Estate Planning Blog Articles

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

Why Is a Will So Important?

A 2020 Gallup poll found that less than half of Americans have a will or have made plans regarding how they would like their money and estate handled in the case of their death. The poll also showed that Americans ages 65 and up are the most likely to have a will.

Yahoo News’ recent article entitled “How To Write A Will: The Importance Of A Will And Living Will” says that no matter your age, it’s important to have a will to be in control of what happens with your own assets. A will is a legal document that establishes a person’s wishes regarding the distribution of their assets — money, real estate, etc. — and the care of any minor children.

Without a will, state law may control who gets your “probate” assets and when. Having a will can save an enormous amount of time and money in estate administration and the process of having a guardian appointed for your minor children, if needed.

There’s a big difference between a will and a living will. A living will is a document that lets you state in advance how you want to be treated under certain medical situations, if you’re unable to make those decisions for yourself at a later time.

These differ by state law. However, they generally cover end-of-life decision-making and treatment options. General medical decisions unrelated to end of life care are typically covered in a health care power of attorney. Some states combine these two documents into one directive.

Unlike a living will, which specifically provides instructions for medical care during your lifetime, a will lets you to decide in advance who you want to receive your assets upon your death, and who you want to be in charge of handling the administration of your estate. If you have minor children, a will also allows you to nominate a guardian for them.

When creating a will, think about the “what,” the “who” and the “how.” To do so, ask yourself the following questions:

  • What assets do you have?
  • To whom do you want to leave them?
  • Who do you want to be in charge of making sure that happens?
  • Who do you want to be responsible for your minor children?
  • How do you want the assets transferred?

Reference: Yahoo News (Aug. 17, 2022) “How To Write A Will: The Importance Of A Will And Living Will”

Can I Retire in a Bear Market?

Money Talks News’ recent article entitled “Retiring in a Bear Market? 7 Things to Do Now” says that research has shown that this scenario — known as sequence-of-return risk — can permanently reduce the amount of money you will have to live on during retirement. However, savvy retirees can avoid most or all of this damage. If you’re planning to retire right into the teeth of a bear market, consider the following:

Meet with a money pro. If you make the wrong decisions here, it can have life-altering effects. This is the perfect moment to speak with a financial adviser. The right pro can help you develop a plan.

Tighten your spending. A bear market may mean  you must downsize your grand visions. The more money you keep in your wallet when the market is down, the better off you’re likely to be when the bull market returns. When the market recovers, you can pick up your dreams where you left them.

Use your savings. A great way to avoid permanently ruining your finances in retirement is to have cash savings to use when stocks collapse. Living off your liquid savings keeps you from having to cash in stocks when their value is depressed, which allows your portfolio time to recover.

Consider your Social Security options. When retiring into a bear market, you either have to take Social Security now, so you can leave your investments alone and give them more time to recover; or wait to claim Social Security, hoping that there will be bigger checks later in retirement that will help cushion the blow, if your other finances do not recover robustly. There’s no simple answer, and many factors can help you determine which strategy is best. These include your health, your risk tolerance, your marital status and many other considerations.

Review your asset allocation. Bear markets are the ultimate test of your tolerance for risk. With stocks down at least 20% — the definition of a “bear market” — consider your feelings. This can help you determine if your asset allocation is too risky, too conservative, or just right. Making certain that your allocation matches your risk tolerance will put you in a better position for the next bear market.

Going back to working. Bear markets rarely last long, often disappearing in less than a year. A part-time job or freelance work can give you a bit of extra income to ride out the storm, possibly even allowing you to leave all of your savings untouched. When the market recovers, you can return to your full-time retirement.

Stay calm. The tendency is to panic. Resist the urge.

Reference: Money Talks News (July 25, 2022) “Retiring in a Bear Market? 7 Things to Do Now”

When Will Hearing Aids Be OTC (Over the Counter)?

Some people avoid purchasing hearing aids because of their hefty price tags. The cost for a single hearing aid ranges from hundreds of dollars to more than $4,000. Moreover, Medicare and most private insurers don’t usually cover the expense. Thus, affordability is a “significant barrier” to purchasing hearing aids, according to a paper in the Hearing Journal, a hearing health care publication.

However, an FDA rule is slated to take effect in mid-October, at which point hearing aid manufacturers will have 240 days to amend relevant product labels and marketing to comply with the new OTC requirements. OTC hearing aids will likely be more affordable and accessible to consumers than most other FDA-approved hearing aids on the market right now.

