How to Include Digital Assets in Your Estate Plan

While owning digital assets hasn’t changed the principles of estate planning, it has made the estate pre-planning process more complicated, according to the article “Estate planning and cryptocurrency: 5 tips for leaving your digital assets” from Bankrate. The hurdle is the information needed to retrieve digital assets, including passwords, keys and digital asset locations. There’s no one to call, and the stories of millions in digital assets lost forever are already legendary.

Here are five tips for cryptocurrency owners:

Know where the crypto is held. Cryptocurrency held with a traditional broker or crypto exchange can be handled like other investment accounts, if a beneficiary is named on the accounts or otherwise specified in a will or trust documents. An owner might try to hide the account. However, it generally can be found if the executor knows where the crypto is located.

If crypto assets are self-custodied in an off-chain wallet, and no one knows where the wallet is or its existence, crypto can be hidden and may not be retrievable. A title or probate search will not reveal them; it may be gone forever without the password, private key, or seed phrases.

Understand crypto can easily be lost permanently. Anyone holding crypto on an encrypted hard drive could lose the asset forever, if no one but the owner knows where it is or how to access it. If a hard drive is lost, destroyed, or stolen, or if the key is lost, the crypto is gone.

Provide access to crypto accounts. Whether it’s traditional brokerage accounts or crypto on a hard drive, you’ll need to provide the means and info for your executor or heirs to access these assets upon your passing. The challenge is balancing access with the security of the accounts. There are ways to set up a centralized location to secure all known seed phrases, keys and passphrases and then locate them in the most secure place available. For example, a hard copy list may be stored with other important documents in a fire and waterproof safe.

Another problem is that if your executor is unfamiliar with digital assets, they may not know anything about how digital assets work, making accessing the accounts challenging. You may need to bring them into the digital world as part of your estate planning process.

Protect access to accounts with best practices. If crypto is sent to another person, it’s basically unrecoverable. Don’t include this information in your will, as it becomes a public document upon going through probate. It may be better to secure digital vaults or use reliable, reputable third-party services to store access information. Be careful about providing access to family members who may take advantage of their digital fluency before the estate plan is settled.

Don’t forget cryptocurrency is taxable. Any realized capital gain is taxable, and so are purchases using crypto when the value of the goods is worth more than the purchase price of the crypto. If the estate is over the federal or state exemption level, it can owe estate taxes, even when the crypto is hidden. Tax implications, including tracking the cost basis and gain and loss metrics, are especially important during the asset transition phase. Executors dealing with crypto must be careful to declare the estate’s taxable gains and losses. The estate must meet all tax obligations, crypto and traditional assets included.

Speak with an experienced estate planning attorney about how your state’s laws govern cryptocurrency and digital assets as part of a comprehensive estate plan.

Reference: Bankrate (September 5, 2023) “Estate planning and cryptocurrency: 5 tips for leaving your digital assets”

Three More Reasons to Have an Estate Plan

Even after COVID, most Americans still don’t have an estate plan. A 2023 survey reported in Kiplinger’s recent article, “Three Overlooked Benefits of Estate Planning,” found that 75% of respondents didn’t have an estate plan. Worse, 72% of all respondents over age 75 didn’t have an estate plan.

It’s an easy task to postpone. No one likes to think about death, their own or their spouse’s. However, not having an estate plan condemns your loved ones to deal with an expensive, time-consuming, stressful mess that can be easily avoided.

Estate planning involves the creation and execution of the documents needed to address healthcare, financial, and legal affairs in case of incapacity or death. This is done with a series of documents created by an estate planning attorney. The names of the documents vary by state, but their function is roughly the same:

Guardianship—if there are minor children, the will names who will receive custody of your children if you and your spouse both die.
Will—A legal document used to express your wishes to distribute your property, name a guardian and an executor.
Trust—A fiduciary agreement used to shield your estate from probate and allow further customization of your estate plan.
Durable Power of Attorney—A legal document naming a spouse, partner, or other third party to manage finances if you can’t manage your own decisions.
Advanced Care Directive—A document outlining the medical care you want or don’t want if you can’t make or communicate these decisions on your own.
Medical Power of Attorney—A document naming a third party to make medical decisions if you are incapacitated.
HIPAA Authorization—A document giving another person the right to view medical and insurance records and communicate with healthcare providers.

Why should you go through the trouble of having all these documents created? If focusing on the benefits of having an estate plan is the motivation you need to get going, here are several good reasons to have an estate plan.

