Estate Planning Blog Articles

Estate & Business Planning Law Firm Serving the Providence & Cranston, RI Areas

Do You Need Power of Attorney If You Have a Joint Account?

A person with Power of Attorney for their parents can’t actually “add” the POA to their bank accounts. However, they may change bank accounts to be jointly owned. There are some pros and cons of doing this, as discussed in the article “POAs vs. joint ownership” from NWI.com.

The POA permits the agent to access their parent’s bank accounts, make deposits and write checks.  However, it doesn’t create any ownership interest in the bank accounts. It allows access and signing authority.

If the person’s parent wants to add them to the account, they become a joint owner of the account. When this happens, the person has the same authority as the parent, accessing the account and making deposits and withdrawals.

However, there are downsides. Once the person is added to the account as a joint owner, their relationship changes. As a POA, they are a fiduciary, which means they have a legally enforceable responsibility to put their parent’s benefits above their own.

As an owner, they can treat the accounts as if they were their own and there’s no requirement to be held to a higher standard of financial care.

Because the POA does not create an ownership interest in the account, when the owner dies, the account passes to the surviving joint owners, Payable on Death (POD) beneficiaries or beneficiaries under the parent’s estate plan.

If the account is owned jointly, when one of the joint owners dies, the other person becomes the sole owner.

Another issue to consider is that becoming a joint owner means the account could be vulnerable to creditors for all owners. If the adult child has any debt issues, the parent’s account could be attached by creditors, before or after their passing.

Most estate planning attorneys recommend the use of a POA rather than adding an owner to a joint account. If the intent of the owners is to give the child the proceeds of the bank account, they can name the child a POD on the account for when they pass and use a POA, so the child can access the account while they are living.

One last point: while the parent is still living, the child should contact the bank and provide them with a copy of the POA. This, allows the bank to enter the POA into the system and add the child as a signatory on the account. If there are any issues, they are best resolved before while the parent is still living.

Reference: NWI.com (Aug. 15, 2021) “POAs vs. joint ownership”

What are Signs of Identity Theft?

Identity thieves are searching for ways to use your personal information, charge purchases in your name, steal your medical account information and get your tax refunds.

Money Talks News’ recent article entitled “Beware These 8 Signs of Identity Theft” reports that consumers filed more than 1.4 million identity theft reports with the Federal Trade Commission in 2020—twice as many as in 2019. You should watch out by knowing these warning signs identified by the FTC.

  1. You see changes in your credit report. When you check your credit, look through the report for anything out of place, such as charges and accounts that you don’t recognize. This can be proof that an identity thief has accessed your credit accounts or opened new accounts in your name. Check your credit report regularly. It’s easy to do online. You’re entitled by federal law to one free report every 12 months from each of the three major credit-reporting companies (Equifax, Experian, and TransUnion). In the pandemic, you can get a free report every week.
  2. A merchant declines your check. If you balance your checkbook and pay bills on time each month, you may be surprised if a merchant refuses a personal check. However, it may signal that a thief has been using your bank account or opened an associated account in your name.
  3. You see unexplained charges. Look through your bank and credit card account statements for unusual charges for withdrawals you don’t recognize and can’t explain. If you’re a victim of identity theft, file a report with the Federal Trade Commission at IdentityTheft.gov. You can also contact the three major credit bureaus to request a credit freeze. This prevents new accounts from being opened in your name. You can now place and lift a credit freeze for free.
  4. You get no mail. A thief may be intercepting your mail, if your bills or other correspondence don’t come as expected.
  5. You receive calls from debt collectors. If you’re diligent in paying your bills, and you get a call from a debt collector, it could be about debts that were incurred by someone else in your name.
  6. Your health insurer rejects a claim. Your insurer’s records could show that you’ve reached the limit of your benefits. This can occur if thieves target your medical account and take advantage of all the benefits, so you can’t make a legitimate claim. Don’t click on unfamiliar or potentially suspicious links.
  7. You get an unexplained medical bill. You may get a bill from a doctor for services you didn’t use. If so, be suspicious because a thief may have accessed your health insurance information and used it to receive medical care, sticking you with the bill.
  8. You see suspicious changes in your medical records. Another tip-off that you’ve become a victim of fraud is if your medical records include a health condition that you don’t have. This could damage your ability to get the care that you need.

