Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Thursday, June 16, 2016

The Challenges of Court-Ordered Guardianship

Guardianship court orderedThe theory behind guardianship is to protect incapacitated people. This relationship, however, can place the incapacitated person in a vulnerable position because not all guardians have good intentions. In response to this problem, recent changes have been made to guardianship laws in 18 states, including guardian background checks and improved access to the incapacitated person. Even with these changes, guardianship still presents challenges, which is why it is important to plan ahead and choose your guardian rather than allowing the court to do so. 

See The Pros and Cons of Court Ordered Guardianships, Wealth Management, June 14, 2016.

June 16, 2016 in Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0)

Tuesday, June 14, 2016

What Happens if We Forget the Bad Financial Times?

Financial memoryOverconfidence in past financial decisions can cost you as you age, causing people to take more risk than they can afford. As we get older, we benefit from more experience and perspective, but we are subject to biases that affect the details of what exactly we remember.

Consider a study where senior citizens were approximately 25% less likely than their younger counterparts to recall faces paired with larger losses. These senior citizens tend to pay more attention to positive information, which is consistent with previous research. To help with these biases, it is helpful to rely on financial autopilots and target-date funds.

See Shlomo Benartzi & Alan Castel, The Financial Price of Forgetting Bad Times, Wall Street Journal, June 12, 2016.

June 14, 2016 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Daily Money Managers Helping with Aging Parents' Finances

Aging parentsCostly financial mistakes and elder abuse are prevalent issues with aging parents and their finances, but how can you find someone you trust to help them? Daily money managers can help elders do just about everything, including pay bills, budget, and keep track of insurance claims. This field, however, is relatively new, which means it does not have government oversight, so you must be careful when considering just who to turnover your financial information to. Professional societies and nonprofit organizations can help assist you with picking a trusted candidate.

See Anna Prior, When Aging Parents Need Help with Financial Tasks, Wall Street Journal, June 10, 2016.

June 14, 2016 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, June 10, 2016

Enlisting Help for a Greedy Caregiver

CaregiverA report estimates 43.5 million people in the United States provide unpaid care to an adult or child. Approximately 49% are providing care to a parent or parent-in-law, and a majority provide care for a relative. This type of caregiving can lead to family drama, especially when the person being cared for has money. If you suspect that one family member is providing care to elevate their inheritance, then it might be best to enlist other family members to assert themselves into caring for that relative because there is potential for them to become a victim of control.

See Michelle Singletary, Could Caregiving Be Just a Means to the Money?, Washington Post, May 19, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

June 10, 2016 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, June 8, 2016

Financial Exploitation and Undue Influence Claims

Undue influenceAccording to a recent report, undue influence on elder people results in a loss of more than $23 billion annually! The three main types of undue influence are deception, duress, and unconscionable demands with perpetrators mainly motivated by greed and control. These greedy, control-driven people are often looking to manipulate the elder in order to benefit themselves or others close to them through financial exploitation.

Undue influence claims, however, can sometimes be false, which undermines testator wishes and promotes family feuds. Well-documented undue influence assessments can prevent years of litigation by covering all relevant behavioral issues of the elder. These assessments will help to preserve estates and carry out testator wishes. 

See Bennett Blum, Undue Influence and Financial Exploitation, Huffington Post, June 1, 2016.

June 8, 2016 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Friday, June 3, 2016

Sumner Redstone's Controversy in Estate Plans Everywhere

Sumner redstoneAs the battle continues over Sumner Redstone’s billion-dollar estate, with the current mess of lawsuits, many are questioning his estate planning. Experts are saying that Redstone’s controversy is happening in epidemic proportions with people and charities moving in on the estates of wealthy elders. As the elder population continues to live longer, this problem increases and only becomes worse.

Redstone’s pattern creates the need for settlor’s to make clear provisions in trust. It would be important to define incapacity and appoint who would determine incapacity when the time comes. Redstone’s trust does not define incapacity and gives little control to others while he remains alive. With a well-drafted trust, Redstone could have included a provision (or built it to go into effect after a certain age) allowing a majority of trustees to conclude he did not have the capacity to remove a trustee. Ultimately, it seems Redstone has brought on his own problem.

