Tag Archive for: trusts

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“If Voting Changed Anything, They’d Make It Illegal”

Democracy Is The Theory That The Common People Know What They Want, And Deserve To Get It Good And Hard
H. L. Mencken

Good Judgment Comes From Experience, And A Lot Of That Comes From Bad Judgment
Will Rogers

A Man Who Carries A Cat By The Tail Learns Something He Can Learn In No Other Way
Mark Twain

“A Week Is A Long Time In Politics”

Toxic Typo’s – Sinful Syntax – Poisonous Punctuation. And Still Not Legal Advice!

“Our House Is A Very Very Very Fine House” – Graham Nash

What legally binding forms are required/recommended to ensure a persons desire to leave a house to someone else after they pass?

We live with my mother in law and have for the last 18 years, she is getting up in age and has promised us her house when she passes. Her other children are not aware of this at this time. To avoid drama and conflict later her and I both agree something legally binding should be created now to avoid conflicts later. What exactly needs to be created or stated to ensure that the house is left to us per her wishes? Also if the forms are not created is there a natural procedure for who the house would be offered to (eldest child etc)? Thanks

What You Should Do: Fight. Fight. Fight. Mom expressed her desire that you take care of her business. Where the hell does brother get off challenging Mom’s wishes? At the next stop, that’s where! Going to probate court, seeking guardian/conservator when Mom already handled matters is bogus. And you can quote me on that. (Unless you are neglecting Mom and stealing her money).

Accurate Answer: Lawyer up. Call the lawyer who is filing these papers in Probate Court. Express your willingness to “go to the mattresses” until Kingdom Come. And be ready to endure a contested matter in probate court. It will suck. It will be expensive. It will be worth it.

“It Is A Wise Father That Knows His Own Child”- Shakespeare

Can parent in nurse care transfer asset to a disable child without penalty? does it need to be in a trust or can it be a gift?

Dad is in a nursing home and is currently spending down however one of his adult child is on SSDI can he transfer assets to his child on SSDI without penalty Thank you

General Answer: Most Medicaid programs for older folks, including the one that pays your Dad’s skilled nursing, will allow Dad to transfer assets to a disabled child. Usually such a transfer would be “divestment” and Dad would be heavily penalized. But since brother is on Social Security Disability, transfers to him will not be divestment.

Next Step: Do not make the transfer directly to brother. You know about his Social Security Disability Income. Is it crazy to think that brother may be on other government programs? Isn’t it likely? So, let’s not give him the money directly, but create a trust “solely for the benefit” of brother. No Direct Transfer. Transfer to Supplemental Needs Trust. Works Great and No Probate! Try It, You’ll Like It! You are welcome, sir!

“Out Damned Spot!” – Shakespeare

When the person dies I am taking care of in her daughter another house can I stay there ?
I do not have a lease from the person I am caring for. The person has a life estate in her house she gave to her daughter decades ago. When she dies I feel I should be able to stay in the house for 30 days at least till I find another place to live in. The daughter and myself are not on friendly terms and she refused to give a lease years ago. I have been a caretaker for the Mother 12 years?

Sad But True Answer: You can stay in the house only so long as it takes Daughter to evict you through the usual process. Expect to get a Notice to Quit – Termination of Tenancy as soon as your client dies. That document will give you 30 days to pack up and vamoose!
Hopeless, Helpless Situation: There is nothing that can be done about this now. The person you are caring for does not own the entire house. All she has (according to you) is a “life estate” in the house. That life estate dies when your client dies. And then daughter owns all. And you are looking for an apartment.

Hindsight is 20/20 Advice: Like most people, you do not like pushiness. You don’t push other folks around. And you don’t like to complain. That’s why you do not have future housing security. You are first in line to get the Bum’s Rush as soon as your client dies. You coulda, shoulda, woulda taken care of this a long time ago. Now you are dependent on daughter who does not like you.

Do you like anxiety? Does insecurity make you happy? Otherwise, when (if) mom needs long-term care, Medicaid will say she has been giving her money away. And Medicaid will hit mom with a penalty period. Not good.

