A major concern for parents of minor children is who will be appointed in the will to take care of the child if the parents pass away. If both of the parents play a relatively equal role in raising the child together, whether it is through the participation of both, or in the case of divorce or separation, individual time with each parent for the child. Your will is the best way to plan ahead for this potential situation.

The primary concern for both active parents is what happens if both of them were to pass away. In situations in which only one parent is active, it is equally important to ensure that an individual is named in the will so that the child is well cared for.

Major issues associated with who will raise the child and who is responsible for supervising property left to the child come up in the estate planning conversation and process you discuss with an attorney.

Make sure you think about the person who is the best choice to serve in this role, someone who is comfortable serving in the job, and whether or not there are any potential conflicts that could emerge in this or other situations.

Estate planning is often complicated and can heighten emotions and increase the potential for conflict if you have not chosen the person who is comfortable serving in this role because he or she does not understand all of the true implications of what is being asked of them.

If you recently moved to a new location from a different state, you need to make sure that your estate planning documents have been updated to show law controls in your new location.

An attorney can assist you with putting together an amendment to your living and revocable trust that applies to your new state’s law. Furthermore, your will might need to be updated to reflect applicable requirements in your new state. Since you already need to schedule a consultation with an experienced estate planning attorney to update your existing materials, consider putting together a power of attorney for financial matters and a power of attorney for medical matters that are in compliance with the new state’s law. Taking these simple steps is something that you shouldn’t avoid or put off after you’ve moved to a new state. Making these changes can avoid a lot of trouble, time or confusion in the future. Your documents should also be evaluated at this point in time to see whether or not they reflect your goals and desires. If you need to make any updates to executors or trustees because of your new location, consider speaking with your attorney about these options. Whoever is selected to serve in the role as an executor or a trustee should be familiar with the responsibilities required. Leaving behind an additional letter of instructions for anyone who will be serving in this role can give you some peace of mind that your individual instructions will be followed carefully. Schedule a time now to sit down with an estate planning lawyer to talk about necessary updates.      

[End of transcript]

The cost of nursing home care can be catastrophic for someone who has saved ahead for their retirement. A long term care insurance policy could be one important component of saving ahead for the potential of long term care expenses. Being diagnosed with a physical or cognitive issue might mean that a family member or even you requires assistance from someone outside of the family.

Nobody wants to envision spending their golden years in a nursing home and yet more than 50% of Americans between the ages of 57 and 61 will be inside a nursing home at least once in their lifetime. That’s according to a 2017 study completed by the Rand Corporation. The cost of living in a nursing home, however, could decimate your retirement savings. For example, the median cost of a semi private room inside a nursing was over $7,400 per month in 2018. Long term care expenses could add up quickly, particularly in the event of a sudden emergency or severe problem with a loved one’s health. Scheduling a consultation with an estate planning attorney can help open your eyes to the various tools and strategies available to you in the process of planning for your retirement and your future.      

[End of transcript]

Do you have a plan to protect yourself from the costly expenses of long term care? Far too many people avoid making a goal of protecting their assets from being decimated by long term care.

Most people might assume that long term care expenses only arise in a nursing home situation but a recent study found that nearly one-quarter of private long term care insurance claims started in assisted living in 2018 and nearly 27% ended there, according to the American Association for Long Term Care Insurance.

This reflects some of the most common trends for private people using long term care insurance. Many people start care in a specific setting, such as in their home, and these claims can end to an exhaustion of policy benefits for recovery or death.

In 2018, just over 72% of all long term care insurance claims ended in assisted living due to death, whereas 13.5% of claims ended due to benefits exhaustion and another 14% ended due to recovery. Many people have misconceptions about long term care insurance and might not be clear about how to plan ahead by incorporating this into their estate and retirement plan. Schedule a time to sit down with your experienced estate planning attorney to learn more.      

There are both practical and legal responsibilities linked to a trustee when the grantor passes away.

These include:

• Locating and reviewing all of the important papers of the deceased. These items should be found as soon as possible.
• Change the locks and take any steps necessary to close out and protect the house.
• Notify insurance carriers that the house will remain vacant.
• Verify that property insurance and auto-insurance policies are active such that various trust assets are insured against liability or loss.
• Get the certified copies of the death certificate from the village clerk, town clerk, or funeral director.
• Make a list of all the household goods that are included in the house to be distributed to beneficiaries. Photographing personal property can make this process easier.
• Create an exhaustive list of all of the assets and establish a baseline value for these assets.
• Pay any outstanding debts, bills or taxes.
• If the trust will generate more than $600 in total income from the date of the person passing away until all of the assets inside the trust are distributed, the trustee needs to obtain a tax identification number for the trust.
• File any claims for IRAs, life insurance and other assets that require individual forms.
• Create an accounting of all expenses paid and all assets at the date of the death.
• Keep beneficiaries notified about the status of the case.

