Estate Planning and Legacy Law Center, PLC

Sometimes, Two Heads are Better than One

We rely on our friends, family, and colleagues to help us through life’s challenges. These trusted individuals can also be incredibly important when setting up an estate plan. It is vital to appoint a fiduciary to act on your behalf. A fiduciary acts on your behalf, carrying out your wishes should you become incapacitated or pass away. Legally bound to make decisions with your best interests in mind or in accordance with your written instructions, the fiduciary is invaluable in times of uncertainty.

 

Many people select a single fiduciary to manage their affairs. However, the amount of time associated with the role can be overwhelming for some people. When deciding who to appoint as fiduciary, be mindful of the degree of effort associated with maintaining and managing your affairs.

 

In some cases, you may want to nominate co-fiduciaries. This ensures there is always someone available to act even in the event of the death, incapacity, or unavailability  of one of them. Of course, choosing more than one fiduciary has its drawbacks. If you choose to have more than one, you will need to decide if they must act unanimously, or if one can act on your behalf without the consent of the other. If an even number of fiduciaries is named, serious tension can arise when important decisions need to be made. If you require a unanimous decision be made, a deadlock can happen. To avoid this issue, you may want to nominate more than just two fiduciaries, or name another individual to cast the deciding vote in these instances.

 

Co-fiduciaries may also struggle to coordinate schedules, especially if they are located in different geographical areas or have demanding jobs. Regardless of whether a unanimous decision is required, it is crucial for everyone to be involved in the process of making big decisions on behalf of a loved one. That said, it is also important that all parties involved in the decision-making process get along – which is no easy feat for some families.

 

Nevertheless, the benefits of having co-fiduciaries may outweigh the drawbacks. If you’re confident that the people you select can get along and make good decisions together, and there are appropriate provisions written into your estate planning documents to address the risk of deadlock, it may be worth appointing several trusted fiduciaries.

 

Should you decide to appoint just one person as fiduciary, you have a couple of options. As previously discussed, appointing a trusted family member or friend can be a good choice depending on the type of work involved. However, if you do not want to pick one person over another, or if your loved ones are not able to act on your behalf, look to a professional to represent your needs. They’ll generally be more available to manage your assets and make unbiased decisions based solely on your wishes and best interests. Although appointing someone outside of the family may ruffle some feathers initially, it can lead to less animosity after you pass.

 

Whether you opt to appoint several fiduciaries, family members, or trusted professionals, it’s always smart to plan ahead. Although it might not seem pressing right now, selecting a fiduciary can help you protect the legacy you have worked so hard to build. Should you become incapacitated, you’ll be grateful to have someone you can trust represent you in managing your property, taking care of your finances, and addressing other legal matters, instead of having the court appoint someone you might not have chosen.

 

Get the guidance you need to plan for your future. We are here to help memorialize your wishes to protect your loved ones and safeguard your assets.

 

Happy 18th Birthday!! Now What . . .

Congratulations! You are now considered a legal adult. Aside from purchasing alcohol, there is now very little you cannot legally do. Even though you may not feel any different, from a legal standpoint, a lot has changed.

 

When you were a minor (under the age of 18), your parents were considered your legal guardians and were responsible for making all of your decisions for you. Now that you are an adult, their legal authority is very limited if not completely gone. Although this new found freedom may sound exciting, there are a few things you need to consider:

  • Access to medical information. As a legal adult, you are protected by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). This means that your private medical information can only be disclosed to those individuals you have authorized. If you want your parents to continue having access to this information, you will need to have a HIPAA Authorization Form prepared appointing your parents, or anyone else you designate, as an Authorized Recipient.
  • Medical decisions. Chances are, if something were to happen to you rendering you unable to make decisions, it would be your parents that you would rely on to make decisions about your medical treatment. As a minor, your parents automatically had that authority, but now that you are an adult, you must formally grant them this authority. This can be accomplished through the preparation of a Health Care Power of Attorney. Not only can you name someone to act on your behalf (an agent), but you can also provide some general guidelines regarding your healthcare wishes.
  • Financial decisions. If you are planning on going away to college or spending any significant time away from home, having a Durable Financial Power of Attorney in place may be helpful to you. Up until now, if you needed a parent to make a withdrawal from a bank account, or sign something on your behalf, there was no need for any additional steps because they were your legal guardians. However, now, if you want them to continue providing the same services, you will have to grant them this authority through the Financial Power of Attorney.
  • Managing your stuff when you die. You just turned 18, not 98, but now is a good time to begin some responsible habits and consider what will happen to your assets when you pass away, since no one knows when this will happen. You may think that you do not have any assets, but you actually do. In this digital age, each one of your social media accounts is considered an asset. What will happen to these accounts when you pass away? You also have tangible personal property, which might have more sentimental than financial value. The execution of a simple will or trust will allow you to dispose of your assets to whom you want in the manner you want, no matter their monetary value.

