Affiliated Attorneys, LLC Blog
Friday, November 15, 2013
A basic last will and testament cannot accomplish every goal of estate planning; in fact, it often cannot even accomplish the most common goals. This fact often surprises people who are going through the estate planning process for the first time. In addition to a last will and testament, there are other important planning tools which are necessary to ensure your estate planning wishes are honored.
Do you have a pension plan, 401(k), life insurance, a bank account with a pay-on-death directive, or investments in transfer-on-death (TOD) form?
When you established each of these accounts, you designated at least one beneficiary of the account in the event of your death. You cannot use your will to change or override the beneficiary designations of such accounts. Instead, you must change them directly with the bank or company that holds the account.
Special Needs Trusts
Do you have a child or other beneficiary with special needs?
Leaving money directly to a beneficiary who has long-term special medical needs may threaten his or her ability to qualify for government benefits and may also create an unnecessary tax burden. A simple vehicle called a special needs trust is a more effective way to care for an adult child with special needs after your death.
Conditional Giving with Living or Testamentary Trusts
Do you want to place conditions on some of your bequests?
If you want your children or other beneficiaries to receive an inheritance only if they meet or continually meet certain prerequisites, you must utilize a trust, either one established during your lifetime (living trust) or one created through instructions provided in a will (testamentary trust).
Estate Tax Planning
Do you expect your estate to owe estate taxes?
A basic will cannot help you lower the estate tax burden on your assets after death. If you think your estate will be liable to pay taxes, you can take steps during your lifetime to minimize that burden on your beneficiaries. Certain trusts operate to minimize estate taxes, and you may choose to make some gifts during your lifetime for tax-related reasons.
Joint Tenancy with Right of Survivorship
Do you own a house with someone “in joint tenancy”?
“Joint tenancy” is the most common form of house ownership with a spouse. This form of ownership is also known as “joint tenancy with right of survivorship,” “tenancy in the entirety,” or “community property with right of survivorship.” When you die, your ownership share in the house passes directly to your spouse (or the other co-owner). A provision in your will bequeathing your ownership share to a third party will not have any effect.
Do you want to leave money to your pets or companion animals?
Pets are generally considered property, and you cannot use your will to leave property (money) to other property (pets). Instead, you can use your will to name a caretaker for your animals and to leave a sum of money to that person for the animals’ care.
Tuesday, November 5, 2013
Congratulations are in order—you have accumulated enough wealth to be concerned about eventually passing it along to your children and grandchildren in a manner that will encourage them to lead positive and productive lives. Like many, your objective is to allow your children to enjoy the rewards of wealth without becoming irresponsible, overindulgent or feeling entitled to anything money can buy.
When it comes to sharing one’s wealth with adult children, there are some general principles that may help you guide your children as they shape their values. Two quotes about sharing wealth with children are an excellent starting point:
I wanted my children to have “enough money so that they would feel they could do anything, but not so much that they could do nothing.” – Warren Buffett
“It’s better to give with warm hands than with cold ones.” – Unknown
Establish Inter Vivos Trusts for Your Children, And Use Restrictions Creatively
You can establish inter vivos trusts (trusts that go into effect during your lifetime) and appoint professional trustees during your lifetime. Consider some combination of the following restrictions on the trust funds to help your children develop into competent, capable adults:
- Make receipt of funds dependent on employment
- Use trust funds to match income from employment
- Prohibit distribution of trust earnings until the child reaches a certain age (it is not unheard of to distribute trust earnings to children once they reach age 65)
- Make attaining a certain level of education a prerequisite to distribution of trust income
- Consider establishing a charitable trust or family foundation, with room for employment of your adult child in the foundation’s management
Consider a generation-skipping trust, so that your wealth is shared directly with grandchildren
Make Gifts or Loans During Your Lifetime—And Not Just Gifts of Money
This is the meaning behind the quotation above regarding warm hands and cold ones. It is better, in so many ways, to give gifts during your lifetime rather than after your death. In addition to gifts, consider making strategic, interest-free loans to your children to help them achieve certain goals without losing a lot of their own income to interest payments:
- Interest-free loans for higher education
- Interest-free loans for private education for grandchildren
- Interest-free loans for home purchases
In addition to giving gifts of money or making strategic loans, there are other “gifts” you can give your children to help them learn to live with wealth. Consider the following suggestions,:
- Hire a professional to teach your children how to manage their money, instead of banking on your children listening to your own lessons.
