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Elder Law

Clauses to Include in a Will or Living Trust

By Asset Protection Planning, Elder Law, Estate Planning

While everyone needs individualized legal advice on what language their estate planning documents should contain, the following are some of the most common and important clauses which should be discussed with the lawyer preparing your will or living trust.

  • Revocation: Previously written wills or trusts should be revoked to avoid the court intervening later to decide which parts of certain documents should be followed.
  • Disaster Clause: This clause helps plan what will happen to your assets if both you and your spouse or main beneficiary die at the same time.
  • Appointment of personal representative: While doing estate planning you will need to name someone as your Personal Representative who will be in charge of distributing the assets in your estate.
  • Guardianship of children: If you have minor children, it is very important that you name someone as their guardian in the event that you or you and your spouse die.
  • Spendthrift Provision: This clause prevents the beneficiary of your assets from transferring their rights to those assets. A spendthrift provision is often used to protect assets from creditors.
  • Total failure: Total failure would occur if all heirs of your estate died before inheriting your assets. This is an extremely rare situation but, without a total failure clause, your estate would go to the government in this circumstance.  A total failure clause allows you to instead designate an organization of your choice for the estate to be given to.

If you have questions about what should be in your estate planning documents to ensure all of your wishes are met and your assets are distributed exactly as you desire, contact our office at (941) 906-1231 to speak with an experienced estate planning attorney.

October 30, 2015
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What are the duties of the Trustee of an irrevocable life insurance trust (ILIT)?

By Asset Protection Planning, Elder Law, Estate Planning

It is important for Trustees of irrevocable life insurance trusts to understand their duties which exist even while the insured is alive.  Some of the most important duties are:

  • The Trustee must pay premiums on the policy. This money would usually be added to the trust by the insured person as each premium comes due.
  • The money added to the trust by the insured is taxable unless the Trustee issues a “Crummey” notice to each beneficiary letting them know that they do have the right to ask for a part of that money added to the trust to pay the policy’s premium. Issuing a Crummey notice qualifies this added money for a gift tax exemption.
  • The Trustee could be held responsible if the insurance company through which the policy is purchased becomes financially insolvent and the Trustee did not anticipate and prevent financial losses.
  • The trustee could also be held responsible if they are found to have made very poor investment or management decisions which resulted in the loss of funds.
  • The trustee must ensure they do not have a conflict of interest such as receiving part of the insurance broker’s commission.
  • A Trustee has the right to withdraw money from the ILIT to loan to the insured.

 

When agreeing to become the Trustee of an irrevocable life insurance trust, it is important to understand what your duties will be and have a plan in place for executing them properly.  If you have further questions about this post or a specific ILIT, contact our office at (941) 906-1231.

October 16, 2015
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Probate and Alternative Dispute Resolution

By Elder Law, Estate Planning, Probate

            Probate disputes can become time consuming and expensive processes which is why many prefer to settle outside of court through arbitration or mediation as alternatives to a full court proceeding.  These processes are less formal than court proceedings and, consequently, are also more flexible.  Through arbitration, both parties agree to adhere to the decision made by a third party arbitrator who usually specializes in certain types of cases.  In mediation, a third party works to propose a solution which both parties will agree to. Both processes allow each side to present their personal view of the case and can lead to creative solutions compared to standard court decisions.

October 9, 2015
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New law signed by President Obama will require hospitals to provide Observation Status notice to patients:

By Elder Law, Medicare

When an individual goes to the hospital, they may not be admitted right away.  If one is not “admitted” to the hospital, Medicare will not pay for hospitalization and a patient may have a large medical bill as a result.  There may be a period in which an individual is being “assessed”.  This is called “Observation Status”.   Observation status ends once a patient is admitted or discharged.

After a three (3) night hospital stay, Medicare will cover rehabilitation.  Previously, patients are not aware of the difference between observation status and being admitted.  The new law known as Notice of Observation Treatment and Implication for Care Eligibility (NOTICE) Act signed by President Obama will take effect one year from August 6, 2015, the date it was signed.  Hospitals have to develop a notification system within this year.

The new law will require the hospitals to give notice to the patients who have been under observation status for more than 24 hours of their outpatient status within 36 hours or upon discharge, whichever happens sooner.  The notice must advise the patient of their outpatient status and advise that their stay does not qualify for rehabilitation services covered by Medicare because they did not meet the three (3) night requirement.

This is one step closer to ensuring hospital patients are properly being informed.

October 7, 2015
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What is a qualified disclaimer and when should it be used?

By Asset Protection Planning, Elder Law, Estate Planning, Probate, Tax Law

If for financial or tax reasons you do not wish to receive an asset for which you are a beneficiary, you can use a qualified disclaimer to pass this asset instead to other listed beneficiaries.  This may be beneficial for individuals who do not wish to claim an asset they are set to inherit for tax purposes.  To make sure your qualified disclaimer is compliant with IRS codes it must be in writing, delivered within a set amount of time dependent on specific circumstances, and irrevocable.  The assets you disclaim cannot be directed by you and will usually pass to the spouse of the decedent.