See James B. Stewart, In Sumner Redstone Affair, His Decline Upends Estate Planning, NY Times, June 2, 2016.

Special thanks to Joel Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 3, 2016 in Current Events, Elder Law, Estate Planning - Generally, New Cases, Trusts | Permalink | Comments (0)

Monday, May 30, 2016

How to Cope with an Alzheimer's Diagnosis

AlzheimersApproximately 5.4 million Americans suffer from Alzheimer’s, which has many friends and family members wondering how to act toward them. With disease progression being unpredictable, it is hard to understand the different stages and learn how to handle each phase. The Article discusses how emotional support from friends and family members is key. Being open about the diagnosis can help ease social situations and promote conversation. Also, experts advise taking cues from the person coping with Alzheimer’s and allowing them to take the lead.

See Susan Berger, What’s the Best Way to Talk to Someone with Alzheimer’s?, Washington Post, May 30, 2016.

Special thanks to Lewis Saret for bringing this Article to my attention.  

 

May 30, 2016 in Death Event Planning, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Saturday, May 21, 2016

Article on Estate Planning for Vulnerable Clients

ShenkmanMartin M. Shenkman recently published an article entitled, Estate Planning for the Chronically Ill, Aging, and Otherwise Vulnerable or Isolated Client, ABA Probate & Property, May/June (2016). Provided below is a summary of the Article:        

        Attorneys routinely build flexibility into their documents to address the uncertainty of future tax laws. This same care can be applied to helping clients deal with the uncertainties aging and chronic disease may bring. Certain clients are more vulnerable to financial abuse and other gaps in their estate planning safety nets. This heightened risk may be because of the challenges of aging, chronic illness, and other similar circumstances. Those clients who require extra precautions in the planning process will be referred to as “vulnerable clients.” This article will explore four key points of planning for vulnerable clients: different approaches for planning, planning for those with chronic illness, enhancing traditional estate planning for vulnerable clients, and planning for isolated vulnerable clients.

May 21, 2016 in Articles, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, May 18, 2016

What Are The Alternatives To File And Suspend?

AgingThe popular file and suspend filing strategy for Social Security has been done away with by the Bipartisan Budget Act of 2015.  “The file and suspend option expired after Friday, April 29, 2016, and those who elect to delay receiving their retirement benefits will also no longer be able to request a lump-sum payment of delayed benefits if they elect to stop deferring their benefits.”  This article discusses some of the alternative claiming strategies that are still available for senior citizen couples wishing to begin or delay collecting Social Security benefits.  One strategy that still exists which this article discusses is the restricted application, but this will be phased out eight years from now and is only available to those who were at least 62 years old by the end of 2015. 

See Mark P. Cussen, Alternative Strategies to File and Suspend, Investopedia, May 18, 2016.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

May 18, 2016 in Elder Law, Estate Planning - Generally, Non-Probate Assets | Permalink | Comments (0)

Monday, May 16, 2016

Choosing Between A Roth And A Traditional 401(k)

AgingThere are a lot of things that people need to consider when choosing between a Roth IRA and a traditional 401(k).  One advantage that a Roth 401(k) might have for high income earners that there are no income limits pertaining to Roth IRAs.  “Additionally, even for those who fall within the income requirements, the annual contribution limits of $5,500 ($6,500 for those 50 and over) on a Roth IRA can be an issue.”  It is important for people to consider what their tax situation will be when they retire because the tax consequences are different for these two types of retirement investment vehicles.  People need to think about their estate planning and tax diversification options when making these decisions.  It is a good idea to seek out the assistance of an experienced estate planning professional. 

See Roger Wohlner, How To Choose Between a Roth or Traditional 401(k), Investopedia, May 16, 2016.

May 16, 2016 in Elder Law, Estate Planning - Generally | Permalink | Comments (0)