Wills, Trusts & Estates Prof Blog

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

Monday, October 21, 2019

Get Your Digital Accounts Ready in Case of Death

Black bookBefore our inevitable demise, it would be a gift to our loved ones if we packaged all of our social media account passwords, email passwords, and any other digital account information together to make final arrangements and settling our affairs simpler for them. Here’s how to set up a digital “little black book” for easy and secure information sharing with family members and trusted friends.

  • Share your account logins and other secure information with a password manager
    •  A password manager is a software application that securely and conveniently stores all your account logins as well as notes you want to keep safe. These usually cost a small annual fee, but are well worth it.
  • Record and save emergency info
    •  These can include funeral plans, living will wishes, safe or even smart phone combinations or codes, important contacts - including your attorney and/or financial advisor, locations of valuables and critical papers, recurring bill information (so nothing goes into default), and any other financial information that may be needed immediately upon your death.
  • Set up dead-man switches and assign custody for your digital accounts
    •  Some accounts allow you to designate a person that can gain access upon your death or even simply after an extended period of inactivity.
  • Drill practice — teach your loved ones how to survive without you
    •  Do not surprise your family with these wishes! Make sure they accept any designations, download any necessary applications, and remember to update your information on a yearly basis.

See Melanie Pinola, Get Your Digital Accounts Ready in Case of Death, New York Times, October 3, 2019.

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

October 21, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Non-Probate Assets, Technology, Wills | Permalink | Comments (0)

Tuesday, October 8, 2019

California Legislature Cracks Down on Caregivers Who Marry Dependent Adults

AnnaCalifornia Governor Newsom signed Assembly Bill 328 on June 26, 2019 and will be effective on January 1, 2020, which hopes to close loopholes that allow scheming caregivers to marry the adults that are dependent on them. The Legislation creates a rebuttable presumption of undue influence in two scenarios: transfers to care custodians who Marry dependent adults and care custodians who make "omitted spouse" claims.

The Bill applies to “dependent adults,” who are defined as an adult of any age who cannot provide properly for his or her basic needs or who has difficulty managing his or her financial resources or resisting fraud or undue influence. If a donative transfer of property occurs or an instrument that does so is executed within six months of a caregiver marrying or cohabitating with a dependent adult, the caregiver must through clear and convincing evidence that there was no fraud or undue influence.

If there is no donative transfer or the newly minted spouse is not mentioned in the will, the caregiver was once allowed to claim an omitted spouse share of the decedent's estate. California law states that if a decedent does not update a will after a marriage, the omitted spouse is entitled to a third of the estate under California Probate Code section 21610 and section 21611. The Bill amends section 21611 so that care custodians who marry dependent adults cannot make “omitted spouse” claims if the dependent adult dies less than six months after the marriage occurred.

See Jeffrey S. Gavin, California Legislature Cracks Down on Caregivers Who Marry Dependent Adults, September 16, 2019.

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

October 8, 2019 in Current Events, Disability Planning - Property Management, Elder Law, Estate Administration, Estate Planning - Generally, New Legislation, Trusts, Wills | Permalink | Comments (0)

Monday, October 7, 2019

CLE on Changing/Repurposing Old Trusts to Work Under the New Tax Rules

CLEThe National Business Institute is holding a webcast entitled, Changing/Repurposing Old Trusts to Work Under the New Tax Rules, on Monday, October 21, 2019 from 10:00 AM - 5:00 PM Central. Provided below is a description of the event.

Program Description

Learn How and When to Modify a Trust

New tax rules are in effect, and your clients may be wondering what impact these major changes have had on their trusts. Whether to qualify for government benefits, minimize tax exposure or to take advantage of new incentives, there may be good reason to amend or restructure the trust. Do you have the knowledge and skills you need to make this happen? Our experienced faculty will walk you through the legal process of modifying a trust, offering solutions to specific trust issues in the new tax law and equipping you with the tools you'll need to respond to future changes. Register today!

    • Help your clients identify when a trust should be modified.
    • Understand who has the legal authority to make a change to the trust.
    • Gain insight into the legal process involved with modifying an existing trust.
    • Determine what to do with old credit shelter trusts.
    • Learn how to build modification provisions into the trust and receive other helpful drafting tips.
    • Discover what has changed as a result of the new tax rules, what stayed the same, and what still works.

