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Friday
Aug112017

Doesn’t Everything Go To My Spouse And Kids When I Die?

Many people think that if they die while they are married, everything they own automatically goes to their spouse or children. They’re actually thinking of state rules that apply if someone dies without leaving a will. In legal jargon, this is referred to as “intestate.” In that case, the specifics will vary depending on each state's law, so where you live when you die can significantly change the outcome for your family. However, the general rule is that your spouse will receive a share, and the rest will be divided among your children. Exactly how much a spouse will inherit depends on the state, though.

Now, it may seem like, “So far, so good.” Your spouse is getting an inheritance, so are the kids. But here are some examples of how the laws can fail many common family situations.

First off, if both parents of minor-aged children die intestate, then the children are left without a legal guardian. Kids don't automatically go to a godparent, even if that's what everyone knew the parents had intended. Instead, a court will appoint someone to be the children's guardian. In such situations, the judge seeks to act in the children’s best interests and gathers information on the parents, the children, and the family circumstances. But the decision is up to the court, and the judge may not make the decision that you, as a parent, would have made.

When it comes to asset division, in most cases, state intestacy law presumes that a family consists of a husband, wife, and their natural-born children. But, that’s not necessarily the way many families are structured, and things can become legally complicated quickly.

According to Wealth Management, one analysis has 50 different types of family structures in American households. Almost 18% of Americans have been remarried, and–through adoption and stepfamilies–millions of children are living in blended families. The laws just haven't kept up, and absurd results can occur if you rely on intestacy as your estate plan. Stepchildren that you helped raise (but didn’t legally adopt) may end up with no inheritance, while a soon-to-be-ex-spouse may inherit from you.

Say, for instance, a father has a will that allocates assets to his spouse and two children, then they adopt a third child. Then, the father dies in a car accident before he's able to revise his will. In some states, because the adopted child is not mentioned in the will, she may not be entitled to any inheritance.

If that isn't worrisome enough, consider that, in some states, the law provides that an adopted child still has rights to the biological parents' assets–and the biological parents are entitled to inherit a child's wealth. (Imagine if the adopted-as-an-infant Steve Jobs had died intestate, and his biological parents demanded a share of his estate!)

Of course, with a will or trust, you can control your estate and essentially eliminate the risk of these crazy results.

What if You and Your Spouse Are Separated?

State law decides what happens to your estate if you are separated from your spouse when you die. Much of the time, the court ignores your separation and just considers you still legally married.

Unless you have a prenuptial or postnuptial agreement, it is extremely difficult to disinherit your spouse. Again, even if a spouse is omitted from a will, state laws might choose to give a surviving husband or wife a share of the assets.

If you are separated from your spouse, and your divorce is pending, you should definitely talk with your divorce lawyer and an estate planning attorney about your options.

Creditors Win:

Intestacy provides no asset protection or preservation benefits. Without any protections in place, an estate's assets are still vulnerable to creditors, lawsuits, and others who may claim entitlement to the property. These claims would take precedence over the statutory requirements for inheritance. In other words, the family may not receive the lion's share of the estate. They'd get the leftovers.

The best way to safeguard and pass along what you’ve worked so hard to build is to talk to a qualified estate planning attorney. If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Wednesday
Aug092017

Get the Most Out of Working with Your Attorney

When you hire an attorney for estate planning, help with a loved one’s estate, or any other legal matter you want to make sure that the work gets done as quickly as possible and at the best possible value.  Here are some tips to have the most useful and value-oriented law firm experience.

  1.  Get to know the lawyer and the law firm staff. You’ll be working with the entire team, so it’s a good idea to know who to reach out to at the office. Paralegals and office assistants are employed by the lawyer to help you. For hourly cases (like many probate cases), the more you can accomplish with a paralegal or assistant rather than the attorney, the lower your bill could be since they usually have lower billable rates. 
  2.  The more organized you are, the easier and more efficient the entire process will be. Bring copies of all requested documents in a binder or another organized way.  This will save you the cost of having a paralegal review and organize the information for you—and maybe even a trip to the office or additional meeting if something is forgotten.
  3.  Keep your original documents in a secure place and only bring in copies of your originals if we request the original of a particular document. That being said, it’s always a good idea to bring the original will to the first meeting when you need to probate a loved one’s estate.
  4.  Be brutally honest with us both about your situation and your thoughts about the advice we’re offering to you. Give the whole story so that the advice you receive and pay for is information based on your real circumstances and not a sanitized version of them. We’re not here to judge—we’re here to develop solutions to the issues that you and your family are facing. If you have second thoughts about the advice you receive or don’t plan to follow through with it, let us know so we can ensure that you and your family’s interests are as protected as possible.
  5. Bring a list of goals, concerns, and questions to every meeting so you can cover everything you want to discuss during your meeting instead of incurring the cost (and hassle) of a phone call or additional meeting to ask a question you forgot about. 
  6. When you meet with the attorney or with a paralegal, feel free to take notes because you’re probably not going to remember everything. Ask us to explain something that you don’t understand or to repeat something to be sure you write it down correctly. Remember, it’s your meeting and your case—you should always feel satisfied that you’re receiving enough information.
  7. Carefully review your fee agreement, so you understand how you’ll be charged for services rendered. If you have billing questions that you can’t answer by referring to the contract or your statements, call us for an explanation. It always better to have open communication about the financial aspects of representation.

Accordingly, when you hire a law firm, you also gain access to a team of legal support and administrative professionals so that your estate planning or other legal goals can be achieved.  Your legal team works together on your behalf to provide the best client representation at the best possible price. 

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Friday
Aug042017

How a Late Portability Election Can Benefit You & Your Family

The concept of “portability” is still relatively new in the law of estate planning, having become available only after 2011. Since then, it’s been both a blessing (for its tax saving benefit) and a curse (because of rules that seemed to be constantly shifting). Fortunately, the IRS has recently clarified some important deadlines about portability.

How can a portability election benefit you and your family? It could help save hundreds of thousands of dollars of estate and gift taxes for your family if you lost your husband or wife in the last few years. Although the exact mechanics of the tax are involved, portability makes it much easier for estate planners and tax professionals to save taxes for you and your family. However, portability is not automatic (even under the new regulations), so you must take some action.

Why should I care?

Portability allows a surviving spouse to inherit and use the estate tax exemption from a deceased spouse. If you’re planning isn’t as good as it could otherwise be, portability can save hundreds of thousands of dollars of estate and gift taxes. For those who are proactively planning, it also makes crafting your trust or will much more flexible so we can tailor the plan to you and your family’s needs, rather than to the needs of the IRS.

What’s new with portability?

Under a new IRS revenue procedure, you now have additional time to take advantage of portability. In the past, you had only 15 months after the death of a loved one to file for portability. Now, you now have two years after the passing of a spouse to file for portability, making this option much easier to use than before.

The IRS also knows that the rules have shifted and been confusing for everyone over the last few years. So, there is a unique opportunity to file a late portability estate tax return, as long as you meet certain requirements and have it submitted by January 2, 2018. 

Naturally, if you have a substantial estate (over $5.49 million) or are not a US citizen or resident alien then the traditional 15-month rule will continue to apply to you. Also, like any legal or tax issue, it’s always a good idea to obtain qualified assistance as early as possible so you can have the widest possible set of options and best possible outcome.

What do I need to do now?

If you’ve lost your spouse after 2011, and had not yet spoken with an estate planning attorney about your options, now is the time. As the stock market and housing markets have recovered in the last few years, it might be worth a second look to see if a portability election is right for you and your family, even if you decided against one before.