Securing management of health care and finances if you’re incapacitated. No one likes to think they’ll ever be too sick to care for themselves or make their own decisions. However, this happens routinely to older Americans. Diseases like Alzheimer’s and other illnesses strike older adults with increasing frequency as they age. If you have an estate plan in place, family members can step in to take care of you if necessary. They’ll be able to pay bills to keep your household running smoothly, speak with your doctors and avoid going to court to obtain guardianship or conservatorship.

Fulfilling your wishes. Lacking a will, the laws of your state will determine how your property is distributed, with most states following a next-of-kin lineage. If you want your spouse to inherit everything and the state law divides your estate so 50% goes to a spouse and 50% is divided among the children, the state law will rule.

Another set of problems comes from outdated wills. If you named someone to be your executor thirty years ago and haven’t updated your will, they may no longer be in your life, or you may not want them administering your estate. Another problem is that if you’ve divorced a spouse and never updated your will, life insurance policies, or retirement accounts, your next call should be to your estate planning attorney and insurance agent.

Avoiding probate. Probate is a process where your will is filed with the court, reviewed by a judge,and approved—or not—to be administered. Depending on the jurisdiction, all documents, including your will, are available to anyone by searching the public records. An estate planning attorney can help you decide what assets you are willing to have to go through probate and what might be removed from your estate using trusts. Trusts provide more control over asset distribution and, depending upon the trust used, can provide protection from creditors and nuisance lawsuits. Trusts are also used in tax planning, which should go hand-in-hand with estate planning.

Estate plans have many benefits. Consider having an estate plan as part of your legacy to protect yourself during your lifetime and help your family.

Reference: Kiplinger (September 6, 2023) “Three Overlooked Benefits of Estate Planning”

Should I Add My Pet to Estate Plan?

The first rule is that you can’t leave money to your pet. Unfortunately, the law says that animals are property, and one piece of property can’t own another. Yahoo’s recent article, “3 Ways to Ensure Your Pet Is Cared For After You Die,” explains that a pet trust is a trust that provides money and care for your pets when you can no longer do so. People usually create a pet trust as part of their estate planning. However, in some cases, it can be helpful if you’re incapacitated or unable to care for your pet.

Like all trusts, a pet trust is a legal entity that owns property, money and other assets. You fund the trust by contributing assets to it during your lifetime and leaving assets to the trust in your will. Your pet is the beneficiary of this trust. Once the trust is activated, a trustee will use its funds to pay for your pet’s food, housing and other care. In most cases, this means someone has taken possession of your pet, and the trust reimburses their costs.

If you want to ensure that your pet is well cared for after you die, most experienced estate planning attorneys consider a pet trust better than a will. Pet trusts are more specific than leaving your pet and some money to an heir. A trustee must be sure this money really is spent on your pet’s well-being. They can also find a new home for your pet, if your heir changes their mind and chooses not to inherit the animal.

A pet trust does two main things. First, it provides the resources to care for your pets and other animals once you no longer can. Second, it provides the instructions to make sure those pets are cared for the right way.

Funding a pet trust can be an issue for some, and if you leave too little money in the trust, it will run out during your pet’s lifetime. If that happens, the trust will wind up, and state law will govern what happens to your pet. If you leave too much money, your family may challenge the trust. While that’s pretty rare, courts will reduce excessive funds left to a pet trust.

Don’t just assume that someone will assume the role of trustee. And don’t assume that someone will want to take possession of your pet. Ask the people you intend to name for those positions. If someone you trust wants to take your pet after you die, you can name them as both caretaker and trustee. Otherwise, you may want to name a professional trustee, such as a lawyer or banker, to oversee the trust. If you do name a professional trustee, make sure to contribute enough money to cover their costs, as they will bill the trust for their time.

If your pet has any specific needs, detail these in the trust. However, be careful not to get too specific, or people may disregard your instructions, creating issues.

Reference: Yahoo (Aug. 21, 2022) “3 Ways to Ensure Your Pet Is Cared For After You Die”

How Much Does Medicare Pay for Nursing Home Stays?

How Much Does Medicare Pay for Nursing Home Stays?

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According to the AARP, the median monthly cost to live in a nursing home is $7,908 for a semi-private room. The options for paying for such care are limited. Fortune’s recent article, “Does Medicare pay for nursing home care? An expert helps make sense of the rules,” reminds us that there’s limited nursing home coverage under Medicare.

Medicare won’t pay for nursing home care but for certain stays under specific conditions. The program will pay for a nursing home stay, if it’s determined that the patient needs skilled nursing services, like help recovering after a medical issue like surgery or a stroke, but for not more than 100 days. For the first 20 days, Medicare will cover 100% of the cost. From day 21 to 100, the patient pays a $200 co-payment in 2023, and Medicare pays the balance.

