Patinelli & Chang, LLP

Living Together Isn’t as Simple as You Think

“For couples over 50, living together has a lot of appeal and is on the rise. In fact, the number of unmarried couples who are 50+ shot up 75% between 2007 and 2016, according to the U.S. Census Bureau.”

One reason for the popularity of living together without marriage, is that many in this generation have experienced one or more difficult divorces, so they’re not always willing to remarry, says Next Avenue in the article “The Legal Dangers of Living Together.” However, like many aspects of estate planning, what seems like a simple solution can become quite complex. Unmarried couples can face a variety of problematic and emotionally challenging issues, because estate planning laws are written to favor married couples.

Consider what happens when an unmarried couple does not plan for the possibility of one partner losing the ability to manage his or her health care because of a serious health issue.

If a spouse is rushed to the hospital unconscious and there is no health care power of attorney giving the other spouse the right to make medical decisions on his or her behalf, a husband or wife will likely be permitted to make them anyway.

However, an unmarried couple will not have any right to make medical decisions on behalf of their partner. The hospital is not likely to bend the rules, because if a blood relative of the person challenged the medical facility’s decision, they are wide open to liability issues.

Money is also a problem in the absence of marriage. If one partner becomes incapacitated and estate planning has not been done, without both partners having power of attorney, an illness could upend their life together. If one partner became incapacitated, bank accounts will be frozen, and the well partner will have no right to access any assets. A court action might be required, but what if a family member objects?

Without appropriate advance planning, courts are generally forced to rely on blood kin to take both financial and medical decision-making roles. An unmarried partner would have no rights. If the home was owned by the ill partner, the unmarried partner may find themselves having to find new housing. If the well partner depended upon the ill partner for their support, then they will have also lost their financial security.

Unmarried couples need to execute key estate planning documents, while both are healthy and competent. These documents include a durable power of attorney, a medical power of attorney and a living will, which applies to end of life decisions. A living trust could be used to avoid the problem of finances for the well partner.

Another document needed for unmarried couples: a HIPAA release. HIPAA is a federal health privacy law that prevents medical facilities and health care professionals from sharing a patient’s medical information with anyone not designated on the person’s HIPAA release form. Unmarried couples should ask an estate planning attorney for these forms to be sure they are the most current.

If one of the partners dies, and if there is no will, the estate is known as intestate. Assets are distributed according to the laws of the state, and there is no legal recognition of an unmarried partner. They won’t be legally entitled to inherit any of the assets.

If a married partner dies without a will in a community property state, the surviving spouse is automatically entitled to inherit as much as half the value of the deceased assets.

Beneficiary designations usually control the distribution of assets including life insurance policies, retirement accounts and employer-sponsored group life insurance policies. If the partners have not named each other as beneficiary designations, then the surviving partner will be left with nothing.

The lesson for couples hoping to avoid any legal complications by not getting married, is that they may be creating far more problems than are solved as they age together. An experienced estate planning attorney will be able to make sure that all the correct planning is in place to protect both partners, even without the benefit of marriage.

Reference: Next Avenue (Aug. 28, 2019) “The Legal Dangers of Living Together.”

More Reasons to Review Your Estate Plan

“Talking about illness, death and taxes is not most people’s idea of a good time (except for us estate planners). That being said, there are times in life when it’s time to move updating your estate plan off the ‘to do’ list and on to the ‘done’ list. Here are those times:”

Every estate planning attorney will tell you that they meet with people every day, who sheepishly admit that they’ve been meaning to review their estate plan, but just haven’t gotten to it. Let the guilt go.

Attorneys know that no one wants to talk about death, taxes or illness, says Wicked Local in the article “Five Reasons to Review Your Estate Plan.” However, there are five times when even an appearance before the Queen of England has to come second to reviewing your estate plan.

You have minor children. An estate plan for a couple with young children must do two very important things: address the care and custody of minor children should both parents die and address the management and distribution of the assets that the children will inherit. The will is the estate planning document used to name a guardian for minor children. The guardian is the person who will determine where your children will live and go to school, what kind of health care they receive and make all daily decisions about their care and upbringing.

If you don’t have a will, the court will name a guardian. You may not like the court’s decision. Your children might not like it at all. Having a will takes care of this important decision.

Your estate is worth more than $1 million. While the federal estate plan exemptions currently are at levels that remove federal tax from most people’s estate planning concerns, there are still state estate taxes. Some states have inheritance taxes. Whether you are married or single, if your assets are significant, you need an estate plan that maps out how assets will be left to your heirs and to plan for taxes.

Your last estate plan was created before 2012. There have been numerous changes in state estate tax laws regarding wills, probate and trusts in Massachusetts. This is not the only state that has seen major changes. There have been big changes in federal estate taxes. Strategies that were perfect in the past, may no longer be necessary or as productive because of these changes. While you’re making these changes, don’t forget to deal with digital assets. That includes email accounts, social media, online banking, etc. This will protect your fiduciaries from breaking federal hacking laws that are meant to protect online accounts, even when the person has your username and password.

You have robust retirement plans. Your will and trust do not control all the assets you own at the time of death. The first and foremost controlling element in your asset distribution is the beneficiary designation. Life insurance policies, annuities, and retirement accounts will be paid to the beneficiary named on the account, regardless of what your will says. Part of a comprehensive will review is to review beneficiary designations on each account.

You are worried about long-term care costs. Estate planning does not take place in a vacuum. Your estate plan needs to address issues like your plan, if you or your spouse need care. Do you intend to stay in your home? Are you going to move to live closer to your children, or to a Continuing Care Retirement Community? Do you have long-term insurance in place? Do you want to plan for Medicaid eligibility?