Act quickly if identity theft occurs and report it.

Reference: Money Talks News (Aug. 10, 2021) “Beware These 8 Signs of Identity Theft”

How Does Probate Work?

Having a good understanding of how wills are used, how probate works and what other documents are needed to protect yourself and loved ones is key to creating an effective estate plan, explains the article “Understanding probate helps when drafting will” from The News Enterprise.

A last will and testament expresses wishes for property distribution after death. It’s different from a living will, which formalizes choices for end-of-life decisions. The last will and testament also includes provisions for care of minor children, disabled dependents and sometimes, for animal companions.

The will does not become effective until after death. However, before death, it is a useful tool in helping family members understand your goals and wishes, if you are ever incapacitated by illness or injury.

The will has roles for specific people. The “testator” is the person creating the will. “Beneficiaries” are heirs receiving assets after the testator has died. The “executor” is the person who oversees the estate, ensuring that directions in the will are followed.

If there is no will, the court will appoint someone to manage the estate, usually referred to as the “administrator.” There is no guarantee the court will appoint a family member or relative, even if there are willing and qualified candidates in the family. Having a will precludes a court appointing a stranger to make serious decisions about a treasured possession and the future of your loved ones.

A will is usually not filed with the court until after the testator dies and the executor takes the will to the court in the county where the testator lived to open a probate case. If the person owned real estate in other counties or states, probate must take place in all other such locations. The will is recorded by the county clerk’s office and becomes part of the public record for anyone to see.

Assets with named beneficiaries, like life insurance proceeds, retirement funds and property owned jointly are distributed to beneficiaries outside of probate. However, any property owned solely by the decedent is part of the probate action and is vulnerable to creditors and anyone who wishes to make a claim against the estate.

The best way to protect your family and your assets is to have a complete estate plan that includes a will and a thorough review of how assets are titled so they can, if possible, go directly to beneficiaries and not be subject to probate.

Reference: The News Enterprise (Aug. 17, 2021) “Understanding probate helps when drafting will”

How to Get Top Dollar for Home when You Downsize

You don’t need to plan on a lengthy renovation to sell your home and downsize. Smaller investments can help your windfall just as effectively. As most of us look at properties first from a laptop or smartphone, pictures are key. Even before the pandemic, 70% of house hunters toured the inside of a home online, according to a 2019 report from the National Association of Realtors.

To attract buyers and maximize your home’s sales price, Kiplinger’s recent article entitled “7 Essential Steps to Getting Your House Ready to Sell” provides seven tips, including a new way to stage a space in the digital age.

Release Your Sentiment. To sell your home, get over your emotional attachment and think of your home as a product. Just because you love your home’s brightly painted accent wall or bold, patterned wallpaper doesn’t mean a buyer will find it attractive. Look at the space as a buyer would — with a critical eye — to spot what needs to be changed or upgraded.

Depersonalize. Homebuyers like to picture themselves living in the home with their furnishings, so store your family photos and remove pictures from the walls and mantels.

Declutter. Downsizing your belongings helps your house demand a higher selling price. The less stuff in a room, the bigger it looks. You can hire a professional organizer, who will even call the movers and donate your giveaways.

Stage Your Home. If you need to move out of the home while it’s on the market or just want more neutral, attractive furniture to show off the rooms, staging can help.

Consider Virtual Staging. A cheaper alternative to traditional staging is to add pieces of furniture to pictures of the rooms in your house. These photographs can then be used on websites that show home listings.

Make It Brighter. Anything you can do to lighten and freshen up your home will pay dividends. Paint the outside accents of your home to increase its curb appeal. Use a product like Orange GLO to make cabinets and wood floors shine. Change light bulbs in lamps and overhead lighting for ones with a higher wattage. You can also swap out heavy window coverings with something that lets in more light, such as sheers. Light-filled rooms will energize potential buyers.

Go for Nice But Not Too Nice. If significant renovations are needed, restrict it to simpler projects, like upgrading kitchen appliances or bathroom cabinets. Don’t knock down walls to reconfigure the room’s footprint. Your improvements should be consistent with the average home prices in your area. You don’t want the nicest house on the block. If your house is in a moderate price range, go with moderately priced cabinets and appliances. If you go high-end, you’re not going to make the money back.