Although available now, you can’t rely on this relief being available forever - January 2, 2018, will be here before you know it. Now is the time to give us a call to discuss whether a portability election can help you and your family save taxes. If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Wednesday
Aug022017

5 Things To Make Your Estate Plan Yours

You intend to pass along your wealth through your estate plan, but what about your wisdom? Ensuring you accomplish both calls for a family meeting to have a conversation about your money, your legacy, and your core principles. 

Most families lead far-flung and busy lives, meaning the only time they see one another face-to-face is around the dinner table during a handful of major holidays. The estate planning process is a perfect opportunity to bring everyone together outside of those scheduled occasions—even if a child or grandchild has to attend via video chat. 

Working with your estate planning attorney in collaboration any other advisors you have in your corner can make this legacy-enriching process seamless and genuinely enjoyable. But bringing your family and your professional advisors into the conversation is better yet, as they’ll get to learn new things about you and get to share stories and memories of their own. Here are just a few of the topics you’ll want to go over during your Family Meeting:

1. Your Rich Life Story:

You may think it’s all been said before, but this is the perfect time to schedule or conduct recording sessions about your own personal life narrative. These recordings will be treasured while you’re still here and long after you’re gone. Allow your family members to ask about particularly fond memories of yours, knowing that you’re creating a time capsule of sorts that will contain the uniqueness of your personality and the experiences that shaped you into the person you are today. And perhaps most importantly, share the valuable lessons you’ve learned from your experiences. Your family will be better for it. 

2. How You’d Like To Be Honored:

Estate planning involves considering some weighty decisions when it comes to long-term care, powers of attorney, and other situations that may arise should you become mentally incapacitated. Although these are not the sunniest of topics, it’s important to express to your family why you’re opting for the choices you feel most aligned with. This will ease those processes for your loved ones, should these things ever come to pass. And once you get this part of the conversation covered, there are better things to come.

3. Your Family Tree:

Your family might be curious about more than just your own life story. Take this time to go over your family tree and answer questions the younger members of your family don’t know the answers to about your heritage. Getting a who’s who on paper and in a digital format is an excellent gift to your beneficiaries, as they’ll be able to reference it and build upon it throughout the years. 

4. Significant Heirlooms:

Every family has heirlooms, and every piece tells a story. It’s common for estate plans to contain physical objects that matter dearly to their owners, such as furniture, garments, jewelry, hobby collections, and memorabilia. Keeping the story of the object alive is more important than transferring its monetary value to the next generation. Additionally, it is these items of tangible personal property that often lead to estate litigation. Hence, it is crucial to ensure that how these items pass upon death are clearly stated.

5. Your Core Values:

Your estate plan can be customized to include specific language that carries your values along with it while still leaving room for your beneficiaries to grow and explore on their own terms. Educational, incentive, and charitable trusts are just a few methods available to you to express your values through your estate plan

You know there’s much more to you than the wealth you’ve accumulated in your life. Likewise, your estate plan is about more than just your financial worth. After all, what’s passed down from generation to generation amounts to something far greater than numbers on paper.  

We’d love to help you build your estate plan to include a balanced representation of who you are and what you believe. We’re here to help coach you through the process of going over these topics with your family and weaving them into your trusts and other critical documents. Give us a call today to set up a time, and we’ll get started right away.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.

Friday
Jul282017

Money Isn’t Everything—Passing Your Stories and Values to the Next Generation

Money may be the most talked about wealth contained within a person’s estate, but the riches of their experience and wisdom can mean even more to family members down the line. Reinforcement of family traditions can be built into your estate plan alongside your wishes regarding your money, property, and belongings. After all, what really makes a family a family is its values and traditions—not the way its finances read on paper. 

It's an excellent idea to hold a family meeting in which you discuss the sorts of things that matter to you most. In addition to the value of sharing your wisdom, you can also make it more likely that your heirs will handle their inheritance correctly if they understand the reasons behind your choices. This is just one of the many reasons to have a family discussion about your legacy and your estate plan. 

How To Tell Your Story Through Your Estate Plan:

It’s a delight to get to hear your elders’ stories of their fondest memories and wildest adventures, as well as the struggles they overcame to get the family where it is today. This wisdom provides meaning for a financial legacy that otherwise might just be viewed as a windfall. As part of your estate and legacy planning, you can decide to record your own personal history. Here are a few ways:

1. Audio Files: With the broad range of audio formats available today, you can record in the way that’s easiest for you - anything from a handheld cassette recorder to the Voice Memos app on your iPhone. There are some easy-to-use digitizing services that can compile your stories into audio files to make available to your family and descendants. 

2. Video Files: The same goes for home movies and other video recordings. Older film formats can be easily digitized and organized along with the videos from your phone. Today’s technology also makes it easier than ever to add narration (and context) to a video, making the story all the richer.

3. Photo Albums: Many families have prized photo collections that catalog generations. It’s a tragedy when something like this is lost in a fire or extreme weather event, or even misplaced in a move. Creating a digital database is a favor to your family in more ways than one: Not only will they have access to these memories at any time, they can also feel secure knowing that these family treasures won’t be lost anytime soon and that multiple copies can be made for the different branches of the family.

4. Letters and Other Writings: If you enjoy writing, you can also include handwritten or typed letters or stories to your family members in your legacy plan to be received and read at the time of your choosing. You can also include past letters and postcards that might be tucked away in the attic. It’s not only a personal delight to relive the memories of the past by reviewing your old letters and postcards, but it's also a great way for younger generations to get to know and sincerely appreciate your life journey and legacy.

Passing Your Values To The Next Generation:

Some estate planning strategies blend your finances and personal values. For example, we might have a discussion on some of your core values in life. Whether you feel most passionate about the need for your beneficiaries to travel and gain worldly experience, continue a unique family tradition like sailing or astronomy, or support meaningful charitable or spiritual work, we can draft trusts that contain funds specifically set aside for these endeavors. 

1. Educational Trusts: If you value education, you might want to set up a trust to fund undergraduate and graduate degrees, med school, study abroad, or even community classes for your family’s future generations. Because of sharp increases in educational costs within the U.S., your grandchildren will likely stand to benefit immensely from an educational trust. 

 2. Incentive Trusts: Similar to the way educational trusts set aside wealth for the purpose of funding a beneficiary’s schooling, incentive trusts can also help steer the course of your descendants’ lives be encouraging some paths while discouraging others. For example, an incentive trust could contain instructions for disbursements to be released when the beneficiary is working a part or full-time job. Or if family vacations were an important part of your upbringing, you could set aside funds specifically for your grandchildren to experience the same wonderful tradition you enjoyed.

 3. Charitable Trusts or Foundations: Charitable trusts or foundations establish a family legacy of supporting a particular cause, but they also have the added financial benefit of reducing income and estate taxes. They are an excellent way to help a charitable organization that’s central to your core values and make your name associated with that philanthropic effort for generations to come. 

Are you curious about exploring a few of these options in your estate and legacy plan? Give us a call today, and we can schedule an appointment to go over your many options for showcasing your memories and values in a long-lasting way that truly benefits your heirs. 

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Wednesday
Jul262017

Protecting Your Child’s Inheritance from An Untrustworthy Spouse

Parents who develop an estate plan often do so to provide for their heirs financially. Many want to make sure hard-earned assets, family heirlooms, or closely held businesses stay within the family. Indeed, a common question is what cost-effective options are available to protect one’s children’s inheritance from a spouse in the event of untrustworthiness or divorce. Thankfully, there are many ways to structure your child’s inheritance to help ensure it will remain in the family for future generations. Here are a few available options.