Who Should Attend

This course is designed for attorneys. It will also benefit financial planners, accountants and CPAs, tax preparers, trust officers, and paralegals.

Course Content

    • What Still Works
    • When Should the Irrevocable Trust be Modified?
    • Mechanisms for Making the Change
    • What to Do With Old Credit Shelter Trusts
    • Specific Solutions to New Trust Tax Problems and Opportunities
    • Qualifying Trusts for the New Pass-Through Entity Deduction
    • Drafting for Flexibility to Respond to Future Tax Law Changes
    • Legal Ethics

October 7, 2019 in Conferences & CLE, Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Sunday, September 29, 2019

CLE on Medicaid: Maximizing Excluded Assets

CLEThe National Business Institute is holding a webcast entitled, Medicaid: Maximizing Excluded Assets, on Wednesday, November 6, 2019 at 9:00 AM - 4:00 PM Central. Provided below is a description of the event.

Effective Approaches to Medicaid Eligibility Planning
Satisfying the spenddown requirement to ensure your client qualifies for Medicaid is a tough balancing act. One of the most effective levers in this planning is to maximize excluded assets. This practical guide will give you the knowledge and skills you'll need to ensure your clients use all the tactics at their disposal to qualify for Medicaid as early as needed, without excessive burden on their families. From simple approaches like gifting to the more complex Medicaid trusts - learn what works and get sample documents to ensure all your approaches are implemented impeccably. Register today!

 

    • Get an updated overview of Medicaid resource and transfer eligibility.
    • Evaluate common planning techniques and when they are most (and least) effective.
    • Maximize purchase and prepayment methods without undue hardship for your clients.
    • Save drafting time with sample Medicaid trust provisions.
    • Review the application and appeals process to ensure compliance and maximize chances of success.
    • Gain effective asset transfer tactics when time is of the essence.

Who Should Attend

This Medicaid legal guide is designed for attorneys. It will also benefit accountants and paralegals.

Course Content

    • Medicaid Asset Eligibility: Commonly Overlooked Excluded Assets
    • Purchasing Excluded Assets, Prepayment of Future Expenses, and Converting Countable Assets: Top Tips and Techniques
    • Anticipating the Tax Consequences of Medicaid Planning
    • Addressing Assets in Application, Appeals, and Fair Hearings Process
    • Coordination with Other Asset-Based Benefits Eligibility
    • Using Trusts to Maximize Excluded Assets
    • Asset Transfers in Crisis Planning
    • Can You Prove to Medicaid that an Asset Transfer Should NOT be Penalized?
    • Legal Ethics in Medicaid Planning

September 29, 2019 in Conferences & CLE, Current Events, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Old Estate Plans May be Harmful to Your Health

WillThe main reason that many people do not update their estate plan or will is because they believe that "nothing has changed" in their lives. The passing of time may seem monotonous, but it is still unlikely that an event has not occurred that alters some aspect of your life, no matter how small. Even if you still do not believe that anything has overtly changed in your realm, the tax laws may have still changed. If you have not looked at your estate plan since the 2017 Tax Cuts and Job Act overhaul, you may be shocked to see that "everything" may have changed.

Here are a few other things that may trigger a change in your estate plan, even if you did not think so on the face:

  • Marriage, either yours or an heir/beneficiary
  • Death of an heir/beneficiary or other person named in documents
  • Birth/adoption of a new child or grandchild
  • Move to a new state
  • Significant change in economic situation
  • Change in jobs (make bring changes in beneficiary designations)
  • Change in wishes
  • Health issues that are new, worsening or even getting better
  • Change in relationship with anyone named in documents
  • New lawsuit or resolution of a lawsuit
  • Change in life insurance policies
  • Change in state laws that could effect any aspect of your estate plan

See Martin Shenkman, Old Estate Plans May be Harmful to Your Health, Forbes, September 27, 2019.

