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Law Office of Michael D. DellaMonaca

Have a Plan for Life

What Kind of Money Do I Need to Put into a Special Needs Trust for my Child?

One of the toughest things about planning for a child with special needs, is trying to calculate the amount of money it’s going to take to provide both while the parents are alive and after the parents pass away.

Kiplinger’s recent article asks “How Much Should Go into Your Special Needs Trust?” The article explains that it’s not uncommon for people to have done some estate planning but not necessarily special needs estate planning. They haven’t thought about how much money they should earmark to fund that trust someday and which assets would be the best to use.

Special needs estate planning involves creating a special needs trust that allows a person with a disability continue to receive certain public benefits. Typically, ownership of assets more than $2,000 would make the individual ineligible for certain public benefits. Assets held in a special needs trust don’t count toward this amount.

A child with special needs can generate multiple expenses. The precise amount will be based on the needs and lifestyle of the family and the child’s capabilities.

When the parents die, this budget must be increased, because the things the parents did must be monetized.

A special needs trust usually isn’t funded until the parents’ death. The trust would then need to file a tax return each year and pay taxes.

There are also legal and trust administration expenses to think about. Public program benefits can, in many cases, offset many of the above-mentioned costs.

It’s vital to conduct a complete analysis of the future costs to provide for a child with special needs so that parents can start saving and making adjustments in their planning.

Speak with an elder law or estate planning attorney about special needs trusts.

Reference: Kiplinger (June 10, 2019) “How Much Should Go into Your Special Needs Trust?”

 

Things You Need to Know About Handling Your Aging Loved One’s Finances

Sometimes a loved one starts having trouble managing her money because of confusion, cognitive decline, Alzheimer’s disease, or some other form of dementia. When that happens, you might find yourself having to serve as her money manager. Here are some things you need to know about handling your aging loved one’s finances.

Changes to Make Now

Your loved one must be legally competent to takes steps, like adding a trusted friend or relative to a bank account or creating a legal power of attorney or executing a will. Once your aging loved one becomes incapacitated, she will not be able to hand the reins over to someone else.

At that point, the only option is to go to court and obtain a Guardianship or Conservatorship using an experienced estate planning attorney. These processes can take months or longer, and they often cost hundreds of dollars in legal fees for the lawyer who files and handles the Guardianship/Conservatorship and court costs.

People often challenge changes that a person makes when in the early stages of Alzheimer’s or after a certain age.

How to Avoid Elder Financial Abuse

Sadly, the vast majority of people who steal from older adults, are the people they trust the most. Family members, friends, clergy and financial professionals commit the lion’s share of elder financial abuse. To prevent this outcome for your loved one, you should:

  • Have one person in charge of your loved one’s finances. Speak with an experienced estate planning attorney and execute a Durable Power of Attorney to do this should you take ill.

When this person takes over, the person should prevent identity theft and fraud by canceling and shredding your relative’s debit cards and credit cards. The individual would be able to close any  accounts at PayPal etc.

Keep All Transactions Above Suspicion

Because incapacitated people are so vulnerable to theft and fraud, the people who manage your loved one’s money and other assets should take precautionary measures to make it clear they are acting in your relative’s best interests. Always write the reason for the payment on the memo line of the check. NEVER CO-MINGLE FUNDS.

Do not borrow from the account. Do NOT use your loved one’s assets for purchases that benefit anyone other than your relative. Do NOT use HER assets for your own benefit, like driving HER car to work.

Every state has different regulations, and this article covers the general law. You should talk to an experienced elder law attorney near you.

References:

AARP. “Managing a Loved One’s Money.” (accessed July 11, 2019) https://www.aarp.org/caregiving/financial-legal/info-2017/managing-someone-elses-money.html?intcmp=AE-CAR-LEG-EOA1

 

How to Locate or Get Copies of Your Aging Relative’s Important Documents

If you are serving as a caregiver for an aging relative, you know the job involves more paperwork than you ever imagined before taking on the responsibility. The task of caregiving is even more challenging, when your loved one cannot find her essential documents. You might need a copy of your parents’ wedding license from 1950, so your mom can get her spousal retirement benefits. Your dad might need his military service records to enroll in veterans’ benefits programs.