  1. Create a Trust:

A trust involves three parties:

(1)  the person creating the trust (you might see this written as the “settlor,” “trustmaker,” or “grantor.”),

(2)  the person or entity holding the trust property for the benefit of the beneficiary, known as the “trustee”, and

(3)  the person(s) that benefit from the creation of the trust, known as the “beneficiaries.”

Choosing a trustee who is independent can be a great way to eliminate any arguments that one beneficiary has more control to receive assets than what is actually provided in the trust documents than other beneficiaries, a helpful situation when you have an untrustworthy son- or daughter-in-law.

A lifetime trust is a type of trust that - as is evident from its name - lasts for the lifetime of the beneficiary and passes to the next generation of beneficiaries upon his or her death. It is commonly referred to as a “generation-skipping trust” and can also dramatically reduce or eliminate estate taxes. Assets in a lifetime trust are protected against commingling in the marriage and, therefore, cannot be pursued by a spouse. When assets are held by a trust your children - and, by extension, their spouses - cannot access these assets. Therefore, even in the event of a divorce, an ex-spouse cannot pursue them.

2. Use Prenuptial Agreements:

In addition to creating a trust to protect your children’s inheritance from an untrustworthy spouse, your children can use a prenuptial agreement as a tool for asset protection. A prenuptial agreement is a document that details an agreement between your child and his or her spouse about the characterization of assets owned at the time of marriage and those earned after marriage. This legal document also provides the couple to agree upon the division of assets in the event there is a divorce. Because enforceability of prenuptial agreements varies by state, it is important to seek the advice of a legal professional before drafting and signing the contract. It may be an uncomfortable suggestion to bring up with your children, but it can be an incredible benefit in the event of a later divorce.

3. Other Planning Ideas:

Beyond the actual legal tools, it is important for you to let your wishes be known to the family. One way to do this is to have a family discussion about your estate plan, explaining your intentions and reasons as to why it is set up in this manner. Additionally, using clear language in your estate planning documents that specify the intent or purpose in leaving the inheritance to benefit descendants - and not their spouses - can further solidify your wishes are followed. Finally, choosing a trustee that is independent will keep control over the funds in the trustee’s hands and not your child’s untrustworthy spouse. This will also allow you to manage or overcome any conflict that you may not have been expecting.

4.Bottom Line: Seek Out Estate Planning Help:

If you wish to make sure your descendants receive a portion of your estate, discuss these intentions with your children and devise an estate plan that will guarantee this desire is fulfilled after your passing. Whether you have no estate plan, or have one that more than a few years old, sit down with an estate planning professional to create or update this plan to suit your goals.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Sunday
Jul232017

Estate Planning for Military Families

Although Memorial Day has passed, it is important to honor those that have served our country. This time is also a good opportunity for members of the military and their loved ones to consider setting up an—or revising an existing—estate plan. Military families need to consider special estate-planning issues that others do not. This is particularly true when one or more family members are deployed overseas. Beyond this, members of the military have access to special benefits and resources. This can become complicated and, for this reason, it is important that you seek special help if you are a military family.

Whether you are just starting in the military or you are a seasoned veteran, below are some common factors to consider for your estate planning needs.

Factors to Consider:

Everyone’s estate plan should be customized to the person’s particular circumstances. Some factors that should be considered include whether:

  1. You own real property and, if so, if the real estate is located in different states;
  2. You are married;
  3. You have minor children, or children with special needs;
  4. You have money set aside in 401(k), IRAs, or thrift savings plans;
  5. You plan to give to charity; and
  6. You are moving multiple times across states or to different countries

Estate Planning Necessities:

There are many benefits offered to military families that can help with estate planning. These include:

Life insurance—An important part of an estate plan and intended for those who are financially dependent upon you, life insurance is especially important if a member of the military is heading out to a combat zone. Active-duty members have access to low-cost life insurance for themselves and loved ones from Service Members’ Life Insurance Group. More information can be found on the Department of Veterans Affairs website. When examining your life insurance, work with us to make sure that the beneficiary designation works the way you expect it to.

Wills and Trusts—A last will and testament to whom and how you want your property distributed, names who will administer your estate and specifies who will care for a minor or special needs child. A trust, on the other hand, is a separate legal entity that can hold property and assets for the benefit of one or more people or entities. For most families, a trust-centered estate plan is a better fit, but a will can work for some families.

Other Benefits For Survivors—Survivor benefit plans (SBP) are pension-type plans in the form of an annuity that will pay your surviving spouse and children a monthly benefit. Likewise, dependency and indemnity compensation (D&IC) provides a monthly benefit to eligible survivors of servicemembers or veterans (1) who die while on active duty, (2) whose death is due to a service-related disease or injury or (3) who are receiving or entitled to receive VA compensation for service-related disability and are totally disabled. When you are examining any financial services or insurance product, it’s a good idea to work with us to make sure any beneficiary designations work the way you expect and provide the maximum benefit to your family.

You Need Special Help:

Members of the military often experience frequent moves, have access to lots of government benefits after service, and can be subject to some unusual tax rules. For these reasons, estate planning for military families is more complicated than most.

 You can expect an estate planning professional to assist you with setting up the following:

  1. Powers of attorney for limited and general financial matters, as well as health care decisions (there are very helpful when a spouse is deployed);
  2. Funeral and burial arrangements;
  3. Wills and living wills;
  4. Organ donation;
  5. Family care plans;
  6. Life insurance;
  7. Trusts;
  8. Estate taxes;
  9. Survivor benefits; and
  10.  Estate administration and/or probate.

An estate plan has multiple objectives: to provide for your family’s financial security, ensure your property is preserved and passed on to your beneficiaries, and determine who will manage your assets upon your death, among others. We are here to guide you through the best options available to you and your family.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Wednesday
Jul192017

3 Ways Your Trust Can Help a Loved One With Mental Illness

When a loved one suffers from a mental illness, one small comfort can be knowing that your trust can take care of them through thick and thin. There are some ways this can happen, ranging from the funding of various types of treatment to providing structure and support during his or her times of greatest need.

Let’s explore a few ways you can help take care of a loved one struggling with mental illness with the help of your estate planning attorney:

1. It Can Contribute To Voluntary Treatment:

Trusts can be disbursed in many ways. If your loved one is involved in an inpatient care facility or an ongoing outpatient program, you can structure your trust so that its disbursements cover the costs of that treatment as time goes on. This also helps your loved one because it relieves them of the responsibility of managing large sums of money on their own. They can rest easier knowing that their care is covered without having to set up a complicated payment plan on their own.

In some cases, the person suffering from mental illness doesn’t have the capacity to enroll themselves in the right type of care. If an intervention of care is needed, your trust can also help encourage involuntary treatment that ultimately serves your loved one’s best interests in the long run. 

2. Trustees Can Help Watch Over Them:

Selecting a trustee isn’t always an easy feat. That’s one of many decision-making areas where we’re more than happy to step in and walk you through the process. When you have a loved one battling mental illness, your choice of a trustee becomes even more of a nuanced decision.

We’ll help you deduce the perfect person to not only manage the wealth contained within the trust but also keep a compassionate watchful eye on your loved one benefitting from the trust. An astute trustee can look for early warning signs surrounding your loved one’s mental health issue and make sure to get them connected to the care and services they need in no time.

