The Dangers Of Using Cookie-Cutter, Downloadable Legal Forms

When people learn that I am an estate planning and elder law attorney, some of them ask what I think about “do it yourself” wills, trusts, and other estate planning forms that can be found online. Of course, when I tell them that it is advisable to hire an attorney, it sounds rather self-serving.

Last Will And Testament

Last Will And Testament (Photo credit: Ken_Mayer)

A recent article in the ABA Journal speaks to my concerns about the potential pitfalls and unwanted consequences of using downloadable forms. It discusses the case of a Florida woman, Ann Aldrich, who used an “E-Z Legal Form” to create her will in 2004. In the will, she left all of her assets to her sister, with the caveat that if Aldrich’s sister predeceased her, the assets would go to her brother.

Sounds simple enough, right? So why, then, did the Florida Supreme Court rule that Aldrich’s two nieces were entitled to part of her estate? Because the E-Z Legal Form failed to include what is known as a residuary clause providing for property not listed in the will. That is, assets acquired by Aldrich after 2004, when she made her will, were distributed according to the laws if intestacy. With regard to these assets, it was as if the will had never been created in the first place! Florida intestacy laws mandated that the nieces inherit these assets, not Aldrich’s brother.

One of the concurring justices in the case, Barbara Pariente, said: “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound-foolish.’ I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Thank you, Justice Pariente. I couldn’t have said it better myself.

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Senior Dating—Tips To Help You “Get Your Groove” Back

One of the most rewarding aspects of being an elder law and estate planning attorney is that I get to develop strong relationships with my clients. To create a sound plan, I need to know my clients well. Many clients often become close friends, and we talk about a wide range of personal matters. Some of these conversations even turn to the problem of re-entering the world of dating as a senior. Now, I’m not much of a matchmaker, but I did find an article in the New York Times that provides a wealth of information on the topic.

Romance isn't just for teenagers...

Romance isn’t just for teenagers… (Photo credit: Ed Yourdon)

First of all, if you are a senior looking for a date this Friday night, you are hardly alone. Approximately 45 percent of people age 65 and older are separated, divorced, or widowed, according to the AARP. And people over the age of 60 are the fastest growing online dating demographic. In fact, AARP Dating has teamed up with a website called HowAboutWe to provide suggestions for offline dates, and the site has nearly 60,000 followers.

While there is no shortage of dating websites out there (eHarmony, Match.com, and JDate to name a few), many seniors simply aren’t comfortable with looking for relationships online, or don’t use the Internet at all. Another option is professional matchmakers, of which there are some 3,000 in the United States. About 90 percent of them work with seniors, but not necessarily exclusively.

Clearly, there are plenty of resources out there to help seniors find that special someone. However, according to the article in the Times, many seniors who do find someone they enjoy spending time with are reluctant to remarry. Why? Some are worried that the other person might simply be “after their money.” Others are concerned about the implications remarriage can have for their children’s inheritance. These are valid concerns. If you are in a serious relationship and considering remarriage, I invite you to call me for a consultation. I can show you a number of ways to protect your assets, including a prenuptial agreement.

In the meantime, if you’re just looking for advice on senior dating, I strongly recommend that you click on the link below to read the full article in the Times. You’ll be surprised by how many people share your concerns about re-entering the dating world and what they are doing about it.

New York Times Article: Matchmakers For Those Over 60

10 Best Places for Single Boomers to Retire

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Income Tax Benefits Available To Families With Special Needs Children

As the cost to care for children with special needs continues to rise, parents need all the help they can get. Unfortunately, as many as 15% to 30% of parents with a special needs child are not taking full advantage of tax benefits available to them, according to a recent article in the Journal of Accountancy. Hundreds, perhaps thousands, of dollars in tax benefits and deductions are going unclaimed by some families. Let’s take a look at some of the benefits available.

Cropped version of Image:Child piggyback.jpg. ...

(Photo credit: Wikipedia)

The Dependency Exemption
This exemption can be taken for a “qualifying child” or “qualifying relative.” In 2013, the exemption amount was $3,900. In addition, if the loved one with special needs is permanently or totally disabled, the exemption may be available regardless of his or her age.

Special School Instruction
Certain expenses associated with attending a special school can be deducted as medical expenses. These include lodging, transportation, and meals. Costs incurred for treatment, care, supervision, training, and more can also be deducted if the special school provides them.

Capital Expenditures
Capital expenditures to a residence that are undertaken to provide for medical care or assistance with physical limitations (such as an entrance ramp, railings, custom bathing facilities, etc.) may be deductible as medical expenses.

Conferences and Seminars
Registration fees and travel expenses to attend conferences and seminars dedicated to issues essential to the care of a special needs child may be deductible.

Impairment-Related Work Expenditures
If a special needs child gets a job later in life, some expenses related to maintaining his or her employment may be deductible.

These are just some of the income tax benefits available to families with special needs children. It is important to note that the rules governing eligibility for these tax deductions are extremely complicated and change over time. You can learn about them by reading the entire Journal of Accountancy article at http://www.journalofaccountancy.com/Issues/2013/Jun/20137378.htm.