 

Now that you are an adult, it is time to start thinking like one. The first step is meeting with an experienced estate planning attorney to ensure that you are properly protected now that it is your responsibility. We are here to help you navigate this next chapter in your life and ensure that you are protected for the future to come.

HIPPA: An overview for Young Adults

The Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted to provide guidelines to the healthcare industry for protecting patient information and privacy. For minors, this is a non-issue because parents, as legal guardians, have access to their children’s medical information and are the ones making most of the medical decisions, as well as paying the expenses.

 

However, once the individual turns 18 years old, he or she is no longer a minor. This means that the hospitals and doctor’s offices must safeguard the patient’s information from everyone, including the parents. While it makes sense that a legal adult would be the one in charge of his or her own medical information, this can pose some problems for young adults. Most 18-year-olds are still in high school, live at home, and have their expenses paid for by their parents. Although they are considered a legal adult, their day-to-day lives look more like that of a child.

 

Young adults should consider executing the required documentation to ensure their parents can access their medical records and discuss their medical care. This is accomplished through the use of a HIPAA Authorization Form. With this form, the young adult can designate any individual to be his or her Authorized Recipient of the medical information. Executing this document can be incredibly helpful if there is a question about the young adult’s care while the parent is paying the corresponding medical bill.

 

A properly executed HIPAA Authorization Form can also be beneficial in the event the young adult ends up in the hospital. Because hospitals do not want to be fined for violating HIPAA, most will err on the side of caution and refrain from disclosing any information to family members without the properly executed documentation. Without this exchange of information, families can feel out of control and doctors may miss important family medical information.

 

As a companion to the HIPAA Authorization Form, it is also important to have a Health Care Power of Attorney executed so that someone will have the authority to make medical decisions on behalf of the young adult if he or she is incapacitated. Without this document, the family may end up having to go to court in order to have someone appointed to make crucial medical decisions.

 

If you, or someone you know, has recently turned 18 years old or is in need of a HIPAA Authorization Form, please give us a call. We are here to protect you and your family through all the major milestones in life.

Kids Going Away to College?

You may have been running around for weeks, getting your new college student off to school. It’s exhilarating, and your heart likely is bursting at the seams. You’re probably prouder than words can express, but you’re also a little afraid, too. How can you make sure your kid is going to be safe at school, their new home away from home? A new, matching Bed Bath and Beyond sheet set for the dorm sounds great, but it just doesn’t seem like quite enough, does it? So what else can you do?

 

Actually, there is something, probably not yet on your to-do list, that absolutely can make all the difference. Bring your child to a local estate planning attorney.

 

You’ve probably focused on the fact that, having graduated from high school, your child is an adult now—meaning that your child is going to spread her wings. But what is essential to remember: At 18, a college student may still want her mom and dad by her side if she gets sick.  However, legally, decisions for medical care are hers alone now. If she were to be unconscious from a serious car accident, a parent couldn’t authorize medical care without first going to court. And it would be up to a judge to determine if her parent would be an appropriate guardian to make medical decisions.

 

We don’t want to worry you, but the unfortunate reality is that every year, a significant number of people between 18 and 25 wind up in the nation’s hospitals, and their parents are often locked out of critical decisions.

 

Therefore, experts recommend that everyone over the age of 18 have a basic estate plan that includes a will or trust, a financial power of attorney, and medical directives that would allow someone they trust to act on their behalf if they aren’t able to.