3. Lifetime Trusts Provide Structure And Support:

Most people don’t think of large inheritances as a burden. But this can be the case when an individual is dealing with depression, anxiety, hoarding, or diseases like schizophrenia. Lifetime trusts are an excellent way to take care of your loved one without saddling them with a challenge on top of what they are already experiencing.

A discretionary lifetime trust can be drafted in such a way that its funds can only be used to go toward certain goods and services — such as outpatient mental health care, housing, or other “necessaries” of life. Likewise, it can also prohibit spending in areas that would cause more harm than good — gambling or compulsive shopping, for example. The discretionary nature of these types of trusts makes it so your loved one doesn’t have to worry about their own potential missteps when it comes to using the wealth contained within the trust.

Do you have a family member or other loved one who could use the financial flexibility and structural support of a trust? Give us a call today, and together we’ll figure out the best ways to enhance your loved one’s life by finding the right estate planning tools to offer the most help.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.


 

 

Thursday
Jun222017

Tools for Passing Your Legacy to the Next Generation

You come into the world a blank slate, and as you grow, you gain wisdom. You've planned your estate to leave physical assets to beneficiaries, so now think about leaving them something that’s just as important but less tangible: the hard-won wisdom you’ve accumulated over your life. Let your family and friends learn from your mistakes, and profit from your successes.

Living and Other Trusts:

You probably know that a fully-funded living trust avoids probate. If you have concerns about some of your beneficiaries' ability to handle a windfall, speak to an estate planning lawyer about some options you can include in your trust. For example, one option is an incentive trust, which pays out money when the beneficiary meets certain conditions, such as finishing college or staying clean and sober. An incentive trust combined with a personal statement or video explaining why you’ve put conditions on the beneficiary’s inheritance helps to pass along your wisdom to the next generation. You can let your heirs know that you love and care about them, and that’s why you took the actions you did with the trust. While an heir may resent the limitation at the time, he or she may look back and realize you did a wise thing, especially after they’ve lived and incorporated your wisdom into their life.

Video Wills:

Video wills aren’t legally binding since the law requires that a will be a written document, but that doesn’t mean you can’t make a video regarding your will as an adjunct to the written will. For example, suppose you left art, jewelry or other valuables to specific family members or friends. You might want to explain why you chose to leave that particular item to that person and perhaps share the article’s meaning to you on the video. (Hint: If you think one child might resent the giving of an item to a sibling, this can be a good way to explain your intentions.) Some attorneys use video to help prove you were competent if it includes footage of you signing of the written will. Whether this is a good option depends on state law and your circumstances, so this may not be recommended for you.

And of course, you can (and should!) create a personal video that has nothing to do with a will. If you have a family video collection, consider making a new video including favorite snippets and commenting on the earlier days. Time gives perspective and appreciation—and those gifts are priceless. The memories and meaning that these videos have can be memorialized for generations to come.

The Old-Fashioned Way:

Scrapbooking is a time-honored pastime that’s recently experienced a renaissance. Pass on journals, photos, newspaper clippings and other ephemera via scrapbooks or albums. You can leave specially constructed letters inside for your family and loved ones. While only one family member can have the physical scrapbook at any one time, digital scrapbooking tools are fast-evolving and now allow you to create either a digital version or multiple print copies so that all your loved ones can share your life and thoughts. 

Charitable Planning:

Many of us have a favorite charity or cause we support during life. Estate planning offers many opportunities to continue to support these organizations via planned charitable giving, both during your lifetime and after your death. An estate planning attorney can discuss charitable planning options best suiting your situation. Two examples are the Charitable Lead Trusts which can provide an immediate charitable gift and Charitable Remainder Trusts which can support a loved one (or you) for a period of time with money eventually going to your chosen charity.  Leaving some of your estate to charity shows the next generation what mattered to you, and it encourages them to follow in your footsteps. While your heirs may not choose to fund the same organizations, you are setting an example of the importance of financially supporting charities close to your heart.

Business Succession Planning:

If you own your company, business succession planning is crucial. Formal business succession planning, however, is just as important as your personal estate planning. It can make the difference in whether the company succeeds or fails, and the financial future of your family. But along with proper succession planning, a written statement or video to your board or employees helps enshrine your business’ mission, values, and tradition.

Leave a History:

When you’re bequeathing antiques, art, jewelry and the like, leave the beneficiary a history of the piece and why it was important to you. If it’s a family heirloom, write down whom it has passed to, from generation to generation. It’s possible the family ties outweigh the actual value of the item. Sharing these stories will make a family heirloom cherished all the more. 

Regardless of how you’re leaving your memories and the meaning behind them to the next generation, you want to make sure that your family avoids unnecessary hassle and expense. Contact us today to discuss how we can implement a plan to leave the wisdom and wealth you’ve accumulated to your loved ones.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 


Tuesday
Jun202017

Why Your Estate Plan Must Include Both Lifetime and “Death-time” Planning 

According to a March 2017 survey by Caring.com, six out of ten Americans have no will or any other kind of estate planning. Many said they’d get around to it, eventually. When they’re old. (The survey did find that the elderly are much more likely to have some plan in place.) It’s all too clear that most of us think “estate planning” is a euphemism for “death-time” planning. Indeed, in the Caring.com survey, one-third said that they didn’t need an estate plan because they didn’t have any assets to give someone when they’d died.

However, comprehensive estate planning isn’t just death-time planning. It’s lifetime planning, too. It’s about ensuring that your medical and financial decisions can be made by someone that you trust. Lifetime planning can help you address potential tax liabilities, find you benefit programs you may eligible for, and protect your family from costly guardianship or conservatorship court. It can make sure that a trusted party looks after and protects your affairs, if you’re not able to.

Lifetime Planning Tools:

As estate planners, we have an arsenal of lifetime planning tools to benefit clients, and we can custom-tailor such plans to an individual’s needs. Here are a couple of the most common (and necessary) lifetime planning tools you should discuss with us.

Revocable Living Trusts:

When people hear the word “trust,” they may think of “trust fund babies” or think that trusts are something only for the super-rich. 

However, a trust is simply a legal tool that can help almost anyone with property - not just the wealthy. In a trust, assets you own are re-titled and transferred into the trust. When this happens, technically, you no longer own your real estate, stocks, bonds and similar properties. Instead, the trust owns them all. But you still control everything in the trust: You can buy and sell these assets as if they were still in your name. In fact, revocable living trusts don’t even change your income taxes while you’re alive. You continue to file your tax returns as you always have, making them very easy to administer while you’re alive. And as the creator, or settlor of the trust, you can continue to make changes to the trust as long you’re competent to do so.

Once you die, the trust becomes irrevocable, meaning its terms can’t generally be changed. At this point, your chosen successor trustee distributes assets to beneficiaries (the people, such as your spouse, children, a church, or other charity, you named to inherit from you). In many respects, the role of the trustee is akin to that of the Executor of a Will. However, a trustee of a fully funded trust does not have to go through the public and expensive probate process. Trusts are private unlike wills, which can also provide valuable privacy to your family. While widely unknown, a Will becomes effective only after it has been approved by the Probate Court.

Durable Power Of Attorney:

Durable powers of attorney come in two forms. With a standard durable power of attorney, a person is legally designated to act on your behalf, in the ways specified in the document. You can make the durable power of attorney broad in scope or quite limited, and it becomes active as soon as you sign it. Under this document, the person may sign checks for you, enter contracts on your behalf, even buy or sell your assets. What they can do depends on what you authorized in the document.

In the case of a “springing” power of attorney (POA), also known as a conditional power of attorney, the person only has this authority if you become incapacitated. At that point, the POA “springs” into action.