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

September 29, 2019 in Current Affairs, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Tuesday, September 17, 2019

From Hobby to Investment: How to Plan for Collectibles in Your Estate

CollectiblecarCollectibles may start off as a hobby, then evolve into a passion that amasses quite the value. Here are a few tips to preserve your investment:

  • Avoid a Fire Sale: Don’t Let Taxes Catch Your Heirs by Surprise
    •  Talk with a estate planning professional to determine the best method of to reduce the tax burden of your collection, whether it be gifting during your life or at death.
  • Put It on Paper: What Do You Own, Where Is It, and How Much Is It Worth?
    •  It would be prudent to group authentication paperwork, records of purchases, and any information regarding the history of the item to establish its provenance (chain of ownership) altogether with your estate planning documents.
  • Have a Backup Plan: Who Will Protect Your Collection if You’re Not Able?
    • If you become incapacitated or otherwise unable to manage your own affairs, a power of attorney allows a designated person to act as your agent, ensuring your collection is handled according to your wishes
  • Share Your Passion: Does Your Family Know Why You Collect?
    •  Do not just pass along the collection itself - explain to your family why it is so important to you, why it is your passion.
  • Preserve Your Collection: Find an Executor Who Knows How to Maintain It
    •  Having an executor that understands the particulars of your collection is extremely important, especially since they may need to find experienced appraisers for the items.
  • Reduce Taxes: Leave Your Treasures in the Hands of a Deserving Charity
    • When loved ones simply do not share your enthusiasm for a collection, or it becomes impossible to divide it equitably, a better choice may be donating it to charity and leaving other assets to your heirs.
  • The Takeaway: To Preserve the Value of Your Collection, Think Ahead

See From Hobby to Investment: How to Plan for Collectibles in Your Estate, Fiduciary Trust, September 4, 2019.

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

September 17, 2019 in Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Wills | Permalink | Comments (0)

Thursday, August 22, 2019

CLE on Estate Planning for Every Phase of Life

CLEThe National Business Institute is holding a webinar entitled, Estate Planning for Every Phase of Life, on Wednesday, September 11, 2019 at 12:00 PM - 3:15 PM Central. Provided below is a description of the event.

Advise Clients of All Ages with Confidence

Clients at each stage of life pose unique estate planning challenges that even the most skilled advisor may overlook. Are you prepared to address the concerns of individuals of all ages, from young parents considering a will for the first time, to retirees planning for long-term care? This program will provide you with practical guidance on how to apply fundamental planning techniques to your client's specific circumstances. Address the estate planning concerns of individuals at all stages with certainty - register today!

    • Provide your clients with peace of mind by establishing a plan for guardianship and custody of minor children.
    • Understand what estate planning documents need to be updated after a divorce.
    • Work with your clients to create a plan for charitable giving.
    • Help your aging clients understand what their adult children need to know about their parents' estate plan.
    • Review the essential documents needed at each stage of life.

Who Should Attend

This program is designed for attorneys. Accountants and paralegals may also benefit.

Course Content

    • Retirees: Planning for Long-Term Care and Grandchildren
    • Clients of Advanced Age
    • Essential Documents Needed at Each Stage of Life
    • Estate Plan for a Young Married Couple
    • Divorced and Remarried Clients
    • Clients with Charitable intent

August 22, 2019 in Conferences & CLE, Disability Planning - Health Care, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Trusts, Wills | Permalink | Comments (1)

Monday, August 12, 2019

CLE on FT Dementia Summit 2019

CLEFinancial Times is holding a conference entitled, FT Dementia Summit 2019, in London, England on September 18, 2019, from 8:00 AM to 5:00 PM. Provided below is a description of the event.

As the global prevalence of dementia expands and new breakthroughs are made, the market for dementia-related products and services is set to enter a new era.

The FT Dementia Summit will explore the latest advances in diagnosis and treatment while addressing the challenges facing those responsible for bringing new ideas to life. What are the treatments of tomorrow? How is the role of carers evolving? What can policymakers do to support progress?

Join us in London on 18 September 2019 for a full day of networking and knowledge-sharing with stakeholders across the dementia landscape including investors, innovators, carers and key opinion leaders.

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

August 12, 2019 in Conferences & CLE, Current Events, Disability Planning - Property Management, Estate Administration, Estate Planning - Generally, Science | Permalink | Comments (0)

Monday, July 22, 2019

Podcast on Asset Protection Planning for Physicians: A Prescription for Peace of Mind

MedicaljusticePhysicians spend their entire career caring for their patients but often do not take the time to take care of themselves. And no just physically - they overlook protecting their assets and any wealth that they have built.

On this episode of the Medical Liability Minute, Dr. Segal collaborates with Asset Protection Attorney Ike Devji, JD. Mr. Devji is one of the country’s leading authority on asset protection strategies for physicians

See Asset Protection Planning for Physicians: A Prescription for Peace of Mind, Medical Justice, July 10, 2019.