Before you start pulling out your hair trying to find these papers, it is good to have a plan. For example, the first three places in the house you will check, people you can call who might have useful information about where the documents might be stored and a list of the banks where your mom or dad might have rented a safe deposit box. It also helps to know how you will go about getting replacement copies of the documents you cannot find. Here are some tips on how to locate or get copies of your aging relative’s important documents.

Let the Scavenger Hunt Begin

Before you rifle through all of his personal belongings, ask your loved one where he keeps his important papers. You might be amazed at some of the bizarre places that people put their documents. It would take you a month of Sundays to find the papers, if the person had not told you where to look. A hollowed-out book, a cigar box and a coffee can often hold treasure troves of paperwork. Some people keep valuable documents in the freezer, hidden in a closet, under a floorboard or under the bed.

Make it easy on yourself and ask Dad where he keeps his papers. Explain why you need a particular document, and you would like to organize the rest of his papers, so you can easily find things you need to help take care of him. if you know of your dad’s estate planning attorney, perhaps contact that attorney.

If he cannot remember or the papers are no longer where he thought they were, check the desk drawers, the family bible, a file cabinet, the attic, the basement and shelves. If he put the documents in a safe deposit box, you will have to take him and the key, along with his government-issued photo identification to the bank. After you inventory the contents of the box, keep the list and have him add you to the safe deposit box, so you can access the documents in the event of his death. Never leave funeral instructions or documents in the box.

When You Cannot Find It, Get a Replacement Copy

It can take weeks or longer to get replacement documents, and it is best to start this process well before you need the papers. You can contact the applicable state’s or county’s vital records office to get certified copies of certificates of birth, death, marriage and divorce. Make sure you have your loved one’s Social Security card, driver’s license or state identification card, Medicare and Medicaid cards and military records. If any of these are missing, contact the appropriate government agency to get replacement copies.

References:

AARP. “Find or Replace Your Loved One’s Missing Documents.” (accessed July 22, 2019) https://www.aarp.org/caregiving/financial-legal/info-2018/replacing-important-documents.html?intcmp=AE-CAR-LEG-EOA1

 

What is Portability and How Does It Impact Estate Planning?

Let’s address the elephant in the room: the word “estate” in planning doesn’t have anything to do with the size of your home. It simply refers to a person’s assets: their home, bank accounts, a second home, investment accounts, cars, etc.

The federal estate tax, says The Times Herald in the article “Federal estate tax and portability considerations,” impacts very few people today, as a person would have to have assets that total more than $11.4 million (or $22.8 for a couple) before they have to worry about the federal estate tax.

Individuals and couples with significant assets are advised to have an estate plan created by an estate planning attorney with experience working with people with large assets There are numerous tools used to minimize the federal tax liability.

However, when one spouse dies, it is generally recommended that the surviving spouse file a Federal Estate Tax return for reasons of portability. That is because when the first spouse dies, they use a portion of the Federal Estate Tax exemption, but there’s usually a portion available for the surviving spouse.

If IRS Form 706 is filed in a timely manner, the surviving spouse can “port over” or protect the remaining amount of Federal Estate Tax exemption that the deceased spouse has not used. This return needs to be filed within nine months of the date of death, although the surviving spouse can obtain an extension.

No tax will be owed, since the return is filed merely for reporting purposes. The assets in the entire estate must be reported, including everything the person owned. That may be cash, securities, real estate, insurance, trusts, annuities, business interests, and other assets. It should be noted that this will likely include probate as well as non-probate property. Appraisals and significant documentation are not usually required on a return just for portability purposes.

Why does a return need to be filed to claim the unused exemption, if no taxes are going to be paid? For one thing, the law may change and if the Federal Estate Tax exemption amount is reduced in the future, the surviving spouse will have protected their additional exemption amounts for his or her heirs. If the surviving spouse remarries and acquires significant assets, they will need proof of their exemption. The surviving spouse might own land or other property that increases dramatically in value. Or, the surviving spouse may inherit a large amount of assets.

Completing an IRS Form 706 for portability is not a complex task, but it should be done in conjunction with settling the estate, which should be done with the help of an estate planning attorney to be sure any tax issues are dealt with properly. In addition, when one spouse has passed, it is time for the surviving spouse to review their estate plan to make any necessary changes.

