Steps to Take When a Loved One Dies

This year, more families than usual are finding themselves grappling with the challenge of managing the affairs of a loved one who has died. Handling these tasks while mourning is hard, and often families do not have time to prepare, says the article “How to manage a loved one’s finances after they die” from Business Insider. The following are steps to take when a loved one dies and help you get through this difficult time.

Someone has to be in charge. If there is a will, there should be a person named who is responsible for administering the estate usually called the executor or personal representative. If there is no will, it will be best if one person has the necessary skills to take the lead.

When one member of a married couple dies, the surviving spouse is the usual choice. Otherwise, a family member who lives closest to the deceased is the next best choice. That person will need to get documents from the local court and take care of the residence until it is sold. Being physically nearby can make many tasks easier.

It is always better if these decisions are made before the person dies. Wills should be kept up to date, as should power of attorney documents, trusts and advance directives. When naming an executor or trustee, let them know what you are asking of them. For instance, don’t name someone who hates pets and children to be your children’s guardian or be responsible for your beloved dogs when you die.

Don’t delay. Grief is a powerful emotion, especially if the death was unexpected. It may be hard to get through the regular tasks of your day never mind the additional work of managing an estate. However, there are risks to delaying, including becoming a target of scammers.

Get more death certificates than seems necessary. Make your life easier by getting at least a dozen certified copies, so you don’t have to keep going back to the source. Banks, brokerage houses, phone companies, utilities, credit card companies, etc., will all want to see the death certificate. While there are instances where a copy will be accepted in many cases you will need an original with a raised seal. In fact, in some states it is a crime to photocopy a death certificate.

Who to notify? The first call needs to be to the Social Security Administration. You may also want to send an email. If Social Security benefits continue to be paid, returning the money can turn into a time-consuming ordeal. If there are any other recurring payments, like VA benefits or a pension, those institutions need to be notified. The same is true when it comes to insurance companies, banks and credit card companies. Fraud on the credit cards of the deceased is quite common. When a notice of death is published, criminals look for the person’s credit card and Social Security numbers on the dark web. Act fast to prevent fraud.

Protect the physical property. Secure the home right away. Are there plants to be watered or pets that need care? Take pictures, create an inventory and consider changing locks. Take any valuables out of the house and place in a secure location. If the house is going to be empty, make sure to take care of the property to avoid any deterioration.

Paying the bills. Depending on the person’s level of organization, you’ll have to identify where the money is and if anything is being paid automatically. Old tax returns can be helpful to identify income sources. Figure out what accounts need payment, like utilities.

Some accounts are distributed directly to beneficiaries, like transfer-on-death accounts like 401(k)s, IRAs and life insurance policies. Joint bank accounts and real property held in joint tenancy will pass directly to the joint owner. The executor’s role is to inform the institutions of the death, but not to distribute funds.

File tax returns. You’ll have to do the final taxes due on April 15 of the year after death. If taxes weren’t filed for any prior years, the executor has to do those as well.

Consider getting help. An estate planning lawyer can help with the administration of an estate, if it becomes overwhelming. Regardless of who handles this process, expect the tasks to take anywhere from six months to two years, depending on the complexity of the estate.

Reference: Business Insider (May 2, 2020) “How to manage a loved one’s finances after they die”

 

When Do I Need a Special Power of Attorney?

Yahoo Finance’s recent article entitled “What is Special Power of Attorney?” explains that with a general power of attorney (POA), you can designate a person to make decisions when you are unable, due to illness or incapacitation. Your agent (the person you select) may be able to file your tax returns, access bank records, or sign financial contracts in your name.

A special power of attorney only applies to specific circumstances. This is also called limited power of attorney. An agent named as special or limited power of attorney can only act in situations included in your power of attorney document. A special power of attorney can be for one specific instance or multiple uses, however, it depends on the conditions under which your agent is authorized to act. There are four ways you can set up special power of attorney:

  • Durable: Stays in force for your lifetime or until you decide to cancel it.
  • Limited: Starts and ends on a specific date or ends once a specified event has happened.
  • General: Starts immediately and ends when you become incapacitated.
  • Contingent/springing: Starts when you become incapacitated and are unable to make decisions on your own.