If you are curious about how to serve in this role as a trustee, schedule a consultation with an experienced attorney.     

New Jersey may soon join small list of states, including Vermont and Oregon, that enable employees to take their retirement plans with them if they change jobs. These are known as portable IRAs.

Those employees who work for businesses that have 25 or more employees would automatically be enrolled in a retirement plan managed by a professional unless they chose to opt out if a proposed bill is accepted. In New Jersey this bill is S-2891, which would effectively create the secure choice for retirement program.

This would enable those workers who did not have an employer sponsored retirement plan to be able to save on their own for retirement. According to AARP research, over 1.7 million people living in New Jersey have no vehicle to save for retirement at their jobs.

Planning ahead for retirement is also important because you must consider the possibility of the cost of long term care. Health care costs for the elderly can be significant particularly if the person develops a disabling or incapacitating condition. Schedule a consultation with an estate planning attorney to learn more about how your retirement plan and your estate plan can work together.   

It may have been in the best of intentions that you decided to leave an IRA behind to a loved one but this can generate unintended tax problems for the beneficiary. Naming a trust as a beneficiary of your IRA instead can help to protect heirs who are disabled, vulnerable to creditors or who are minors.

Failing to appropriately structure your trust, however, could accelerate IRA liquidation, which could cause significant problems for taxable distribution. Trusts only need to have $12,750 in 2019 to be subject to the top tax rate of the 37%.

When it comes to naming a beneficiary for your retirement account, it’s well worth scheduling a consultation with an estate planning lawyer. By using a trust as your IRA beneficiary, this still enables you as the owner to have some element of control. However, not every IRA custodian will enable you to list the trust on your beneficiary form. Furthermore, this can be complicated by the tax code. There are specific conditions for trusts that are serving as beneficiaries for retirement accounts. Failure to follow through on these rules properly could lead to an accelerated distribution of the IRA assets and significant taxes.

This is why it is recommended that you partner directly with an experienced estate planning lawyer who is very familiar with establishing a trust as the beneficiary of an IRA to avoid consequences to protect your underlying goal of passing on assets to your loved ones.      

Deciding to plan ahead for the future often begins with using a last will and testament, but a simple internet search might make it seem as though all you need to do is print out a form, fill it out, and file it away.

This has numerous potential pitfalls, including the fact that the template may not be accurate for your individual state or needs and this fails to include the possibility that you might need to update your estate plan in the future based on changing circumstances in your individual life.

Because of all of these issues, it’s important to schedule a consultation with an estate planning lawyer who is familiar with how to craft a proper will and testament, and to continue to keep it updated over the duration of your life for your individual needs. Of course, one of the biggest reasons that people will consider using their own last will and testament template is because of the cost. It is certainly the truth that it will be more expensive to hire an attorney to put together your last will and testament for you. However, this money goes a long way in giving you peace of mind.

Those who believe that simplicity is the name of the game in their estate plan might turn to these templates as a meaningful way to pass on their assets to future generations. However, if there’s any complexity in your estate plan, or you require customization, it’s far better to partner directly with an estate planning attorney. Many of these templates are not updated for your individual state and fail to incorporate updates in state and federal tax laws.

 This makes it even more important to retain the services of an estate planning lawyer you can trust.      

Increasingly, clients are turning to estate planning lawyers to help with the process of gifting unequal shares or assets to their children. There are several different reasons why a parent today might look to outline these kinds of specifics in an estate plan, but it’s also happening at the same time when family conflict poses the biggest threat to a successful plan. 

The study, from Merrill Lynch, found that parents who have more than one child are at least considering leaving unequal shares. According to that study, two-thirds of Americans believe that an uneven split is likely more in line with current family dynamics. 

Sometimes it’s the concern about a child’s spouse and how those assets could be affected through a divorce. In other cases, the parent believes that one child is a spendthrift and the other is more responsible. With a family business or cherished family home, geographic location and desire might factor into the decision, too. 

An unequal inheritance can raise red flags, depending on how or if the parent communicates their intentions. For example, another study found that when it came to siblings who argued over money in their adult lives, over 70% of the time the root cause was the way that an inheritance was divided. Those children who did not receive what they felt were equal shares have chimed in with other research projects about how unfair it was. 

You have to choose a model that works to address your concerns and goals for your assets and your loved ones. In this case, fair does not always mean equal. 

If you’re trying to decide what’s right for your family, talking to an attorney can help you to clarify some of your individual goals in the estate planning process. No matter how you want to split up your assets, tactics in an estate planning and asset protection planning toolkit can become an important component of defining your legacy. 

Market volatility and the possibility of further estate tax reform all have many estate planning advisers prepared for sudden shifts in strategies, but those aren’t even the issues at the top of the list for most American families.