Reference: The Times Herald (July 7, 2019) “Federal estate tax and portability considerations”

 

Why It’s Always Better to Plan Ahead
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Why It’s Always Better to Plan Ahead

Two stories of two people who managed their personal lives very differently illustrate the enormous difference that can happen for those who refuse to prepare themselves and their families for the events that often accompany aging. As an article from Sedona Red Rock News titled “Plan ahead in case of sudden sickness or death” makes clear, the value of advance planning becomes very clear. One man, let’s call him Ben, has been married for 47 years and he’s always overseen the family finances. He has a stroke and can’t walk or talk. His wife Shirley is overwhelmed with worry about her husband’s illness. Making matters worse, she doesn’t know what bills need to be paid or when they are due.

On the other side of town is Louise. At 80, she fell in her own kitchen and broke her hip, a common injury for the elderly. After a week in the hospital, she spent two months in a rehabilitation nursing home. Her son lives on the other side of the country, but he was able to pay her bills and handle all the Medicare issues. Several years ago, Louise and her son had planned what he should do in case she had a health crisis.

More good planning on Louise’s part: all her important papers were organized and put into one place, and she told her son where they could be found. She also shared with him the name of her attorney, a list of people to contact at her bank, primary physician’s office, financial advisor, and insurance agent. She also made sure her son had copies of her Medicare and any other health insurance information. She made sure to have a legal document prepared so her son could talk with her doctors about her health and any health insurance matters.

And then there’s Ben. He always handled everything and wouldn’t let anyone else get involved. Only Ben knew the whereabouts of his life insurance policy, the title to his car, and the deed to the house. Ben never expected that someone else would need to know these things. Shirley has a tough job ahead of her. There are many steps involved in getting ready for an emergency, but as you can see, this is a necessary task to start and finish.

First, gather up all your important information. That includes your full legal name, Social Security number, birth certificate, marriage certificate, divorce papers, citizenship or adoption papers, information on employers, any military service information, phone numbers for close friends, relatives, doctors, estate planning attorney, financial advisor, CPA, and any other professionals.

Your will, power of attorney, health care power of attorney, living will and any directives should be stored in a secure location. Make sure at least two people know where they are located. Talk with your estate planning attorney to find out if they will store any documents on your behalf.

Financial records should be organized. That includes all your insurance policies, bank accounts, investment accounts, 401(k), or other retirement accounts, copies of the most recent tax returns, and any other information about your financial life.

Advance planning does take time, but not planning will create havoc for your family during a difficult time.

Reference: Sedona Red Rock News (July 9, 2019) “Plan ahead in case of sudden sickness or death”

 

Should I Get Attorney to Write My Will?

Drafting a will is an essential part of estate planning. Even though it’s vitally important, a recent survey from AARP revealed that two out of five Americans over the age of 45 don’t have one.

The Reflector’s recent article, “Things people should know about creating wills,” says that writing your wishes down on paper helps avoid unnecessary work and stress when you die. Signing a will allows heirs to act with the decedent’s wishes in mind and also will make certain that assets and possessions go to the right people.

Estate planning can be complicated, and that’s the reason why many folks turn to estate planning attorneys to make sure this important task is done correctly and legally. Here are some of the estate planning topics to discuss with your lawyer:

List of Your Assets. Create a list of your assets and determine the ones covered by the will and those that will have to be passed through joint tenancy on a deed or a living trust. For instance, life insurance policies or retirement plan proceeds will be distributed by the beneficiaries you named in each account.

Naming a Guardian. Parents with minor children should definitely designate the person or persons whom they want to become guardians if they were to die unexpectantly. They can also use their will to name a person who will be in charge of the finances for the children.

Remembering Your Pets. It’s common for pet owners to use their will to detail guardianship for their pets and to leave money or property to defray the cost of their care.  A pet trust is legal in most states and is the best way to leave money and name a caretaker for your pets.

Stating Your Funeral Instructions. Settling probate won’t occur until after the funeral. As a result, any funeral wishes in a will frequently aren’t read until after the fact.

Designate an Executor. This is a trusted individual who will execute the terms of the will. He or she should be willing to serve and be capable of executing the will.

Those who die without a valid will become intestate. This will result in their estate being settled based on the laws of where that person lived. A court-appointed administrator will have the authority to transfer the assets and property. This administrator is bound by the state’s intestacy laws and may make decisions that go against the decedent’s wishes. To avoid this, work with an experienced estate planning attorney to draft a will and other estate planning documents.

