March, 2019 | Shah & Associates, P.C. Estate Planning & Elder Law Blog
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Is It Safe to Use A Template for A Last Will and Testament?

March 27, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.

A blank last will and testament form with a pen laying over it.

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.      

Unequal Gifting More Common, Study Says

March 26, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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. 

Portrait Of Frustrated Couple Sitting On Couch Quarreling With Each Other

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. 

Is Family Conflict Blocking Your Estate Planning?

March 25, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.


Young Afro-American family fighting in kitchen because of an affair. Man in glasses holding mobile phone, pointing finger at screen, trying to explain himself for love messages from unknown woman

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.

Are You Looking at Retirement Planning Backwards?

March 19, 2019

Filed under: Estate Planning — Neel Shah @ 1:30 pm

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.     

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What Questions Should You Ask Before Selecting a Legal Guardian?

March 18, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.

Female hands with word guardianship on blue background

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.  

What Are the Advantages of Using Will Co-Executors?

March 14, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.

Dying man signing his testament in the presence of notary

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.     

How Can I Create A Power of Attorney?

March 13, 2019

Filed under: Estate Planning — Neel Shah @ 1:09 pm

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.

Close-up Of A Person Holding Pen Over Power Of Attorney Form

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.     

Can I Remove a Trustee from a Family Trust?

March 12, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.

3D illustration of FIDUCIARY title on Legal Documents. Legal concept.

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.

How to Estate Plan with Gifts That Are Shared by More Than One Beneficiary

March 6, 2019

Filed under: Beneficiaries — Neel Shah @ 9:15 am

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.

Five happy smiling kids lying in line on floor. On white.

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.      

How Is A Living Trust Funded?

March 5, 2019

Filed under: Trusts — Neel Shah @ 9:15 am

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.

Man holding loose coins & folder with estate planning and trust documents

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.    

Is It A Good Idea to Attempt to Disinherit A Child?

March 4, 2019

Filed under: Estate Planning — Neel Shah @ 9:15 am

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.

Upset adult daughter ignoring not listening to senior old strict mother in law arguing moralizing scolding controlling showing authority to stubborn young woman, different generation conflict concept

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.