Forbes’ recent article entitled “FDA Rule Allows Over-The-Counter Hearing Aids To Hit Shelves As Soon As October, Improving Access Nationwide” reports that according to the FDA’s new rule, over-the-counter (OTC) hearing aids are hearing aids intended for people at least 18 years old with perceived mild to moderate hearing loss.

Hearing aids will be available at stores and online retailers (who aren’t required to be licensed sellers) without the need for a medical exam, prescription or fitting adjustment by an audiologist or hearing health professional. The OTC hearing aids must be controllable by the user and customizable to the user’s hearing needs, allowing them to make volume and frequency-dependent changes based on their preferences without the assistance of a professional.

Note that OTC hearing aids are different from personal sound amplification products (PSAPs), which are used to amplify sounds in certain environments and aren’t subject to FDA regulation.

While specific cost information hasn’t been announced by the FDA, OTC hearing aids are expected to be more affordable than prescription hearing aids. Those are frequently sold bundled with audiology services. Affordable OTC hearing aids have the potential to make hearing aids more easily available to people with some degree of hearing loss who may not otherwise be able to afford them. Users also won’t be required to present a prescription from an audiologist or other hearing health professional to get them.

However, members of some hearing health industry associations are concerned about consumers purchasing and using OTC hearing aids without first completing a hearing evaluation conducted by a hearing health professional.

They worry people might damage their ears from overamplification or simply not get a positive result with the products and give up on hearing aids altogether. That has many social and health implications.

However, the Hearing Loss Association of America (HLAA) openly supports a regulated market for OTC hearing aids.

Reference: Forbes (Aug. 16, 2022) “FDA Rule Allows Over-The-Counter Hearing Aids To Hit Shelves As Soon As October, Improving Access Nationwide”

How to Protect Yourself from Online Fraud

The messages come in through emails, texts, phone calls and pop-ups on computer screens. They pretend to be calling from “tech support,” sometimes claiming to be part of Microsoft or Apple. They speak with authority, according to a recent article titled “Tech Support Fraud Targets Seniors,” from Kiplinger.

There’s nothing wrong with your computer, and they are not calling from Bill Gate’s office. The FBI’s Internet Crime Complaint Center, known as IC3, received 13,900 complaints from older victims who lost a total of $238 million in 2021. Of all losses to tech support fraud, older victims make up 58% of the calls and 68% of the losses.

Scams targeting older adults have risen at an alarming rate, reports the IC3’s Elder Fraud Report 2021. There was a 74% increase in losses in 2021 from 2020. Tech support fraud is the most reported fraud among victims 60+ and older.

Why are seniors so attractive to scammers, and why are they so vulnerable?

Most scammers believe all seniors have substantial retirement funds. It is often true.  Seniors may also be isolated from younger generations who are savvier about technology. The past few years have seen an increase in training people actively engaged in the workforce about common security issues and ways to prevent fraud and theft. Retirees are not likely to be exposed to this kind of information on a regular basis.

Tech support scammers typically present themselves as calling from well-known tech companies. They offer help with non-existent problems, demanding payment for renewal for software or security subscriptions. They also impersonate customer support from banks, financial institutions, utility companies or cryptocurrency exchanges.

Adding another layer to the problem: seniors may not have the latest security software or are using outdated desktop computers without current security upgrades, making them an easier target. They simply may not be able to afford to use the costs of some security programs.

Scammers use simple scare tactics, combined with scripts updated to reflect the latest worries and concerns of seniors. Even smart people get scammed. One 80-year old woman was using her computer when a pop-up ad claiming to be from Microsoft appeared and directed her to call a phone number. When she called, the person said they were Microsoft’s scam department and warned her not to continue the conversation on the phone because the scammers could hear the conversation. They gave her an address in another country and instructions to send money by wire. They also gave her all the answers to questions her bank would ask, like why the money was needed and why it was going to a foreign country. She ultimately gave the scammers $20,000.

Equally dangerous is letting scammers have login information. Once they can get into your electronic devices and steal data, they can take personal information and money without the user’s knowledge.  They can also hack into the computer and deploy ransom software, blocking you from using your own computer until you pay ransom. Even then, there’s no guarantee of retrieving your information.

How can you protect yourself?

  • Legitimate companies will not call to tell you there’s a problem with your computer.
  • A real tech company won’t send a popup ad to your computer and ask for a phone call.
  • Anything that must be done fast should be considered a scam.
  • Legitimate companies don’t ask for wire transfers, gift cards or bank account information.
  • Never, ever, click on a link in an email. Other people’s systems get spoofed (taken over), and their email lists are often used to send out fraudulent emails.
  • Keep your computer up to date with the latest in security and updating browsers and operating systems regularly.