 


 

Why Estate Planning Fails

If Trusts Avoid Probate…
And Special Real Estate Deeds Avoid Probate… And Beneficiary Designations Avoid Probate… Why Do We Need More Probate Judges?

And How To Make Yours Succeed

Seems like estate planning is all about avoiding probate. Financial advisors, lawyers, your brother- in-law… everybody full of good advice about how to avoid probate. And those poor dear probate judges! Nothing to do… out of work… unemployed… thing of the past…?

But then look at your Kent County ballot come Election Day. Lo and behold, they are creating a new probate judge. A desperately needed probate judge. To meet the rising demand for probate. Who’s getting rid of any probate judges? Nobody. Busier than ever. Need more. Adding them. Not kidding.

How can this be? Isn’t everybody’s avoiding probate? And still the probate courts are overworked and overwhelmed? Gee, do you think that maybe all that “avoid probate” stuff doesn’t really work? Why not?

Your estate plan will fail. Your estate planner claims to be avoiding probate, saving taxes, and delivering the leftovers to painlessly to your beneficiaries. And this fails. Fails so badly we need more probate judges.

Traditional estate planning fails for many reasons. A big one: 70% of us will need long-term skilled care. 70% of us. For an average of 3 years. And we will go broke paying for it.

Are you surprised that thousands of recreation properties: cottages, cabins, hunting land, are lost to pay for long-term care? Then probate feasts on the measly leftovers. Why is your estate plan so bad? Evil intent? Stupidity?

LifePlanning™ defeats Nursing Home Poverty. Keep your stuff. Get the care you have already paid for. Good for you. Good for your family. Good example for society. Stay out of probate.

Should stroke, disability, dementia always lead to financial ruin? And the probate court? Are you happy to see your lifesavings evaporate? Thousands of LifePlan™ families know a better way.

If your loved one suffers from dementia that leads to death, should they die impoverished? Should the survivors live impoverished?

LifePlanning™ means your last years will be years of security and peace of mind.

Is A Real Solution A Bad Idea?

Perhaps you think you already have an answer to this problem. Maybe you do not see this as a problem at all. It is possible that you do not believe in the passage of time or its effects on you.

Peace of mind and financial security are waiting for everyone who practices LifePlanning™. You know that peace only begins with financial security. Are legal documents the most important? Is avoiding probate the best you can do for yourself or your loved ones? Is family about inheritance? Or are these things only significant to support the foundation of your family?

Do you think finding the best care is easy? Do you want to get lost in the overwhelming flood of claims and promises? Or would you like straight answers?

Well, here you are. Now you know. No excuses. Get the information, insight, inspiration. It is your turn. Ignore the message? Invite poverty? Or get the freely offered information. To make wise decisions. For you. For your loved ones.

It all begins with the LifePlan™ Workshop. An hour or two that changes your family history. The first step on the path to security and peace. Why not your family? Why not you?

NO POVERTY. NO CHARITY. NO WASTE.
It is not chance. It is choice. Your choice.

Get Information Now. (800) 317-2812

The House of Representatives has passed a bill that could mean changes for all Americans with the most common type of retirement plan, such as a 401(k) or Individual Retirement Account (IRA). Proposed changes to retirement reflect the realities facing many workers today.

The SECURE Act is being proposed as an improvement to the retirement system, and stands for “Setting Every Community Up for Retirement Enhancement Act of 2019”. Interestingly, most of the changes either highlight the difficulty of saving for retirement, or the challenges faced by many workers today who are facing a future with a shaky Social Security System, and insufficient retirement funds. While there are some positives, some of the changes proposed would simply make it easier for people to retire with less money and less security than before.

Access to Retirement Plans for Part-time employees

With the rise of the “gig” economy, more people are working part-time jobs. This bill would allow long-term part-time employees the opportunity to participate in retirement plans, if their employer offers one.

Disclosure of Estimated Retirement Income

Employers would be required to disclose an estimate of future retirement income on 401(k) statements. This would hopefully show employees how much more they need to save, if the assumptions used for those estimates are realistic. The assumption for the estimates will be set out by the Treasury Secretary.

Use of Retirement Savings for Student Loan Debt

With the rising costs of higher education, this bill would provide some relief for those who find themselves with crippling student loans that can’t be discharged in bankruptcy. They could now also reduce their retirement savings to pay off those loans.