To qualify, the individual would need at least a three-day stay as a hospital inpatient before the agency would approve payment for nursing home care for rehabilitation or skilled nursing care. Getting three days as an inpatient in a hospital is a challenge as hospitals are discharging patients quickly, and most patients aren’t staying for three nights. Hospitals also use what’s called observation status, where a patient is technically not admitted to the hospital. This affects beneficiaries’ ability to access Medicare coverage for rehabilitation or skilled nursing care in a nursing home. Observation status gives physicians 24-48 hours to assess if a patient should be admitted for inpatient care or discharged. This status can be costly for Medicare patients as the agency classifies it as outpatient care. As a result, beneficiaries may have to pay their share of that cost as a deductible, coinsurance, or copayment. Some patients also remain in observation status longer than the typical 24 to 48 hours.

To address this, Medicare has implemented the two-midnight rule. This rule stipulates that when a physician expects a patient to require hospital care for at least two midnights, they should admit them as an inpatient. However, two midnights spent under observation don’t count toward the three-day inpatient stay patients need to qualify for coverage in a nursing home or SNF. It’s not just a matter of the time spent in the hospital; it’s how the patient is classified.

The patient must be formally admitted as an inpatient to be classified as an inpatient.

Because each state regulates Medicaid eligibility differently, ask an experienced elder law attorney to guide you through the process and to help you find the best long-term care option.

Reference: Fortune (Aug. 29, 2023) “Does Medicare pay for nursing home care? An expert helps make sense of the rules”

What Should I Know About Stroke Recovery?

A stroke is a serious medical emergency that happens when blood flow is deficient to an area of the brain or bleeding in the brain. Sometimes, direct stroke intervention is necessary. This may include:

Blood thinners given intravenously (IV) for an ischemic stroke;
Direct injection of blood thinners into a blood clot for certain types of ischemic strokes;
Thrombectomy, where a thin tube (catheter) is threaded through blood vessels to a clot in the brain, and the clot is mechanically removed;
Surgical intervention for removal of blood for a hemorrhagic stroke; and
A craniotomy removes a small area of the skull to relieve severe edema (swelling).

VeryWell Health’s recent article, “Everything You Should Know About Stroke,” explains that close monitoring of neurological functioning, fluid and electrolyte concentration, blood pressure and blood glucose is needed in the first few days after a stroke. Brain damage from a stroke may sometimes cause a seizure, necessitating treatment with antiepileptic medication.

After stabilization, recovery can start, but note that recovery after a stroke is often gradual. Some people fully recover, but most have some impairment after a stroke.

Immediate medical care and consistent therapy can improve long-term outcomes. Patience throughout recovery is important because improvement doesn’t always adhere to a smooth and steady path.

Sometimes, complications can be prevented by taking proactive measures. Choking or pneumonia, possibly due to difficulty swallowing, is an especially concerning risk. Weakness and sensory changes can increase the chances of bedsores and blood clots. Weakness and vision changes may lead to falling after a stroke.

Rehabilitation should be customized to specific deficits that happen after a stroke. For example, many people require physical therapy to help with improving muscle control and strength. Speech and swallow therapy is crucial to avoid choking and aspiration pneumonia.

Recovery can frequently be slow over the next few weeks. For some, recovery continues for up to a year.

Reference: VeryWell Health (Feb. 27, 2023) “Everything You Should Know About Stroke”

How Do I Make a Care Plan for Mom?

Medicare typically doesn’t pay for basic assistance, and families often don’t try to determine how to provide this care until there is a health crisis, which can lead to unnecessary stress, conflicts and escalating costs.

Nerd Wallet’s recent article, “Create a Care Plan for Older Parents (or Yourself),” says that making a care plan well in advance lets families organize, locate appropriate resources and determine ways to pay for care before a crisis hits.

A care plan is thinking through the logistics of what you’ll need as you age, so that you are prepared when the poop hits the fan with aging. A way to cope is to plan for temporary rather than permanent disability. Ask what kind of help you or your loved one might need after a hip or knee replacement. How well is the home set up for recovery? Who would help with household tasks? Contemplating a two- or three-month disability with an eventual return to health is less daunting but involves much of the same planning as a more lasting decline.

Many seniors would like to stay in their current homes as they age, something called “aging in place.” That typically means relying on family members for care, using paid workers, or both. However, if family members will be tapped, discuss the logistics, including whether and how much they will be paid. If home health aides will be hired, consider who will supervise the process.