Reference: Kiplinger (Aug. 5, 2022) “Tech Support Fraud Targets Seniors”

What Jackie Kennedy Knew about CLATs and Estate Planning

What most people don’t know about Jackie Kennedy was her role as an innovative steward of her family’s wealth and philanthropic legacy, reports a recent article from Forbes titled “Elevating Your Estate And Legacy: A Lesson From Jackie Kennedy.” After her husband’s assassination, she was in charge of a $44 million plus estate and her actions spoke volumes about her values and view for the future.

Jackie Kennedy initiated a Charitable Lead Annuity Trust (CLAT), which today many refer to as the Jackie Onassis Trust.

She created a CLAT receptacle through her will, so her children could elect to transfer some or all of their inherited assets in exchange for significant charitable, tax and non-tax benefits. They were not required to do this. However, it was an option for assets including stock, real estate and other capital. The CLAT offered her children three possible benefits: avoiding federal estate tax on all and any assets transferred to the CLAT, tax-efficient philanthropic giving for a limited number of years and continued investment of CLAT assets, which could be ultimately returned to the child or gifted to future generations at the end of the CLAT’s charitable period.

In addition, during the charitable term, the annual payments required to be distributed via the CLAT to charities would have created income tax deductions against the CLAT’s taxable income.

Despite their mother’s recommendations, the first lady’s children opted against funding the CLAT.

According to an article from The New York Times in 1996, if the Jackie Onassis Trust was worth $100 million and if the beneficiaries had executed the CLAT, the family would have inherited approximately $98 million tax-free in 2018, with charities receiving $192 million.

Instead, the children paid $23 million in estate taxes, leaving the estate with $18 million.

Besides the clear adage of “Mother knows best,” this is an example of the potential power of a CLAT to satisfy the charitable and family wealth transfer of the trust creator and individual beneficiaries. Since the 1960s, more sophisticated trust variants have been created to improve on the original CLAT.

One of these is the Optimized CLAT, a tax-planning trust which accomplishes four goals. It generates a dollar-for-dollar tax deduction in the year of funding, returns an expected 1x-5x of the initial contribution back to the contributor, immediately exempts contributed assets from the 40% federal gift and estate tax and exempts the transferred assets from the contributor’s personal creditors.

These complex estate planning strategies will become increasingly popular as federal estate taxes return to lower levels in near future. Your estate planning attorney will guide you as to which type of trust works best for you and your family, for now and for generations to follow.

Reference: Forbes (Aug. 19, 2022) “Elevating Your Estate And Legacy: A Lesson From Jackie Kennedy”

Scammers Try to Take Senior for a Ride

An 80-year-old woman figured out she was being scammed before going to the bank, after receiving an email from fraudsters who hired an Uber to take her there.

However, the story is a stark reminder of the extent to which thieves will go to scam the elderly, says Krebs on Security’s recent article entitled “Scammers Sent Uber to Take Elderly Lady to the Bank.”

Travis Hardaway said his mother last month replied to an email she received regarding an appliance installation from BestBuy. He said the timing of the scam email couldn’t have been worse, since his mom’s dishwasher had just died. She’d paid to have a new one delivered and installed.

“I think that’s where she got confused, because she thought the email was about her dishwasher installation,” Hardaway said.

Hardaway said his mom initiated a call to the phone number listed in the phony BestBuy email. The scammers told her she owed $160 for the installation, which seemed about right. However, they then asked her to install remote administration software on her computer, so that they could control the machine from afar and assist her in making the payment.

After she logged into her bank and savings accounts with scammers watching her screen, the fraudster on the phone claimed that instead of pulling $160 out of her account, they accidentally transferred $160,000 to her account. They said they needed her help to make sure the money was “returned.”

“They took control of her screen and said they had accidentally transferred $160,000 into her account,” Hardaway said. “The person on the phone told her he was going to lose his job over this transfer error, that he didn’t know what to do. So, they sent her some information about where to wire the money and asked her to go to the bank. However, she told them, ‘I don’t drive,’ and they told her, “No problem, we’re sending an Uber to come help you to the bank.’”

Her son was out of town when this happened. Thankfully, his mom eventually grew exasperated and gave up trying to help the scammers.

