Wills, Trusts & Estates Prof Blog

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

Thursday, March 26, 2020

Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid

WillAs of Wednesday, March 26, 2020, there have been 823 deaths linked to the novel coronavirus in the United States and over 60,000 confirmed cases. Spreading faster than the virus itself may be people's realization of their mortality, as many Americans are rushing to their computers to make digital wills.

Online will company Gentreo told CNBC they have seen a 143% week on week increase in business; Trust & Will has seen a 50% rise. Around 40% of Americans are thought to currently have wills place. Attorney Alain Roman, who assists with estate planning, said "Seeing in the news that so many people are passing away worldwide and here in the U.S., people are getting a little scared. It’s getting them thinking about having a plan in place in case something happens to them."

But legal experts have a warning for those signing wills online: be wary of their legality. Leslie Tayne, founder of Tayne Law Group, said the digital document will only be valid if it "meets all of the legal requirements of your state." Tayne added that "since the vast majority of DIY wills are created and executed without any oversight from an attorney, a larger number of wills (may not be) executed in compliance with the proper will formalities, and that could end up making the will invalid."

See Lauren Fruen, Americans are Rushing to Make Online Wills with 143% Uptake During Coronavirus Outbreak - But Lawyers Warn Some Might be Invalid, Daily Mail, March 25, 2020.

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

March 26, 2020 in Current Affairs, Current Events, Disability Planning - Property Management, Estate Planning - Generally, Technology, Wills | Permalink | Comments (0)

Wednesday, March 25, 2020

CLE on Medicaid: Qualifying Clients for Immediate Care and Protecting Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Qualifying Clients for Immediate Care and Protecting Assets, on Friday, April 17, 2020 at Central: 9:00 AM - 4:00 PM. Provided below is the description of the event.

Program Description

Helping Clients Secure Nursing Home Coverage Without Destroying Family Assets

Medicaid planning is most effective when done ahead of time. Sadly, most clients seek help when the need for nursing home is urgent or when the loved one is already in the facility. Do you have all the tools at your disposal for tackling such tough cases? This practical guide zeroes in on the very techniques that work in the crisis situations - when the penalty period is already triggered or care is already being provided. Learn what asset transfer approaches are still available and how to make certain to protect family assets. Help clients make the best of a tough situation. Register today!

    • Clarify what types of asset transfers will NOT trigger penalty periods of ineligibility.
    • Get all the tools you need to provide for the spouse staying in the community.
    • Draft caregiver agreements that are sure to qualify for Medicaid compensation.
    • Learn what can still be done with an adverse Medicaid decision.
    • Protect the family home with techniques tailored to specific family dynamics and circumstances.

Who Should Attend

This Medicaid planning guide is designed for attorneys. It will also benefit nursing home administrators, accountants, geriatric care managers, care coordinators, social workers and paralegals.

Course Content

    • What Happens in an Emergency Medical Situation
    • Asset Purchase and Transfer Strategies
    • How to Transfer a Residence
    • Using Promissory Notes to Help Clients Currently in the Nursing Home
    • Life Care Contracts Between Parents and Children
    • Contesting Denial of Benefits, Penalty Period Dates and Other Adverse Medicaid Decisions
    • Providing for the Community Spouse
    • Legal Ethics in Medicaid Practice
    • Emergency Medicaid for Non-Qualified Non-Citizens and Undocumented Individuals

March 25, 2020 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, March 19, 2020

Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients

CovidThe global pandemic of COVID-19 has numerous people thinking a question they have refused to face - what if? But now that they are, they are now also facing their own mortality, and realizing that they do not have the basic estate planning documents.

To protect yourself and your loved ones, now's a good time to make sure that you have the following four documents prepared and updated.

  • A will or revocable trust.
    • Many people choose a trust for the passage of assets to loved ones at death without the need for probate, but others can choose a will, especially those that have modest estates.
  • Beneficiary designations on financial accounts.
    • Many assets do not pass through a will or trust, such as an IRA, 401(k) account, or life insurance policy, and instead the proceeds go to the person you name as beneficiary of that account.
  • Healthcare durable power of attorney.
    • A durable power of attorney for healthcare will give the person you designate as your agent the ability to make the medical decisions you specify on your behalf. Check with your healthcare provider to see what they prefer to see in a healthcare power of attorney to ensure a smooth transition if you become incompetent.
  • Financial durable power of attorney.
    •  In the chance that you become incompetent, financial responsibilities continue. You can tailor your financial power of attorney as narrowly or broadly as you want, ranging from simply being able to pay bills on your behalf to making major changes to your investment portfolio.