Access to Retirement Plans for Small Employers

Another change would make it possible for small employers to group together in offering a retirement plan. This would be helpful, since 42% of private-sector workers don’t have access to a workplace retirement plan.

Reduced Regulations on Annuities

More 401k plans will be able to offer plans to convert retirement savings into annuities. This should greatly benefit insurance and annuity companies by increasing their market and reducing the regulations for offering annuities as part of retirement plans.

Extended Retirement Contribution Age

As more people need to keep working well past normal retirement age, this bill would allow people to continue adding to their retirement plans after age 70-1/2 and would allow people to hold off on withdrawing from their plans until age 72. This also reflects the fact that many people probably haven’t saved enough for retirement by the time they hit 70-1/2.

Use of Retirement Savings for New Children

Many new parents find that their health insurance plan still leaves them with thousands of dollars of out-of-pocket expenses for the birth of a child. Rather than making any changes to the health insurance system, or increasing entitlement programs for families, this bill would allow these parents the opportunity to reduce their future retirement savings by spending some now on these expenses for new children. This will probably not help increase the falling birth rate in the country.

Restrictions on Stretch Distributions

With the US budget deficit in the trillions, this bill would bring in additional revenue in the form of increased and accelerated income taxes paid by beneficiaries of retirement plans. Rather than being able to stretch out inherited retirement money over their lifetime, beneficiaries (your children) will have to take out money over 10 years, likely bumping them up to a higher tax bracket, and increasing the percentage of the inheritance that goes to taxes. What does this mean? Let’s look at an example.

A single 45-year-old making $100,000 inherits a $1,000,000 Traditional IRA from her parents. She can either cash it out immediately (which is what the vast majority of children do) or she can stretch out the distributions.

Cash out: Based on her income and 2018 tax rates, she would be taxed at an effective rate of 33.48%, leaving her with $665,200 of inherited cash.

Current Stretch Rules: She can opt to take the required minimum distributions over her life expectancy. After 10 years, she has paid a total of $243,000 in taxes, received approximately $368,000 in required minimum distributions, and has $1.64 million left in the IRA.

Proposed Stretch Rules: She can opt to take the required minimum distributions for a maximum of 10 years. After 10 years, she has paid $615k in taxes and inherited a total of $865,000.

Below is a graph that visually represents the difference in these rules, assuming the child invests the required distributions after paying taxes and has normal living expenses and Social Security Income:

Image credit: “The Hidden Money Grab in The SECURE Act” James Lange, Forbes Contributor

As usual, all parties involved will continue to look for ways to maximize their benefits under any changed law. We will continue to look for ways to protect and preserve your assets for you and your family. There are options involving trusts that could still preserve a lifetime income stream for children who inherit your retirement savings.

by Bill Bereza, Associate Attorney

My dad was sure that he was going to live to 100. He was born the year after his parents bought the family farm, and he always talked about getting the farm into Michigan’s Centennial Farm Program. Planning for death or incapacity was never on his mind. When he was diagnosed with cancer, he kept on going as normal. He was still working on the farm the week before he went into hospice.

My dad refused to talk about death.

He never talked about what would or should happen with the farm if he became too ill to run it. He would never sign a will or a trust or a power of attorney, and he believed that insurance was a waste of money because “you’ll be dead” when the money comes in. As he came closer to the end, I learned that this was really because of his fear of death. He was still a young man when his father died. His father’s cancer wasn’t discussed until he was dying, so to my father, talking about the end of life meant death.

It’s hard to say that it is fortunate that my dad died quickly. He didn’t spend years in a nursing home. He died at home in the very same bedroom he was born in. We were all spared the guilt of placing him in a nursing home, knowing that he hated being away from his farm. We didn’t need to worry about how to pay for his care; the farm was my parents’ only asset. We knew that the farm was safe, that it didn’t have to be broken up and sold off in pieces to pay for the care that he assumed he’d already been paying for with every paycheck of his working life.

We had luck, a painful kind of luck.


