Taking Care of Families When it Really Matters:
Our Ongoing Representation of Clients Through our Maintenance Program
When was the last time you reviewed or even looked at your estate plan? Unfortunately, estate planning has traditionally been viewed and serviced as a transaction: simply creating a will or trust. This does not make sense, considering the reason you complete a plan is to make sure your family is taken care of upon your death or incapacitation, and that the assets you own at the time of your death pass exactly the way you intend.
We need to create a plan today designed to take care of the family at an unknown time in the future. Even with the most knowledgeable and experienced elder law and estate planning attorney, and even with all the research tools available, the attorney will never know:
- When you are going to die;
- What the law will be at that time;
- The value or types of assets you will own that will pass at your death;
- What your family circumstances will be; and
- What will be important to you at the time of your death.
What you are actually asking the attorney to do is take care of your family…
- At an unknown time;
- Based on unknown laws;
- Based on unknown asset values and types;
- For unknown family circumstances; and
- For things the attorney does not know will be important to you at that time.
Clearly, this is a daunting task. No matter how flexible the plan is or how much the attorney tries to predict the future, the traditional transactional approach to estate planning cannot address all the uncertainties and changes that are a natural part of life.
It’s not a matter of if things will change, but when. So a “one and done” approach will not take care of your family. Because of the fast-paced and busy lives we lead, we do not always make time to go to an estate planning attorney to discuss death, disability, taxes, and how to update the plan. Research has shown that many years often go by before we consider reviewing our plans. Procrastination, our busy lives, and the additional costs of speaking with an attorney at his or her hourly rate often keep us from updating plans. The typical reminder to review and update the plan seldom conveys the urgency of this task. This reactive approach to updating and maintaining plans based on hourly billing rarely results in updated plans and the clients’ families being taken care of when the client dies.
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We believe that an ongoing representation designed to align the assets with the estate plan, verify that the financial institutions have aligned the assets correctly, and track changes in assets, laws, and the clients’ lives is the process necessary to take care of the family based on the realities in place at the time a client dies. Our clients are those who are looking for a relationship with a professional based on a flat price and predictable fees; those who wish to work with an attorney who will get to know the family and their needs. You will need estate planning documents, but to make sure your family is taken care of when it really matters, you need a process to make sure the plan is updated. We have created such a process for our clients and their families, and train other firms nationwide who are committed to making sure their clients and families are taken care of.
Estate Planning: Asset Alignment, Verification, and Tracking
Although you will need estate planning documents, the most important thing in estate planning is asset ownership. Everything in estate planning boils down to asset ownership. How you own your assets during your life, who you name as beneficiaries, and the language in your business and corporate agreements determine whether the courts will be involved at the time of your death, whether you will minimize taxes and costs, and most importantly, whether your family is taken care of.
For example, most families own life insurance and name their spouse and then their children as beneficiaries. No matter what the will or trust says, if when that person dies their spouse has already died, the life insurance company must pay the children. If the children are young, irresponsible, or have marital difficulties, the life insurance proceeds may wind up in the hands of a very young person, irresponsible children, or a child facing a divorce.
This is why instructions included in a will or trust can protect your child only if the asset ownership if “aligned,” or designated to pass in a manner controlled by a will or trust containing protective language. Our experience and that of most professionals is that the assets are never “funded” into the trust or aligned with the estate planning documents. This means that the plans fail to work as intended.
One of the most important things is ensuring your assets are aligned with your estate plan and that your financial institutions have titled your property appropriately. Since each financial institution, bank, life insurance company, and retirement plan administrator has its own particular forms, procedures, and idiosyncrasies, great attention must be paid to the alignment process. In our experience, most estate planning attorneys leave this task up to the client or charge by the hour to have this work done. If the client ever gets around to dealing with the financial institutions and funding their trust, the process typically gets bogged down by changes in forms, lost forms, additional requirements for different institutions, and the maze of questions posed by the computerized phone systems just to speak with a service person. If the client hires the attorney to do the work, the legal fees involved with the process cannot be controlled, as the attorney charges by the hour, not necessarily for results. The client is then charged for the run-around that often occurs.
Our belief is that aligning the assets with the estate plan (typically called “funding” or “retitling”), verifying the institutions have titled the assets properly, and then tracking changes in asset ownership, value, and type over time is essential to making sure your estate plan works and your family is taken care of. Our ongoing representation is based on obtaining the results our clients want: taking care of their family when it really matters.
Our Practice Areas
Comprehensive estate planning covers nearly every aspect of life. It begins with protecting yourself and your personal dignity, and extends to protecting your loved ones and your hard-earned assets.
Follow the links below to learn more about our Estate Planning services provided at Family Estate Planning Law Group. Remember, no matter the practice area or legal work needed up front, the critical part in every area is to ensure the plan is updated on an ongoing basis.
Elder Law and Protecting Assets from the Nursing Home
Elder law is another aspect of estate planning, focusing primarily on the needs of families and individuals as they age. Finding the best way to make sure a senior is cared for while protecting their home and assets from the nursing home is a major focus of our elder law practice.
There are many legal strategies involved in estate planning including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. When these techniques are combined with proper asset alignment, verification and tracking on an ongoing basis, the plan can work as you intended at the time of your death or disability.
Probate, Estate Administration, and Trust Administration
Probate and estate administration are the processes through which estate assets are transferred after death through the probate courts. Assets transferred under the terms of a will go through probate and therefore a will guarantees going through the probate process. If there is no will, then a different court process occurs where assets are transferred according to state law. Both of these estate administration processes guarantee probate. If assets are owned by and aligned with a trust, these assets are handled through an administrative process that avoids probate. In particular, the trust administration process typically avoids probate court and can be very efficient, provide asset protection, and minimize taxes. We can help make the process easier, more efficient, and provide peace of mind during a difficult time.
Estate Tax Planning and Gift Tax Planning
Historically speaking, the federal estate and gift tax is a tax imposed by the government when someone transfers assets at death (estate tax) or during life (gift tax). In actuality, it is not a death, inheritance, or gift tax, but more accurately a transfer tax. There are three distinct aspects to federal estate taxes that comprise what is called the Unified Transfer Tax: estate taxes, gift taxes, and generation-skipping transfer taxes. Legal planning to avoid or minimize federal estate taxes is both a prudent and an important aspect of comprehensive estate planning.
Special Needs Planning
Special Needs Estate Planning focuses on providing for the special needs of loved ones with disabilities when their parents or caregivers are no longer there to organize and advocate on their behalf. Parents of children with special needs must make careful estate planning choices to coordinate all of the legal, financial, and special care needs of their children – both now and in the future as the child becomes an adult.
Medicaid Crisis Planning
Finding and affording quality care on short notice can be stressful and draining. We can help you determine the best options for care and how to qualify for Medicaid to help finance them.
Asset protection planning involves making prudent decisions today to protect yourself, your business, and your hard-earned assets from loss due to lawsuits, creditors or bankruptcies.
Family businesses often make up a significant percentage of a person’s estate. Any business succession plan must be integrated into the overall estate plan in order for the business to continue to operate or to be sold at its full value at your death. Like an estate plan, a business succession plan must be kept up to date, as the value of the business will change and key persons will be hired or leave.
We encourage and assist the tradition of giving to charitable causes, including the employment of tax-advantaged strategies that maximize the value of your gift. We help clients make charitable gifts and practice good stewardship in the most tax-efficient manner.