Reference: The Reflector (July 15, 2019) “Things people should know about creating wills”

 

Avoiding a Family Feud When Choosing a Power of Attorney

The challenge in tasking a family member or trusted friend is not just making sure they have the necessary skills, but to navigate family dynamics so that no fights occur says Considerable.com in the article “How to assign power of attorney without sparking a family feud.” Every family situation is different, but in almost all cases, transparency is the best bet.

Start by understanding exactly what is meant by power of attorney, how it functions within the estate plan, and how siblings can all be involved to some degree with the family’s decision-making process.

Power of attorney is a term that gives an individual, or sometimes, individuals, the legal authority to act on behalf of someone else. It is usually used when a person, usually a parent or a spouse, is unable to make decisions for themselves because of illness or injury. It must be noted that power of attorney relates to financial and legal decisions. There are methods to address making decisions for another person for their health care or end-of-life decisions, but they are not accomplished by the power of attorney (POA).

It should be noted that there is a distinct difference between power of attorney and executor of the estate. Power of attorney is in effect while the person who has granted the authority is alive, but unable to act on their own behalf. The executor of the estate assumes responsibility for managing the estate through the probate process. While they are two different roles, they are often held by the same person, usually an adult child who is responsible and has good decision-making skills.

There are different types of power of attorney roles. The most common is the general power of attorney, followed by the health care. The general power of attorney refers to the person who has the authority to handle financial, business or private affairs. If a parent grants power of attorney to one of their children, that child then has the authority to act on behalf of the parent.

Trouble starts if the relationship between siblings is rocky, or if major decisions are made without discussions with siblings.

It’s not easy for siblings when one of them has been granted the power of attorney. That means they must accept the inherent authority of the chosen sibling to make all decisions for their parent. The sibling with the power of authority will have a smoother path if they can be sensitive to how this makes the others feel.

“Mom always liked you best,” is not a sentence that should come from a 50 year old, but often childhood dynamics can reappear during these times.

Remember that the power of attorney is also a fiduciary obligation, meaning that the person who holds it is required to act in the best interest of the parent and not their own. If the relationship between siblings is not good, or there’s no transparency when decisions are made, things can get bumpy.

Here are some tips for parents to bear in mind when deciding who should be their power of attorney:

  • Understand the great power that is being given to another person.
  • Make sure the person who is to be named POA understands the entire range of responsibilities they will have.
  • The siblings who have not been named will need to understand and respect the arrangement. They should also be aware of the potential for problems, keeping their eyes open and being watchful without being suspicious.

Parents should discuss these appointments with their estate planning attorney. Their years of experience in navigating family issues and dynamics give the attorneys insights that will be helpful with assigning these important tasks.

Reference: Considerable.com (July 10, 2019) “How to assign power of attorney without sparking a family feud”

 

Who Should Be the Agent of My Power of Attorney?

It’s important to understand what a power of attorney is, how it factors into estate planning, and how sibling roles can differ and be shared at the same time.

Considerable’s recent article, “How to assign power of attorney without sparking a family feud,” gives us some idea how the power of attorney can work within a family and among siblings.

A power of attorney or POA is a legal document that allows one person to act on behalf of another, usually when that person is unable to make decisions for themselves for reasons of ill health.

Many people confuse a power of attorney role with the executor of the estate. Power of attorney authority is only in effect while the person who has granted the authority is alive. Once that person dies, the executor of the estate then assumes responsibility of seeing the estate through the probate process. They’re two very different roles, but they can be held by the same person.

The most frequently used is a general power of attorney. The general power of attorney is for management of financial, business, or private affairs. If a parent grants power of attorney to one of their kids, he or she has the sole authority to act on behalf of the parent.

The other siblings have to abide by the inherent authority of the sibling with the power of attorney to make decisions for the parent related to their business affairs.

It’s also important to understand that the power of attorney is a fiduciary obligation. This means the person who holds it must act in the best interests of the parent rather than their own. He or she must also comply with rules. Nonetheless, things can get sticky if there isn’t proper confidence among siblings or transparency when major decisions are being made.

We recommend that you appoint one agent as your power of attorney and then you may appointment an alternate agent. We do not recommend appointing joint powers of attorney.

Whether one or more are entrusted with power of attorney, communication and transparency are the key factors in avoiding painful situations in the family.  Contact an experienced estate planning attorney to discuss these important documents.