There is no “best” power of attorney. We’ll work with you to determine which is the best fit for your needs and goals.

Health Care Power of Attorney:

In an instant, an accident can change a healthy, vigorous person into someone who can’t make her healthcare decisions. Others face a long decline in mental capacity because of a disease like Alzheimer’s. In either case, you want to empower those you trust to make medical decisions for you. Though health care legal documents vary somewhat by state, the general principle is that, through this document, you authorize someone to make medical decisions for you, if you no longer have the capacity to do so. You can also communicate your desired treatment and end-of-life care. However, those instructions may not be valid in every state.

A Holistic Approach:

Lifetime planning is a comprehensive approach to estate planning. And while it addresses needs of the living, comprehensive planning may also improve the after-death part of your plan as well, because it can reduce family conflict and preserve assets against court control or interference in the event of incapacity.

Contact an Experienced Estate Planning Attorney:

For insight into how to establish a trust and implement other lifetime planning options, we are here to help.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Friday
Jun162017

Helping a Loved One Who Struggles with Addiction—Your Family Trust

Substance addiction is by no means rare, impacting as many as one in seven Americans. Because of its prevalence, navigating a loved one’s addiction is a relatively common topic in everyday life. But you should also consider it when working on your estate planning. Whether the addiction is alcoholism, drug abuse, or behavioral like gambling, we all want our loved ones to be safe and experience a successful recovery.  A properly created estate plan can help.

The idea that money from a trust could end up fueling those addictive behaviors can be a particularly troubling one. Luckily, it’s possible to frame your estate planning efforts in such a way that you’ll ensure your wealth has only a positive impact on your loved one during their difficult moments. 

Funding For Treatment:

One of the ways your trust can have a positive influence on your loved one’s life is by helping fund their addiction treatment. If a loved one is already struggling with addiction issues, you can explicitly designate your trust funds for use in his or her voluntary recovery efforts. In extreme cases where an intervention of some sort is required to keep the family member safe, you can provide your trustee with guidance to help other family members with the beneficiary’s best interest by encouraging involuntary treatment until the problem is stabilized and the loved one begins recovery.

Incentive Trusts:

Incentive features can be included in your estate planning to help improve the behavior of the person in question. For example, the loved one who has an addiction can be required to maintain steady employment or voluntarily seek treatment in order to obtain additional benefits of the trust (such as money for a vacation or new car). Although this might seem controlling, this type of incentive structure can also help with treatment and recovery by giving a loved one something to work towards. This approach is probably best paired with funding for treatment (discussed above), so there are resources to help with treatment and then benefits that can help to motivate a beneficiary.

Lifetime Discretionary Trusts:

Giving your heirs their inheritance as a lump sum could end up enabling addiction or make successful treatment more difficult. Luckily, there’s a better way.  Lifetime discretionary trusts provide structure for an heir’s inheritance. If someone in your life is (or might eventually) struggle with addiction, you can rest easy when you know the inheritance you leave can’t be accessed early or make harmful addiction problem worse. 

Of course, you want to balance this lifetime protection of the money with the ability of your loved one to actually obtain money out of the trust. That’s where the critical consideration of who to appoint as a trustee comes in. Your trustee will have discretion to give money directly to your beneficiary or pay on your loved one’s behalf (such as a payment directly to an inpatient treatment center or payment of an insurance premium). When dealing with addiction, your trustee will need to have a firm grasp of what appropriate usage of the trust’s funds looks like. Appointing a trustee is always an important task, but it’s made even more significant when that person will be responsible for keeping potentially harmful sums of money out of the addicted person’s hands. 

Navigating a loved one’s addiction is more than enough stress already without having to worry about further enablement through assets contained in your trust. Let us take some of the burden off your shoulders by helping you build an estate plan that positively impacts your loved one and doesn’t contribute to the problem at hand. That way, you can go back to focusing your efforts on the solution. Contact our office today to see how we can help.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 


Wednesday
Jun142017

Integrating Community Property Trust Into Your Estate Plan

A well-crafted estate plan is comprised of many individual parts, and careful, trust-based estate planning is the best way to ensure the highest possible quality of life for you and your loved ones.

One way couples can make get the most mileage out of their estate plans is through community property trusts. This is a special type of trust that combines a couples jointly acquired assets as community property and can save a significant amount of taxes.

Why Community Property Trusts Are Beneficial:

The essential benefit of a Community Property Trust (“CPT”) is that the basis of community-owned property is stepped up when one member of the couple dies. Not only that—it also steps up the basis for the surviving spouse’s half of the property (rather than only half, which is what happens with “plain” jointly owned property). This means that the capital gains tax will take a much smaller percentage of the surviving spouse’s wealth when the property is sold.

The Limits Of Community Property Trusts:

There are two states in which CPT’s can be formed: Alaska and Tennessee. These trusts must be funded and have ongoing requirements to achieve their tax benefits. So, they are not a panacea and don’t necessarily fit every married couple’s situation.

How CPT’s Fit In With Other Estate Planning Strategies:

If your estate plan is robust and ready for all of life’s potential successes and challenges, it likely includes any number of revocable and irrevocable trusts, powers of attorney, long-term care directives, and miscellaneous probate-avoidance precautions.

Community property trusts can only work for the property you fund into them, meaning that you can and should have other strategies in place such as a revocable trust, will, power of attorney, etc. The same property cannot be managed under multiple trusts at the same time, so it is important for us to figure out which of your assets you’d like to set aside for other types of trusts before settling on the details of your CPT.

Community property trusts are not for everyone. However, if we can determine that setting one up is a realistic fit for you and your family, you can expect to save a large sum by avoiding taxes you would otherwise accrue. Schedule your complimentary Estate Planning Strategy Session with our office, to see whether this solution might be an effective addition to your other estate planning strategies.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.

Monday
Jun122017

How a Community Property Trust Could Save You From Heavy Taxation

When it comes to your family’s legacy, every dollar you can save from tax collection counts. One way to keep your assets out of the hands of the IRS is the formation of community property trusts.

How Does A Community Property Trust (CPT) Work?

Community Property Trusts (“CPT’s”) save you money on taxes by adjusting or “stepping up” the basis of the entire property after the death of one member of the couple. When you and your spouse invest in property jointly—be it real estate, stocks, or other assets—it becomes what’s called community property if you live within nine applicable states. However, there are two states, Alaska and Tennessee, where community property can be utilized via the creation of a community property trust, even if you do not live in Alaska or Tennessee.

When couples work with their estate planning attorneys to create these trusts, they can take advantage of a double step-up on the property’s basis. The basis of the property is stepped-up to its current value for both members of the couple’s halves. This is different from jointly owned property which only receives the step-up on one-half of the property. That means capital gains taxes are much lower because the taxed amount is reduced thanks to the stepped-up basis. Community property helps couples reduce their income taxes after the death of a spouse.

Getting To Know Your Basic CPT Terminology:

First, let’s start with a few quick definitions of the financial terms you will need to know to get a sense of whether a community property trust is right for you.

1. Community Property

Assets a married couple acquires by joint effort during marriage if they live in one of the nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

2. Community property trust:

A particular type of joint revocable trust designed for couples who own low-basis assets, enabling them to take advantage of a double step up. Tennessee or Alaska are the two places you can form these trusts.

3. Basics

What you paid for an asset. The value that is used to determine gain or loss for income tax purposes. A higher basis means less capital gains tax.

