Don’t Gamble with Your Future: Why Choosing the Right Estate Planning Attorney Matters

Introduction

Estate planning: two words that encapsulate the entirety of your life’s work and the legacy you wish to leave behind. It is a profound yet often misunderstood aspect of personal finance and legal preparedness. As an experienced estate planning attorney, I’ve seen firsthand the turmoil and heartache resulting from inadequate or nonexistent estate plans. This post aims to illuminate the crucial role of a skilled estate planning attorney in securing your future and the well-being of your loved ones.

Understanding Estate Planning

Estate planning is not merely drafting a will; it’s a comprehensive approach to managing your assets, health directives, and your legacy after you pass away or if you become incapacitated. Common misconceptions, such as the notion that estate planning is only for the wealthy or that it can be postponed until later in life, often deter people from taking the necessary steps. In reality, estate planning is a vital process for everyone, regardless of the size of their estate.

The Risks of DIY Estate Planning

In the era of do-it-yourself solutions, it’s tempting to cut corners and opt for online templates for estate planning. However, this approach is fraught with risks. Personalized advice is crucial since every individual’s situation is unique. DIY estate plans often fail to account for state-specific laws, complex family dynamics, or future changes in assets. Real-life cases abound where such oversights have led to legal battles, unintended disinheritance, or significant tax burdens for heirs.

The Value an Estate Planning Attorney Adds

A dedicated estate planning attorney brings a wealth of knowledge and experience. We don’t just draft documents; we craft a plan tailored to your specific needs, considering intricate legal frameworks and tax implications. Our expertise ensures your estate plan is robust, flexible, and up-to-date with current laws. Furthermore, we navigate the emotional and complex aspects of estate planning, offering peace of mind that your affairs are in competent hands.

What to Look for in an Estate Planning Attorney

When seeking an estate planning attorney, consider the following:

Experience and Expertise: Seek attorneys with significant experience in estate planning. They should have a strong track record in handling cases similar to yours.
Communication Skills: Your attorney should be someone you can talk to openly and who can explain complex legal concepts in understandable terms.
Reputation and Reviews: Research their reputation. Online reviews and referrals from friends or financial advisors can be valuable resources.

The Process of Working with an Estate Planning Attorney

Working with an estate planning attorney typically involves:

Initial Consultation: Discussing your goals, family dynamics, and financial situation.
Document Preparation: Drafting wills, trusts, powers of attorney, and other necessary documents.
Regular Updates: Estate plans should evolve with your life changes. Periodic reviews are essential.

This process is not a one-time event but an ongoing relationship to ensure your estate plan remains relevant and effective.

Financial and Emotional Benefits of Proper Estate Planning

A well-constructed estate plan offers significant benefits:

Financial Savings: Minimize taxes, avoid probate costs, and prevent legal disputes.
Peace of Mind: Knowing your loved ones will be cared for and your wishes will be honored.

These benefits extend beyond the financial; they offer a sense of security and clarity for you and your family.

Key Takeaways

Estate Planning is Essential for Everyone: It’s not just for the wealthy; everyone should have a plan to manage their assets and health directives.
DIY Comes with Risks: Online templates and DIY solutions are often insufficient and may lead to legal complications.
Professional Guidance is Key: An experienced estate planning attorney can provide tailored advice and ensure your plan is legally sound and up-to-date.
Choose the Right Attorney: Look for experience in estate planning, strong communication skills, and positive client reviews.
Ongoing Process: Estate planning is not a one-time task. It should be reviewed and updated regularly to reflect life changes.

Frequently Asked Questions

Why can’t I just use an online template for my will?

Online templates are generic and may not adequately address your specific needs or comply with state-specific laws. An estate planning attorney can provide a customized plan considering your unique situation and legal requirements.

At what age should I start thinking about estate planning?

It’s wise to start estate planning when you have any significant assets or responsibilities, such as owning a home, having children, or starting a business. It’s never too early to start planning for the future.

How often should I update my estate plan?

You should review and possibly update your estate plan every 3-5 years or sooner if you experience significant life changes like marriage, divorce, the birth of a child, or substantial changes in your financial situation.

What happens if I don’t have an estate plan?

Without an estate plan, the distribution of your assets will be determined by state laws, which may not align with your wishes. This can lead to family disputes, unnecessary taxes, and legal complications.