Reference: Kiplinger (Aug. 5, 2021) “7 Essential Steps to Getting Your House Ready to Sell”

Couple’s Charitable Remainder Trust Helps University Students

Florida resident Robert Larson of Leesburg recently donated $1.4 million to the Minnesota State University, Mankato in honor of his late wife, Virginia, the Minnesota State University, Mankato recently announced.

A story entitled “Minnesota State Mankato Receives $1.4 Million Gift to Support Education, Music, ROTC Scholarships” said that Larson’s gift will support scholarships for students studying elementary education (75%) and music (20%), and the remaining 5% is earmarked to establish Minnesota State Mankato’s first Reserve Officer Training Corps endowment. At least 14 students annually will receive scholarships as a result of the gift.

“This gift is especially meaningful because of the many years that Robert and Virginia Larson spent planning for it,” said Minnesota State University, Mankato President Edward Inch.“ Students will benefit from this gift for many generations to come.”

The Larson’s originally planned their gift by creating the university’s first-ever charitable remainder trust in 1987. The trust was set up to benefit University students after both Robert and Virginia died.

A charitable remainder trust (CRT) is a gift of cash or other property to an irrevocable trust. The donor gets to keep an income stream from the trust for a term of years or for life. The charity then gets the remaining trust assets at the conclusion of the trust term. The donor receives an immediate income tax charitable deduction when the CRT is funded, based on the present value of the assets that will eventually go to the named charity.

Mr. Larson later decided he wanted to give a larger sum to the university to be able to have an effect on students while he was still living. Therefore, he decided to forego the annual payments he received and terminated the charitable remainder trust early.

His wife Virginia graduated from Minnesota State Mankato in 1961 with a bachelor’s degree in elementary education. She began teaching fourth grade in Lakeville, Minnesota. She then taught third grade in Poway, California, and finally taught fourth grade and English as a second language in Chula Vista, California. She died in 2020.

“Virginia really enjoyed her time as a student at Minnesota State Mankato, and we started planning for this gift out of a desire to help students,” said Robert Larson.

Reference: Minnesota State University, Mankato (August 12, 2021) “Minnesota State Mankato Receives $1.4 Million Gift to Support Education, Music, ROTC Scholarships”

Medicare or My Employer’s Health Plan better Option?

Let’s say that you work full time and have a very good medical insurance plan, but it’s costly, especially if you also have been covering the rest of your family. Say that the spouse is 60 and permanently disabled and has been told he’s eligible for Medicare. A common question is whether the working spouse should remove the disabled spouse from the employer’s coverage and go with Medicare. What’s the best option?

NJ Money Help’s recent article entitled “Should we take Medicare or keep an employer health plan?” explains that there are different components of Medicare to cover specific services: Medicare Part A, Part B, and Part D.

Medicare Part A helps pay for hospital and facility costs. Medicare Part B helps pay for medical costs, like doctors and medical supplies. Medicare Part D is for prescription drug coverage. Most people don’t pay a monthly premium for Part A, but there are premiums associated with Part B and Part D coverage.

If an individual is 65 and has received disability benefits from Social Security for 24 months or has received certain disability benefits from the Railroad Retirement Board for 24 months, he or she will automatically get Medicare Part A and Part B.

You should also know that you can decide to delay Medicare Part B by contacting Social Security after you become eligible, and you receive the card. Discuss this option with your employer’s health care benefit department to understand how Medicare may or may not work with your current coverage. This is because there are some plans and health benefit plans (especially those with fewer than 20 employees) that become secondary to Medicare, when an enrollee becomes eligible for Medicare.

If you decide to participate in Medicare Part B, understand that there’s a cost. The premium is based on your income, and the standard Part B premium in 2021 is $148.50 per month, if your income was $176,000 or less in 2019 for a married filing joint return. The Medicare Part B premium increases as your income increases.

Medicare Part B pays for many of your medical bills. However, not all the costs for covered health care services and supplies are included. As a result, many seniors buy a supplemental insurance plan, called Medigap. This plan will pay for some of the remaining health care costs, like co-payments, coinsurance and deductibles that are not covered by Medicare.