It is important to consult an experienced attorney when planning to submit a qualified disclaimer.  Contact our Board Certified Tax Law Attorney Fredric Jacobs, Esq. at (941)  906-1231.

October 6, 2015
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Privacy of Estate Planning Documents

By Elder Law, Estate Planning

During estate planning, it is crucial to learn about the different levels of privacy that various estate planning documents provide you.  If you choose to leave assets through a will, that will and its contents become public after your death.  After a will becomes public record, it is available for viewing in the county in which the person it was written for was living or domiciled at their death.  To keep your desires for your assets private after your death a trust may be a more appropriate estate planning document because of the privacy protection it provides.  For example, the full terms of the trust are not recorded in the public record, unlike a will.  If you have more specific questions about the privacy of your estate planning documents after your death, contact our office at (941) 906-1231.  We have attorneys who provide estate planning services have experience in providing these services to high net worth families who can help assure your desires for privacy are met as your plan for your estate.

October 2, 2015
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Estate Planning and Second Marriages

By Asset Protection Planning, Elder Law, Estate Planning

When getting remarried later in life, you must consider how that marriage will affect your previous plan to leave assets to beneficiaries such as children from previous marriages.  Most think that having a will specifying who their assets will go to is enough but, after getting remarried, a will may not be enough.  Even if a decedent has a will leaving assets to their children at the time of their death, their new spouse can be eligible to receive assets through a probate process that occurs involving an “elective share” under Florida law.

To ensure your assets are passed on as you desire, it is usually recommended that you and your new spouse-to-be sign a prenuptial agreement designating what will happen to each of your assets in the event of a divorce or the death of one spouse.  If you are already married, you can also sign a postnuptial agreement to make your wishes clear as to who the beneficiaries of your assets should be.  The use of trusts that provide for your children from the prior marriage, as well as your spouse, are also common estate planning tools.

When planning a second marriage, it is crucial to talk to an estate planning attorney and put necessary documents in place to designate beneficiaries of your assets.  To contact one of our experienced estate planning attorneys, call our office at (941) 906-1231.

September 29, 2015
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Preventing Identity Theft After Death

By Asset Protection Planning, Elder Law, Estate Planning, Probate

Unfortunately, many people’s identities are stolen after they die.  This obviously creates much trouble and confusion for family members attempting to honor the wishes of their deceased loved one by administering their estate or distributing their assets.  The following are some tips for how you can minimize the threat of your deceased loved one’s identity being stolen:

  • Contact the Social Security Administration promptly so that your deceased loved one will be removed from the payroll. This also comes with a monetary benefit as the SSA gives $225 to people who report a beneficiary of social security as deceased.
  • Close social media accounts.
  • Close credit card accounts and call the major credit reporting bureaus, telling them to add “Deceased. Do Not Issue Credit.” to your loved one’s credit report so that new accounts cannot be opened.
  • Ensure all documents such as bank statements, IDs, and anything containing your loved one’s social security number are kept in a secure location.

Bach & Jacobs, P.A. represents and advises personal representatives (aka executors) and family members who are dealing with what to do after someone dies.  Contact Bach & Jacobs, P.A. at (941) 906-1231 for assistance in administering the probate and/or trust for your loved one.

September 11, 2015
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Crucial Considerations During Estate Planning

By Asset Protection Planning, Elder Law, Estate Planning

As you and a qualified attorney are drafting estate planning documents, be sure to consider the following and express to your attorney exactly how you want your assets to be distributed after your death.

  • Flexibility: Think about how easily you will be able to modify your estate planning documents.  Also consider how much flexibility you are giving your beneficiaries through your will or trusts.  For example, think about whether you are putting age restrictions on beneficiaries of a trust or if you want to put stipulations on how the funds can be used.
  • Special Provisions: If wish to leave someone with special needs an inheritance, consider how that money could affect their public benefits eligibility and discuss with your estate planning attorney whether you could leave assets to their special needs trust.
  • Titling Assets: When doing tax planning, discuss with an attorney how you and your spouse should title your assets such as real estate to ensure you are utilizing available tax exemptions.

To speak with and experienced estate planning attorney or  Board Certified Tax Attorney Fredric Jacobs, Esq., call our office at (941) 906-1231.

September 8, 2015
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What Constitutes Undue Influence?

By Elder Law, Estate Planning, Probate

Undue influence often involves a family member or friend coercing someone to add or remove beneficiaries from their estate planning documents in the last months of life or when their mental ability begins declining.  In determining if undue influence was exercised, the court evaluates whether mental inequality, or a notable difference in mental sharpness of the elder and accused exploiter, existed at the time of contested will revisions.

September 4, 2015
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