Is estate planning only about distributing my assets?

No, it’s more than that. Estate planning also includes making arrangements for your healthcare decisions if you become incapacitated, designating guardians for minor children, and potentially reducing taxes and other expenses.

What Questions Should You Ask an Estate Planning Attorney?

To protect assets and health during life and facilitate a smooth transition of assets to loved ones after your death, an estate plan needs to address many different issues. This includes the laws of asset distribution in your state of residence, potential transfer taxes and costs and strategies required to expedite and simplify succession issues. A recent article from mondaq, “Four Questions To Ask Your Estate Planning Attorney,” explains key points to cover with your estate planning attorney.

How do assets pass after death? Some assets pass through the will, but not all. It depends upon where you live, where your assets are situated, what kind of assets they are and how they are titled. State law governs how assets are conveyed after death, so consulting with an estate planning attorney in your estate is critical to creating a successful plan.

If you live in a community property state, your property will pass to the surviving spouse, who is deemed to own one-half of the community property. In these states, one cannot leave more than half of their property through a will, as you only own half.

There may be rules in your area restricting asset transfers. Some states have forced heirship rules, which require a certain percentage of assets to be distributed to a spouse or children, while others have “elective share” rights for surviving spouses. This allows the spouse to elect to take a sizable portion of their deceased spouse’s assets.

What legal documents make up an estate plan? There are two categories of estate planning documents: those used during your lifetime and those used after you die. During your lifetime, you’ll need a healthcare proxy to permit another person to make medical decisions for you. A Power of Attorney allows an agent to make financial and legal decisions on your behalf. Without these documents, your family may need to apply to the court for guardianship, which is an arduous process.

Everyone needs a will and/or trust to transfer assets after death. Lacking a legally enforceable document directing the disposition of assets, they will pass according to the laws of your jurisdiction, which may not follow your wishes. Using a trust to distribute assets combined with a “pour over will” is another approach to minimize court involvement. A pour-over will provides direction for any assets not already in a living trust to be placed into the trust when you die, thus removing assets from your probate estate and allowing them to be distributed according to the terms of the will.

What tax planning needs to be done? Federal, state, inheritance and income taxes vary by state and are subject to change. Consult with an estate planning attorney about what the tax rules are for you and how to accomplish goals in a tax-minded manner. For instance, right now (for 2024), the federal exemption for estate and gift taxes is $13.610 million per person, but this will be cut in half on January 1, 2026, so it may be wise for you to make gifts now. Some states have their own estate taxes, and a few have inheritance taxes, which apply to heirs regardless of where they live.

Have there been any recent changes to the law impacting my estate plan? Changes occur frequently on federal and state levels, making regular updates to estate plans critical to their effectiveness. Your estate plan may not reflect recent tax changes if it is over three to five years old. In addition to tax laws, other laws may significantly impact an estate plan. Regular meetings to review your estate plan with an experienced estate planning attorney could also prevent your will from being declared invalid by the court, when your estate will be treated as if there was no will and the state’s laws will determine how your assets are distributed.

Reference: mondaq (Dec. 18, 2023) “Four Questions To Ask Your Estate Planning Attorney”

Make a New Year’s Resolution to Do Your Estate Planning in 2024

Creating or reviewing an estate plan is something that many people know they should do but often put off. It’s natural to say things like: “I’ll take care of it later,” or “I don’t have enough money to have an estate plan.” However, life and circumstances happen that may be out of your control. Every adult needs to have an estate plan, regardless of how large or small their estate is. The new year is a great time to make a resolution to create or review your estate plan, explains ElderLawAnswers in a recent article, “New Year’s Resolution: Get That Estate Plan Donee.” No one knows what the future holds, yet legally documenting your wishes ensures that your plan decides what happens to you, your loved ones and your assets. Start off 2024 right by working with an estate planning law firm to secure your present and future.

How Do You Create an Estate Plan?

Estate planning provides many benefits to individuals and their families. One of these is relieving stress and uncertainty during a difficult time by providing a clear guide for what you want to happen in the event of your incapacity or death.

Estate planning starts with working with an estate lawyer who guides an individual or family in making a last will and testament and critical documents, including a Power of Attorney, trusts and medical directives based on individual goals and circumstances. Creating an estate plan allows a family to protect investments and other assets during disability or illness and ensure the distribution of property after death. At the same time, an estate plan can help ensure that taxes and probate are minimized or avoided.