Remember that it’s important to enroll in Medigap coverage within six months following Medicare Part B enrollment. Medigap is an additional cost along with your Medicare Part B premium and is sold through a private insurance company. To determine what will be more cost effective, you’ll need to compare the Medicare costs with your employer plan.

Reference: NJ Money Help (Aug. 13, 2021) “Should we take Medicare or keep an employer health plan?”

How to Keep the Vacation Home in the Family

There are several ways to protect a vacation home so it remains in the family and is not overly burdensome to any one member or couple in the family, according to the article “Estate planning for vacation property” from Pauls Valley Daily Democrat.

To begin, families have the option of creating a legal entity to own the asset. This can be a Family LLC, a partnership or a trust. The best choice depends upon each family’s unique situation. For an LLC, there needs to be an operating agreement, which details management and administration, conflict resolution, property maintenance and financial matters. The agreement needs to include:

Named management—ideally, two or three people who are directly responsible for managing the LLC. This typically includes the parents or grandparents who set up the LLC or Trust. However, it should also include representatives from different branches in the family.

Property and ownership rules must be clarified and documented. The property’s use and rules for transferring property are a key part of the agreement. Does a buy-sell agreement work to give owners the right to opt out of owning the property? What would that look like: how can the family member sell, who can she sell to and how is the value established? Should there be a first-right-of refusal put into place? In these situations, a transfer to anyone who is not a blood descendent may require a vote with a unanimous tally.

There are families where transferring ownership is only permitted to lineal descendants and not to the families of spouses who marry into the family.

Finances need to be spelled out as well. A special endowment can be included as part of the LLC or as a separate trust, so that money or investments are set aside to pay taxes, upkeep, insurance and future capital requirements. Anyone who has ever owned a house knows there are always capital requirements, from replacing an ancient heating system to fixing a roof after decades of a heavy snow load.

If the endowment is not enough to cover costs, create an agreement for annual contribut6ions by family members. Each family will need to determine who should contribute what. Some set this by earnings, others by how much the property is used. What happens if someone fails to pay their share?

Managing use of the property when there is a legal entity in place is more than a casual “Who calls Mom and Dad first.” The parents who establish the LLC or Trust may reserve lifetime use for themselves. The managers should establish rules for scheduling.

For parents or grandparents who create an LLC or Trust, be sure it works with your estate plan. If they intend to keep the property in the family and wish to leave a bequest for its maintenance, for instance, the estate planning attorney will be able to incorporate that into the LLC or Trust.

Reference: Pauls Valley Democrat (July 29, 2021) “Estate planning for vacation property”

What Upgrades Can I Make to ‘Age in Place’?

With our aging population, we need more solutions to help seniors live well. That’s where universal design comes in: it’s a concept that tries to make products and structures usable by everyone, regardless of age, ability, or other factors.

Money Talks News’s  article entitled “8 Essential Home Features for Aging in Place” says that aging in place requires homes that accommodate our needs as we age. The article sets out a list of eight design features buyers focused on accessibility are looking for based on survey data from the National Association of Home Builders’ 2021 “What Home Buyers Really Want” report.