See Roland McMillian, Coronavirus Trusts? Suddenly Estate Planning More Popular Than Stockpiling Food as Advisors Arrange Wills and Trusts for Elderly Clients, Wealth Advisor, March 17, 2020.

Special thanks to Jerry Cooper (Wealth Advisor) for bringing this article to my attention.

March 19, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (0)

CLE on Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client

CLEThe American Law Institute is holding a webcast entitled, Financial Exploitation of the Elderly: Estate Plan Strategies to Protect You and Your Client, on Wednesday, March 25, 2020 at 1:00 – 2:30 pm Eastern. Provided below is a description of the event.

Why You Should Attend

Financial exploitation of vulnerable adults is not a new phenomenon. Exploitation of and by prominent celebrities such as Brooke Astor, Anna Nicole Smith, and Stan Lee has shined a spotlight on financial exploitation, bringing it increased attention among practitioners, lawmakers, and Congress. Sadly, this kind of exploitation is not going away. In fact, its prevalence will likely increase because perpetrators are becoming more sophisticated, leveraging technological advances to exploit their victims. Prepare yourself and protect your client with an estate plan that hopes for the best in people but insulates you both from the worst in people. You will learn how to do this and more with the teachings in this webcast.

What You Will Learn

During this webcast, our expert faculty will talk about the planning instruments that will protect your client from financial exploitation, provide you with ethically permissible mechanisms to stop and reverse financial exploitation, without compromising your relationship with your client. Topics of discussion include:

    • Congressional efforts on elder abuse, including funding of state Adult Protective Services (APS), amendments to the Older Americans Act (OAA), and effects of the 2018 federal budget on available services
    • Understanding and identifying victim profiles
    • Discussion of typical scam scenarios
    • More sophisticated exploitation vehicles: power of attorney abuses, mortgage scams, and home maintenance sources
    • Spotting your clients’ indicators of financial exploitation
    • The engagement letter: Identifying the client and taking direction from the client under Model Rule 1.2
    • Prevention planning: disability planning, benchmarking capacity periodically to comply with Model Rule 1.14, and permissible disclosures under Model Rule 1.6 when incapacity is suspected
    • Handling financial exploitation in the absence of a power of attorney or health directive
    • Using guardianships and conservatorships and important considerations under the Uniform Adult Guardianship Protective Proceedings Jurisdiction Act (UAGPPJA)

Who Should Attend

Estate planners, elder lawyers, and general practitioners who handle the affairs of the elderly will benefit from this ALI CLE webcast.

March 19, 2020 in Conferences & CLE, Current Affairs, Disability Planning - Property Management, Elder Law, Guardianship, Professional Responsibility | Permalink | Comments (0)

Monday, March 16, 2020

CLE on Building Asset Protection into Estate Plans

CLEThe National Business Institute is holding a webcast entitled, Building Asset Protection into Estate Plans, on Monday, April 6, 2020 from 9:00 AM - 4:00 PM Central. Provided below is description of the event.

Program Description

Effective and Compliant Ways to Shore up Creditor Protections

Guarding clients and their estates against creditors is a deep-rooted part of estate planning. Do you have all the knowledge and skills at your disposal to prevent frivolous creditor attacks and minimize asset vulnerabilities? This practical legal guide explores the most effective techniques available to trusts and estates practitioners today. Register today!

    • Accurately assess specific assets', income sources' and beneficiaries' risk of exposure.
    • Explore simple ways to protect clients from the biggest threats.
    • Learn how to use trusts and LLCs to strengthen creditor protections and build in flexibility.
    • Maximize the use of exempt assets to boost protections.
    • Understand what techniques work even after the death of the grantor.
    • Protect your professional reputation with a legal ethics guide tailored to the demands of the trusts and estates practice.

Who Should Attend

This legal guide is designed for attorneys. It will also benefit accountants, tax professionals, trust officers and paralegals.

