What to Know About Special Needs Planning

Posted by on Nov 19, 2019 in Legal News | 0 comments

According to Pew Research Center, there are approximately forty million Americans with special needs. This is about 12.6% of the population. Special needs has a very distinct legal definition by law, and the law has also evolved to ensure that families and friends are able to help special needs people carry out their lives as normally as possible. In this article, we’ll talk about the basic need-to-know information regarding special needs planning. 

What are “Special Needs?”

That question is very, very broad, and the law takes paragraph after paragraph to explain what it considers to be a special needs individual. Basically, there are two groups of people with special needs: children and adults. 

Special needs children are minors who require necessities and care that other children do not. This may be due to a physical, mental, and/or emotional disability. The state usually declares a child “special needs” for the purpose of offering them assistance and benefits to provide for the child’s well-being, which requires special attention to grow.

A special needs adult is an adult who has reached majority and has a mental, emotional, and/or physical disability. Often, these adults have carried over a developmental disability from childhood. As with children, the state designates adults as special needs for the purposes of providing benefits and assistance to help these adults maintain their well-being, as they are, to one degree or another, unable to do so in comparison to the non-special-need population.

Obviously, these definitions are not exhaustive. On paper, these definitions seem simple and somewhat understated, but caring for those with special needs is never quite so simple. 

What Can Special Needs Planning Include 

Special needs planning, such as setting up a special needs trust, provides for benefits that a beneficiary could not otherwise obtain because these aren’t covered by the government or by a private agency. These can include dental expenses, vision, special equipment, spending money, special dietary needs, and other costs that are essential to quality of life but may not be covered under social security or disability. A special needs trust allows you to provide for a special needs individual without defeating their eligibility for government assistance.

Setting Up a Special Needs Trust

A special needs trust allows you to set aside money and assets to be conferred to the special needs beneficiary at your direction. These trusts can be set up with the help of an attorney. Generally, such a trust will have a provision that will terminate it if the beneficiary would be made ineligible for government assistance as a result of the trust.

Who Can Best Benefit From Special Needs Planning 

Parents with special needs children are the main people who (aside from the beneficiaries themselves, of course) benefit from special needs planning. According to Pew Research Center, the most common disabilities are those that involve issues with independent living or walking. Over 20 million adults have “serious difficulty” walking. 13 million American adults also reported having serious cognitive impairments, while 14 million adults reported having major difficulties running errands alone. These independent living and mobility concerns mean that there are many small, niche costs and expenses that government assistance might not foresee. Therefore, providing for your child and helping them with independent or semi-independent living is one of the main reasons to set up a special needs estate plan.

Special needs is a whole field of law that consists of attorneys, educators, legislators, and advocates who fight to make sure that everyone in America is treated equally and given the same opportunities, regardless of ability. Some disabilities are visible, while others are invisible, but all special needs individuals should be cared for. Special needs planning will allow you to provide for your loved ones’ special needs after you’re gone, giving you peace of mind that they will be cared for.

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Time is Flying By. Our 10th Anniversary Is Here!

Posted by on Nov 12, 2019 in Legal News |

        Time flies when you’re having fun, as the old saying goes. November marks our firm’s 10-year anniversary. We’ve helped many people with their estate planning, tackling legal problems and forming relationships with our clients that have been rewarding and long-lasting. It seems like ten years went by in the blink of an eye. 

In this article, to celebrate ten years, we’ll give you ten pieces of advice for setting up a great estate plan. 

10. Store Your Documents Wisely 

We live in Florida, and hurricanes are all-too-common. If you have estate-planning-related documents sitting in a box that is neither water nor flame proof, that is likely not going to end well. One basement flood, and you’re in for a whole world of headaches. Store your docs on a secure server. While it’s great to keep the originals, talk to an attorney about ways to make them digital and safe.