The main reason to use a special power of attorney is to make certain your finances and other legal affairs continue to be managed in the way you want when you’re not able to do things for yourself.

Remember that a power of attorney only applies during your lifetime. The POA ends when you pass away. Your assets would then be managed pursuant to the terms of your will or trust, if you have either. If a person dies without a will, her assets are distributed according to the probate laws of the state.

Creating a power of attorney looks easy enough, however, there are specific rules you must follow. An experienced elder law or estate planning attorney can guide you on the specifics and answer any questions you might have. Typically, creating special power of attorney involves the following:

  • Naming a person to act as your agent
  • Detailing the specific terms under which a power of attorney will take effect
  • Determining which authority your agent will have
  • Designating a successor agent, if necessary, and
  • Choosing an end date for the power of attorney to terminate

A power of attorney is just one of the documents you may need for your estate plan. You should also ask your estate planning attorney about a last will and testament and a living trust to help you manage assets, according to your wishes after you pass away. Another critical document is an advance health care directive which states the kind of care you should receive in any end of life situation. Ask an experienced estate planning attorney about the documents you need.

Reference: Yahoo Finance (Feb. 28, 2020) “What is Special Power of Attorney?”

 

When Does the Fiduciary Duty Granted by a Power of Attorney Begin?

A recent case examined the issue of when the fiduciary duty begins for an agent who has been given Power of Attorney, as reported by the Chicago Daily Law Bulletin in the article “Presumed power of attorney fraud is main factor in joint-account fight.”

Soon after moving to Illinois from Florida to live with his eldest son, a man and that son opened multiple bank accounts, purchased certificates of deposit (CDs) from a bank where the son’s wife worked and transferred more than $60,000 from two of the man’s Florida bank accounts to Illinois banks. Soon after the man moved, his eldest son deposited more than $300,000 from the sale of his father’s Florida condominium into one of the father’s Illinois bank accounts.

The eldest son then withdrew money from the father’s accounts to pay for home improvement costs and other personal expenses. After the father died, the eldest son’s two brothers sued their older brother, accusing him of initiating numerous transfers of money that were not in their father’s or their best interests, and of exerting undue influence on their father, by convincing him to change his will after he moved in with the oldest brother.

The trial court ordered the older brother to repay more than $900,000 back to the estate, including almost $300,000 in prejudgment interest, and voided the revised estate planning documents that the older brother had his father sign. That included a revised will, trust and power of attorney that favored the older brother.

Once you are appointed as a power of attorney, you become a fiduciary—that’s how most state laws work. That means you must act first in the interest of the person who has appointed you. The law states that an agent owes a fiduciary duty to the principal. Period. Any transactions that favor the agent over the principal (or their estate) are deemed fraudulent, unless the agent is able to disprove the fraud with clear and convincing evidence that his or her actions were undertaken in good faith and did not betray the confidence and trust placed in the agent. If the agent can meet this burden, the challenged transaction may be upheld. But if it doesn’t, then the transaction is not valid.

Some of the facts the court look at when making this determination are: did the fiduciary make a full disclosure to the principal of key information, did the fiduciary pay the fair market value for the transfer and did the principal have competent and independent advice.

In this case, the trial judge found that the multiple transfers into the Illinois banks and the gift of $130,000 from the principal to the oldest brother occurred during the existence of the POA relationship. The oldest brother clearly benefitted from these transfers, which activated the presumption of fraud.

The trial court’s decision was appealed by the older brother, who along with his two younger brothers brought motions for summary judgment, that is, for the appeals court to disregard the decision of the trial court. However, the appeals court agreed with the trial judge that the older brother failed to prove that the transfers were in good faith.

The appeals court makes it clear: the power of attorney fiduciary relationship begins when the power of attorney agent signs the document and the agent has a legal responsibility to put the interests of the principal first.