4. Stepped-up basis:

Assets are given a new basis when transferred by inheritance (through a will or trust) and are revalued as of the date of the owner’s death. The new basis is called a stepped-up basis. A stepped-up basis can save a considerable amount of capital gains tax when an asset is later sold by the new owner.

5. Double step-up:

Because of a tax loophole, community property receives a basis adjustment step-up on the entire property when one of the spouses dies. So, if a surviving spouse sells community property after the death of their spouse, the capital gain is based on the increase in value from the first spouse’s death (where the basis got adjusted on both spouses’ shares) to the value at the date of the sale. This allows the survivor to save money on capital gains tax liability.

One of the best parts of estate planning is that you get out so much more than you put in. In just a short amount of time, we can implement a community property trust that could save your spouse and family tens of thousands of dollars down the road. We are here to help make sure as little of your hard-earned property as possible ends up lost to taxation. Schedule your free consultation with us today, and set yourself up for a better tomorrow.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.

Friday
Jun092017

6 Life Events That Require An Immediate Estate Plan Update

Estate planning is the process of developing a strategy for the care and management of your estate if you become incapacitated or upon your death. One commonly known purpose of estate planning is to minimize taxes and costs, including taxes imposed on gifts, estates, generation skipping transfer and probate court costs. However, your plan must also name someone who will make medical and financial decisions for you if you cannot make decisions for yourself.  You also need to consider how to leave your property and assets while considering your family’s circumstances and needs.

Since your family’s needs and circumstances are constantly changing, so too must your estate plan. Your plan must be updated when certain life changes occur. These include, but are not limited to the following Six: 1) Marriage, 2) The birth or adoption of a new family member, 3) Divorce, 4) The death of a loved one, 5) A significant change in assets, and 6) A move to a new state or country.

1. Marriage: 

It is not uncommon for estate planning to be the last item on the list when a couple is about to be married - whether for the first time or not. On the contrary, marriage is an essential time to update an estate plan. You probably have already thought about updating emergency contacts and adding your spouse to existing health and insurance policies. There is another important reason to update an estate plan upon marriage. In the event of death, your money and assets may not automatically go to your spouse, especially if you have children of a prior marriage, a prenuptial agreement, or if your assets are jointly owned with someone else (like a sibling, parent, or other family member). A comprehensive estate review can ensure you and your new spouse can rest easy.

2. Birth Or Adoption Of Children Or Grandchildren: 

When a new baby is born, it seems like everything changes—and so should your estate plan. For example, your trust may not “automatically” include your new child, depending on how it is written. So, it is always a good idea to check and add the new child as a beneficiary. As the children (or grandchildren) grow in age, your estate plan should adjust to ensure assets are distributed in a way that you deem proper. What seems like a good idea when your son or granddaughter is a four-year-old may no longer look like a good idea once their personality has developed and you know them as a 25-year-old college graduate, for example.

 3. Divorce: 

Some state and federal laws may remove a former spouse from an inheritance after the couple splits, however, this is not always the case, and it certainly should not be relied on as the foundation of your plan. After a divorce, you should immediately update beneficiary designations for all insurance policies and retirement accounts, any powers of attorney, and any existing health care proxy and HIPAA authorizations. It is also a good time to revamp your will and trust to make sure it does what you want (and likely leaves out your former spouse).

 4. The Death Of A Loved One: 

Sometimes those who are named in your estate plan pass away. If an appointed guardian of your children dies, it is imperative to designate a new person. Likewise, if your chosen executor, health care proxy or designated power of attorney dies, new ones should be named right away.

 5. Significant Change In Assets

Whether it is a sudden salary increase, inheritance, or the purchase of a large asset these scenarios should prompt an adjustment an existing estate plan. The bigger the estate, the more likely there will be issues over the disposition of the assets after you are gone. For this reason, it is best to see what changes, if any, are needed after a significant increase (or decrease) in your assets.

 6. A Move To A New State Or Country

For most individuals, it is a good idea to obtain a new set of estate planning documents that clearly meet the new state’s legal requirements. Estate planning for Americans living abroad or those who have assets located in numerous countries is even more complicated and requires professional assistance. It is always a good idea to learn what you need to do to completely protect yourself and your family when you move to a new state or country.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 


Wednesday
Jun072017

3 Imprudent Ways to Leave Your Children an Inheritance

Estate planning [creating your Family Legacy Protection Plan] offers many ways to leave your wealth to your children, but it’s just as important to know what not to do. Here are some things that are all-too-common, but textbook examples of what not to do or try…

“Oral Wills”:

If you feel you have a good rapport with your family or don't have many assets, you might be tempted simply to tell your children or loved ones how to handle your estate when you’re gone. However, even if your family members wanted to follow your directions, it may not be entirely up to them. Without a written document, any assets you own individually must go through probate, and “oral wills” have no weight in court. It would most likely be up to a judge and the intestate laws written by the legislature, not you or your desired heirs, to decide who gets what. This is one strategy to not even try.

Joint Tenancy:

In lieu of setting up a trust, some people name their children as joint tenants on their properties. The appeal is that children should be able to assume full ownership when parents pass on, while keeping the property out of probate. However, this does not mean that the property is safe; it doesn't insulate the property from taxes or creditors, including your children’s creditors, if they run into financial difficulty. Their debt could even result in a forced sale of your property.

There’s another issue. Choosing this approach exposes you to otherwise avoidable capital gains taxes. Here’s why. When you sell certain assets, the government taxes you. But you can deduct your cost basis—a measure of how much you’ve invested in it—from the selling price. For example, if you and your spouse bought vacant land for $200,000 and later sell it for $315,000, you’d only need to pay capital gains taxes on $115,000 (the increase in value).

However, your heirs can get a break on these taxes. For instance, let’s say you die, and the fair market value of the land at that time was $300,000. Since you used a trust rather than joint tenancy, your spouse’s cost basis is now $300,000 (the basis for the heirs gets “stepped-up” to its value at your death). So, if she then sells the property for $315,000, she only pays capital gains on $15,000, which is the gain that happened after your death! However, with joint tenancy, she does not receive the full step-up in basis, meaning she’ll pay more capital gains taxes.

Giving Away the Inheritance Early:

Some parents choose to give children their inheritance early–either outright or incrementally over time. But this strategy comes with several pitfalls. First, if you want to avoid hefty gift taxes, you are limited to giving each child $14,000 per year. You can give more, but you start to use up your gift tax exemption and must file a gift tax return. Second, a smaller yearly amount might seem more like current expense money than the beginnings of your legacy, so they might spend it rather than invest. Third, if situations change that would have caused you to re-evaluate your allocations, it's too late. You don’t want to be dependent on them giving the cash back if you need it for your own needs. 

Shortcuts and ideas like these may look appealing on the surface, but they can do more harm than good. Consult with an estate planner to find better strategies to prepare for your and your families' future.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Sunday
Jun042017

Does a Dynasty Trust Make Sense for Your Family?

Earlier this year, NBA team owner Gail Miller made headlines when she announced that she was effectively no longer the owner of the Utah Jazz or the Vivint Smart Home Arena. These assets, she said, were being placed into a family trust, therefore raising interest in an estate planning tool previously known only to the very wealthy—the dynasty trust.

Dynasty Trusts Explained:

A dynasty trust (also called a “legacy trust”) is a special irrevocable trust that is intended to survive for many generations. The beneficiaries may receive limited payments from the trust, but asset ownership remains with the trust for the period that state law allows it to remain in effect. In some states, a legal rule known as the Rule Against Perpetuities forces the trust to end 21 years after the death of the last known beneficiary. However, some states have revoked this limitation so, in theory, a dynasty trust can last forever.

