trust can be amended or revoked at any time, if circumstances change.

With a trust, it makes it easier to avoid probate because nothing’s in an individual’s name, and the property can transition to the beneficiaries without having to go to court. Living trusts also help in the event of incapacity or a disease, like Alzheimer’s, to avoid conservatorship (guardianship of an adult who loses capacity). It can also help to decrease capital gains taxes, since the property transfers before their death.

If you have minor children, an attorney can help you with how to pass on your assets and protect your kids.

For more information about how to best protect your minor children, download a copy of Mastry Law’s FREE report, A Parent’s Guide to Protecting Your Children Through Estate Planning.

Reference: Capital Press (December 20, 2018) “Ag Finance: Why you need to do estate planning”

How Do I Calculate Estate Taxes?

Handling the affairs of a loved one’s estate can be stressful and difficult. However, to receive the full benefit of the gift a loved one leaves you, it’s critical to be prepared for the taxes that gift may incur. This is the advice in Investopedia’s article, “Estate Taxes: How to Calculate Them.” The article explains the potential tax liability, upon transfer of an estate after death.

The high rate of the federal estate tax (40%) motivates most people to calculate their potential estate tax beforehand. It’s a good idea to figure the amount you might owe in estate tax before something happens, instead of leaving your family to deal with the consequences afterwards.

Estate tax is calculated on the federal and state level. Florida does not have an estate tax, however, there are now still several states that have their own estate tax: Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia.

The federal estate tax starts when the fair market value of your assets hits $11.18 million per individual. Each state that has an estate tax has its own minimum on when the estate tax kicks in, ranging from $675,000 to $1 million. As a result, you can be eligible to pay the state estate tax, the federal, or both. Because the estate tax is determined based on the current market value of your assets instead of what you paid for them, calculating that number can be more complex.

There’s no need to include any property you intend to leave your spouse or an eligible charitable organization. Initially, you’ll need to calculate the value of the gross estate. Debt, administrative fees, and assets that will be left to charities or a surviving spouse will then be deducted from the total market value of those assets.

Next, add any gifts, including gifts that fall above the gift tax exemption. The $11.18 million exemption includes gifts (it’s a way of keeping people from giving away their fortune before their death to avoid estate taxes).

If the loss of a loved one is imminent, preparing for the tax burden of estate transference ahead of time, can make the grieving process a little easier and can be a comforting distraction.

You can also prepare for taxes on your own estate to lessen the burden of the friends and family you leave behind. If you have questions, speak to an experienced estate planning attorney.

Reference: Investopedia “Estate Taxes: How to Calculate Them”

Is a Living Trust the Right Solution for Me?

Many families have chosen to establish a Living Trust as part of their overall estate plan.  However, according to a recent article from Forbes, “Why You Might Need To Fix Your Family Trusts”some families wind up becoming unhappy with their trusts because it’s the wrong solution for their situation.

There are several reasons why this happens. They include:

  • Poor Set-up. The trust wasn’t created properly, and the lawyer drafting the trust didn’t truly understand the wishes of the family;
  • Poor Writing. The language in the trust is inappropriate or too vague, which can cause issues; or
  • Poor Planning. The trust isn’t viable anymore because situations change, and the document wasn’t created in a way that allows it to adapt to a shifting environment.

The law is constantly changing. As a result, there are new legal strategies and structures that are better for some situations than a trust.  An experienced trust attorney should be consulted about all of the options for your situation.

For any family, there’s bound to be specific reasons why they need to fix their trusts.

Most problems, however, can be categorized in three areas:

  1. The trust doesn’t have provisions to provide necessary distributions to family members;
  2. The governance structure or rules of the trust may not provide for effective management or sufficient oversight; or
  3. The trust is tax inefficient.

When any of these situations occurs, there are ways to make sure the trusts work along with the needs and wants of the family. A trust that has any of these issues won’t be as effective as it could be. The trust should be fixed or replaced to achieve the family’s goals.

It’s wise to periodically review trusts to be certain that they’re satisfying the intended objectives and taking advantage of all of the possible benefits. A trust attorney may be able to make some adjustments that are significantly advantageous to the family.

If a family has questions about the efficacy of their trusts, they should review them with an experienced estate planning attorney. It’s important to examine the trust with a sound understanding of the needs, desires and preferences of the family.

Reference: Forbes (October 17, 2018) “Why You Might Need To Fix Your Family Trusts”

How Do I Make a Gift of Estate Planning to an Adult Child?

One thing driving Baby Boomers crazy is their kids’ estate planning–or lack thereof. Boomers have been building legacies from the day they were born.

As Forbes explains in its recent article “The Estate Planning Gift To Give Your Millennial Children In 2019,” Boomers entering their 60s and 70s are more focused than ever before on managing their family legacies. The 2018 U.S. Trust Insights on Wealth and Worth Study found that 67% of those over 50 want to use their wealth to invest in their children and grandchildren. Boomers who’ve managed their finances successfully, want to be sure their hard work doesn’t go to waste.

The challenge, however, is that Boomers can’t control all aspects of their financial lives. One complaint they have to their estate planning attorneys, is that their kids aren’t doing the things that they ask. Gen Xers and Millennials may see estate planning as a very low priority. Most are burdened by heavy debt and trying to get their day to day financial lives on the right track. Nagging parents might make them resist this type of advice.

There is one thing that Baby Boomers can do to make certain their children do the right thing, when it comes to estate planning—they can make a gift of estate planning to their adult children.

However, before Boomers do this, they should think about several issues to put their family on the path to success. Family dynamics can be challenging, and family patterns are often hard to break.

Parents who want to offer to pay for an adult child’s estate plan, should consider how best to broach the issue. A wrong start could torpedo the wrong situation and end in a family drama. Timing is crucial for these discussions. The assistance of your estate planning attorney can smooth the way for a successful approach. He can outline the process for everyone to feel that they have a voice. This can be done with a family meeting.

The advice for Boomers making this type of gift is quite simple: these conversations need to be more intentional in the why and the how. Boomers must also respect boundaries, once the estate plan is completed. They may have paid for the estate plan, but that does not mean they’re entitled to see the child’s documents. The burden of enforcing this parameter falls to the estate attorney.

The best gift a parent can give their children for 2019, is to help them organize and manage their affairs. If they offer to pay for an estate plan, Baby Boomers can take the right actions to be sure their legacies will continue after they are gone.

Reference: Forbes (December 12, 2018) “The Estate Planning Gift To Give Your Millennial Children In 2019”

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