What Is a Last Will and Testament?

A last will is a legal document addressing property, assets, debts and investments and their distribution after the owner’s death. The executor is the individual who helps settle the estate with creditors and heirs. If there is no will, your state’s laws will determine how the estate will be distributed. A will is also used to name a guardian for minor children if both parents pass away. Therefore, every young family should have a will. Without a will naming a guardian, the court will make decisions about the children’s guardian, possibly appointing a person the parents might not have chosen.

What Information Do I Need for My Estate Plan?

Proof of Identity

Your executor will need information, including a valid birth certificate, Social Security card, marriage or divorce certificates, a prenuptial agreement, or military service discharge papers.

Digital Asset Information

With so much of our lives lived online, everyone needs a digital vault, an integrated password manager, or some system for managing digital assets. Without this, your traditional and digital assets are vulnerable to identity theft and fraud.

Property Deeds and Titles

You have titles for cars, homes, or real estate property. They must be gathered and kept in a safe place, and then one or two highly trusted individuals must be told where these documents are located.

Debts

Debts do not disappear when you die. Your executor will need to know what debts exist because they must address them. Compile a list of your debts, including mortgages, auto loans, credit cards, personal loans and student loans. Add contact information for the lender, account number, login information and approximate amount of the debt. If you have credit cards you rarely use, include those so they can be closed out before identity theft occurs.

Assets with Named Beneficiary Designations

Retirement accounts and life insurance policies that have named beneficiary designations can be transferred directly to beneficiaries. However, this does not happen automatically. Your executor will need to provide beneficiaries with the information for the assets, including the name of the insurance company or financial institution, the location of policies, account numbers and the value of the assets. The beneficiary may need to provide a death certificate and identification information before releasing the assets.

Financial Information

Create a detailed list of financial information, including bank accounts, car insurance, credit cards, health, home, and life insurance, pension plans, retirement plans and tax returns.

Funeral Wishes

If you want to save your family a lot of stress during a difficult time, outline what you want to happen. Do you want a cremation or embalming and burial? Should it be a full-on faith-based memorial service, or a few poems read at the graveside? Ensure that your wishes are communicated and shared with loved ones, so everyone knows what you want.

What If I Already have an Estate Plan?

Your estate plan is not a static legal document. As your life changes, so might your wishes regarding how your assets are distributed after your death. It’s common for relationships, financial circumstances and family dynamics to change over time. Each significant shift in your life may warrant a review and possible estate plan update. The start of a new year is a great time to review your existing estate plan and your current financial situation to ensure that you are meeting goals and communicating future expectations to your intended heirs.

Meet with an Estate Planning Attorney

Make an appointment with an estate planning attorney to put this information in the appropriate legal documents. They may have recommendations for options that you may not know about.

Protecting Your Assets from Nursing Home Costs

Elder law attorneys see firsthand the financial strain that nursing home expenses can place on families. With the rising costs of long-term care and the complexities of becoming eligible for Medicaid benefits, it’s crucial to understand how to protect your nest egg. This article sheds light on the financial strain many Americans face regarding elder care costs. Using planning methods to preserve your hard-earned assets while ensuring quality care for yourself or your loved ones by working with an experienced elder law attorney is crucial. Start the discussion early with your spouse or family about ways to protect your assets to cover nursing home or in-home care, if and when needed.

The Financial Challenges of Long-Term Care in America

The growing number of seniors requiring long-term care presents a significant challenge in the United States. This demographic shift, primarily due to the aging Baby Boom generation, has profound implications for families and the healthcare system. From 1960 to 2021, the number of Americans aged 85 and older increased more than six times the rate of the general population, cites a recent article from the New York Times, “Facing Financial Ruin as Costs Soar for Elder Care,” that highlights the significant long-term care issues, especially for middle-class Americans. A Health and Retirement Study found that individuals with greater long-term care needs were much more likely to exhaust their savings than those who did not have long-term care costs.

Why Do American Seniors Face Such High Costs of Care?

The United States allocates a smaller portion of its GDP to long-term care than other wealthy nations. This underinvestment is evident in the insufficient financial support for elder care, leading to significant out-of-pocket expenses for families. The healthcare system also faces staffing shortages, both for in-home care and long-term care facilities, further complicating access to necessary services.