Advantages and Disadvantages:

Wealthy families often use dynasty trusts as a way of keeping the money “in the family” for many generations. Rather than distribute assets over the life of a beneficiary, dynasty trusts consolidate the ownership and management of family wealth. The design of these trusts makes them exempt from estate taxes and the generation-skipping transfer tax, at least under current laws, so that wealth has a better ability to grow over time, rather than having as much as a 40-50% haircut at the death of each generation.

However, these benefits also come at the expense of other advantages. For example, since dynasty trusts are irrevocable and rely on a complex interplay of tax rules and state law; changes to them are much more difficult, or even potentially impossible as a practical matter, compared to non-dynasty trusts. Because change is very difficult or even impossible as a practical matter, the design of the dynasty trust needs to anticipate all changes in family structure (e.g. a divorce, a child's adoption) and assets (e.g. stock valuation, land appraisals), even decades before any such changes occur.

Is a Dynasty Trust Right for Your Family?

This trust usually makes the most sense for very wealthy families whose fortunes would be subject to large estate taxes. For multiple generations, it can defend estates from taxes, divorces, creditors or ill-advised spending habits. That said, if you desire to give your descendants more flexibility with their inheritance, a dynasty trust may not be right for you. To learn more about the pros and cons of this and other estate planning strategies, contact our office today.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller. 

Friday
Jun022017

Safeguarding Your Estate Plan Against Three Worst-Case Scenarios

There is no such uncertainty as a sure thing. 

                                     –Robert Burns

Even with an estate plan, things can always happen that may cause confusion for the estate–or threaten the plan altogether. Below are three examples of worst-case scenarios and ways to demonstrate how a carefully crafted plan can address issues, from the predictable to the total surprise.

Scenario 1: Family Members Battle One Another:

Despite your best intentions, what happens if the people you care about most get into a knockdown, drag-out fight over your estate? Disputes over who should get what assets, how to interpret an unclear instruction from you, or how loved ones should manage your business can open old wounds.

Lawsuits between family members can drain your estate and tarnish your legacy. Family infighting can lead to less obviously dramatic problems as well. For instance, let’s say you name your daughter as the executor, and she holds a deep grudge against your youngest son. Your daughter cannot do something as drastic as rewriting your will to leave him out. However, she could drag her feet with the probate court, interpret the will “poorly” (unfairly privileging herself and your other son over your youngest), or engage in other shenanigans. In each of these cases, your youngest son would have to hire a lawyer and potentially get involved in a protracted legal battle. This is a bad outcome for everyone.

To prevent such scenarios, consider using an impartial (e.g. third party) trustee or executor. Moreover, speak with a qualified estate planning attorney to prepare for likely future conflicts among family members.

Scenario 2: Both Spouses Die Simultaneously:

Many estate plans transfer assets to a surviving spouse, but what happens if both spouses die at or near the same time? This situation may be even more complicated if both spouses have separately owned assets or if the size of the estate is significant. In that case, asset distribution may depend on who predeceased whom, the amount of estate tax paid, and other factors. There are, however, ways to address this in an estate plan making it easier for your family to understand your intent, including, as recently discussed in Motley Fool:

· A simultaneous death clause that automatically names one spouse as the first to die;

· A survivorship deferral provision, delaying transfer of assets to a surviving spouse, thus preventing double probate and estate taxes; and

· A so-called “Titanic” clause that names a final beneficiary in the event all primary beneficiaries die at once.

Scenario 3: Passing Away Overseas:

Expatriates may require specific expertise when creating an estate plan. If a death occurs outside the U.S., foreign laws may conflict with provisions of an American-made estate plan. As such, a plan may need to be reviewed both for the US and other nations’ laws. If you intend to live abroad for an extended period, as discussed in this New York Times article, it may be smart to draw up a second will consistent with those nations' laws, too. However, the starting point is completing your estate planning (will, trust, and other documents) here in the United States first.

If you have concerns as to whether your current estate plan is safeguarded against these three worst-case scenarios or anything else you might be worried about, we are here to help.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.


 

Wednesday
May312017

5 Essential Legal Documents Required for Incapacity Planning

Comprehensive estate planning is more than your legacy after death, avoiding probate, and saving on taxes. Good estate planning includes a plan in place to manage your affairs if you become incapacitated during your life and can no longer make decisions for yourself. 

What happens without an incapacity plan?

Without a comprehensive incapacity plan in place, your family will have to go to court to get a judge to appoint a guardian or conservator to take control of your assets and health care decisions. This guardian or conservator will make all personal and medical decisions on your behalf as part of a court-supervised guardianship or conservatorship. Until you regain capacity or die, you and your loved ones will be faced with an expensive and time-consuming guardianship or conservatorship proceeding. There are two dimensions to decision making that need to be considered: financial decisions and healthcare decisions.

  •  Finances During Incapacity:

If you are incapacitated, you are legally unable to make financial, investment, or tax decisions for yourself. Of course, bills still need to be paid, tax returns still need to be filed, and investments still need to be managed.

  •  Health Care During Incapacity:

If you become legally incapacitated, you won’t be able to make healthcare decisions for yourself. Because of patient privacy laws, your loved ones may even be denied access to medical information during a crisis and end up in court fighting over what medical treatment you should, or should not, receive (like Terri Schiavo’s husband and parents did, for 15 years).

You must have these five essential legal documents in place before becoming incapacitated so that your family is empowered to make decisions for you:

1. Durable Power of Attorney:

This legal document gives your agent [called your Attorney-in-Fact] the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document.  

Financial Powers of Attorney come in two forms: “durable” and “springing.” A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been declared mentally incapacitated. There are advantages and disadvantages to each type, and we can help you decide which is best for your situation.

2. Revocable Family Trust:

This legal document has three parties to it: the person who creates the trust (you might see this written as “trustmaker,” “grantor,” or “settlor” — they all mean the same thing); the person who legally owns and manages the assets transferred into the trust (the “trustee”); and the person who benefits from the assets transferred into the trust (the “beneficiary”). In the typical situation, you will be the trustmaker, the trustee, and the beneficiary of your own revocable living trust. But if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit. Since the trust controls how your property is used, you can specify how your assets are to be used if you become incapacitated (for example, you can authorize the trustee to continue to make gifts or pay tuition for your grandchildren).

3. Advance Health Care Directive:

This legal document, also called a medical or Health Care Agent, gives your agent the authority to make healthcare decisions if you become incapacitated.

4. Living Will:

This legal document shares your wishes regarding end of life care if you become incapacitated. Although a living will isn’t necessarily enforceable in all states, it can provide meaningful information about your desires even if it isn’t strictly enforceable.

5. HIPAA authorization:

This legal document gives your doctor authority to disclose medical information to the agents selected by you. This is important because health privacy laws may make it very difficult for your agents or family to learn about your condition without this release. It is crucial that each fiduciary nominated in your estate plan that may need access to your HIPPA-protected health documents is granted such legal authority.

Is your incapacity plan up to date?

Once you get all of these legal documents for your incapacity plan in place, you cannot simply stick them in a drawer and forget about them. Instead, your incapacity plan must be reviewed and updated periodically and when certain life events occur such as moving to a new state or going through a divorce. If you keep your incapacity plan up to date and make the documents available to your loved ones and trusted helpers, it should work the way you expect it to if needed.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.