In fact, a new TD Wealth study confirmed last year’s findings that family conflict is the biggest impediment to successful estate planning. More than 100 respondents were included in that study, many of them professionals in the retirement, estate, and investment world.

More than half of respondents in the study said that trying to navigate current family dynamics and possible future dynamics was a major challenge that required new tools and top tier communication.

The challenges of blended families and loved ones who failed to communicate their plan to the other family members are some of the biggest challenges still faced in estate planning.

Even when a person pulls together a comprehensive plan to address their assets and to protect their family, figuring out who gets what and whether that should be communicated to everyone are common concerns.

Telling loved ones about an estate plan could even spark further controversy for those family members who feel left out or who don’t understand the reasoning behind the planner’s approach.

Retirement planning and estate planning should work hand in hand, and while plenty of people have admitted in recent studies that they don’t have the basic tools of an estate plan such as a will or trust, a 2018 study conducted by Northwestern Mutual found that many Americans feel they have inadequate retirement plans.

Retirement planning and estate planning should work hand in hand, and while plenty of people have admitted in recent studies that they don’t have the basic tools of an estate plan such as a will or trust, a 2018 study conducted by Northwestern Mutual found that many Americans feel they have inadequate retirement plans.

In fact, 70% of respondents said that they felt they hadn’t done enough for planning for their retirement. To avoid falling in the trap of getting into financial difficulty too close to your retirement age, choose to plan backwards instead. Many people plan backwards to accommodate their individual situations and lifestyles. This starts by considering the amount of annual income you might need during your retirement. Then you will want to decide what kind of life you hope to achieve in retirement and what kind of price tag might be associated with it. Since this answer will be unique for everyone, it’s important to come up with your own solution and to plan backward. Some people want to spend time at home with loved ones and helping to raise grandchildren, whereas others would be focused on travelling extensively. Think about the possible costs of all these social activities and hobbies, and don’t forget about the possibility of a high price tag that can come from long term care and health events that occur later in life. Having appropriate planning done well in advance can help you to enjoy a retirement as you intended but failing to incorporate health care planning such as ways to pay for it, Medicaid planning options and having powers of attorney to enable another person to step in and make decisions on your behalf could all compromise your ability to be successful.     

[End of transcript]

Most parents recognize that one of the most powerful aspects of putting together a will is establishing a legal guardian. This is the person who is legally eligible to care for your child if something happens to you and the selection of a legal guardian is a highly personalized decision that must be taken carefully.

This is a person who will make decisions about your child’s schooling, health and overall upbringing. This means that not only does the person you select need to be comfortable with playing such a key role in the child’s life, but you must be comfortable with your selection of this individual. Doing so requires answering some key questions, such as:

·      What are this person’s moral and religious beliefs? Do they line up with my own?

·      Is this person up to the challenge of raising my children?

·      Does this person love my children?

·      Does this individual have any medical conditions that could prevent them from serving effectively as a guardian?

·      Does the potential guardian have access to financial resources to care for my child?

·      Will my child still be able to have easy access to their other relatives?

·      Where does this person live and what is this individual’s home situation?

After you have answered these questions and selected someone to name as a guardian, it is critical to discuss it directly with him or her. While many people will be flattered that you even considered them to serve in this role, others might not be willing to accept the responsibility. You might consider choosing an alternate guardian as well.  

Provided that you have selected co-executors or one or more individuals to serve in the same role can get along and cooperate, co-executors provide numerous benefits for the purpose of your estate planning. These include:

•               This can avoid making it seem as though one sibling is favorited above another.

•               If you are not sure that you can trust any individual person to serve as the executor, co-executors have a legal duty to one another to keep each other honest. Be aware, however, that co-executors who might not fully trust one another could increase the possibility of disputes and conflicts down the line.

•               The co-executors can divide up the work.

•               The co-executors may have one another for support and consultation if questions arise.

•               If you already have an established business, a co-executor who is familiar with business matters and management can work alongside another executor such as a spouse to ensure that you have addressed all major issues.

•               Each co-executor might bring their own unique talents that apply to certain respects of the estate.

Think carefully about whether two executors is the right choice for you.

Only an attorney can help you understand whether or not it makes sense to use co-executors. Co-executors should be approached with caution, but the support of an experienced attorney is instrumental in helping you to determine your next course of action.     

Most people would first turn to an online process to assist with the drafting of a power of attorney, but this is not recommended. State laws vary in terms of how to establish a power of attorney and because of the specifics in the law, it is recommended that your document is executed in accordance with state laws.

This can be done by scheduling a consultation with an estate planning lawyer. Prior to generating a power of attorney, you need to do some thinking. what aspects of your life do you want an agent to be eligible to handle. Furthermore, you must approach the process of selecting the agent thoughtfully.