9. Don’t DIY It 

This one might seem a little self-serving, but it’s true. Do-it-yourself legal services often cause way more headaches than they prevent. Why? Because law is tricky. One wrong word and your family might get tied up in probate court for half a year. There is special language required to set up trusts, healthcare directives, and power of attorney forms, and it can be difficult. Contacting an attorney is the bets choice. 

8. Avoid Funeral Prepayment Plans 

Funeral prepayment plans seem sensible on the surface. You want a nice funeral that won’t run your family into the ground financially. The prepaid plan is an arrangement between your choice of funeral home and you. However, these arrangements can be unreliable, as funeral homes do occasionally go out of business. Also, many prepayment plans are not able to be relocated. Your money is better off collecting interest in a bank to be used later for the funeral, as opposed to way in advance.

7. Be Tax Savvy 

Not everyone is going to get hit with an estate tax, but some people (the .01%) will. If your estate is worth over $5.49 million, you may owe an estate tax. There are ways to minimize this tax through tools such as irrevocable trusts or charitable trusts, but you can only minimize taxation legally if you know what you’re looking at paying.

6. Insurance, Insurance, Insurance

Consider life insurance. Insurance is something you don’t realize you need until it’s too late. Life insurance will benefit and protect your family for years to come, and it is a good way to provide extra financial security to your loved ones.

5. Keep It Updated

Setting up your estate plan is not automatically the end of the road. You have to make sure it is kept updated for new family members, new financial situations, and things such as that. Families change, and you want your estate plan to change with your family, if necessary. 

4. Pick a Great Power of Attorney 

A power of attorney is the person who makes legal, financial, and/or healthcare decisions on your behalf. Needless to say, you want to make sure that the POA is someone who is very trustworthy and conscientious. And if they turn out not to be…

3. Don’t Be Afraid to Fire Your POA

…then don’t hesitate to fire them. It might cause familial tension, but you shouldn’t hold on to the POA just because you want to be nice to them. The power of attorney needs to go to and remain with the person who is best for the job.

2. Put Your Wishes Front & Center 

A good example of this is a healthcare directive. This directive will let you tell a doctor or hospital your wishes for end of life care ahead of time so that, if you’re too sick to communicate them yourself, you can still make sure what you want is honored. 

1. Avoid Probate Court 

Above all, your goal should be to avoid probate court. Probate court is where estates go to get divvied up, and it is a drag, financially and time-wise. A good estate plan can help you avoid probate court. 

 

Ten years, ten tips. These are definitely not exhaustive, and we could write a 1,000-page book on everything to know about estate planning. But hey! That’s why we’re the lawyers. These ten items for your estate to-do list will be put into even better practice if you hire an estate planning attorney. 

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You Think Halloween Is Scary? Try Probate Court

Posted by on Oct 22, 2019 in Legal News |

Halloween is approaching quickly, and the spooky season is already in full swing. Whether you’re a haunted house person or someone who’s a little less adventurous, the Halloween season is a way for you to celebrate the season. The candy, pumpkins, and horror movies aside, Halloween isn’t the only scary thing out there. While “probate court” might sound about as scary as a Disney movie, there’s a lot more to those two words than meets the eye. Here are the top ten spookiest things about probate court:

10. The Time 

Probate court is where estates go to be divided up after the decedent’s (dead person’s) death. The estates are carved up like Jack O’ Lanterns to pay off debts and dissolve the disputes as quickly as possible. However, “quickly” doesn’t mean the same thing in the court system that it means to the rest of the world. The average probate process takes from several months to a year. That’s a long time to be tangled up in the courts.

9. Dragging Your Family Through All That 

Not to mention, you won’t be the one in court for several months to a year—your family will be. They’ll be stuck in the snowfall of documents and court dates, and it will be exhausting and boring and tiring. If it couldn’t be avoided, that would be one thing. But estate planning that is thorough would prevent you from dragging your family through the court system.