    • Course Content
    • Tax Rules Overview and Updates
    • Identifying Vulnerabilities and Common Mistakes That Expose Assets to Creditors
    • Simple Methods of Guarding Assets
    • Trusts in Wealth Preservation - Not Only for the Ultra-Rich
    • Using LLCs and Limited Partnerships
    • Timing of Asset Protection Efforts: Preventing Fraudulent Transfers and Other Considerations
    • Asset Protection Issues in Estate Administration
    • Legal Ethics

March 16, 2020 in Conferences & CLE, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Thursday, March 5, 2020

Nearly Half of CPA Advisors See Dementia in Some Clients

CpaThe American Institute of Certified Public Accountants (AICPA) has released their Personal Financial Planning (PFP) Trends survey this week and it sheds light on planning for cognitive decline is not following the trend of increased awareness. 28% of CPA planners say their clients plan to deal with diminished mental capacity in retirement on a reactionary basis, and 20% are ignoring the issue altogether, according to the survey. Unfortunately, nearly half - 48% - of all CPA financial planners reported they had a client exhibit signs of dementia or diminished capacity for the first time in the past year alone.

92% of CPA planners that do address client cognition ensure that powers of attorney and health-care proxies are in place, while 66% arranged for themselves to contact their client’s other professionals and relatives. “Managing cognitive decline is difficult for the client, their family and the CPA financial planner,” said Susan Tillery, chair of the AICPA’s PFP Executive Committee. “At times such as this, it is essential to be proactive by having a plan in place to deal with the financial demands of long-term care and other medical expenses associated with diminished capacity." 

Financial abuse and fraud is an apparent plague for older clients, with phone or internet scams, the inability to say no and identity theft as the most common. The emotional toll of being scammed was larger than the financial toll for their clients according to the CPAs. “Everyone is vulnerable to financial abuse and exploitation. However, the elderly are highly susceptible because companionship is an enticing allure for them. This can be due to the disintegration of the traditional nuclear family, death of spouse or friends, and the isolation that accompanies declining health,” Tillery said.

See Tracey Longo, Nearly Half of CPA Advisors See Dementia in Some Clients, Financial Advisor, March 4, 2020.

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

March 5, 2020 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, February 12, 2020

Book on Estate Planning for the Muslim Client

MuslimbookYaser Ali and Ahmed Shaikh recently published a book entitled, Estate Planning for the Muslim Client (2019). Provided below is a summary of the book.

Islamic law provides a non-discretionary system of rules that governs the distribution of a Muslim's estate. Designing an estate plan based upon these rules presents unique challenges and opportunities. As the demand for faith-based planning increases, there is a growing need for culturally competent advisors who understand how these complex rules interplay with state and federal law. This first-of-its-kind practice guide serves as an authoritative resource for practitioners on how to ethically and effectively draft and administer estate plans for Muslim clients seeking to comply with their faith.

Planning a client's estate can involve more than just the transfer of wealth from one generation to the next. To draft a customized plan that achieves a client's unique goals, an estate-planning practitioner must understand the client's values and convictions and, in many cases, his or her religious beliefs. For many clients, passing on these beliefs and traditions is just as important as, if not more important than, the distribution of assets.

Estate Planning for the Muslim Client provides insights, information, and practical planning solutions for clients who wish to adhere to a set of classical religious obligations while recognizing the practicalities of daily life in America. The authors highlight various planning opportunities and identify the most common issues that arise when planning for a Muslim client. Topics include:

    • Meeting the Muslim client and understanding the pillars of their faith
    • Ethical, legal, and public policy issues
    • Estate planning during life
    • Planning for incapacity and death
    • Disposition of property at death
    • Drafting estate planning documents, with sample forms
    • Planning for individuals and assets abroad, and more

February 12, 2020 in Books, Books - For Practitioners, Disability Planning - Property Management, Estate Planning - Generally, Religion, Wills | Permalink | Comments (0)

Friday, December 27, 2019

Alzheimer’s Tests Soon May Be Common. Should You Get One?

AlzThough doctors could determine that a person had Alzheimer's disease by particular symptoms, a formal diagnosis could not be performed until examining the brain during an autopsy. This may be a thing of the past, with two diagnostics tests on the horizon - a blood test that can detect the protein beta amyloid and a brain scan that can detect the protein tau.

These types of diagnostic testing may become more widespread, and with proteins developing on a person's brain before symptoms of the disease appear, a diagnosis can be formed before a patient develops Alzheimer's most feared symptom - dementia. A positive test could help a person get their affairs in order and form a plan for their future. And a drug company, Biogen, claims to have the first treatment that may slow the course of the disease if begun early enough. But how would knowing that one day you may not recognize any of your loved ones affect your choices today? Medical insurance companies are banned from denying coverage for patients with Alzheimer's diagnoses, but nothing is stopping long-term care insurers or even life insurers from denying them.