Since then, my mom has made a plan. She has a power of attorney, a patient advocate, a will, and a trust to make sure the farm stays in the family and isn’t lost to the chances of fortune. She knows that what she and dad spent a lifetime working on will be protected for herself and her kids and grandkids. She has shared with us her thoughts, her fears, and her desires. She has given us the gift of relief, from doubt, uncertainty, and guilt.

It’s hard to talk with your kids about death. Some parents may use their own experiences with death in their own lives as an opportunity to discuss mortality with their kids, or as a reason to avoid bringing up a painful experience. The death of a parent is usually the first real painful experience most people will deal with. Your children will have to deal with it whether you want them to or not.

We all know that death is inevitable. Many people decide that because it will happen no matter what they do, they may as well do nothing. Only 4 in 10 American adults have a Will, according to a 2018 Caring.com survey. Furthermore, the survey found that only 1/3 of parents with children under 18 have a Will.

A basic, comprehensive estate plan will include, at minimum, a Will, a Durable Power of Attorney for Finances, a Patient Advocate Designation, Advance Directives, and one or more Living Trusts.

Whether you have a plan – or realize you need one – talking to your kids about it is essential.

Talk about life, before talking about death

The first thing to remember is that we don’t live life in perfect physical and mental health right up until the minute we die. Nearly 70 percent of Americans die in a hospital, nursing home, or long-term care facility. Chances are, you’ll need someone to make medical and financial decisions for you. After a spouse, the kids are most often named in a Durable Power of Attorney and Patient Advocate Designation.

What kind of life do you want, if you’re no longer able to communicate those decisions for yourself? The benefit of starting with incapacity when talking to the kids is that it lets you talk about the things you like. Your favorite foods, books, tv shows; these are positive things to share. The way to share your life wishes is to share with your kids what matters to you.

An Advance Directive is a way to put those life wishes in writing. It’s also a way to relieve some of the stress from your kids. Any child who has had to make care decisions for their parent has probably had to deal with guilt and wonder whether they really are doing the right thing for their parents. By having the conversation with the kids and giving them a written plan, you can ease their burden.

Ask your kids what is important to them, before you plan

Parents often worry about trying to be “fair” to all the kids, trying to plan to avoid what they perceive could be a problem. If you know that one child really cares about your medical care, or another child doesn’t want to deal with finances, or if the children agree on who should inherit what, you can make estate planning decisions confidently and comfortably.

Again, this should be a focus on what matters to your life, and the lives of your kids.

Manage expectations

The conversations we avoid often lead to bigger problems later. If a child is disappointed or surprised by one thing in your estate plan, they are more likely to dispute everything in the plan. A serious problem can occur if, after your death, a child believes that you were forced or coerced into making an estate plan or weren’t competent when you planned. If you tell the kids the plan now, they may be less likely to object later.

Managing the differences

In every family, there are differences between the kids: how well they manage money, how much they need money, and any inherent legal risks in their lifestyle or profession. You may even consider who is the most likely to care for you as you age – due to ability and/or geography – and what sacrifices they’ll need to make to do that.

These considerations can all contribute to how you decide to distribute your estate – equal is not always fair. You may want to leave less to your daughter, because she doesn’t need it, or you may want to leave money to your son in a restricted trust because he can’t handle it. By talking about this with your kids now, you can address your decisions and their questions together, instead of leaving them to make assumptions after you’re gone. The worst situations are when kids are left feeling as if they were “loved less” due to the decisions by their parents. Unfortunately, we do see that now and then, but most often, the reality is that decisions are made from the utmost love and foresight for each child.

Prepare an asset inventory

Most estate planning attorneys will have you prepare a financial information packet detailing your assets. Think of this as a tool for your kids as well. Dealing with the death of a parent can be the most difficult thing that happens to many people. The burden of hunting down what the parent owned, where bank accounts exist, are burdens you can prevent by keeping the inventory with your estate plan.

In any situation after your death, whether it’s in probate court or with trust administration, preparing an inventory is often the first step for your trustee, executor, or personal representative. You can help get that first step done for them.