8. Your Prized Possessions—Gone 

You probably have favorite possessions. Maybe it’s a prized painting or a savings account that you’ve been letting sit for years. If your estate is left with no trust or will, probate will decide how your assets are divided up. That prized painting might be sold and the proceeds given to a creditor or used to pay off court fees (see #3).

7. Small Business Owners Beware 

Small business owners need estate planning just as much as individuals do. If there is no estate plan and the business is part of the estate, it might be taxed to death or become the subject of dispute after dispute. Even if the small business issue is settled, the legal furor surrounding your business won’t be good for it. Something you’ve worked so hard on deserves to be kept out of the probate courts.

6. Confusion 

The court system is also confusing. Lawyers spend three years figuring out the law and taking the bar exam to prove they are competent in it. And even lawyers acknowledge that the system is confusing. Probate court is no exception. 

5. Not A Good Legacy to Leave Behind 

Above all, probate court should not be what your family remembers about you. When you leave behind a legacy, you want it to be something your family will celebrate, not think of with any negative connotations. And probate court is nothing if not a negative-connotation-producer.

4. You’re One of Many 

Your home and assets are unique to you. You know everything about them, and every asset likely has some special attachment for you. However, probate court makes you one of many estates getting sorted out. There won’t be much regard for divvying up your possessions. Your estate deserves more than a disposition by someone who has never met you.

3. The Expense 

Court fees are expensive. The expenses will come from your estate, first and foremost. However, the hundreds of dollars of fees add up, unsurprisingly. Probate court’s expense is definitely one of the spookiest things about it. The fees take money from your estate that could have gone to your loved ones.

2. Executors You Might Not Have Picked 

The court appoints an executor for you. They’ll start with family, but they might appoint someone that you personally would not have picked. However, with no estate plan there to avoid it, your first choice for executor might get totally overlooked and your estate placed in the hands of someone you didn’t want.

1. Creditors

Debtors are the top spot on this special Halloween edition of the horrors of probate court. Your assets will pay off creditors. Without an estate plan to set aside trusts or other instruments, your prized possessions could go straight into the hands of your creditors, not your family.

Hopefully, these top ten scariest things about probate have convinced you to hire an estate attorney and make sure your family doesn’t get a close-up and personal look at the ghouls and goblins of probate court. Happy Halloween!

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Estate Planning for Small Businesses

Posted by on Oct 15, 2019 in Legal News |

When people think of estate planning (do people who aren’t lawyers think about estate planning?), they generally only consider it in an individual sense. That’s an important area of estate law, but it is not the only area, by far. Estate planning for small businesses is vital to ensuring the long-term success of your business. You’ve worked hard for what you have, and you want it to last. 

Here are some issues affecting small businesses that make it vital for small businesses to engage with an estate planning attorney:

Taxes 

It’s nicknamed the death tax, but the IRS pretends that nickname doesn’t exist and instead calls it the estate tax. The death tax still exists, and it will affect your small business if the business is part of your estate and meets the financial threshold. The death tax is a tax on the decedent’s (dead person’s) right to transfer their property after death. 

That’s right, even your exit from this earth is taxed. Your small business could be affected by this tax, losing some of its value. However, there are exclusions you can claim or potential deferments of which your heirs can take advantage of. Estate planning will help minimize the tax burden that your small business faces when you pass on.

Trusts, Wills, and Avoiding Probate 

Speaking of transferring property, do you know what will happen to your company if you die? Estate planning for small business includes plans for what will come after the death of the owner. A healthy estate plan will allow your business to avoid probate or being picked apart by creditors. That way, your company’s financial future is far more secure.

Buy-Sell Agreements 

If you aren’t the only owner of your business, you should look into a buy-sell agreement, which will likely be necessary in this situation. Simply put, this type of agreement mandates that the shareholders, upon your death or some other condition, sell their stake at fair market value to others. 