 

Here are some things to take care of before you drop your child off at college:

 

  • A FERPA Release: The Family Educational Rights and Privacy Act is designed to protect college students’ privacy, but it can leave parents locked out in an emergency. A properly worded release allows school officials to talk with you and release your child’s records to you.
  • A HIPAA Authorization: The Health Insurance Portability and Accountability Act was designed to protect a patient’s privacy. Consider having your child sign an authorization so that—just in case—any necessary doctors can talk to you about your child’s condition, care, and treatment.
  • A Durable Financial Power of Attorney: This is a legal document that allows you to take care of your child’s checking or savings accounts, pay bills, etc., if your child is unable to—whether due to illness or even just location (for example, if the school is on the other side of the country).
  • A Durable Power of Attorney for Healthcare: Like the financial version, this allows you to handle medical decisions for your child if your child is unable to do so.
  • A Will: At first glance, this may seem a little silly for the average broke college kid. In our digital age, there are some hidden complexities. For example, on average, an email account today is tied to 130 or more online accounts, each with their own username and password. Does your child have thoughts about who should manage their social media and email accounts, receive valuable gaming accounts, and close down other apps and accounts? It’s also a great time in your young adult child’s life to instill responsibility by encouraging them to think about planning in the long term.

 

We’ve been helping families attain peace of mind for years. Reach out to us today to protect your new college student and your family.

 

The Role of An Agent under a Power of Attorney

For most people, the phrase “power of attorney” means very little. Even for those educated on the subject, it is easy to forget exactly who serves what role and why. Whether you are unfamiliar with the concept or simply need of a refresher, keep reading to learn what it means to be an agent under a power of attorney.

 

To start, it helps to understand what is being asked of an agent under a power of attorney. A person appointed to the role becomes a representative of the principal’s finances. In effect, they gain permission to step into the shoes of the principal and act on their behalf.

 

For those appointed under a limited power of attorney, though, the agent’s power is very specific. Typically, their ability to act on behalf of the principal is limited to the specific transaction or actions outlined in the limited power of attorney – executing a real estate deed on behalf of an out of town principal, for example. This kind of power of attorney offers stricter parameters for what the agent may do on behalf of the principal.

 

An agent under a general power of attorney has the authority to conduct all financial business on behalf of the principal subject to any restrictions that are enumerated in the document or by state law.

 

Regardless of which kind of power of attorney, agents must act as a fiduciary to the principal. This means the agent must operate in good faith, with the best interests of both the principal and their affairs in mind. When making any decisions, the agent is required to consider the choice the principal would make. Those who abuse their power in the role can be held liable for their actions.

 

Under a durable power of attorney, the benefits and responsibilities of being an agent under a power of attorney start as soon as the principal signs off. However, most principals do not expect an agent to use this tool unless they become incapacitated. For those appointed under a springing power of appointment, agents will not be able to act unless the principal is incapacitated. Principals should discuss expectations with the agent to ensure there is clarity on how to best carry out the principal’s wishes.

 

Should an agent need to act on behalf of the principal, it is important that the agent document everything they do. Documentation is the best way to answer any questions or challenges to the agent’s actions. Agents should keep their finances completely separate from the principal’s.

 

If you are feeling unsure about your duties as an agent under a power of attorney, be honest with the person who appointed you. Ask for clarification on your responsibilities and the expectations they have for you. You may even want to meet with an estate planning attorney for a more comprehensive discussion of your rights and options. By arming yourself with facts about your duties, you will more easily accomplish the principal’s goals and wishes.

Can I Make Estate Plans Without My Spouse?

The average American family has changed a great deal over the last few decades. The assumption that a couple will share finances, tax obligations, and a last name is one that does not necessarily apply in the 21st century. There are more options than ever before to keep your finances, identity, and future plans separate. This sense of independence leads many married people to question: can I make estate planning decisions without involving my spouse? The answer can be more complicated than you might expect.

 

While it’s certainly possible to begin the estate planning process without your spouse, there are some things to consider. First, it is important to recognize that only assets you solely own can be controlled by your will or trust. Plans you make for certain personal retirement accounts (subject to some restrictions), savings accounts, and individually-owned property can be done without involving a spouse. Any accounts, deeds, or titles in  both of your names, however, will need to be handled by both parties.