Reference: Chicago Daily Law Bulletin (April 23, 2020) “Presumed power of attorney fraud is main factor in joint-account fight”

 

When Should I Update My Estate Plan?

Forbes’ recent article entitled “Do You Need A Trust? 8 Important Goals A Trust Can Help You Achieve” discusses eight ways a trust can help you achieve specific legacy planning goals. The first step is to meet with an experienced estate planning attorney and ask when you should update your estate plan.

Everybody needs a will but not everyone requires a trust. A trust provides greater flexibility and control over how your property and assets are distributed. Many people create a trust to avoid probate. As a result, it’s faster and easier for your named trustee(s) to distribute your assets to your heirs. There are a many different types of trusts with advantages and disadvantages. Talk about what will be best for you with your estate planning attorney.

  1. No probate. This process can take months or more to complete, and it can be very expensive. A trust is designed to settle your estate in a timely and relatively inexpensive manner.
  2. Privacy and confidentiality. Probate is public so your will and other private financial and business info is available to everyone. However, a trust maintains privacy and confidentiality.
  3. Protection for beneficiaries. A trust can shield beneficiaries from lawsuits, creditors, or divorce. A trust can also protect the interests of a minor, by including direction for when distributions are made.
  4. Provide for children with special needs. This type of trust provides for the health care and personal needs of a minor child or adult who has special needs and won’t impact their eligibility for Medicaid benefits.
  5. Flexibility. As the creator of the trust, you determine the terms of the trust, and can put restrictions on how trust assets are managed. For instance, the trust could state that assets may only be used by the beneficiary to purchase a home or to pay medical bills but may not be distributed directly to the beneficiary.
  6. Preserve family wealth. Divorce and remarriage can result in assets that were supposed to stay in the family wind up leaving with the ex-spouse. A trust can make certain that your estate is preserved for grandchildren.
  7. Family values. A trust can be a wonderful way to pass down family values concerning education, home ownership, land conservation, community service, religious beliefs and other topics.
  8. Lessening family conflict. Challenging a trust is difficult and costly. Having a trust in place that clearly articulates your wishes for your family reduces the potential for misunderstanding.

Whether you have a trust in place or are thinking about creating one, it’s important to meet regularly with your estate planning attorney to be certain your strategy and estate planning documents reflect any new state and federal tax laws, as well as any changes in your goals and circumstances.

Reference: Forbes (Feb. 24, 2020) “Do You Need A Trust? 8 Important Goals A Trust Can Help You Achieve”

 

How to Keep the Family Vacation Home in the Family

If this winter-like weather plus pandemic have left you wondering about how to get started on passing the family vacation home to the family or preparing to sell it in the future, you’ll need to understand how property is transferred. You want to keep the family vacation home IN the family.  The details are shared in a useful article titled “Exit strategy for keeping the cabin in the family” from The Spokesman Review.

Two options to consider: an outright sale to the adult children or placing the cabin in a qualified personal residence trust. Selling the vacation home and renting it back from the children is one way that parents can keep it in the family, enjoy it without owning it, and help the children out with rental income.

One thing to bear in mind: the sale of the vacation home will not escape a capital gains tax. It’s likely that the vacation home has appreciated in value especially if you’ve owned it for a long time. If you have made capital improvements over that time period, you may be able to offset the capital gains.

The actual gain is the difference between the adjusted sales price (that is, the selling price minus selling expenses) and their adjusted basis. What is the adjusted basis? That is the original cost plus capital improvements. These are the improvements to the property with a useful life of more than one year and that increase the value of the property or extend its life. A new roof, a new deck, a remodeled kitchen or basement or finished basement are examples of what are considered capital improvements. New curtains or furniture are not.

Distinguishing the difference between a capital improvement and a maintenance cost is not always easy. An estate planning attorney can help you clarify this, as you plan for the transfer of the property.