  1. Lower countertops. The kitchen is the center of most homes, and it’s an important part of universal design. Countertops that are three inches lower than the standard height of 36 inches lets seniors and those with limited mobility to fully participate in meal prep. You can round all countertop edges and corners because fewer 90-degree angles may reduce bumping and bruising and minimize injury in the event of a fall.
  2. Lower kitchen cabinets. According to Aging in Place, upper kitchen cabinets that are three inches lower than standard height lessens the tendency to overreach and potentially lose balance. Lower cabinets that feature pull-out shelves, “lazy Susan” corner cabinets and easy-pull handles offer additional convenience for seniors and those who rely on a wheelchair or mobility scooter.
  3. Bathroom aids. For seniors, using the bathroom safely can a challenge. Aging-in-place design recommends these features to make bathrooms more practical and convenient:
  • A walk-in tub or a shower with non-slip seating
  • An adjustable or hand-held showerhead
  • A comfort-height toilet
  • Ground-fault interrupter (GFI) outlets that reduce the risk of shock; and
  • Grab bars near the toilet and shower.
  1. A Stepless entrance. To age in place safely, AgingCare recommends that a home’s main entrance not have steps and should have a threshold height of no more than a half an inch. Here are a couple of ways that an entryway without steps can make life better for seniors:
  • It facilitates smooth entrance/exit by wheelchair, scooters, or walker
  • It decreases the risk of falls, particularly in snowy or icy conditions; and
  • It makes it easier to get deliveries and enter the home carrying groceries.
  1. Non slip floors. According to the CDC, more than 35 million older adults fell at least once in 2018, and 32,000 died from fall-related injuries. To help, non-slip surfaces like low-pile carpet, cork and slip-resistant vinyl can minimize the risk.
  2. Wide hallways. Wide hallways (defined as at least four feet wide) let seniors access every space in their home with a walker, wheelchair, or scooter, or with the assistance of a home health aide.
  3. Wide doorways. A standard doorway can be as narrow as 24 inches, which is a tight fit for seniors who rely on wheelchairs, scooters, or walkers. Seniors like wide doorways, defined as at least three feet wide. According to the ADA, doorways should have at least 32 inches of clear width. To help with an easy transition from room to room, thresholds should be as flush to the floor as possible.
  4. Full bath on main level. Not just convenient, it’s a critical safety feature for seniors. Besides eliminating the need to go up and down stairs several times a day, main floor bathrooms also allow the elderly to (i) respond to incontinence issues more quickly; (ii) practice regular self-care; and (iii) access a private space when required.

Reference: Money Talks News (Aug. 5, 2021) “8 Essential Home Features for Aging in Place”

What Is Science Doing About Hearing Loss?

Thanks to advances in technology and medicine like artificial intelligence and gene therapy, hearing research is producing significant innovations. AARP’s recent article entitled “Three Game-Changing Innovations for Those With Hearing Loss” looks at a couple of them, in various stages of development.

  1. Eyeglasses That Turn Speech into Subtitles. With these, you’ll be able to read what people are saying. An app on your smartphone would listen to a conversation and transcribe the speech into sentences in real time. The text would be sent instantaneously to your enhanced eyeglasses, which would create subtitles. Vuzix, a tech company, recently released smart glasses that work with transcription software. Automatic speech-to-text programs have proliferated in recent years, and live computer-generated captions are now available on most videoconferencing platforms. Smartphone apps can also generate real-time transcriptions for in-person conversations. However, the issue is that users have to be in front of a PC or looking at a phone, which detracts from full social engagement. However, companies are making subtitles more natural, by using “smart glasses” technology, which can project text to a user’s field of vision in a comfortable, nonintrusive way. We may see this in a few years.
  2. An App That Lets You Hear Someone in a Crowded Room. This technology can isolate a person’s speech in a noisy environment, which would solve what scientists call the “cocktail party problem.” An app would “listen” to the soundscape surrounding you and separate out different streams of sound, including voices, ambient music and other background noise. It would then isolate the sound you want to hear based on the direction you’re facing — and reduce everything else. The cleaned-up sound would then be delivered straight to your ear through your hearing aid, cochlear implant, or earbuds. Powerful de-noising programs look to be available on hearing technology within five years.
  3. Drug Therapy That Regrows Cells That Help Your Hearing. Your body would repair damage to your inner ear — like when a salamander regrows his tail. A drug delivered into your inner ear would turn on chemical switches to regrow the cells responsible for hearing and most hearing loss. Those born with hearing loss or those who lose hearing later in life would get injections to restore some or all of their hearing. This hair cell regeneration would be ideal for anyone who’s lost hearing because of missing or damaged hair cells. However, this isn’t anticipated to be available very soon. Some hair cell regrowth therapies using different methods are currently in human clinical trials. There are trials being conducted at Novartis, Eli Lilly, Frequency Therapeutics, and Pipeline Therapeutics. However, most of this work is still being tested in the lab.

Reference: AARP (August 2, 2021) “Three Game-Changing Innovations for Those With Hearing Loss”

Who Inherited from the Painter Bob Ross?