This is because this person will be in charge of your affairs as outlined in the power of attorney, especially if you become incapacitated. Establishing a power of attorney document also requires coming back to it over time.

At least once a year, you need to make sure that your POA document still reflects your wishes.

Knowing that someone else will be able to step in and handle your affairs and knowing that this person is selected by you rather than the court can give you a great deal of peace of mind but putting together your own power of attorney document exposes you to the possibility of making mistakes. This means that you should instead speak directly with an estate planning lawyer to verify that the language inside your power of attorney document is accurate.     

There are many different reasons why you might wish to revoke a trustee’s powers. If you put together a family trust yourself, or if you are a beneficiary or a trustee of a trust, there might come a point in time in which you believe that a trustee needs to be removed.

A family trust offers many advantages to a person who establishes it and the beneficiaries of that trust, such as tax benefits, long term care planning strategies and probate avoidance.

However, this is a complicated fiduciary arrangement that can lead to conflicts between beneficiaries and trustees. The person who creates the trust then transfers assets inside the trust. At that point the trustee manages these for the benefit of designated beneficiaries. A trust agreement might state the circumstances under which a trustee could be removed by the creator.

Trust agreements will typically allow a trust creator to remove a trustee, including someone who is originally named as a successor trustee. The trustee does not have to be given a reason for the removal in most cases. Instead, the trust creator would execute an amendment to the trust agreement. In an irrevocable trust, however, the creator cannot become a trustee. Therefore the trust creator has to give up the right to revoke the trust and to serve as a trustee.

Sometimes removal can occur by beneficiaries or co-trustees. State law provides guidelines about a trustee’s responsibilities and duties, particularly when that person allegedly violated his or her fiduciary duty.

Occasionally, clients ask their estate planning attorneys about how to leave behind shared gifts. This is an especially common scenario if you wish to pass along an asset to your children. Shared gifts are those that left to two or more individual beneficiaries.

Each of those beneficiaries receives a portion of the property ownership. This is different than stipulating inside your will and other estate planning documents that you wish a particular asset to be left behind and sold while having the profits divided between the beneficiaries.

All of the beneficiaries with a shared gift instead own the property themselves. If you are contemplating leaving behind a shared gift, whether to children or to other beneficiaries, there are a few important considerations you must review first.

For example, what portion of ownership does each beneficiary receive. This should be spelled out directly in your trust. If you do not spell out the percentages of ownership available to each beneficiary, it is typically presumed by those reviewing your estate planning materials after you pass away, that you intended equal shares.

There is no reason not to go into details on this matter. Furthermore, consider who will maintain control of the property. If the beneficiaries intend not to sell it and to keep it, those beneficiaries must agree about how the handle their shared ownership.

They might wish to sell it and split the proceeds or want to keep it, but in the event that the beneficiaries are unable to agree on how to use the property, they could end up in litigation. The more you discuss your intentions to pass on this particular item of property to future generations, the easier planning will be.      

It’s important to remember that a living trust is only active and valid once it has become funded. The living trust becomes funded after the creator puts together the necessary documents and then funds the trust by formally transferring the assets inside. The specific process for moving assets into this trust by the grantor will depend on the kind of property involved.

There are two major ways to fund assets into a living trust. The first of these is by changing title. When you, the grantor, hold title and assets like bank accounts, brokerage account, investment accounts, stock and bond certificates or real estate, you will need to transfer assets into the trust by changing the name of the owner from you to that of the trustee.

The second method of transferring assets into a living trust is by assigning ownership rights. If you own a piece of property, but do not hold the legal title in the assets, such as jewelry, art, antiques, intellectual property, business interest or promissory notes, you must formally assign ownership rights from you as the individual to the trustee. You could choose to list the trustee or the trust as your beneficiary for other assets such as pensions, life insurance, and retirement accounts, but remember that this action in and of itself does not technically transfer those assets inside the trust.

This is why you need support from a team of experienced professionals such as a tax advisor and a knowledgeable estate planning attorney to help you with the process of selecting, managing, and funding a living trust.    

You have the power to disinherit any or all of your children regardless of what state you live in, so long as you expressly name these terms in your estate planning materials. If you fail to mention a child specifically in your individual will, that child could still maintain a legal right to claim a portion of your property depending on your individual state laws.

If you want to disinherit a child, you will need to sit down with your estate planning lawyer and discuss how you intend to do this directly. One of the leading ways that many spouses choose to approach this situation is to leave all of their property to the other spouse, while naming children as alternate beneficiaries.

This helps to protect and minimize the chances that someone could allege that a child was overlooked. There is no legal requirement that if you intend to disinherit a child you must explicitly state this inside your will, but you can if you wish to do so.

A consultation with a knowledgeable estate planning lawyer can help to illuminate you about many of the key issues involved in passing on the property or disinheriting a child.