Wills, Trusts & Estates Prof Blog

6 Documents Everyone Should Have

Research shows that 70 to 80% of elders do not have advance directives giving instructions about end-of-life care.  Here are six documents everyone should have in place:

1. Medical power of attorney.  This document allows you to appoint an agent to make medical decisions on your behalf if you become unable to do so.
2. Living will.  This document details which medical treatments you do and do not want undertaken if you become incapacitated. 
3. HIPAA form.  This document gives people access to your private medical records.
4. Financial power of attorney.  This document, which goes into effect immediately after it is signed, gives someone the right to access all or a portion of your finances.
5. Letter of instruction.  Give your loved ones information about how to conduct your funeral services, whom to contact after you die, and whether you want to be buried or cremated.
6. Last will and testament.  Name your executor, appoint a guardian for your children, and determine who will receive your real estate, personalty, savings, investments, and digital assets. 

See Kimberly Leonard, 6 Decisions to Make Before You Die, U.S. News, Feb. 26, 2013.

Retiring Abroad with Good Health Care

While many older Americans may dream of retiring abroad, a key factor to consider in making such a decision is healthcare. International health insurance offering the best coverage can be expensive, while affordable alternatives may not provide the peace of mind most would want. Moreover, it is also important to consider the feasibility of a particular destination given one's state of health. Those who are likely to need more frequent care may need to consider countries with better care over countries with warmer sands.



See Tim Gray, The Dream of Moving Abroad in Later Life, With Good Health Care, The New York Times, Feb. 21, 2014.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Ethical Wills

An ethical will is a way for a person to share the principles, values, and guidelines that went into creating their wealth.  Although not legally binding, an ethical will gives a person the opportunity to convey a heartfelt expression of what truly mattered most in their life.

See the article below for a sample ethical will as well as some writing prompts that can help client’s organize their priorities and values.

See John Kador, The Rep’s Guide to Ethical Wills, Wealth Management, Feb. 25, 2014.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Best States for Trusts

Most states impose a tax on trust income between 3% and 12%.  These seven states do not:

• Alaska  
• Florida   
• Nevada    
• South Dakota   
• Texas   
• Washington   
• Wyoming

To avoid taxes on accumulated ordinary income and capital gains, locate a trust in one of these states.  In some states, this is as simple as naming a trustee in one of these seven states.  In other states, this may be impossible.

See Jim Combs, The Best States for Client Trusts, Wealth Management, Feb. 24, 2014.

Facebook After Death

Facebook has come up with a new way for users to cope with death. Facebook has now slightly altered what happens to your Facebook account when you die. When a user dies, the mourners can request that the account be memorialized. The memorialized page used to be available only to the deceased's Facebook friends. Now, memorialized accounts will be left on the same privacy setting the user had on the account. Facebook believes that this option better reflects what the deceased would have wanted. “We are respecting the choices a person made in life while giving their extended community of family and friends ongoing visibility to the same content they could always see,” Facebook said. 

 

See Steven Maimes, What Happens to Your Facebook Account After You Die?,  Feb. 22, 2013.

 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article on The Use of Beneficiary Defective Trusts

Luke T. Tashjian (Attorney – Stamford, Connecticut) recently published an article entitled, The Use of Beneficiary Defective Trusts in Modern Estate Planning, Real Property, Trust and Estate Law, Vol. 48, No. 2 (Fall 2013).  Provided below is the editors’ synopsis of this article:

It has become increasingly popular for practitioners to use a sale by a beneficiary to a trust that is owned by the beneficiary for income tax purposes as an alternative to a more traditional sale by a grantor to a grantor trust.  This increase in the popularity of sales to beneficiary-owned trusts has resulted from the belief that a beneficiary who sells assets to his or her trust can retain a beneficial interest in the trust corpus while enjoying all of the benefits that are available in a more traditional sale to a grantor trust—benefits such as the removal of future appreciation of the transferred assets from the transferor’s gross estate.

A properly structured transaction involving a sale to a beneficiary-owned trust may provide a client with opportunities that are unavailable through more traditional estate planning techniques, but these complex transactions will fail to yield the intended benefits unless practitioners carefully structure the trust, its funding, and the sale to the trust.  This Article analyzes the states, regulations, and rulings that support the use of sales to beneficiary-owned trusts as an estate planning vehicle, and based upon this analysis, sets forth guidance on the proper methods for structuring, funding, and selling assets to beneficiary-owned trusts.

Real Property Trust and Estate Spring Symposia

The ABA Section of Real Property, Trust & Estate Law is presenting a CLE on  Real Property Trust and Estate Spring Symposia, on May 1-2,  2014.  Provided below is a description of this event:

This year's RPTE Spring Symposia offers CLE programs addressing the latest developments in estate planning, covering a wide range of topics.