 

There are other considerations to take into account, too. For instance, if the planning spouse dies first, items owned by that individual will be distributed according to the plan. Any jointly owned property will go to the surviving spouse automatically. Should the non-planning spouse die first, his or her assets will be distributed according to state law. Depending upon the size of the estate and family circumstances, most, if not all of the assets will be distributed to the surviving spouse. Then, when the planning spouse dies,  all of the assets will be distributed according to their estate plan.

 

This “default” planning can be especially dangerous for blended families. Without proper planning, the children of the first spouse to die may be inadvertently disinherited. For this reason, anyone with kids should involve their partner and co-parent in their estate planning process. Even if you keep other aspects of your lives separate from one another, it’s important to get on the same page about your legacy and the property you’ll leave behind.

 

There are certain aspects of estate planning that you can handle independently of your spouse. Executing powers of attorney for health care and financial decisions is crucial and can be done without involving your partner. Even if you would like to appoint your spouse as your agent under a financial power of attorney or proxy under a medical power of attorney, you need to properly execute the documents. Just because he or she is your spouse, does not give them the automatic right to make financial and medical decisions on your behalf. Should you become incapacitated, powers of attorney can help ensure that your wishes for your health and wealth are carried out.

 

Beyond powers of attorney, though, it’s advisable to get your spouse on board with estate planning. To get started, make a list of the assets you and your partner share. While you’re at it, outline individual retirement accounts, insurance policies, and approximate balances – this information will be necessary when meeting with an estate planning attorney. Simply involving your partner in the initial conversations about your joint assets can help ease anxiety surrounding the estate planning process.

 

We are here to help you with your estate planning needs. Give us a call and we can arrange a time to meet to discuss the importance of estate planning and help craft an overall estate plan that will protect everyone involved.

The Harmonious Family that Won’t Fight?

Most families are happy families. They get together for the holidays, share laughs, and tell stories. Everyone gets along and enjoys each other’s company. Then, the matriarch or patriarch dies. Suddenly, years of pent-up resentment and hurt feelings bubble to the surface, and the once-happy family is now embroiled in litigation over the decedent’s estate.

 

When everyone is alive and happy, it is easy to think that nothing will break a family apart. Many people think that since everyone is getting along, estate planning is not needed because everyone will look out for one another and do what is fair. However, it is crucial that you have a properly prepared estate plan. Failing to plan not only takes all of the control out of your hands, it can also leave hurt feelings and possible confusion over what your true wishes were. This confusion will force family members to the only source able to remedy the misunderstanding: the probate court.

 

While a lack of planning can lead to disastrous consequences, poor planning can be just as harmful. Documents that are not up to date, vague, or improperly prepared can lead family members to challenge them. If the documents are not clear, family members may have differing opinions as to the true intention of the decedent. This is especially unfortunate for those with a trust: One of the primary reasons to have a trust prepared is to avoid court involvement.

 

If your documents are up to date and clearly state your intentions, but you worry that your decisions may displease your family, you do have the ability to include a no-contest clause that may prevent or limit challenges to your will or trust. A no-contest clause is a provision that states that if a person contests your will or trust—whichever document contains the clause—and is unsuccessful, they will receive nothing. However, their effectiveness can vary from state to state, so if you think your family might contest your wishes, it is incredibly important to seek the help of an experienced estate planning attorney.

 

One common situation where contests can arise is when someone is left out of the will or trust. If you want to intentionally disinherit a family member, consider leaving them a nominal amount at your death and using a no-contest clause. By doing this, if the contest is unsuccessful, the family member has something to lose. This may discourage them from contesting your wishes in the first place. However, as previously mentioned, you need to work with an experienced estate planning attorney to make sure that this strategy is the best one for you based on your state’s law and your family situation.

 

As an alternative, if you are concerned about a beneficiary receiving a sum of money outright because of creditor issues, spending habits, etc., you do not need to disinherit them. By utilizing a discretionary trust, you can set aside money for the individual that is distributed to them when and how you determine. Leaving money to a family member does not have to be an all-or-nothing decision.

 

Regardless of your family situation, it is incredibly important that you have a well-drafted, up-to-date estate plan in place. Will or trust contests can be very costly and can quickly drain the estate or trust, which means your loved ones will end up with less than you intended. We can assist you in creating an estate plan that will ensure that your wishes are carried out and that harmony can be maintained within your family after you are gone. Give us a call today at 407-647-PLAN (7526) to schedule an appointment.