Like many painters before him, Bob Ross’s image only took hold after his untimely death. He’s now a pop culture icon, and is featured as bobbleheads, Chia pets and has his own cereal.

However, there’s a reason why we see so much more of the gentle painter than ever before. That’s because of a legal battle for ownership of Ross’s name. That was the only item of value in his estate, which is rare for celebrities of his caliber.

Wealth Advisor’s recent article entitled “Here’s Who Inherited Bob Ross’ Estate, And Where They Are Now” reports about what happened to his estate, who controls it and where they are today.

The Daily Beast wrote that Ross is “a smash hit on social media, where he feels more like a Gen-Z influencer than a once semi-obscure PBS celebrity who rose to fame in the 1980s on the back of his bouffant hairdo, hypnotic singsong baritone and a timeless message about the beauty of the world around us.”

However, he wouldn’t have become a household name, if not for Bob Ross Inc. The battle began when the artist met Bill Alexander, a celebrity painter who had a show on PBS, in 1978. Alexander gave him a job as a traveling art instructor. Ross met Annette and Walt Kowalski at a class, who recently lost their son, and who wanted to learn how to paint.

The Kowalskis convinced him to come to Washington, D.C. to teach. They eventually made a deal: they’d give him a stipend and room and board, if he’d teach more classes that they’d arrange in the area. PBS then asked Ross to do a show like Alexander’s, and Dennis Kapp, the owner and CEO of the art-supply company Martin F. Weber, wanted to develop a line of supplies with him too. Soon, The Joy of Painting was born. However, to look after the supply company with Kapp, Ross and his wife Jane, and Annette and Walt signed documents to create Bob Ross Inc., with all four of them being equal partners.

At the end of the 1980s, all four partners were making $85,000, and in the early ’90s, Ross made around $120,000. However, he wanted to branch out, and when he did, the happy days were at an end. When Ross’s health started to decline, Walt “declared war” and sent Ross documents saying the Kowalskis owned everything, but they’d agreed that Ross and his heirs would get 1% of the revenues for the next decade. Ross never signed anything, and in fact, he quickly changed his last will to make it harder for the Kowalskis to steal his name and likeness.

Those changes to his last will included “a clause specifically addressing his name, likeness and the rest of his intellectual property. All of those rights were to go to Steve and one of Bob’s half-brothers.” His third wife replaced Annette as the administrator of his estate. In July 1995, the painter lost his battle to cancer.

When Ross died, Bob Ross Inc. was totally owned by the Kowalskis. However, they wanted it all, including his name and likeness. Then what one of Ross’s good friends calls “Grand Theft Bob” began.

Steve did not know about the final amendment until 20 years later when his uncle Jimmie, the estate’s executor, informed him. When Ross died, he was worth $1.3 million. Half of that was his third part of Bob Ross Inc., and there was also cash, stocks and property to divide.

The Kowalskis went after Ross’s art supplies and artwork and made “claims against the estate for business and personal reimbursements,” charging Ross’s widow with hefty lawsuits and suing PBS and the children’s show Ross guest-starred on. In 1997, Jimmie, Ross’s brother, settled the lawsuit, practically handing over everything to the Kowalskis. In 2012, their daughter Joan took over, opening up the realm of merchandising for the company.

However, there was still a “grey zone” in how Bob Ross Inc. could truly own Ross’s name and likeness. After learning about that amendment in Ross’s will, Steve went after Bob Ross Inc. but didn’t win his case against Bob Ross Inc.

Joan did strike a deal with him: if he surrendered his rights to Ross’s name and likeness, he could print his name on anything he wanted.

The good news was that Steve was able to return as an art instructor, and thanks to Bob Ross Inc., Ross was bigger than ever. That helped class sizes, and students came in masses to learn the iconic style. Steve gets to run his father’s estate, and fans welcomed him back to the painting world. Despite the fact that the Kowalskis got everything, they were the only ones who could have kept Ross’s name from disappearing.

As for all of Ross’s paintings the Kowalskis seized, they ended up in an unprotected warehouse until the Smithsonian took a collection of them.

Reference: Wealth Advisor (June 28, 2021) “Here’s Who Inherited Bob Ross’ Estate, And Where They Are Now”