Sunday
May282017

Life Insurance and Estate Planning: Protecting Your Beneficiaries’ Interests

One misconception people have about life insurance is that naming beneficiaries is all you should do to ensure the benefits of life insurance will be available for a surviving spouse, children, or other intended beneficiary. Life insurance is an important estate planning tool, but without certain protections in place, there's no guarantee that your spouse or children will receive the benefit of your purchase of life insurance. Consider the following examples:

Example 1: David identifies his wife Betsy as the beneficiary on a life insurance policy. Betsy does receive the death benefit from the insurance policy, but when Betsy remarries, she adds her new husband’s name to the bank account where she deposited the death benefit. In so doing, she leaves the death benefit from David’s life insurance to her new husband, rather than to her children as she and David discussed before his death and which is what she indicates in her will.

Example 2: Dawn, a single mother, names her 10-year-old son Mark as a beneficiary on her life insurance. She passes away when he is twelve. The court names a relative as a guardian or conservator for Mark until he is of age. When Mark reaches his 18th birthday, his inheritance has been partially spent down on court costs, attorney’s fees, and guardian or conservator fees. Additionally, it hasn’t kept pace with inflation because of the restrictive investment options available to guardians or conservators. Dawn hoped the life insurance proceeds would be there for Mark’s college, but the costs and lack of investment flexibility mean there may not be as much as Dawn hoped.

Solution: Use a Trust as the Beneficiary on Your Life Insurance:

When estate planning, a common method for passing assets is by placing them in a trust, with a spouse or children as beneficiaries. The same approach may also be used for life insurance policy proceeds. You can designate the trust as the life insurance policy's beneficiary, so the death benefits flow directly into the trust. Two popular ways to accomplish this:

  1. Revocable Living Trust (RLT) Is the named beneficiary:

This option works well for those who have a modest-sized estate or who have already set up a trust. Naming your RLT as a life insurance beneficiary simply adds those death benefits to what you already have in trust, payable only to beneficiaries of the trust itself. The benefit of this approach is that it instantly coordinates your life insurance proceeds with the rest of your estate plan.

       2. Set up an Irrevocable Life Insurance Trust (ILIT):

For an added layer of protection, an ILIT can both own the life insurance policy and be named as the beneficiary. As The Balance explains, this not only protects the death benefits from potential creditors and predators, but from estate taxes as well.

With the estate tax exemption at $5.49 million per person in 2017, and a potential repeal on the legislative agenda of President Trump and the Republican Congress, you may not need estate tax planning. But everyone who’s purchased life insurance needs to take an extra step to ensure your loved ones' financial future. To discuss your best options for structuring your life insurance estate plan, schedule your complimentary Estate Planning Strategy Session with our office.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.

Friday
May262017

Building Asset Protection Into Your Estate Plan

Much of estate planning relates to the way a person’s assets will be distributed upon their death. But that’s only the tip of the iceberg. From smart incapacity planning to diligent probate avoidance, there is a lot that goes into crafting a comprehensive estate plan. One crucial factor to consider is asset protection.

One of the most important things to understand about asset protection is that not much good can come from trying to protect your assets reactively when surprised by situations like bankruptcy or divorce. The best way to take full advantage of estate planning concerning asset protection is to prepare proactively long before these things ever come to pass—and hopefully many of them won’t. First, let’s cover the two main types of asset protection:

Asset Protection For Yourself:

This is the kind that must be done long in advance of any proceedings that might threaten your assets, such as bankruptcy, divorce, or judgement. As there are many highly-detailed rules and regulations surrounding this type of asset protection, it’s important to lean on your estate planning attorney’s expertise.

Asset Protection For Your Heirs:

This type of asset protection involves setting up discretionary lifetime trusts rather than outright inheritance, staggered distributions, mandatory income trusts, or other less protective forms of inheritance. There are varying grades of protection offered by different strategies. For example, a trust that has an independent distribution trustee who is the only person empowered to make discretionary distributions offers much better protection than a trust that allows for so-called ascertainable standards distributions. Don’t worry about the complexity - we are here to help you best protect your heirs and their inheritance.

This complex area of estate planning is full of potential miscalculation, so it's crucial to obtain qualified advice and not solely rely on common knowledge about what's possible and what isn't. But as a general outline, let’s look at three critical junctures when asset protection can help, along with the estate planning strategies we can build together that can set you up for success.

  1. Bankruptcy:

It’s entirely possible that you’ll never need asset protection, but it’s much better to be ready for whatever life throws your way. You’ve worked hard to get where you are in life, and just a little strategic planning will help you hold onto what you have so you can live well and eventually pass your estate’s assets on to future beneficiaries. But experiencing an unexpected illness or even a large-scale economic recession could mean you wind up bankrupt.

Bankruptcy asset protection strategy: Asset protection trusts:

Asset protection trusts hold on to more than just liquid cash. You can fund this type of trust with real estate, investments, personal belongings, and more. Due to the nature of trusts, the person controlling those assets will be a trustee of your choosing. Now that the assets within the trust aren’t technically in your possession, they can stay out of creditors’ reach — so long as the trust is irrevocable, properly funded, and operated in accordance with all the asset protection law’s requirements. In fact, asset protections trusts must be formed and funded well in advance of any potential bankruptcy and have numerous initial and ongoing requirements. They are not for everyone, but can be a great fit for the right type of person.

       2. Divorce

One of the last things you want to have happen to the nest egg you’ve saved is for your children to lose it in a divorce. To make sure your beneficiaries get the parts of your estate that you want to pass onto them—regardless of how their marriage develops—is a discretionary trust.

 Divorce asset protection strategy: Discretionary trusts:

When you create a trust, the property it holds doesn’t officially belong to the beneficiary, making trusts a great way to protect your assets in a divorce. Discretionary trusts allow for distribution to the beneficiary but do not mandate any distributions. As a result, they can provide access to assets but reduce (or even eliminate) the risk that your child’s inheritance could be seized by a divorcing spouse. There are several ways to designate your trustee and beneficiaries, who may be the same person, and, like with many legal issues, there are some other decisions that need to be made. Discretionary trusts, rather than outright distributions, are one of the best ways you can provide robust asset protection for your children.

Family LLCs or partnerships are another way to keep your assets safe in divorce proceedings. Although discretionary trusts are advisable for people across a wide spectrum of financial means, family LLCs or partnership are typically only a good fit for very well-off people.

Judgment:

When an upset customer or employee sues a company, the business owner’s personal assets can be threatened by the lawsuit. Even for non-business owners, injury from something as small as a stranger tripping on the sidewalk outside your house can end up draining the wealth you’ve worked so hard for. Although insurance is often the first line of defense, it is often worth exploring other strategies to comprehensively protect against this risk.

  Judgment asset protection strategy: Incorporation:

Operating your small business as a limited liability company (commonly referred to as an LLC) can help protect your personal assets from business-related lawsuits. As mentioned above, malpractice and other types of liability insurance can also protect you from damaging suits. Risk management using insurance and business entities is a complex discipline, even for small businesses, so don’t only rely on what you’ve heard online or “common sense.” You owe it to your family to work with a group of qualified professionals, such as us as your estate planning attorney and an insurance advisor, to develop a comprehensive asset protection strategy for your business.

These are just a few ways we can optimize your estate plan to keep your assets protected, but every plan should be tailored to an individual’s exact circumstances. Contact our office so we can determine the best asset protection strategies for your estate plan.

If you want to ensure that your family is cared for, please click here to schedule your complimentary Estate Planning Strategy Call with San Francisco’s premier estate planning attorney, Matthew J. Tuller.