 

Reference: Considerable (July 10, 2019) “How to assign power of attorney without sparking a family feud”

 

How Can I Sell My Recently Departed Parent’s Home Without a Hassle?
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How Can I Sell My Recently Departed Parent’s Home Without a Hassle?

Much of the work fell on Carlson, then 28, since the other beneficiary was her older sister, who lives in New York City.

The Philadelphia Inquirer’s recent article, “With proper planning, selling a parent’s house can be a relatively painless process—or not,” says that after finding a real estate agent with estate sale experience, she learned about probate, as well as the local building codes and repairs that needed to be made.

She was even tasked with telling her father’s friend, who’d been bunking in the cabin, that he’d have to move out.

Coping with a death of a parent is challenging enough, but selling their home can be extremely stressful for children. It’s even worse, if they die without a will. Grieving family members may be ill-equipped to make decisions and a home can fall into disrepair. Siblings may also have emotional attachments to it and unrealistic expectations about the sale price.

The job can be difficult and long or relatively easy. It depends in large part on the heirs’ ability to ask for help and hiring a professional who knows the local housing market. Experts say the sooner the process starts the better. Parents can also take actions while they’re alive to help avoid complications. This discussion may be difficult and awkward but it’s worth it to be informed, so adult children are not scrambling while grieving. Here are some helpful tips:

  • Be certain that both parents have a will. Make sure that you work with an experienced estate planning attorney.
  • Be prepared to spend some money because there are costs associated with maintaining and selling the property.
  • The executor should change the locks to keep heirs out.
  • Ask a real estate agent to run a competitive market analysis and have an appraisal done by a licensed appraiser.
  • Designate a contact person so the executor can keep all heirs informed.

A big deterrent to selling a parent’s house is typically the emotional attachment of the children.  Experts say that while cosmetic fixes can pay off, more substantial improvements generally don’t.

There are also estate, inheritance, and income taxes that can impact the net sales proceeds. There’s a benefit to selling an inherited property, because when a property is inherited after a death, the property value is “stepped up” to fair market value at the time of the owner’s death. An experienced estate planning attorney can help you with estate, inheritance and income tax questions.

Reference: The Philadelphia Inquirer (June 22, 2019) “With proper planning, selling a parent’s house can be a relatively painless process—or not”

 

What Happens When Real Estate Is Inherited?

The number one question on most people’s minds when they inherit real estate, is whether they have to pay taxes on it. For the most part, people don’t have to pay taxes on what they inherit, unless they live in a state with an inheritance tax. There are tax forms to be filed, says the Petoskey News-Review in the article “The pros and cons of inheriting real estate,” but not every estate has to pay taxes.

The estate has to pay taxes on any gains or losses after the death of the decedent, if and when they sell the property. The seller will have either capital gains or capital losses, depending upon what the house was purchased for and what it sold for.

Let’s say that Mom purchased the house for $100,000, gave it to her children and then they sold it for $120,000. They have to pay capital gains on the $20,000. When someone dies, heirs get the step-up in basis, so they get the value of the property at the date of the decedent’s death. If mom bought the house for $100,000 and when she died it had jumped in value to $220,000 the children sold it for $220,000,n there would be no capital gain.

People who inherit property should have it appraised by an experienced real estate appraiser to determine the actual value at the date of death.  An experienced estate planning attorney will be able to recommend an appraiser.

One of the biggest disagreements that families face after the death of a loved one, centers on selling real estate property. Some families actually break up over it, which is a shame. It would be far better for the family to talk about the property before the parents die and work out a plan.

The sticking point often centers on a summer home being passed down to multiple heirs. One wants to sell it, another wants to rent it out for summers and use it during winters and the third wants to move in. If they can resolve these issues with their parents, it’s less likely to come up as a divisive factor when the parents die, and emotions are running high. This gives the parents or grandparents a chance to talk about what they want after they have passed and why.

Conflicts can also arise when it’s time to clean up the house after someone inherits the property. Mom’s old lemon juicer or Dad’s favorite BBQ fork seem like small items, until they become part of family history.

The best thing for families that are able to pass a house down to the next generation, is to start the discussion early and make a plan.

An estate planning attorney can help the family work through the issues, including creating a plan for how the real estate property should be handled. The estate planning attorney will also be able to help the family  plan for any taxes that might be due, so there are no big surprises.

Reference: Petoskey News-Review (June 25, 2019) “The pros and cons of inheriting real estate”