Look at any savings that can be tapped and whether the senior may qualify for government help, such as veterans benefits, Medicaid, or state programs. Families may want to consult an elder law attorney for personalized advice.

It is important to look at the current home as “aging friendly.” An occupational therapist can suggest adaptations allowing the older person to remain in the home if they’re disabled. The sooner you get this evaluation, the more time you’ll have to prepare. Even if the home supports aging in place, the neighborhood might not. Consider how the older person will socialize, get groceries, and make it to health appointments if they can no longer drive.

An independent living or senior living facility could provide more amenities. However, these typically don’t provide long-term care. Therefore, see if the senior is okay with moving again later or whether they should begin with an assisted living or continuing care facility that can provide more help.

Once you have a plan, capture the details and share it with family members or others who may be involved. Revisit the document periodically as circumstances change. Aging planning is an ongoing process.

Reference: Nerd Wallet (Aug. 24, 2023) “Create a Care Plan for Older Parents (or Yourself)”

What Is the Latest on Picasso’s Estate?

Claude Ruiz Picasso, Pablo Picasso’s youngest son, has died at the age of 76.

The Art Newspaper’s recent article, “Claude Ruiz Picasso, the artist’s son and manager of the Picasso estate, has died,” reports that as the long-term manager of his father’s estate, Claude was the holder of the Picasso copyright. He was also instrumental in organizing Picasso Celebration 1973-2023, a compendium of 50 exhibitions of Picasso’s work, shown in cultural institutions across Europe and the US over the course of 2023 to mark 50 years since Pablo Picasso’s death.

Claude transferred management of the estate in July of this year to Paloma Ruiz Picasso, his younger sister. He was originally appointed by a court as the administrator of the Picasso estate in 1989. The Picasso estate remains one of the most valuable collections in the art world, numbering around 45,000 pieces. At the time of Pablo Picasso’s death in 1973, the estate was estimated to be worth $817m.

In the commercial art world, art is frequently subject to forgery, fake usage, and criminal trading. In the copyright and trademark sectors, the Picasso estate has often set legal precedents regarding its willingness to pursue legal action against counterfeit, illegal reproduction, and forgery cases to protect the artist’s legacy.

Claude was the son of Pablo and the French painter Françoise Gilot, who also died in June of this year at the age of 101. Gilot is often known as the only woman who left him. Pablo tried to legally stop her, 40 years his junior, from publishing a memoir of her life that detailed her experience of being in a relationship with him, including testimonies of abuse, including an occasion when he held a lit cigarette against her cheek. The book was eventually published in 1964.

Pablo severed contact with both Claude and Paloma after the book’s publication and never contacted them again.

Before he was appointed the manager of the Picasso estate, Claude was an artist in his own right. Living in New York, he worked briefly as an assistant to the photographer Richard Avedon before seeing his own photographs published in fashion magazines, including Vogue and Time Life.

Reference: The Art Newspaper (Aug. 25, 2023) “Claude Ruiz Picasso, the artist’s son and manager of the Picasso estate, has died”

Should I Enroll in Medicare Before I Retire?

A recent survey found that a third of those nearing retirement age (62-64) who plan to keep working past 65 don’t understand they can sign up for what is often more affordable Medicare coverage, even while they’re still employed.

Kiplinger’s recent article, “Yes, You Can Sign Up for Medicare While You’re Still Working,” says that with retirement further away for many, some people must get some help understanding their options. The article answers some common questions concerning retirement postponement and Medicare coverage, including common misperceptions.

Your retirement decision is personal and dependent on your situation. Access to health coverage is one of the primary reasons that the average age at which people retire is going up. In a survey of more than 1,000 American older workers, 31% of those with employer insurance say health care is their primary reason for working, and 53% say it’s one factor. Whether you are continuing to work based on career fulfillment or health coverage, having a plan in place for handling your Medicare decisions before you turn 65 can streamline the transition off of your employer-sponsored health insurance.

Most working seniors don’t have to enroll in Medicare. It’s not required that all seniors make the jump as soon as they hit 65. However, there are some situations where it’s mandatory. It is important to be aware of these exceptions to ensure that there are no gaps in your coverage. If you delay your signup, you might end up paying for it: your small company’s group plan can deny your claims if they find you’re eligible for Medicare. There are also financial penalties for late enrollment, so if you work for a small company, you must be ready to make the leap to Medicare coverage, regardless of your retirement plans.