“They told her they were sending an Uber to pick her up and that it was on its way,” Hardaway said. “I don’t know if the Uber ever got there. However, my mom went over to the neighbor’s house and they saw it for what it was — a scam.”

Hardaway said he has since wiped her computer, reinstalled the operating system and changed her passwords. However, he says the incident has left his mom rattled.

“She’s really second-guessing herself now,” Hardaway said. “She’s not computer-savvy, and just moved down here from Boston during COVID to be near us, but she’s living by herself and feeling isolated and vulnerable, and stuff like this doesn’t help.”

According to the FBI, seniors are often the targets of scams because they tend to be trusting and polite. They also usually have financial savings, own a home and have good credit—all of which make them attractive to scammers.

“Additionally, seniors may be less inclined to report fraud because they don’t know how, or they may be too ashamed of having been scammed,” the FBI warned in May. “They might also be concerned that their relatives will lose confidence in their abilities to manage their own financial affairs. And when an elderly victim does report a crime, they may be unable to supply detailed information to investigators.”

Reference: Krebs on Security (Aug. 4, 2022) “Scammers Sent Uber to Take Elderly Lady to the Bank”

Wayward Senior Tracked by Bluetooth Technology

The Hernando County Sheriff’s Office recently received a report of a missing adult in the Hernando Beach area.

According to the agency, the elderly man, who suffers from dementia, was reported missing by his wife at about 7:30 in the morning.

Units were dispatched within minutes, reports WTSP.com, in the article entitled “’Technology is one of the best tools…’: Missing elderly man found through Bluetooth tracking device.”

The sheriff’s office said this wasn’t the first time the man has been reported missing.

This time, his wife was prepared: she attached a Bluetooth tracking device to her husband’s belt.

Bluetooth is a type of wireless technology that allows the exchange of data between different devices, such as two cellphones.

Because she planted the device, she was able to give deputies a location to where to find her husband.

Law enforcement was able to locate the man by 7:54 a.m.

He was returned safely home to his family.

“With the high heat index this time of year and the multiple access points to water in the area, we are thankful for this assistance of technology in order to locate this individual within 18 minutes,” the sheriff’s office wrote in a statement.

The sheriff’s office says tracking devices like the one used in this incident can give families peace of mind when caring for a senior with mental health issues, by being able to monitor their location.

“Whether it is a child with special needs or a senior who is forgetful, there are usually warning signs that a person is prone to wandering,” Sheriff Al Nienhuis said in a statement.

“Technology is one of the best tools family members can use to alert them when that individual has unexpectedly left the house.”

“It also provides invaluable tools to increase the likelihood the person will be returned safely. We strongly encourage families to research what technology is right for their situation.”

Reference: WTSP.com (August 8, 2022) “’Technology is one of the best tools…’: Missing elderly man found through Bluetooth tracking device”

Some Key Documents Should Be Considered Before Sending Your Child Off to College

In the United States, as soon as a minor turns 18, they’re typically considered a legal adult.

As a result, parents no longer have any authority to make decisions for their child, including financial and health care decisions.

Yahoo’s recent article entitled “Don’t Let Your Child Leave for College Without Signing Three Critical Documents” asks what if your adult child becomes sick or is in an accident and ends up hospitalized?

Because of privacy laws, known as Health Insurance Portability and Accountability Act (HIPAA), you wouldn’t have any rights to get any information from the hospital regarding your child’s condition. Yes, we know you’re her mother. However, that’s the law!

You also wouldn’t have the ability to access his or her medical records or intercede on your child’s behalf regarding medical treatment and care.

If your child’s unable to communicate with doctors, you’d also have to ask a judge to appoint you as your child’s guardian before being able to be told of his or her condition and to make any healthcare decisions for them.

While this is hard when your child is still living at home, it’s a huge headache if your child is attending college away from home.

However, there’s a relatively easy fix to address this issue:

Ask an experienced estate planning attorney about drafting three legal documents for your child to sign:

  • A Durable Power of Attorney (DPOA) for Health Care. This document designates the parent as your child’s patient advocate.
  • A HIPAA Authorization gives you access to your child’s medical records and lets you to discuss his or her health condition with doctors.
  • A DPOA for Financial Matters, designates the parent as your child’s agent, so that you can manage your child’s financial affairs, including things like banking and bill paying, in case your child becomes sick or injured, or is unable to act for any reason.