 

 

Estate Planning Is More Than Just Death Planning

Many believe that estate planning is simply instructions on how to distribute your assets when you pass away, but the reality is that proper estate planning can do much more. While one major benefit of estate planning is to provide for your family and friends when you are gone, there are many benefits for you as well.

 

Additional Benefits of Estate Planning

 

Life can give us surprises, both good and bad. Estate planning can help you be prepared for  some unfortunate surprises in life. This is because proper estate planning includes planning for you and your care in the event you become incapacitated.

 

One tool used to address your care in the event of incapacity is a financial power of attorney. This legal document allows you appoint someone to manage your finances and property on your behalf. A financial power of attorney can go into effect as soon as the document is signed, allowing someone to act on your behalf immediately, even if you are not incapacitated. Alternatively, power of attorney can be “springing,” only going into effect in the event you become incapacitated (as determined by a physician). You can determine which type of financial power of attorney fits your unique situation.

 

Another estate planning tool that can protect you in a time of need is a medical durable power of attorney. Also referred to as a healthcare directive, this legal document lets you name a trusted person to make medical decisions on your behalf when you are unable to do so yourself. It also gives you an opportunity to lay out some of your wishes regarding your medical care.

 

A document called a living will can also bring peace of mind to both you and your loved ones because it provides instructions on what type of end of life medical care you want. Sometimes referred to as an advance directive, a living will is often paired with a healthcare durable power of attorney.

 

Finally, the use of a revocable living trust can be beneficial in the event you become incapacitated. When you are healthy and have capacity, you are typically the trustee of a revocable living trust, able to manage the assets and use them for your benefit. However, the trust instrument also allows you to name a successor trustee who will step into your shoes to manage the assets when you are no longer able to act due to incapacity or disability. Successor trustees also have a duty to continue to use the assets for your benefit.

 

Plan Ahead for Peace of Mind

 

Having a properly drafted estate plan that includes the documents described above can help protect you during your lifetime. Failure to have these documents in place may result in your loved ones going before the court to have someone appointed to make financial and medical decisions for you. This process, often called “living probate,” is lengthy, expensive, and stressful – not to mention part of the public record – during a difficult time when your loved ones are already dealing with the incapacity of someone they care about – you!

 

If you have questions about any of these legal documents or how to protect yourself through estate planning, give us a call at 407-647-PLAN (7526) to learn about your options under applicable law.

 

What to Bring to Your First Meeting with the Estate Planning Attorney

If you are thinking about putting together an estate plan, it is important to consult with an attorney who is knowledgeable and experienced in this area of law. Your initial meeting with an estate planning attorney is a good opportunity to discuss your family’s financial situation as well as your concerns and goals. If you are able to prepare ahead of time for this meeting, there are several items you should bring with you to benefit the most from the consultation.

 

Helpful Information to Bring With You

 

Before meeting with the attorney, consider writing down your goals and wishes for your estate plan – or the concerns or worries that prompted you to make the appointment. You may want to jot down specific information you want the attorney to know about your family dynamics, such as beneficiaries or family members you want to include or about or the fact you have a blended family. This information is critical to ensure the attorney understands who is a part of your family, who you want to benefit and protect through your estate plan, and which strategies are best to achieve your goals and unique circumstances.

 

Beyond this, below is a list of the most important documents you should try to bring to this first meeting:

 

Documents related to your assets: In an ideal world, you should have an inventory of all your bigger assets — for example, your vehicle(s), home(s), insurance policies, retirement accounts, and bank accounts. Knowing exactly what assets you own and where they can be found is critical to your estate plan.

 

Documents related to your liabilities: While this may not be fun, any significant debts you have must also be accounted for to create an estate plan providing the best protection for you and your loved ones. An estate planning attorney may want to use financial tools such as trusts to ensure your assets go to your loved ones and not to creditors to pay off debt.

 

Contact information of other advisors: Whether you use the services of a financial advisor, an accountant or CPA, or an insurance agent, be sure to bring in their contact information so that the estate planning attorney has a point of contact for each aspect of your estate plan. Estate planning is a collaborative effort, with each advisor holding a piece of your financial puzzle. By providing the contact information, it will be easier for all of your trusted advisors to work together to carry out your ultimate goals.