Another way to transfer the property is with the use of a qualified personal residence trust (QPRT). In this situation, the vacation home is considered a second residence, and is placed within the trust for a specific time period. You decide what the amount of time would be and continue to enjoy the vacation home during that time. Typical time periods are ten or fifteen years. If you live beyond the time of the trust, then the vacation home passes to the children and your estate is reduced by the value of the vacation home. If you should die during the term of the trust, the vacation home reverts back to your estate, as if no trust had been set up.

A QPRT works for families who want to reduce the size of their estate and have a property they pass along to the next generation, but the hard part is determining the parent’s life expectancy. The longer the terms of the trust, the more estate taxes are saved. However, if the parents die earlier than anticipated, benefits are minimized.

The question for families considering the sale of their vacation home to the children, is whether the children can afford to maintain the property. One option for the children might be to rent out the property, until they are able to carry it on their own. However, that opens a lot of different issues. They should do so for period of one year at a time, so they receive the tax benefits of rental property, including depreciation.

Talk with a qualified estate planning attorney about what solution works best for your estate plan and your family’s future. There are other means of conveying the property, in addition to the two mentioned above, and every situation is different.

Reference: The Spokesman Review (April 19, 2020) “Exit strategy for keeping the cabin in the family”

 

What Should I know about Financial Powers of Attorney?

A financial power of attorney is a document allowing an “attorney-in-fact” or “agent” to act on the principal’s behalf and answers the question of what you should know about Financial Powers of Attorney. It  alsousually allows the agent to pay the principal’s bills, access her accounts, pay her taxes and buy and sell investments. This person, in effect, assumes the responsibilities of the principal and can act for the principal in all areas detailed in the document.

Kiplinger’s recent article from April entitled “What Are the Duties for Financial Powers of Attorney?” acknowledges that these responsibilities may sound daunting, and it’s only natural to feel a little overwhelmed initially. Here are some facts that will help you understand what you need to do.

Read and don’t panic. Review the power of attorney document and know the extent of what the principal has given you power to handle in their stead.

Understand the scope. Make a list of the principal’s assets and liabilities. If the individual for whom you’re caring is organized, then that will be simple. Otherwise, you will need to find these items:

  • Brokerage and bank accounts
  • Retirement accounts
  • Mortgage papers
  • Tax bills
  • Utility, phone, cable, and internet bills
  • Insurance premium invoices

Take a look at the principal’s spending patterns to see any recurring expenses. Review their mail for a month to help you to determine where the money comes and goes. If your principal is over age 72 and has granted you the power to manage her retirement plan, don’t forget to make any required minimum distributions (RMDs). If your principal manages her finances online, you’ll need to contact their financial institutions and establish that you have power of attorney, so that you can access these accounts.

Guard the principal’s assets. Make certain that her home is secure. You might make a video inventory of the residence. If it looks like your principal will be incapacitated for a long time, you might stop the phone and newspaper. Watch out for family members taking property and saying that it had been promised to them (or that it belonged to them all along).

Pay bills. Be sure to monitor your principal’s bills and credit card statements for potential fraud. You might temporarily suspend credit cards that you won’t be using on the principal’s behalf. Remember that they may have monthly bills paid automatically by credit card.

Pay taxes. Many powers of attorney give the agent the power to pay the principal’s taxes. If so, you’ll be responsible for filing and paying taxes during the principal’s lifetime. If the principal dies, the executor of the principal’s will is responsible and will prepare the final taxes.

Ask about estate planning. See if there is an estate plan and ask a qualified estate planning attorney for help. If the principal resides in a nursing home paid by Medicaid, talk to an elder law attorney as soon as possible to save the principal’s estate at least some of the costs of their care.

Keep records. Track your expenditures made on your principal’s behalf. This will help you demonstrate that you have upheld your duties and acted in the principal’s best interests, as well as for reimbursement for expenses.

Always act in the principal’s best interest. If you don’t precisely know the principal’s expectations, then always act with their best interests in mind. Contact the principal’s estate planning attorney who prepared the power of attorney for guidance.