July 22, 2019 in Disability Planning - Property Management, Estate Administration, Estate Planning - Generally | Permalink | Comments (0)

Monday, July 15, 2019

Note on Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model

AlzLauren Padama recently published a Note entitled, Informed Consent and Decision-Making After Loss of Competency in Dementia Patients: A New Model, 28 S. Cal. Interdisc. L.J, 173-201 (2018). Provided below is an introduction of the Note.

After receiving a diagnosis of Alzheimer's, journalist Greg O'Brien analogized his experience with the disease to a plug in a loose socket. The light from the lamp starts to flicker, so he pushes the plug back in to the socket. It flickers more; Greg now becomes frustrated as he continues to push the plug back in. Eventually, the plug falls out of the socket entirely, and the light is extinguished permanently. This metaphor tracks the progression of Alzheimer's as a typical patient loses his memory and other core cognitive functions. It does not, however, consider that the cognitive decline is typically accompanied by a revocation of medical autonomy.

Most adults are familiar with the myriad forms they are required to sign before receiving medical treatment. These consent forms are designed to reiterate a physician's warning of the risks and benefits of the procedures to ensure that the patient is fully informed before agreeing to the procedure. This basic idea was famously articulated by then Judge Cardozo when he noted, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body … ." Since then, every jurisdiction has developed a doctrine of informed consent, which requires the doctor to make a "reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." The physician's efforts to apprise the patient of the risks and benefits of the treatment or procedure would, however, be futile if the patient were unable to evaluate the risks and benefits of the procedure and come to an informed decision on whether to accept or reject treatment. Thus, informed consent also requires that the patient have the capacity to consent  to treatment. For patients with Alzheimer's or dementia, the cognitive decline associated with the disease eventually precludes the patient from meeting the medically determined competency standards. This means that the patient can no longer give consent to receive or refuse treatment. The patient is therefore forced to rely on the judgment of the physician or another statutorily approved decision-maker for all medical decisions after loss of capacity.

Informed consent was created to preserve patient autonomy, but dementia effectively revokes a patient's right to consent or decline treatment. A dementia diagnosis is followed by a determination of incompetency at a time when critical treatment decisions are made, such as the decision to administer psychotropic medications. Most decision-makers follow a physician's treatment recommendation, which means psychotropic medications are frequently prescribed to manage symptoms of dementia. When patients refuse, caregivers in both professional and private settings covertly administer medication without the patient's knowledge or consent. 

This article explains the challenges facing both the medical and legal community as the aging population in the United States leads to an inevitable increase in the number of dementia patients. In particular, the variety of accepted instruments used to assess competency has created variability in who is considered incompetent, which forces the patient to rely on statutorily approved methods of decision-making, such as conservators, family members, and advance directives. Since requirements for each vary by jurisdiction, this paper primarily focuses on California law. After discussing the deficiencies with each form of decision-making in the context of concealment of psychotropic medication, this paper explores a new approach to decision-making that focuses on the patient as opposed to the physician's recommendations. The proposed model combines elements of enhanced consent and supported decision-making to create a new method of decision-making. This method of decision-making gives a patient in the early and moderate stages of Alzheimer's more control over her healthcare decisions by forcing decision-makers to communicate directly with the patient instead of assuming the patient's preference. This aims to preserve autonomy in early stages of Alzheimer's by shifting the focus from substituted decision-making to decision-makers actually assisting the patient in deciding whether to accept or reject psychotropic medication and then articulate that choice effectively to the physician.

This paper begins with an overview of dementia and one of the most commonly prescribed treatments for Alzheimer's patients: psychotropic medications. I then discuss informed consent, the right to refuse medication, and assessing capacity both generally and in Alzheimer's patients. After explaining the problems with current competency assessments, I then review the most common methods of decision-making after loss of capacity for Alzheimer's patients as well as alternative methods of decision-making used in other populations. I demonstrate the deficiencies in the statutorily approved methods of decision-making by applying each method to a common real-world problem of medication concealment. Lastly, I illustrate the benefits of utilizing my proposed model, a hybrid of enhanced consent and supported decision-making. This model aims to preserve patient autonomy in the early stages of Alzheimer's while also providing a tool to plan for the later stages of the disease.

July 15, 2019 in Articles, Current Affairs, Disability Planning - Health Care, Disability Planning - Property Management, Elder Law, Estate Planning - Generally | Permalink | Comments (0)