Dr. Daniel Gibbs, 68, a neurologist in Portland, noticed little slip ups in his memory and decided to get brain scans for beta amyloid and partake in cognitive tests. He was diagnosed as being in the early stages of Alzheimer's disease, and now has severe worries about his future, going so far as telling his family that if he gets something like pneumonia, they should withhold treatment. 

See Gina Kolata, Alzheimer’s Tests Soon May Be Common. Should You Get One?, New York Times, December 20, 2019.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

December 27, 2019 in Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Estate Planning - Generally, Science | Permalink | Comments (0)

Thursday, December 26, 2019

CLE on Effective Use of IRA Assets in Tax and Estate Planning After the Secure Act (Includes IRS Compliance Issues)

CLESeymour Goldberg is presenting a seminar entitled, Effective Use of IRA Assets in Tax and Estate Planning After the Secure Act (Includes IRS Compliance Issues), on Wednesday, January 29, 2020 at Melville Corporate Center III, Master Conference Room, at 324 South Service Road, Melville, NY. Provided below is a description of the event.

Many taxpayers have accumulated a considerable amount of assets in their retirement accounts. These assets may be in their 401(k), another type of qualified plan, a 403(b) arrangement, a 457 governmental plan, a traditional IRA and a Roth IRA.

Estate and income tax planning are more important than ever, especially under the Secure Act, when advising a client that has substantial retirement type assets. This program covers many of the rules that you need to know when implementing an estate plan for the client that has substantial retirement assets. IRS Compliance is now a major issue in retirement distribution planning for IRA owners and IRA beneficiaries.

Some topics included in this program:

    • Brand new world of retirement distribution planning
    • Effective date of changes in the rules
    • Transition rules and partial retroactive rule provisions
    • Retroactive effect on IRA trusts throughout the United States that have not been amended or redone
    • No grandfather rule for IRA trusts for IRA owners who pass away on or after January 1, 2020
    • Effective use of Roth IRA trusts going forward to save the day
    • New required beginning date o Special rules for special categories of beneficiaries
    • Use of 10 year trusts for designated beneficiaries
    • Use of a life expectancy trust plus 10 year bonus payout period for eligible designated beneficiaries
    • The 10 year rule versus the life expectancy rule plus the 10 year bonus rule (without trusts)
    • Repeal of maximum age rule for making traditional IRA contributions
    • The federal age of majority rule for children
    • Potential massive IRS penalties for not tracking the new rules
    • Need for new practitioner specialty (IRA Compliance Specialist)
    • Default beneficiary issues

For more information on how to attend the event, see here.

December 26, 2019 in Conferences & CLE, Current Events, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (0)

Monday, December 2, 2019

Article on How Reliant are Older Americans on State and Local Government Pensions?

PensionPhilip Armour, Michael Hurd, &Susann Rohwedder  recently published an Article entitled, How Reliant are Older Americans on State and Local Government Pensions?, Elder Law eJournal (2019). Provided below is an abstract of the Article.

State and local government pension plans cover about 19.5 million participants, and many participants are heavily reliant on these pensions for retirement income. Most of these plans, however, are underfunded. Based on data from the Health and Retirement Study, we examined the lifetime work histories of those observed at ages 67 to 72 in 2004, 2008, or 2014. Seventy-seven percent of single persons and 61 percent of couple households had never worked for state or local (S&L) government. Among those single and couple households who did work for S&L government, we found that they have on average more years of education and more economic resources. Among currently retired and near-retirement households, we compared economic preparation for retirement according to their lifetime employment in the S&L sector, and we examined how economic preparation would be affected if pension benefits were cut. Based on stochastic simulations, which account for uncertainty about length of life and out-of-pocket medical expenditures, we found that economic preparation for retirement among those with S&L government work histories would only be modestly reduced if their pension income were cut. Under a 50 percent cut to all pension income of households with any S&L sector work, only an additional three to four percent of these households would no longer be prepared for retirement. The change is modest because households with S&L employment have better preparation than other households; some of the cuts are paid for by reduced taxes; and the affected households will bequeath less.

December 2, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)