If you are caring for a child with special needs, you are not alone. I am always available to discuss special needs planning tools and strategies, including special needs trusts. Give me a call at your earliest convenience.

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Family Heirlooms—How Much Are They Worth?

When a loved one dies, he or she leaves behind much more than assets in a will or trust. There are treasured memories, of course. And what about all the “stuff” that Mom or Dad accumulated over the years? Many of these items have sentimental value at the very least, and others might have monetary value as well. Is the brooch that Mom’s mother gave her when she was a girl actually worth a lot of money?

Brooch in Red and Yellow

Brooch in Red and Yellow (Photo credit: merlinprincesse)

Forbes recently ran an article exploring this topic. It referenced the television show Antiques Roadshow and discussed how the show’s popularity has given birth to a cottage industry of low-cost or even free appraisal events throughout the United States, often hosted by non-profits, banks, auction houses, and others.

If you’ve ever watched Antiques Roadshow, you might be under the impression that practically every heirloom passed on to children by their parents is worth a considerable amount of money. No doubt this makes for a better show, but the Forbes article points out that the vast majority of items people bring in for appraisal have little if any dollar value. And even when they do, these appraisals are known in the industry as “verbal approximations of value.” To determine how much an heirloom is actually worth for the purposes of dividing assets equitably among surviving family members or purchasing insurance to protect the item, it is necessary to obtain a written, formal appraisal.

So is that painting your parents picked up on their trip to Paris, or that armoire passed down from one generation to the next, actually worth something? Absolutely! Even if an appraiser tells you that it has no monetary value, if the heirloom reminds you of your father or mother, it can be conservatively valued as “priceless.”

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Rules Governing Care Of Dementia Patients In Massachusetts Amended

Workers in nursing home dementia care units will now have to receive eight hours of initial training plus four hours of additional training every year, according to rules recently adopted by state regulators. The new regulations also require such facilities to have, at the very least, one therapeutic activities director. The therapeutic activities director is responsible for ensuring residents in the dementia unit are provided with appropriate and meaningful activities.

Dad at Diamond Ridge Healthcare Center (Novemb...

(Photo credit: cseeman)

These new regulations close a legal loophole that permitted nursing homes to advertise their dementia units without actually providing workers with specific training or residents with specialized activities. The regulations were finalized by the Public Health Council, an appointed body of health advocates and academics that sets public policy.

Another change that has been under discussion of late is the requirement for a 6-foot fence surrounding outdoor areas, with the goal of preventing residents from wandering away and becoming lost.

However, some nursing home operators objected to this change, arguing that facilities in urban areas might never be able to meet a requirement mandating that residents have access to outdoor space if 6-foot fences were required. Other operators said that fences this high could reduce residents’ enjoyment of the opportunity to be outside in the first place.

The Public Health Council came up with a compromise, requiring that nursing homes with dementia care units must have a “fence or barrier to prevent injury and elopement.”

It is important to note that the new regulations require that all licensed nursing homes, not simply those advertising dementia units, must provide dementia-specific training for every direct-care worker within 180 days.

As a dedicated Massachusetts elder law attorney, I applaud these new regulations and invite you to click on the link below to learn more about them.

http://www.bostonglobe.com/lifestyle/health-wellness/2014/02/13/dementia-care-rules-finalized-for-massachusetts-nursing-homes/ruU64q0mgJ4Db7dVegROyK/story.html

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Who Should Get What: Factors To Consider When Leaving Unequal Inheritances To Your Children

When many parents create an estate plan, they simply divide their assets equally among all their children. While there is certainly nothing wrong with this, in some situations it might not be the best, or even the fairest, approach.

Family discussion

(Photo credit: Muffet)

For example, one of your children may earn significantly more money than your other children. One might have several children, another one child, and another no children at all. Perhaps one of your children has served as a caregiver for you or your spouse while the others have not. Or maybe one of your children has disappointed you so often that you would prefer to leave him or her nothing at all.

These are difficult decisions in and of themselves. Worse, when one child is favored over another in a will or other estate planning document, the decisions may be open to legal challenge by the child who believes he or she has been treated unfairly.

Here are a couple ways to help ensure your wishes will be carried out in the event you decide to leave unequal inheritances to your children.

  • Include a no-contest clause. This typically stipulates that if a beneficiary contests the will’s validity or its provisions, his or interest in the will is forfeited. Of course, you have to leave the heir in question enough of an inheritance to motivate him or her not to challenge the will.
  • One strategy that I have used is to have the client write a letter with a simple explanation for what they have done. This is not a legal document, but can be shown to the unhappy heir if necessary. Only if the child or other heir contests the legal document is this letter unsealed.

For additional strategies, or to discuss any aspects of your plan, feel free to contact me. I am here to help you make these and other difficult decisions, and guide you through the entire process.

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Lessons In Estate Planning From Deceased Celebrities

Many of us think, “If I was rich and famous, I wouldn’t have a care in the world.” However, as the recent passing of two Hollywood stars shows us, when it comes to estate planning we all grapple with similar concerns and hopes for our loved ones.