Reference:  Yahoo (Aug. 2, 2022) “Don’t Let Your Child Leave for College Without Signing Three Critical Documents”

Vets Closer to Toxic Exposure Benefits

Right after the Senate signed off on a military toxic exposure bill that could benefit millions of veterans, activist John Feal warned the crowd of advocates celebrating outside the Capitol about the moment they had been lobbying for and dreaming about for years: “The hard part hasn’t begun.”

Military Times’ recent article entitled “Now that PACT Act has passed, how soon will veterans see their benefits?” reports that Feal, who spent years as one of the lead advocates to award federal benefits to September 11 victims, first responders and their families, urged the crowd to make sure those payouts and resources are properly funded and administered. He cautioned that even well-written bills don’t always mean an easy transition to getting people the help they need.

“Getting a bill passed is easy, you just have to beat up the Senate and the House,” Feal said. “These people behind me, they have to take that and make sure Congress and the VA now do the right thing.”

This will be a big moment in the 13-year-old fight to expand benefits for burn pit victims sickened in Iraq and Afghanistan, and the decades-old quest to fully compensate Vietnam veterans for their exposure to chemical defoliants. Advocates say it won’t be the end of their work on the issue: the next step is delivering the benefits to veterans and their families. The estimated total is roughly $300 billion over the next 10 years.

“Veterans who were exposed to toxic fumes while fighting for our country are American heroes, and they deserve world-class care and benefits for their selfless service,” VA Secretary Denis McDonough said in a statement minutes after Feal’s speech.

“Once the president signs this bill into law, we at VA will implement it quickly and effectively, delivering the care these veterans need and the benefits they deserve.”

Apart from the congressional work, the VA has been overhauling the way that it approaches illnesses believed linked to burn pit smoke in places like Iraq and Afghanistan. In the past, the department adhered to strict scientific evidence before granting presumptive status for illnesses believed linked to military service. The VA now uses a broader set of metrics to evaluate the claims. This has resulted in adding 12 respiratory illnesses and cancers to the list of conditions presumed to be caused by burn pits (a designation that greatly speeds up the process of veterans receiving disability payouts).

Once the PACT Act is signed into law, those new processes will be codified, a move that veterans advocates say will be significant in the future to preventing long waits for department recognition of military injuries.

Other parts of the legislation will go into effect immediately. Vets currently get five years of medical coverage through VA after leaving the service, but will have that doubled to 10 years under the new law.

Reference: Military Times (Aug. 4, 2022) “Now that PACT Act has passed, how soon will veterans see their benefits?”

Does the Way I Title My Assets Have an Impact on My Estate?

FedWeek’s recent article entitled “How Assets Are Titled Can Make a Big Difference discusses the different ways property may be titled, and the significance of each one.

The way in which you take title to assets can affect your estate, taxes and perhaps the disposition of the asset if a couple divorces. Many couples want assets to be titled simply in the event something happens to one, so the other spouse can take possession immediately without taxes or complications. Joint ownership may be the simplest way to meet most of these objectives. However, this can get complicated if any number of things happen, such as divorce, second marriage, children from multiple marriages, adoption and blended families of all types.

It’s critical to be educated on the different types of ownership, so you know when a change may be needed. Here are the main options:

Holding Assets in Your Own Name is simple and inexpensive. However, if you become incompetent, those assets might be mismanaged. At your death, individually owned assets may have to go through probate.

Joint Tenants with Right of Survivorship is when one co-owner dies, all assets held this way automatically pass to the survivor. One joint owner can take over if the other is incapacitated, and jointly held assets don’t go through probate.

Tenants in Common means there’s a divided interest, although none of the owners may claim to own a specific part of the property. At the death of one of the joint owners, the share owned by the deceased must pass through their will to determine ownership. The surviving joint owner doesn’t automatically own the entirety of assets.

Tenancy by the Entirety is a type of joint ownership similar to rights of survivorship for married couples. It lets spouses own property together as a single legal entity. Ownership can’t be separated, which means creditors of an individual spouse may not attach and sell the property. Only creditors of the couple may make claims against the property.

With Entity Ownership, you might create a trust, a partnership (such as a family limited partnership), or a limited liability company (LLC) to hold assets. These entities may provide protection from creditors and tax benefits.

Community Property may only be used by married couples in community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). Each person owns an undivided interest in the entire property. When a spouse dies, the survivor automatically receives the entire interest, so there’s no need for probate. Community property can’t be controlled by a person’s will or trust.

Ask an experienced estate planning attorney to review your estate plan and how assets are titled.

Reference: FedWeek (July 27, 2022) “How Assets Are Titled Can Make a Big Difference”