 

Prepare a list of questions: Having a list of questions and concerns can keep you on track with the discussion and ensure that you get the answers you need as you go through the estate planning process.

 

Please note, if the attorney has sent you forms to complete before your scheduled appointment, make sure to complete them. Depending upon the attorney’s process, these forms or questionnaires may need to be returned to the attorney prior to the scheduled meeting date.  Completing these documents will help the attorney better assess your estate planning needs, make best use of the appointment time, and help you begin to think more deeply about your estate plan.

 

Meet Even If You Are Unprepared

 

Sometimes the biggest hurdle is simply making the initial appointment with an estate planning attorney. While being prepared for an initial meeting is ideal, it is not absolutely necessary. In fact, all of this information can be obtained after retaining your estate planning attorney. Preparing ahead of time, however, will give you and your attorney a head start in putting together a solid estate plan as soon as possible. While it is the attorney’s job to develop the strategy for your estate plan, it is to your advantage to identify your goals and consider the  legacy you wish to leave.

 

If you are ready to take the next step in your estate planning journey, give us a call at 407-647-PLAN (7526). Even if you don’t have all of the answers or know the right questions to ask, we are here to guide you through the process and ensure your goals are carried out.

 

 

 

 

When is Probate Necessary?

Whether or not you have an estate plan in place, you have likely heard the term “probate”. Probate is the legal process by which a deceased individual’s assets are distributed under court supervision. This process is necessary to distribute assets that are solely in the name of the deceased person. Probate is governed by state law.

Avoiding Probate

One of the appealing aspects of putting together an estate plan is to avoid probate. One way to avoid the probate process is to ensure that no assets will be titled in the decedent’s name, or providing for an automatic transfer of title, at death. Ways to accomplish this include joint tenancy with rights of survivorship, transfer-on-death (TOD) or payable-on-death (POD) beneficiaries, or use of a trust.

Joint ownership is easy to create and transfer property; however, this solution provides its own set of concerns. TOD and POD accounts can be efficient because, upon the account owner’s death, they immediately transfer the account, outside of probate, to the named recipient. They are easy (and typically free) to set up. It is important to note; however, that in this case, the account is transferred to the beneficiary outright without any creditor protection. Another popular and efficient way to avoid probate is the use of a trust. If you place your assets in a trust, the trust, not you, owns them although you can control these assets and benefit from them as if they were yours. Accordingly, the assets do not go through probate because only property owned by the decedent goes through this process.

Note: If your estate planning consists of just a will, this document will go through the probate process. However, by using a will, you have the ability to determine who will get your assets – as opposed to letting the court decide for you.

Benefits & Downsides of Probate

While there are numerous estate planning tools that can be used to avoid probate, it is not always a bad thing. A probate court can ensure that your intentions and wishes listed in your will are carried out after your passing. Additionally, the probate process guarantees all presented debts are discharged as well as any outstanding taxes on the estate. This, in turn, results in finality to the affairs of the deceased – and surviving family members. Of note, if the deceased had outstanding debt, the probate process gives creditors only a brief window to file a claim against the estate, which could result in more debt forgiveness if there is a concern about the estate being insolvent.

That being said, there are downsides to the probate process. One such downside is the cost. Due to the filing and inventory fees imposed by the probate courts, this is an additional expense eating away at the estate. Also, the probate process can be very time consuming. The probate must be open for a minimum period of time (in many states it is four months) to permit creditors to file claims against the estate. For most uncomplicated probate estates, it will take a minimum of one year to administer. Additionally, the lack of privacy can be a concern for some families. The contents of your will, and any other documents that have to be filed with the court, will be a matter of public record. Any disgruntled family member wondering how your estate was divided up, will have the ability to get access to the documents through the probate process. Lastly, the probate process takes control away from the deceased and the family. This is because, if you do not have a will, the probate process puts the disbursement of a deceased’s assets in the hands of the court and at the mercy of local intestacy law.

Get Advice

If you have questions about the probate process and intestacy laws in your state, feel free to give us a call and schedule an appointment. No matter if you have a little or a lot, a well crafted estate plan can help you avoid probate and make sure your loved ones are taken care of when you are gone.