- Pay for family vacations that serve a philanthropic purpose, such as travel to Africa to deliver medical equipment to a remote town or travel to South America to help clean a national park.
- Begin or continue a family tradition of local volunteer work with disadvantaged people in your own community to ensure that your children get firsthand knowledge of how fortunate they are to have the resources your family has accrued.
In general, experts agree that families fare better when their wealth is used to enrich their lives and to help others less fortunate. Give your children opportunities to learn to use money in responsible ways, from as early in their lives as possible. Show them the difference between buying a new sports car and donating the same amount of money to a program that sends food to people in need. That isn’t to say a new sports car shouldn’t be on the shopping list – but perhaps it shouldn’t be the only thing on the shopping list.
Wednesday, October 30, 2013
When you are a child, your parents serve as your decision makers. They have ultimate say in where you go to school, what extracurricular activities you partake in and where, and how, you should be treated in the event of a medical emergency. While most parents continue to play a huge role in their children’s lives long after they reach adulthood, they lose legal decision-making authority on that 18th birthday. Most young adults don't contemplate who can act on their behalf once this transfer of power occurs, and consequently they fail to prepare advance directives.
In the event of a medical emergency, if a young adult is conscious and competent to make decisions, the doctors will ask the patient about his or her preferred course of treatment. Even if the individual is unable to speak, he or she may still be able to communicate by using hand signals or even blinking one’s eyes in response to questions.
But what happens in instances where the young adult is incapacitated and unable to make decisions? Who will decide on the best course of treatment? Without advance directives, the answer to this question can be unclear, often causing the family of the incapacitated person emotional stress and financial hardship.
In instances of life threatening injury or an illness that requires immediate care, the doctors will likely do all they can to treat the patient as aggressively as possible, relying on the standards of care to decide on the best course of treatment. However, if there is no "urgent" need to treat they will look to someone else who has authority to make those decisions on behalf of the young individual. Most states have specific statutes that list who has priority to make decisions on behalf of an incapacitated individual, when there are no advance directives in place. Many states favor a spouse, adult children, and parents in a list of priority. Doctors will generally try to get in touch with the patient’s "next of kin" to provide the direction necessary for treatment.
A number of recent high-profile court cases remind us of the dangers of relying on state statues to determine who has the authority to make healthcare decisions on behalf of the ill. What happens if the parents of the incapacitated disagree on the best course of treatment? Or what happens if the patient is estranged from her spouse but technically still married- will he have ultimate say? For most, the thought is unsettling.
To avoid the unknown, it’s highly recommended that all adults, regardless of age, work with an estate planning attorney to prepare advance directives including a health care power of attorney (or health care proxy) as well as a living will which outline their wishes and ensure compliance with all applicable state statutes.
Tuesday, October 15, 2013
Families with significant net worth who have a tradition of philanthropy often consider establishing a charitable foundation as part of their estate plans. While there are a number of advantages to using family foundations as a philanthropic vehicle, families need to seek guidance from estate planning and tax professionals to ensure it is the best option for achieving their objectives.
According to The Foundation Center, there are over 35,000 family foundations in the US, responsible for more than $20 billion in gifts per year. While some foundations have tens of millions in assets, more than half report holdings totaling less than $1 million.
Minimizing various tax burdens is one benefit of creating a family foundation. However, if tax issues are your primary concern, then a different asset management and distribution vehicle will probably better suit your needs. While it is true that family foundations offer certain tax advantages—both in terms of current income tax obligations and future estate tax burdens—family foundations are also under many legal and regulatory obligations. These ongoing obligations mean that your family should choose to build a family foundation only if ongoing philanthropic giving is an enduring family goal.
Non-tax-related benefits of a family foundation include the following:
- Managing the foundation may provide employment for one or more family members
- A family foundation allows founders to involve family members in family wealth management, especially those who lack interest in the family business
- The foundation founder can maintain influence over recipients of charitable giving for generations to come
- A family foundation makes an excellent repository for all charitable giving requests. A formal process can be established to ensure grant applicants are not arbitrary.
- A family foundation can serve as a formal manifestation of a family’s philanthropic culture.
Types of Family Foundations
There are many different types of family foundations, each with certain advantages, disadvantages, and tax and regulatory obligations. The main types of family foundations include:
- Private non-operating family foundations which receive charitable donations from the family, invests those funds and makes gifts to other charitable organizations or individuals.
- Private operating family foundations which actively engage in one or more philanthropic activities, as opposed to making donations to other foundations that perform active charitable work.