Federal Programs are Not Equipped to Help Protect the Elderly in Long Term Care

Despite the demographic changes in the United States, including longer life spans that increase the number of seniors who need care, federal long-term care policies have remained largely unchanged since the inception of Medicare and Medicaid in 1965. This stagnation in policy reform fails to address the evolving needs of an aging population, leaving many families to shoulder the burden of care. Recent studies have shown that very few people learn how to protect assets by developing a plan for paying for elder care when needed.

How Do Many People Pay for Nursing Home Costs?

Because Medicare does not pay for long-term care costs, Medicaid is reserved for low-income people. The program has difficult eligibility requirements; private pay when a loved one needs nursing home care is often the only choice for many people. Individuals will deplete their savings or personal assets to pay for nursing home care until they qualify for Medicaid benefits.

A Personal Story of Financial Ruin to Pay for Elder Care

The story of Gay Glenn and her mother, Betty Mae Glenn, poignantly illustrates the harsh financial realities many American families face when dealing with long-term care for elderly relatives. The cost of Betty Mae’s care in a nursing home in Kansas was staggering, exceeding $10,000 per month. To afford this, Betty Mae had to deplete her savings entirely. This process of spending down personal assets to qualify for Medicaid is a common yet financially devastating reality and a mistake that many Americans make to afford long-term care.

At age 61, Betty Mae’s daughter, Gay Glenn, relocated from Chicago to Topeka and moved into one of her mother’s rental properties to oversee her mother’s care and finances. Under the complex and often perplexing rules of the state Medicaid program, Gay had to pay rent to her mother. This rent then contributed to the funds used for Betty Mae’s nursing home care. The financial intricacies didn’t end there. After Betty Mae’s passing, Gay faced the additional burden of selling the family home. From the sale, approximately $20,000 had to be paid back to Medicaid, as per her lawyer’s advice. This repayment reflects the Medicaid estate recovery process, where states recoup costs for care provided.

Why Planning Now for Asset Protection Is Crucial

Over the last two decades, the median annual cost of all types of long-term care has risen at a rate surpassing inflation. This increase places a substantial financial strain on individuals and families, making long-term care unaffordable for many. Asset protection is not just about preserving wealth; it’s about ensuring that you or your loved ones receive the necessary care without depleting all your resources.

How Does Estate Planning Protect Assets from Elder Care Costs?

Although many people think they are not wealthy enough for estate planning, the truth is that everyone needs to have an estate plan. Seniors often do not plan because they anticipate that they can stay home and that their spouse and children will manage their care. Yet the financial strain of providing in-home care can be just as burdensome as when the senior goes into a nursing home.

Various types of trusts and a well-crafted estate plan can include provisions for long-term care and play a pivotal role in asset protection and/or Medicaid eligibility. Estate planning protects seniors’ savings rather than spending all their wealth until they are practically impoverished.

How Do You Qualify for Medicaid without Losing Everything?

Applying for Medicaid without making common mistakes like gifting property to spend down countable assets is complex. However, an experienced elder law or estate planning attorney can use strategies like an asset protection trust to shield your hard-earned wealth from nursing home care costs, while enabling you to qualify for Medicaid.

How Can an Elder Law Attorney Help

Elder law attorneys specialize in Medicaid planning and asset protection. They have experience guiding seniors to apply for Medicaid while shielding assets. Since every family’s situation is unique, working with a knowledgeable professional who can provide strategies tailored to different family dynamics and financial situations is essential. The key is to talk with family members early about how long-term care costs will be managed in the future so that if a loved one enters a nursing home, the family does not face financial burdens. However, even if a senior family member is already receiving long-term care, working with a professional is essential now to protect the individual’s remaining life savings.

Conclusion: Protecting Your Assets is Possible

Early planning is critical as it’s pivotal to be aware of:

the rising costs of nursing home care and the importance of asset protection.
the role of trusts and estate planning in protecting the family’s wealth.
working with an elder law attorney to apply for Medicaid and avoid common mistakes.
the importance of early planning and using available tools and resources.

Protecting your assets from nursing home costs is not only possible but essential. With the proper planning and legal strategies, you can ensure that your or your loved one’s care needs are met without sacrificing your financial security.