Reference: Kiplinger (April 22, 2020) “What Are the Duties for Financial Powers of Attorney?”

 

Do I Need an Estate Plan with a New Child in the Family?

When a child is born or adopted, the parents are excited to think about what lies ahead. However, in addition to all the other new-parent tasks on the list, parents must also address a more depressing task, making an estate plan with a new child in the family.  When a child comes into the picture, it’s important for new parents to take the responsible step of making a plan, says Motley Fool’s recent article entitled “As a New Parent, I Took These 3 Estate Planning Steps.”

Life insurance. To be certain that there’s money available for your child’s care and to fund a college education, parents can buy life insurance. You can purchase a term life insurance policy that’s less expensive than a whole-life policy and you’ll only need the coverage until the child is grown.

Create a will. A will does more than just let you direct who should inherit if you die. It gives you control over what happens to the money you leave to your child. If you were to pass and he wasn’t yet an adult, someone would need to manage the money left to him or her. If you don’t have a will, the court may name a guardian for the funds, and the child might inherit with no strings attached at 18. How many 18-year-olds are capable of managing money that’s designed to help them in the future?

Speak to an experienced estate planning lawyer to get help making sure your will is valid and that you’re taking a smart approach to protecting your child’s inheritance.

Designate a guardian. If you don’t name an individual to serve as your child’s guardian, a custody fight could happen. As a result, a judge may decide who will raise your children. Be sure that you name someone so your child is cared for by people you’ve selected not someone a judge assigns. Have your attorney make provisions in your will to name a guardian, in case something should happen. This is one step as a new parent that’s critical. Be sure to speak with whomever you’re asking to be your child’s guardian and make sure he or she is okay with raising your children if you can’t.

Estate planning may not be exciting but it’s essential for parents.  Contact a qualified estate planning attorney to create a complete estate plan to help your new family.

Reference: Motley Fool (Feb. 23, 2020) “As a New Parent, I Took These 3 Estate Planning Steps”

 

Should I Create a Trust?

Just 40% of adults in the United States have any kind of estate planning documents in place. That leaves 60% of adults who don’t have their property and other assets protected in the event of death. Without planning, their family and loved ones will have trouble trying to determine what to do next. Frequently, when thinking of estate planning, we think of a will. However, there are other options. Creating a living trust may be a better option for you and your family, advises kake.com’s recent article entitled “What Are the Advantages of Creating a Living Trust for My Family?”

The article provides some of the major benefits of a living trust.

It can save your family money. When a person with a living trust passes, the trustee takes possession and control over the trust property, according to the instructions provided by the grantor. It can be less expensive, because there are no fees that may be incurred in probate. Everything also moves faster.

Protection of your privacy. A living trust is much more private because it doesn’t have to go through the probate court and won’t become public record. In contrast, a will becomes public record that anyone can request to view as a court record.

A trust is for more than death. A living trust can be invoked at other times before death. The creator can add specific stipulations and conditions to the living trust to designate when the trustee can take over the management of property and finances.

More difficult to challenge. A will can be contested in court if a family member thinks that she is entitled to more of your assets than was outlined in the will. A judge can rule that your will isn’t valid and the contesting family member can possibly get more than you intended. With a living trust, there is much less chance that this will happen.

Creating a living trust takes legal expertise so work with an experienced estate planning attorney. You can then discuss an entire estate planning strategy.

Reference: kake.com (April 20, 2020) “What Are the Advantages of Creating a Living Trust for My Family?”

 

What if I Don’t Have a Will in the Pandemic?

Forbes’ recent article entitled “The Dangers Of Dying Without A Will” reminds us that drafting a will allows you determine who will inherit your assets when you die and, if you have young children, who will raise them if you die and their other parent is deceased, and what if you don’t have a will during the Pandemic?  If you pass away without a will, the state will make these very important decisions on your behalf and they may end up being choices you’d never make if you were still around.

Those choices may not reflect your wishes, might create conflicts within your family and cause economic hardships for your loved ones. In addition, none of your assets will go to your favorite charities.