Philip Seymour Hoffman won a Academy Award for...

Philip Seymour Hoffman (Photo credit: Wikipedia)

Consider the case of Phillip Seymour Hoffman, who recently died of a heroin overdose. His plan contained a provision requesting that his son, Cooper Hoffman, be raised in or near the cities of Manhattan, Chicago, or San Francisco. Why would he include such a provision? Hoffman’s Will stated, “The purpose of this request is so that my son will be exposed to the culture, arts and architecture that such cities offer.”

Phillip wanted to pass some of his values onto his son, and used his estate plan to make it possible.

Paul Walker

Paul Walker (Photo credit: Wikipedia)

Or consider Paul Walker, the star of Fast & Furious who was recently killed in a car accident. He left his entire estate to his daughter, Meadow, with the provision that she cannot access the money until she becomes an adult. Paul also named his mother, not Meadow’s mother, as Medow’s guardian. Paul apparently felt more confident that his mother would be the better guardian and manager of Meadow’s newfound wealth.

Naming guardians, teaching our children proper values, determining “who gets what, and when.” These are difficult issues that all families face, not just celebrities.

I welcome the opportunity to help you make decisions like these and plan for whatever the future holds.

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Why Create a Trust?

Due to changes that limited federal estate tax to only high valued estates, many people believe there is no reason to set up a trust to guard their assets. However, a recent article outlines five reasons that trusts might be the right choice even for smaller estates:

    1. Holding assets in trust may allow estates valued at over 1 million dollars to avoid significant Massachusetts tax liability.

    2. A trust will avoid the often long and costly, and always public, probate process, where the will, the accounting of the estate disbursements and revenue, and the probate asset inventory will all be available to the public.

    3. Allowing assets to be distributed through a trust will give parents the ability to moderate how much access a young child has to a house, life insurance, retirement assets, or cash, so that the children are not put in a position to misuse estate assets. It may also help where there is concern over poor money management skills, business liability, or creditor problems.

    smiley mom and daughter on grass

    (Photo credit: MyTudut)

    4. A child’s eligibility for public benefits can be affected if the child receives an inheritance. Whereas, holding assets in trust for the benefit of the child will help ensure that the child remains eligible and that resources are there to provide care over the long term.

    5. A revocable trust also gives a person the ability to determine how he or she will be cared for and how decision will be made in the case of incapacitation.

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An Estate Planning Success Story

In an article, Pat Mertz Esswein explains how her mother took all the right steps in laying out her estate plan, so that when she passed nothing was left undone and no one was left to deal with unanswered questions.

Mother & Daughter

(Photo credit: footloosiety)

Pat’s mom kept her will, power of attorney, and advanced directives accurate and up-to-date, and stored them together in a large white envelope. After a health scare in 2008, during which the family could not find the envelope, Pat labeled it “THIS IS IT” so that there would be no confusion.

In addition, after 2008, Pat’s mom registered her power of attorney at the county courthouse, and added her as a co-signatory on her safe-deposit box, so that Pat could start planning and organizing her mom’s financial affairs while she could still communicate her wishes. The experience was helpful later on when Pat was tasked with being executor of her mom’s estate.

Pat’s mom was clear about what kind of funeral she wanted, including specifics such as the dress she wanted to be buried in and who should serve as the pallbearers. Pat’s mom made it simple to contact friends and relatives with up-to-date holiday and email lists. Also, she left a list of her “team,” including her lawyer, accountant, stockbroker, priest, and insurance agent. In her will, Pat’s mom even left her daughters some advice and instruction saying, “Please do not have any hard feelings over things. Your relationship as sisters is far more important.”

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Learn From These 6 Estate Planning Mistakes of NFL Players

In honor of the Big Game, a recent article explains six of the estate planning mistakes that NFL players commonly make. While not everyone will earn as much as an NFL star, the average American can still benefit from avoiding these mistakes in their own lives.

NFL Football player Troy Smith drinking Gatora...

(Photo credit: Wikipedia)

1. Living in the present, instead of planning for the future: NFL players earn most of their lifetime income in their 20s and 30s, and then retire early. As a result, it is especially important for them to plan for retirement early.

2. Choosing the wrong professional adviser: NFL players sometimes make the mistake of choosing a family member to help with financial planning instead of an estate planning professional. This can be a mistake if the family member is not experience in managing large quantities of assets.

3. Spending beyond their means: It is important to spend based on the cash you have available, not the salary total that appears in a contract.

4. Not maintaining liquid funds: Maintaining liquid funds to cover living expenses in case of an emergency is especially important for NFL players, who could experience a career ending injury at any moment.

5. Leaving assets exposed: Assets can be protected from creditors through trusts, incorporating limited liability entities, and under any state laws that protects specific assets, such as a person’s home.

6. Failing to see the bigger picture: Because NFL players retire earlier than most Americans, it is especially important for them to consider how they will live during retirement. Plans for a second career or to starting a business should be reflected in the estate plan.

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