Digital Assets in Estate Planning

In the contemporary world, digital assets have evolved to become an essential component of our lives. From emails and photos to online financial portfolios, these assets play a vital role and are of significant value. However, what happens to these assets when we are no longer around? Integrating digital assets in your estate planning is a step towards ensuring that these assets are managed and passed on according to one’s wishes.

What is a Digital Asset?

A digital asset is any content owned by an individual in digital form. This can include everything from email accounts and online accounts to social media accounts and even digital photos. With the shift towards digitalization, the significance and value of these assets, be they monetary or sentimental, have grown.

Why is it Important to Include Digital Assets in Your Estate Plan?

It’s crucial to understand that much of our lives are now online. These digital assets carry both monetary value and sentimental value. By integrating digital assets in your estate plan, you ensure that these assets are not lost, misused, or left unattended upon your demise. It also provides clarity to the executor and beneficiaries about how to handle these assets.

What Types of Digital Assets Should Be Included?

When considering types of digital assets, the list can be extensive. It includes email and social media accounts, online financial portfolios, online content and assets stored in the cloud. Some assets, like online financial accounts, may have clear monetary value, while others, like digital photos or emails, might carry sentimental value.

How to Create Your Digital Estate Plan?

Creating your digital estate plan involves a series of steps. Start with making a list, appropriately named the list of digital assets. This should detail every digital property you own. Subsequently, use a password manager like 1Password to keep track of usernames and passwords. Finally, appoint a digital executor, someone you trust, to manage your online assets after you pass.

What Challenges Might Arise?

Even with a comprehensive digital estate plan, challenges can arise. Some service providers may not easily grant access to the data, even with a death certificate. There might also be legal complications, as laws governing fiduciary access to digital assets are still evolving. Seeking legal advice can help navigate these waters.

Designating Access: Executor or Beneficiary?

When planning for digital assets, it’s essential to designate someone to manage them. While an executor is an obvious choice, there are instances where you might want a beneficiary to have direct access. This choice often depends on the nature of the asset and your personal wishes.

Legal Implications and Rights

The Uniform Fiduciary Access to Digital Assets Act is a legal framework addressing the executor’s access to digital assets. However, nuances exist. Some assets, especially those you’ve licensed but don’t own, may not be transferable. Understanding the legal landscape and seeking professional guidance is crucial.

What About Security and Unauthorized Access?

Security is paramount as much as you want your executor or beneficiaries to access your online accounts and passwords. Unauthorized access to computer systems is illegal. Therefore, ensuring that your executor has the proper legal authority is crucial. Using tools like password managers and keeping a master password in a secure but accessible location can be beneficial.

The Future of Digital Assets in Estate Planning

With ever-increasing digitalization, digital assets will play an even more significant role in estate planning. With potential changes in the law and the evolving nature of digital platforms, staying updated is essential. Regularly revisiting and updating your estate plan can help protect your digital legacy.

Key Takeaways:

Digital assets encompass everything from emails and photos to online portfolios.
Integrating these assets into your estate plan ensures that they are managed per your wishes.
A comprehensive list and password manager can help organize and grant access.
Legal challenges can arise; seeking professional advice is essential.
Keeping security at the forefront is crucial to prevent unauthorized access.
The landscape of digital assets in estate planning is evolving; staying updated is vital.

In conclusion, as the digital world continues to expand, integrating digital assets into your estate planning is not just recommended but essential. By doing so, you not only protect your assets but ensure a smooth transition for your loved ones.

Strategies to Build and Preserve Generational Wealth

Generational wealth is a topic of immense importance. It represents the financial legacy one generation leaves for the next, enabling families to build a stable foundation for their descendants. However, preserving this wealth for future generations requires careful planning and management. This article delves into the intricacies of preserving generational wealth and the strategies wealthy families employ to ensure that their assets last for generations.

What Is Generational Wealth?

Generational wealth refers to assets passed down from one generation to the next. This can include property, money, stocks, businesses and other valuable resources. Many wealthy families aim to grow their wealth over time, ensuring that their future generations benefit from their hard work and financial acumen.

How Do Families Build Generational Wealth?

Building generational wealth isn’t just about accumulating assets. It’s a process that requires a strategic financial plan, sound investment decisions and a commitment to wealth preservation. Diversifying investments is critical in building generational wealth and ensuring security and potential growth across multiple sectors.