One more thing: no will means potential legal expenses that your estate must pay. Look at these examples of the issues dying without a will may create:

  • If you’re married and have children from a prior relationship, most of your estate may go to the children, leaving your current spouse in a financial hardship. He or she will need to deal with stepchildren (or your former spouse, if your children are minors) just to receive some of your assets.
  • If you’re single and die without a will, your assets might end up going first to your parents or your siblings, if your parents pass before you. You may have wanted your estate to go to others instead.
  • If you die and had an unmarried partner, no will may well leave him or her in a tough financial position, especially if they were financially dependent on you. State laws typically don’t recognize unmarried partners, so he or she could get evicted from the home the two of you shared, if you were the sole owner.

When you do write your will, work with an experienced attorney to be certain that it’s legally valid in your state. There’s no guarantee that the one you prepare without a lawyer will satisfy that criteria. If the probate court doesn’t recognize your will, it will be as though you died without one.

An experienced estate planning attorney will help you make sure your will meets your state’s requirements. This will reduce any potential fighting within your family and prevent them from challenging your will’s validity in court.

Life is now extremely fragile with COVID-19. The consequences of dying without a will have never been more profound. Talk to an estate planning attorney today!

Reference: Forbes (April 20, 2020) “The Dangers Of Dying Without A Will”

 

Top 10 Reasons to Get Going on an Estate Plan

The time to have an estate plan really begins the moment you have assets that need to be distributed, but most people put off this important task. There are more than ten good reasons to talk with an estate planning attorney and get your estate plan in order, says the article “Top ten reasons to create an estate plan today” from OakPark.com, but these ten should be compelling enough to get you started.

10-It’s better to start with a plan than with an emergency. A sudden health crisis, whether a global pandemic or a spouse’s heart attack, should not be the reason for you to get going on your estate plan. Get an estate plan done, before you or a loved one needs it.

9-Don’t hope for the best for your minor children. A will is used to name guardians for minor children and to name a financial guardian who will oversee assets left for them. Without a will, the court will make that decision. The person selected by the judge may not be the person you’d want.

8-Equal is not always fair. If you paid for your oldest child’s college education and your youngest is still in middle school, how will an equal division of your assets be fair to the child who has yet to go to college? A will and estate plan lets you map out how assets can be distributed equally taking a variety of factors into consideration.

7-Inheritance begins at age 18, ready or not. With no will, children 18 and over will inherit assets all at once, no questions asked. If you have a son who likes expensive cars, there won’t be anything stopping him from spending his entire inheritance on a Ferrari.

6-Estate planning is an act of love. Couples strengthen their relationship when they create an estate plan. It’s a love letter to your spouse and your family that demonstrates a tangible desire to protect them.

5-Build personal connections. Asking someone to be there for you and your family when you are the most vulnerable—incapacitated or deceased—is a strong statement of trust. Creating an estate plan cements relationships and sends a clear message that you believe in others to care for your loved ones.

4-Make parenting your college-age children easier. In the eyes of health care privacy laws, your children are strangers to you, once they reach the age of majority in your state (i.e., usually age 18). With young adult health care powers of attorney and HIPAA (Health Insurance Portability and Accountability Act) privacy waivers in place now, you can be informed and involved in case of an emergency later.

3-The state wants you to have an estate plan. One of the results of the coronavirus pandemic is that many states have made it lawful to have estate plans witnessed and notarized by video conference under certain circumstances and not in all states. You don’t have to leave the house to create or update your estate plan. There are no excuses now!

2-Your mortality is basically 100%. People procrastinate having their estate plans done because who wants to think about death and dying? However, whether or not you procrastinate doesn’t matter. We will all die one day, and an estate plan will make it better for those we leave behind.

1-There is a good chance that you have more time on your hands now, than before the coronavirus pandemic. Call an experienced estate planning lawyer, and get it done. There’s no time like the present.

Reference: OakPark.com (April 15, 2020) “Top ten reasons to create an estate plan today”