- Supporting organizations which are designed to provide financial support to one or more specific public charities
- Publicly supported charities can be seeded with family philanthropic funds but then also take donations from the public. Publicly supported charities must meet specific Internal Revenue Service requirements to maintain their status as publicly supported charities.
Issues to Consider when Establishing a Family Foundation
- How much money do you plan to give to the foundation at its inception?
- Do you anticipate volunteer help from your family to run the foundation, or will the foundation need to pay one or more salaries?
- Does your family wish to support one or more specific charities, or do you want to fund a foundation which can ultimately choose among other charities in specific fields of philanthropic work?
- Does your family want to actively engage in philanthropic work or make gifts to other organizations that are already engaged in such work?
- Does the foundation founder prefer to exert strict control over gifts the foundation makes, or only to generally specify the types of philanthropic work he or she wishes the foundation to support?
Once you and your family have carefully thought through these considerations, you should consult with an estate planning attorney and other tax advisors to determine which type of family foundation most effectively meets your family’s giving objectives.
Tuesday, October 1, 2013
In planning your estate, you most likely have concerned yourself with “big picture” issues. Who inherits what? Do I need a living trust? However, there are numerous details that are often overlooked, and which can drastically impact the distribution of your estate to your intended beneficiaries. Listed below are some of the most common overlooked estate planning issues.Read more . . .
Sunday, September 15, 2013
“Neither a borrower nor a lender be,” advised Lord Polonius to his son Laertes in Shakespeare’s Hamlet. But few Americans seem to have taken his advice. Ever since the Diners Club Card was introduced to the masses back in 1949, consumers have been struggling with the temptation to overuse that little, seemingly innocuous piece of plastic. According to a study done by the Federal Reserve Bank of New York, the average American household vastly underestimates its debt. And creditcards.com found that the average household has over $15K of debt.
But there’s another kind of debt creeping up on American consumers – student debt. According to FinAid.org, total student debt surpassed credit card debt in the summer of 2010. Currently, the site’s “debt meter” clocks outstanding debt for students in the US at approximately $1 Trillion (and increasing by the minute). This is not surprising given that the cost of tuition has increased significantly; on average, college seniors now graduate with $25,000 in debt. And that rate can increase for graduate programs. Law students and medical students often graduate with debts in the six figures.Read more . . .
Sunday, September 1, 2013
Historically, tenant in common (TIC) projects were owned by a relatively small group of investors who knew each other, such as long-time friends, business partners or family members. Strategies to maximize tax savings and preserve equity typically guided investors to this type of structure, rather than creating a limited liability company or partnership to own the property.Read more . . .
Thursday, August 15, 2013
An executor is the person designated in a Will as the individual who is responsible for performing a number of tasks necessary to wind down the decedent’s affairs. Generally, the executor’s responsibilities involve taking charge of the deceased person’s assets, notifying beneficiaries and creditors, paying the estate’s debts and distributing the property to the beneficiaries. The executor may also be a beneficiary of the Will, though he or she must treat all beneficiaries fairly and in accordance with the provisions of the Will.Read more . . .
Thursday, August 1, 2013
You are purchasing a home, and the escrow officer asks, “How do you want to hold title to the property?” In the context of your overall home purchase, this may seem like a small, inconsequential detail; however nothing could be further from the truth. A property can be owned by the same people, yet the manner in which title is held can drastically affect each owner’s rights during their lifetime and upon their death. Below is an overview of the common ways to hold title to real estate:Read more . . .
Monday, July 15, 2013
Many grandparents who are financially stable love the idea of making gifts to their grandchildren. However, they are usually not aware of the myriad of issues that surround what they may consider to be a simple gift. If you are considering making a significant gift to a grandchild, you should consult with a qualified attorney to guide you through the myriad of legal and tax issues that are involved in making such gifts.Read more . . .
Monday, July 1, 2013
Stepparent adoption is the most common form of adoption in the United States. Once the adoption is finalized, the stepparent assumes full financial and legal responsibility for his or her spouse’s child and the non-custodial parent’s rights and responsibilities are terminated.Read more . . .
Serving Southeastern Wisconsin, with offices in Milwaukee and West Bend, Affliated Attorneys, LLC represent clients throughout Milwaukee County, Washington County, Waukesha County, Dodge County, Ozaukee County, Racine County, Sheboygan County, Jefferson County, Fond du Lac County and Walworth County.