Why Do Many Families Lose Their Wealth?

Surprisingly, a vast majority of wealthy families lose their wealth by the second generation. A lack of financial literacy, poor investment choices and mismanagement can erode family wealth over time. Proper planning and education among family members can mitigate these risks.

How Can You Preserve Generational Wealth?

Preserving generational wealth involves a multi-pronged approach:

Estate Planning: Crafting a comprehensive estate plan ensures that assets are distributed according to your wishes. This often involves setting up a trust, which offers more control over the distribution and use of assets, while also offering potential tax benefits.
Investment Strategies: Diversifying investments can protect generational wealth from market fluctuations. This can include a mix of stocks and bonds, real estate and alternative investments.
Insurance: A life insurance policy can provide a financial safety net, ensuring that beneficiaries have the necessary resources, even if the primary breadwinner dies.

Why Is a Trust Essential for Wealth Preservation?

A trust is a legal entity that holds and manages assets for the benefit of certain individuals or entities. For wealthy families, trusts are often a cornerstone of their wealth management strategy. A trust can protect assets from creditors, ensure that they’re used according to the grantor’s wishes and provide tax benefits.

What Role Does Investment Play in Protecting Wealth?

Investment plays a pivotal role in preserving and growing generational wealth. With the right investment strategies, families can grow their wealth through multiple generations, ensuring that assets don’t just remain static but appreciate over time. Seeking advice from a registered investment advisor can offer tailored recommendations to maximize returns and minimize risks.

How Can Financial Planning Secure Your Family’s Future?

A holistic financial plan can guide a family’s spending, saving and investing decisions. It offers a roadmap to achieve financial goals, ensuring that assets are preserved and grow. Moreover, financial planning promotes financial literacy, equipping the next generation with the knowledge to manage and build upon their inherited wealth.

Is Education Crucial in Wealth Preservation?

Absolutely. Financial literacy and an understanding of how to manage and invest wealth are paramount. Wealthy families often prioritize educating their heirs about finances, investments and the responsibilities that come with great wealth. This ensures that future generations can make informed decisions and avoid pitfalls that can erode their inheritance.

How Can One Prepare for Unforeseen Challenges?

Life is unpredictable. Economic downturns, personal tragedies, or changes in estate taxes can pose challenges. It’s vital to have contingencies, like a robust estate plan, insurance coverage and diversified investments, to navigate these challenges without compromising generational wealth.

Summary:

Generational Wealth is the legacy passed from one generation to the next.
Building this wealth requires a strategic financial plan and diversified investment.
Trusts play a pivotal role in a family’s wealth management and preservation.
Financial literacy and education are vital to ensure that future generations can manage and grow their wealth.
Proper preparation and planning can help families navigate unforeseen challenges and ensure that their wealth lasts for generations.

Estate Planning and Tax Planning for Business Owners

Business owners who want long-term financial success must navigate an intricate web of taxes, estate planning and asset protection. Pre- and post-transactional tax strategies, combined with estate planning, can safeguard assets, optimize tax positions and help strategically pass wealth along to future generations or charitable organizations, as reported in a recent article from Forbes, “Strategic Tax and Estate Planning For Business Owners.”

Pre-transactional tax planning includes reviewing the business entity structure to align it with tax objectives. For example, converting to a Limited Liability Company (LLC) may be a better structure if it is currently a solo proprietorship.

Implementing qualified retirement plans, like 401(k)s and defined benefit plans, gives tax advantages for owners and is attractive to employees. Contributions are typically tax-deductible, offering immediate tax savings.

There are federal, state, and local tax credits and incentives to reduce tax liability, all requiring careful research to be sure they are legitimate tax planning strategies. Overly aggressive practices can lead to audits, penalties, and reputational damage.

After a transaction, shielding assets becomes even more critical. Establishing a limited liability entity, like a Family Limited Partnership (FLP), may be helpful to protect assets.

Remember to keep personal and business assets separate to avoid putting asset protection efforts at risk. Review and update asset protection strategies when there are changes in your personal or business life or new laws that may provide new opportunities.

Developing a succession plan is critical to ensure that the transition of a family business from one to the next. Be honest about family dynamics and individual capabilities. Start early and work with an experienced estate planning attorney to align the succession and tax plan with your overall estate plan.