Employees approaching retirement and those who have reached retirement age say they’re mostly happy with their employer health benefit packages. However, hesitation and misconceptions about Medicare prevent workers from shopping for better plans. If Original Medicare is unaccompanied by a prescription drug plan (Part D) or a Medigap supplement, it may be less than your current employer-sponsored level coverage. Most individuals who sign up for Medicare don’t sign up for Original Medicare alone. You should couple your Original Medicare plan with a prescription drug and Medigap plan. Each Medigap plan (plans A to N) offers a different level of coverage that demands careful consideration in terms of weighing which plan best fits your needs.

Another option, aside from Original Medicare plus a Medigap plan, would be to go with a Medicare Advantage plan (Part C). Medicare Advantage plans are usually less expensive, and some plans have no monthly premium.

Reference: Kiplinger (Oct. 11, 2022) “Yes, You Can Sign Up for Medicare While You’re Still Working”

How can You Make Changes to Estate Plan?

It’s rare for a person to put their estate plan together once and never change it. A recent article from Coeur d’Alene/Post Falls Press asks a good question: “Can you amend your estate plan by writing the changes on your existing documents?”

Effectively and legally changing your will or trust so the changes are enforced per your wishes is best done with an experienced estate planning attorney. People often hand-write edits and changes to the original documents, thinking this is the simple way to amend their wishes. Most attorneys have tales of family members coming into their offices with a handwritten addendum added to the front or back of a will or trust document, which has been written and attached after the document has been signed and executed.

These approaches are problematic, as they are never done in a way that meets the requirements for a legally valid amendment to a will or trust.

A legally enforceable change to a will is accomplished in one of two ways. One is to replace the entire document with a new will document, which should include explicit language stating all prior wills are revoked and replaced, or by adding a new document called a codicil to the old will document. The codicil must make clear exactly what part of the old document is being changed, and typically, it reaffirms the unchanged terms of the old will.

Changes to a trust are accomplished in most states in one of two ways. The first is by replacing the prior trust document with an entirely new trust document, although the name and creation date of the trust must remain the same, and it is explicitly not a revocation of the trust. This is called a trust restatement. The second way to change a trust is using a trust amendment, similar to adding a codicil of a will. A Trust Amendment is a new document added to the existing trust document. It states which part or parts of the original trust document are being changed.

Every state has specific technical requirements for a will codicil or trust amendment/restatement, which must be followed to enforce the changes legally. Just writing on the documents will never meet those requirements and will almost always lead to major disputes among family members and other interested parties.

Handwritten or holographic wills are legal in some states. However, those states have very specific requirements, and wills still need to go through probate. There are many ways to create major problems trying to use this method and only a few ways to do it right.

The good news is an experienced estate planning attorney can help with any modifications, large or small, to make your estate planning documents accurately reflect your wishes.

Reference: Coeur d’Alene/Post Falls Press (Aug. 16, 2023) “Can you amend your estate plan by writing the changes on your existing documents?”

Do I Pay Taxes When I Inherit?

Capital gains taxes are then calculated, so you pay taxes only on appreciation that occurs after you inherit the property. Yahoo Finance’s recent article entitled, “Do I Pay Taxes Automatically If I Inherit Property?” says there are three main types of taxes that cover inheritances:

Inheritance taxes are taxes that an heir pays on the value of an estate that they inherit. There are no federal inheritance taxes. However, six states have an inheritance tax.
Estate taxes are taxes paid out of the estate before anyone inherits. The estate tax has a minimum threshold, and as with all other tax brackets, the government only taxes the amount that exceeds this minimum threshold, which is $12.92 million ($25.84 million per married couple).
Capital gains taxes are taxes paid on the appreciation of any assets an heir inherits through an estate. They’re only levied when you sell the assets for gain, not when you inherit.

The cash you inherit is taxed through either inheritance taxes (when applicable) or estate taxes. With inheritance taxes, you must file and pay this tax.

With an estate tax, the IRS taxes the estate directly.

Therefore, it’s uncommon for an heir to owe any taxes, including income tax, on inherited cash.

The IRS does not automatically tax any other forms of property that you might inherit. However, you’ll owe capital gains taxes if you choose to sell this property.

When you inherit property, whether real estate, securities, or almost anything else, the IRS applies a stepped-up basis to that asset. This means that for tax purposes, the base price of the asset is reset to its value on the day that you inherited it. If you inherit property and immediately sell it, you’d owe no taxes on those assets.

Two prices are involved in establishing a capital gain tax: the sale price (how much you sold the asset for) and the original cost basis (how much you bought it for).

Reference: Yahoo Finance (Aug. 27, 2023) “Do I Pay Taxes Automatically If I Inherit Property?”

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How to Include Digital Assets in Your Estate Plan