Family-Run Business Issues 

Family-run companies might run into different legal issues than other small businesses, particularly when it comes to succession plans. Family businesses keep things in the family, but there also tends to be an informal structure and culture. There might be pressure to hire other family members, a lack of training, high turnover for non-familiar employees, and other issues that come from keeping a business in the family. 

This isn’t to say that family-run businesses aren’t awesome—they are. But, they do experience their fair share of potential pitfalls specific to such a personalized enterprise. Estate planning, especially for family businesses who have an informal structure, will provide a firm plan and minimize disputes that could otherwise be the downfall of your small business.

Insurance

Life insurance is great for a small business owner because, if the owner dies, the business might not provide enough money for the owner’s family to live on. Life insurance is a big-picture policy. Term life insurance will help you provide for your family after you pass on. 

Sole Proprietorship Concerns

Succession plans are especially important for a sole proprietorship. If you are a sole proprietor, estate planning will help you tell your heirs either how to run your business when you’re gone or what to do with it when you pass away (sell, transfer, etc.). Estate planning will help you lay out that information for your heirs and make the succession and transfer of the company as smooth as possible. 

Small business estate planning is no small matter. Whether you own a sole proprietorship or an LLC, there are a lot of ways that estate planning can provide for your business’s future. There is no reason a good business with a solid financial foundation should be brought down by an issue estate planning could fix. Contact an estate planning attorney today.

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What is Elder Law?

Posted by on Oct 7, 2019 in Legal News |

As with any demographic, there are issues specific to the elderly that other age groups don’t experience in as pressing a way. Elder law is a subset of the law that focuses on these issues that affect elderly people. The exact definition of elderly is up for debate, but know that you don’t have to be an octogenarian or above to deal with the subject matter of elder law. In this post, we will discuss the various legal issues that concern elderly people in particular. 

Healthcare 

Everyone experiences health issues at some point. Hopefully, these aren’t serious or severe, but they are something we all live with in one way or another. Seniors experience healthcare concerns in a more pressing way. As the sunset of someone’s life begins, long-term care and healthcare decision-making become things to think about. 

Long-Term Care 

Long-term care refers to nursing homes or assisted living. Nursing home and assisted living care is not cheap, and picking out a facility you will be comfortable in is no small decision. Legal issues concerning payment for long-term care and disputes about payment and care are subsets of elder law that focus on protecting would-be and current patients. 

Care for the Incapacitated 

There is always a chance that someone may become so sick or incapacitated that they cannot make decisions for themselves. In this situation, the issues of a living will or healthcare directive come into sharp focus. A healthcare directive is a way to delineate ahead of time your wishes for the nurses and doctors taking care of you. That way, if you are too sick to tell them what you want when you’re in their care, they have a document to refer to. 

Estate Planning 

Asset protection and determining where your assets will go after you pass on is a huge subset of elder law. Wills and trusts are legal instruments that allow you to transfer your assets to your loved ones (or to creditors). Through careful estate planning, you can avoid probate court. Your family will not have to go through that lengthy, unpleasant process, and you will know that your possessions are where you want them to be—not with the state.

Government/Private Benefits 

Seniors also receive a variety of government or private benefits, such as SSI, veterans’ benefits, disability, and/or pensions. Every senior’s financial package is different, and you want to make sure that you’re getting what is owed to you without delay. Elder law focuses on the disbursement and dispute-resolution of benefits. Again, this is designed to protect the senior beneficiaries.

Taxes 

Gift taxes and estate taxes tend to affect seniors more as they distribute their assets in wills or trusts. Whether you’re exempt from an estate or gift tax is sometimes unclear, and elder law dealing with tax issues will ensure that you do not run afoul of the IRS. Additionally, tax specialists working in elder law can help minimize the tax burden you or your donee will face. No one likes taxes, and if there is a legal way to reduce them, a tax attorney can figure that out for you.