Philanthropy positively impacts, establishes, or builds on an existing legacy and creates tax advantages. Donating appreciated assets, using charitable trusts, or creating a private foundation can all achieve personal goals while attaining tax benefits.

Estate taxes can erode the value of wealth when transferring it to the next generation. Gifting, trusts, or life insurance are all means of minimizing estate taxes and preserving wealth. Your estate planning attorney will know about estate tax exemption limits and changes coming soon. They will advise you about gifting assets during your lifetime, using annual gift exclusions, and determine if lifetime gifts should be used to generate estate tax benefits.

Reference: Forbes (Sep. 28, 2023) “Strategic Tax and Estate Planning For Business Owners”

Why You Need to Include Digital Assets in Your Estate Plan

A new form of wealth, with different ownership, storage, and transferability terms, has created a new challenge for estate planning from traditional forms of wealth. These are digital assets, electronic records in which an individual has a right or interest, as explained in a recent article, “Planning for Digital Assets 101,” from Wealth Management.

Digital assets can be divided into two groups: sentimental digital assets and investment digital assets.

Sentimental digital assets are those with an emotional tie, like photos, videos, social media accounts, etc. For these assets, the goal is to provide access to loved ones after a person’s death. Some platforms allow settings to name a legacy contact. A list of accounts, usernames and passwords will be helpful for family members.

The IRS defines investment digital assets as “any digital representation of value which is recorded on a cryptographically secured distributed ledger, like a blockchain, or any similar technology as specified by the Secretary.” This type of asset includes cryptocurrency, stablecoins and non-fungible tokens.

The challenge of digital investment assets in estate planning centers on how they are owned and stored.

Digital assets are stored in digital wallets, web-based or hardware-based. “Hot wallets” are web-based and run on smartphones or computers. Many investors use them for small amounts of cryptocurrency and frequent trading. “Cold wallets” are hardware-based wallets stored on devices not connected to the internet, reducing the risk of unauthorized access. A cold wallet can only communicate with an internet-connected device when plugged in. An investor will have a seed phrase or backup code to access the cold wallet, which the owner must store in a secure place.

Understanding the storage system is essential for estate planning for two main reasons:

Beneficiary Access. The recipient of a gift or bequest of the digital asset must have access to the relevant storage device to access the actual investment. Sharing this information comes with an element of risk, as access is inherently tied to value.

Fiduciary Access. If only the owner has access, heirs will have no way to gain access to the digital assets when the owner dies. Digital exchanges don’t allow users to name a contact to access the investment information upon death. Most exchanges don’t have centralized entities to record information. If access is denied to the heir, the investment could be lost.

Transferring digital assets requires providing access to beneficiaries and/or fiduciaries. There are several ways to structure such a transfer while minimizing the risk of theft or loss.

Digital assets can be transferred to a Limited Liability Company, and subject to certain limitations, retain control of the digital assets’ management by serving as LLC manager. Transferred LLC interests can also provide a mechanism to discount the value of the transferred interest. In addition, LLCs can provide asset protection since, in most states, LLCs protect a member’s personal assets from an LLC’s liabilities.

A directed trust is another way to transfer digital assets, while maintaining control and decision-making with the owner. In some states, a directed trust can have an “investment trustee” or “investment trust director” to exclusively handle investment responsibilities, including managing and storing digital assets.

Even using these two methods, someone other than the original owner must be granted access to the digital assets. One way to do this is by naming a “digital fiduciary”—someone tasked with managing the digital assets.

Estate plans involving digital assets must clearly outline heirs for the digital investment and its tangible storage devices. The assets can pass with the residuary, and complexities can arise if the residuary beneficiaries differ from tangible property beneficiaries who will receive the storage device. Speak with an experienced estate planning attorney to be sure that your digital assets are included in your estate plan.

Reference: Wealth Management (Sep. 19, 2023) “Planning for Digital Assets 101”

Now Is the Time for Estate Planning

Individuals in their twenties are usually focused on their careers, acquiring assets and enjoying life—death is one of the last things on their minds, according to a recent article from The National Law Review, “Don’t Wait until Time Is Up.” However, unexpected things happen, even to healthy young people.

Estate planning documents, including Power of Attorney, Healthcare Proxy and Living Will, should be prepared because they go into effect as soon as they are executed, allowing others to carry out legal, financial and health wishes in case of incapacity.