Your final wishes

The simple things after your death can cause the biggest heartache for the children left behind. You may not care about your funeral plans, the casket decorations, the type of urn, the music or scripture readings. For your kids, this can be an important part of their grieving process. You can help them by discussing those plans with them and putting them in writing. Children often spend a lot of time and money on funeral arrangements because they think “that’s what mom would want” when in fact you may be happy with a simple gathering. They won’t know if they aren’t told.

The next step

Life is full of risk, and life is full of stress. Death is an inevitability, and not talking about it won’t make it go away. If there’s some risk and stress in talking to your kids about this now, there is sure to be risk and stress after you’re gone if things are left unsaid. An estate plan should be a plan for life, and by talking to your kids now, you can craft a plan that will fulfill the needs of your life and the lives of your kids.

by Samantha Sprague, Attorney

CONGRATULATIONS! Becoming a parent is an amazing experience. One thing you should be accustomed to by now is asking questions. Sometimes you get a lot of ‘answers’ to questions you may not have even known to ask.

Whether you’re brand new to the parenting gig, or have several years under your belt, below are 3 common questions that every parent should consider.

1. What happens if I can’t make my own choices?

Self-care is important, to your sanity and to your health, and sets an important example for your little one. I meet with a number of parents who come in with the primary goal of taking care of their kids.

It doesn’t matter if the kids are 2, 22 or 55 – every good parent wants to make sure their kids are protected. However, the first thing any parenting book will preach is to make sure you take care of yourself.

Estate Planning is no different. Even before you bring your bundle of joy into the world, there are two documents you should have in place: (1) Healthcare Power of Attorney and (2) Financial Power of Attorney. This is the entry level of protection to make sure that if something awful occurs (e.g. car accident, stroke, medical procedure, etc.) you know who will be managing your assets and making medical decisions for you.

This is something that you should have in order before your little one arrives, but if they’re already here, there’s no time like the present to get started.

2. Who is going to take care of my child if I can’t?

No one person is invincible. You need a backup plan in case life goes drastically wrong and you are no longer able to care for your children.

What happens if you die?

Some people leave it up to chance and rely on the probate courts to pick someone to raise their kids. Generally, the courts will give preference to family members, but there are a lot of factors that are taken into account for something called “Judicial Discretion.”

Judicial Discretion means that where your kids end up is entirely in the hands of the probate judge, a person who has never met you, does not know your family, and is unaware of your wishes.

What can you do?

Every parent – regardless of how much money they have in the bank or what they own – should have a will. A will is where parents get to determine who is going to raise their kids if they cannot.

If a parent has guardianship and conservatorship language within their will, they get to choose who their child will live with and who will manage the stuff they leave behind for their child.

This does not eliminate parental rights if your child still has a surviving parent. However, if both parents should die or be incapacitated, the testamentary wishes (Will) outlined by the parents serve as guidance for the court.

There are other considerations that should be addressed with blended families, step-parent’s rights, and same-sex parents.

Each situation is unique and you should consult with an attorney on what your legal rights are and how you can make sure you are putting the right documents in place to provide surety that you decide who raises your kids.

3. How do I protect my kids with my Estate Planning?

As parents, we are hardwired to look out for our kids, to protect them, and to teach them to protect themselves when they are able to.

However, everyone approaches parenting a little differently.

There are helicopter parents trying to ‘bunk’ with their college-aged kiddo, and then there are those employing the sink-or-swim method my grandpa used to teach my mom how to swim in Lake Erie.

With your estate plan, you can put ‘safeguards’ in place for minor children, so the assets you leave are protected both FOR them and FROM them until they learn how to manage the money.

One way to ensure that anything you leave is protected is to create a Revocable Living Trust. This is a document that can be modified as your family grows and requires different types of protection.

A common practice within trusts is to put age restrictions in place. When you have multiple children of different ages you can ensure that minor children receive what they need while still allowing for a fair distribution.

If you are like many young parents, you may find that you are worth more dead than alive due to the low cost of life insurance. Making a trust the beneficiary of life insurance policies can ensure the money is protected for your kids.

There are numerous options for protecting assets for your kids. However, whatever you decide to put in place, it is important to remember that as your life changes and your kids grow, you should plan to update your documents. We recommend annual or semi-annual reviews to make sure your documents evolve along with your family.