Capacity 

Capacity is a tricky subject, and it often comes into play for seniors who are dealing with memory loss or similar issues. There may be disputes over a senior’s capacity to execute their will or make financial or healthcare decisions for themselves. Elder law protects seniors from inaccurate determinations of their incapacity. Conversely, elder law can protect incapacitated seniors from making decisions that will harm them later on.

Will Contests 

Will contests are technically an area of elder law, as the will in question is usually that of a senior who has passed on. Will contests are not overly-uncommon. An estate attorney will help the drafter of the will construct a document that will minimize the chance of a posthumous feud.

These are just some of the legal issues that affect seniors more directly than the rest of the population. This doesn’t mean that someone young shouldn’t take part in estate planning; it just means that elderly people should be aware that there is a whole subset of the law dedicated towards helping them.

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What is a Disclaimer Provision? 

Posted by on Sep 23, 2019 in Legal News |

It is difficult, when discussing legal concepts, to have the idea explained in plain English so that non-lawyers can understand. Disclaimer provisions are one such concept that seem difficult but don’t have to be. In this article, we will break down what a disclaimer provision in a will is and how it can help you and your heirs.

Some Definitions 

It always helps to understand what the language even means in the first place. First, a trust is a three-party relationship. The donor (you) grants title to the property to a trustee (the second party). This trustee then, at your command or at a specific time, such as when you die, transfers title to the property to the beneficiary. The beneficiary is the third party that you intended to get the property all along. Secondly, as you know, a will is a document that details where your assets will go after your death.

Now, let’s throw the word “disclaimer” into the mix. A disclaimer trust involves this three-party relationship. In a disclaimer trust, your will contains embedded disclaimer provisions. These provisions let your spouse, after you die, put specific assets into the trust by disclaiming them. The spouse refuses and rejects ownership of certain parts of your estate. Those rejected (disclaimed) parts of your estate go into a trust. 

This trust that contains the disclaimed parts of the estate is called a disclaimer trust. The disclaimed parts of the estate are not taxed when they go into the trust, which is why this instrument is preferred by people who want lower estate taxes for their heirs (i.e. all of us). After the disclaimer trust is established, the trust can pay out support benefits to intended trust beneficiaries. 

An Example

An example may (hopefully) help make this a little less confusing. Here is an example, using fake people, of a disclaimer trust: 

Ann, age 93, dies. She leaves her husband, Harry, age 92, her entire estate. Harry and Ann have three children. Harry disclaims his interest in Ann’s savings account, rejecting ownership of the account because he is 92 and doesn’t need the money. The savings account amount of $1 million goes into a disclaimer trust. It is not taxed.

Ann and Harry’s three children each receive payouts of $1,000 per month from this untaxed disclaimer trust. Harry has disclaimed ownership, so he has no interest in the savings account. The support payments come from the disclaimer trust for as long as Harry elects to disclaim that portion of Ann’s estate.

This simplified example is a way to understand how such a disclaimer trust works. There is another term to know, called a see-through trust.  

See-Through Trust 

A see-through trust should not be confused with a disclaimer trust, though the fact that both involve payouts can be confusing and cause to intermix the two. 

A see-through trust is a fund that is treated in the same way as a beneficiary of a retirement (IRA) account. A see-through trust bases its payouts on life expectancy of the beneficiaries. Based on that amount, it will calculate the required minimum distributions from the trust. These distributions occur after the holder of the IRA dies. The IRA holder can pick their beneficiary. The see-through trust payouts are not permitted to continue indefinitely. 

Inheritance Effects 

Every case is different. The effect of a disclaimer trust on inheritance is murky if the disclaimer is not clear and finalized before the death of the grantor. Note that an inheritance tax and an estate tax are not the same thing. The former is applied to the heir, while the latter applies to the estate of the deceased.

This might seem confusing, but just know that the bottom line involves the potential for lower taxes on your estate. Consult an estate planning attorney to discuss setting up a disclaimer trust and the potential benefits that such a trust will grant you.

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