Thirty-somethings may have reached various milestones, such as marriage, having children, owning property, starting a business, or working in the family business. This is also a time when life-changing events occur, such as divorce, death in the family, inheritance, moving to another state and more. Estate planning documents should be in place now, including a will and ancillary documents. This may also be the time to establish trusts to accomplish estate planning goals.

If you are getting married, already married, divorced, or remarried, it’s time to call your estate planning attorney. Estate planning is often negotiated as part of prenuptial, postnuptial and separation agreements. Upon getting married or remarried, your estate plan must be updated to include your new spouse and/or remove your ex-spouse. A new spouse may have elective rights to a portion of their spouse’s estate if they remain married at death and the deceased spouse has failed to provide for their surviving spouse.

One of the most important provisions of a will is the designation of a guardian of minor children. The guardian will take legal custody and responsibility for minor children if both natural parents die while the child is under legal age. Any new parent must execute a will or update their will to designate a guardian. Within the will, you may also request guidelines for guardians to file while raising minor children. The court must find and appoint a guardian if there is no will or the will does not designate a guardian.

If you die without a will, the state laws of intestacy control, which means your spouse and nearest heirs will inherit your estate. If this is not your intention and you want to leave assets to friends, charities, or other relatives, then you need a will.

An estate plan is also needed to streamline the probate and administrative process of the estate. An estate plan can be designed to effectively minimize the expense, delay, and loss of privacy of the probate process. This is typically done by establishing a Living Revocable Trust in addition to the will. The trust can be funded during your lifetime and controlled by you before death. Assets don’t pass through the will, avoiding the need for probate.

One of the first steps of probate is filing the will with the appropriate court when the will becomes part of the public record, and anyone can access it. Probate varies from state to state, and courts experiencing back-ups can delay admitting the will and appointing an executor to manage and distribute the assets. This process can take up to a year in some New York Surrogate courts.

Having an estate plan in place and updating it regularly can help protect assets and beneficiaries. If you haven’t already implemented it, now is the best time to begin.

Reference: The National Law Review (Sep. 12, 2023) “Don’t Wait until Time Is Up”

What Happens to Digital Assets on Death?

You’ve probably thought about who will inherit your home, your great-grandmother’s jewelry collection and your collection of superhero comics. However,what about your digital assets, asks a recent article from Coast Reporter, “Make sure your estate plan considers your digital assets.”

Digital assets may have significant value. Digital assets include cryptocurrency, non-fungible tokens (NFTs), domain names, digital photos, digital rights to literary content, musical compositions, blog content, online video channels where your content is generating revenue, online gaming, digital online betting accounts, PayPal accounts or even prepaid subscriptions to online content or goods and services.

If your estate plan hasn’t adequately accounted for these assets, your heirs may be unable to access them. Do you and your executor even know what digital assets you own?

Having a list of your digital assets is a start. However, this doesn’t mean your executor can access the assets after your death. Photos and videos stored online may be inaccessible, social media accounts may stay online forever and heirs might not receive money or other assets you intended them to have.

The first hurdle is knowing the passwords for your accounts. Some can be accessed by cybersecurity professionals, like breaking into your phone or a laptop. However, others, like cryptocurrency keys, could be lost forever. Unless you’ve given explicit authorization to someone to access your accounts, they could violate data privacy laws, a criminal offense in most states.

Here’s a game plan for your digital assets and estate plan:

Document digital assets. Know what you own and understand that there’s a difference between owning a digital asset and owning a non-transferable license to use the asset.

Back up your digital assets. Ensure that all online documents, data and assets are backed up to the cloud and store them on a local computer or external hard drive, so your family can access them with fewer obstacles.

Leave digital assets to your spouse. This will avoid the assets being taxed and give the surviving spouse time to plan for the tax liabilities upon their death with an experienced estate planning attorney.

Provide authorization in your will. Update your will so your executor can bypass, reset or recover passwords. If your digital assets are significant enough, talk with your estate planning attorney about having a separate will to deal with digital assets and name an executor knowledgeable about digital assets for the second will.

Check-in regularly. Digital assets are still new for most people, so speak with your estate planning attorney to be sure your wills and powers of attorney reflect any changes in the law or your digital assets.

Reference: Coast Reporter (June 21, 2023) “Make sure your estate plan considers your digital assets”

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