A three-part Estate Planning Basics program might be of interest to newer lawyers, while more seasoned professionals will find a variety of specialized programs from which to choose. In honor of the 25th Anniversary of the Symposia, there will be two special panels of distinguished Section Chairs to share their reflections on the challenges and lessons from the quarter century just ended and the opportunities for our changing practice in the years ahead.

Take a look at some of our notable trust and estate programs and speakers:

Estate Planning Basics

Panelists:
Benetta P. Jenson, JP Morgan Private Bank
Paul Lee, Alliance Bernstein LP
Karin C. Prangley, Krasnow Saunders Kaplan & Beninati LLP
Donna Otis, Otis Law Group Ltd.
Lee-Ford Tritt, University of Florida Levin College of Law
Ryan Walsh, Hamilton Thies & Lorch LLP

The First Quarter Century: Former Section Chairs Reflect on Lessons from the Past and How We Have Grown

Panelists:
Christine L. Albright, Holland & Knight LLP
Louis A. Mezzullo, Withers Bergman LLP
Edward F. Koren, Holland & Knight LLP

Golden Words from Silver Tongues — A Panel Discussion with Recent Section Chairs on Maintaining a Successful Estate Planning Practice over the Next 25 Years

Panelists:
Steve R. Akers, Bessemer Trust
Tina Portuondo, University of Miami School of Law
Alan F. Rothschild Jr., Hatcher Stubbs Land Hollis & Rothschild
Gideon Rothschild, Moses & Singer LLP

How to Solder Broken Plans: Ten Estate Planning Blunders to Fix Now

Panelists:
Keri Brown, Baker Botts LLP
Katy Crafton Fluet, McDermott Will & Emery LLP
Mark R. Parthemer, Bessemer Trust

One is Silver and the Other Gold: Making Friends with the Enemy - How to Identify and Manage Difficult Opposing Counsel

Panelists:
Juli Adelman, Vantage Trial Consulting
Paul Fisher, Fisher Mediation
Jessica A. Uzcategui, Sacks Glazier Franklin & Lodise LLP

Seeking and Finding New Silver Patterns in a Changed Estate Planning Environment: Creative Inter Vivos QTIP Planning

Panelists:
Richard S. Franklin, McArthur Franklin PLLC
Lester B. Law, Abbot Downing
Barry A. Nelson, Nelson & Nelson, PA

If you've never been to the RPTE Spring Symposia, this is a great year to check it out! First-time attendees receive a discounted registration rate — 40% off the general rate!

Solving the Organ Shortage

There are currently over 120,000 people awaiting organ transplants in the United States.  Living organ donation may be the best way to chip away at this number.

The most common procedures among living donors are kidney and liver donations, which offer better outcomes for the recipients than donations from a deceased donor.  Living donors must undergo an intense screening process before giving up an organ.  They must also be relatively young.  The cutoff age for kidneys is typically 60 while the cutoff age for livers is typically 55.

After surgery, living donors’ remaining organs tend to recover quickly.  About a month after taking out half of the liver, it will regenerate into around 80 percent of its original size.  After a kidney is taken out, the remaining kidney will increase about 20 percent in size.

See the National Living Organ Donors Foundation for more information on living organ donation.

See Amanda Woerner, Living Organ Donation: A Solution to the Organ Shortage in the US?, Fox News, Feb. 24, 2014.

Common Will Mistakes

While an effectively crafted will can provide peace of mind, a poorly executed will can have disastrous consequences.  Here are some common mistakes you should avoid:

• Unclear Wording.  Vague language can result in family strife and court intervention.  Be especially careful when using do-it-yourself templates to write a will. 
• No Updates.  Major changes in your life may call for major changes in your will.  Review your will after a marriage, divorce, birth, death, major change in income, or change in estate tax laws.  Be sure to also review related documents, such as beneficiary designations.  And be sure to destroy copies of old versions of your will. 
• Lost Wills.  Probating a photocopy of a will is very hard to do, because the court must be convinced the original is missing due to some inadvertence and not because the deceased revoked the will by destroying it.  Be sure to keep your original will in a secure place and let your family know where it is.

See Sonya Stinson, Wills Gone Wrong: Mistakes That Can Thwart Your Last Wishes, Forbes, Feb. 20, 2014.

Life in the Nineties

Check out the article linked below for an interesting story about old age written by Roger Angell.

In this enlightening article, a 93-year-old Angell describes his various aches and pains, memory problems, devastating losses, and the various upsides of getting old.

See Roger Angell, This Old Man: Life in the Nineties, The New Yorker, Feb. 17, 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.