All of these issues need to be considered when reviewing and updating your estate plan. If you’ve never had an estate plan created, this is the time. Put your mind at ease, by getting this off your “to do” list and contact an experienced estate planning attorney.

Reference: Wicked Local (Aug. 29, 2019) “Five Reasons to Review Your Estate Plan”

The Conversation with Your Doctor, Estate Planning Lawyer and Family Members

“The best way to ensure that they know and understand your wishes, is to take a copy of your advanced healthcare directive or living will with you to your next check up and talk to your physician about it, then ask them to keep the copy on file.”

Everyone needs to have an annual checkup, taking stock of their health with their primary physician and making sure that everyone is on the same page when it comes to instructions for health care and an advanced healthcare directive, also known as a living will. When people sign their last will and testament, everyone breathes a big sigh, says The Huntsville Item’s article “Make sure you talk to your doctor and family.” But that’s not the end of estate planning.

Your primary care provider needs to know what your wishes are, as well as your spouse and children. The best way to make sure they have this information, in addition to having a conversation, is to bring a copy of an advanced healthcare directive or living will with you to your next check up and talk with your doctor about it. Ask them to keep a copy on file.

It’s a good idea to give a copy of the Medical Power of Attorney and Medical Directive to Physicians and Family to each primary care physician, and a copy to the healthcare agents you have selected.  Don’t forget to keep a copy or two in your records to take with you, if you ever have to go to the hospital. The signed original should be kept with all of your estate planning documents—in a safe place in your home, possibly in a fireproof safe.

Make sure to tell a few family members where these documents are, in case of an emergency.

The hardest part of estate planning is not usually picking the right fiduciaries or deciding how to distribute assets among loved ones. The hardest part is almost always having these conversations with family and loved ones.

It can be so daunting that families often don’t have these important discussions. Here’s the problem: avoiding the conversation doesn’t mean the issues go away. More family infighting takes place after a death than any other time. Emotions are running high, old wounds are opened, and unresolved issues, especially between siblings, come pouring out. If the parent who has died has always been the one who made peace between everyone, that buffer is gone.

Having this discussion in a low-pressure, non-emergency time, is something that every parent should do for their children. Consider a family gathering where the underlying agenda is to get everyone comfortable with the concept of talking about what the future holds. It doesn’t have to be a formal meeting; a casual family get-together is more likely comfortable for everyone.

If the conversations are taking place in a casual manner over an extended period of time, a lot of ground can be covered with less tension and stress. Getting people used to the idea that you know that you are not going to live forever, and you want to be sure they are taken care of, may make it easier for everyone when the time does come.

In some families, these conversations begin when all are invited to attend a family meeting with the estate planning attorney to discuss wills, powers of attorney and medical power of attorney. Sometimes having this conversation with an experienced professional can take some of the sting out of planning for the future.

Reference: The Huntsville Item (June 30, 2019) “Make sure you talk to your doctor and family”

Estate Planning Basics Everyone Needs

“For many of us, the thought of our own death or incapacity is uncomfortable to consider. Fear of the unknown and uncertainty of things to come, can be frightening and difficult to think about.”

The discomfort most people have with the knowledge of their own mortality makes it challenging for some people to do the estate planning that needs to occur before an emergency occurs. However, according to the Gettysburg Times’ recent article “Essentials necessary for estate planning,” the best course of action is to do the planning now, when there is no urgency. Having detailed plans in place to protect loved ones from possible complications, costs and added stress in the future, is a gift you can give to those you love.

There are any number of legal documents and strategies used to accommodate the varied situations of life, including family dynamics and asset levels. An estate planning attorney licensed in your state will have the ability to create a plan and the documents that suit your personal situation. The three documents discussed in the following section are generally considered to be the most important for anyone to have.

Power of Attorney or POA—This document gives legal authority to another individual or entity named by the signer to perform certain acts on your behalf, when you cannot do so because of illness, injury or incapacity. There are many different types of POA, from a “full” POA with no limitations, to a “limited” POA that is created solely for a specific purpose. This document comes into action, when you are incapacitated and becomes void upon your death.

Living Will—This is a detailed health care directive that allows you to list your wishes regarding several medical procedures and life-sustaining treatments. These treatments include resuscitation, breathing assistance, feeding tubes and similar medical matters. You want to have this in place to spare your loved ones the emotional anguish of trying to decide what you would have wanted. They’ll know, because you specifically told them in this document.

Last Will and Testament—When prepared correctly, and that includes signed, witnessed, and notarized, a will is used by the “testator” (the person making the will) to provide the legal wishes regarding what should happen to their minor children (if any) and assets upon death.

What happens if you don’t have these documents? It is likely that your loved ones will need to go to court to have someone named as your executor, which is the person who is in charge of your estate. Depending upon the laws of your state, that person may be a family member, or it may end up being a family member who you haven’t spoken to in decades. It is far better to take the time to have a will created properly with an estate planning attorney, so your family is protected, and your wishes are fulfilled.

The best time to do this, is when there is no crisis. Estate plans also require regular monitoring and updating. Life circumstances change, estate and tax laws change, and new opportunities may present themselves. Speak with your estate planning attorney now and create your plan for the future.

Reference: Gettysburg Times (July 27, 2019) “Essentials necessary for estate planning”

More Reasons Why Everyone Should Have an Estate Plan

“The death of pop star Prince is an extreme example of what can happen when people die without a will. After he died in 2016, long-lost ‘relatives’ came out of the woodwork, claiming to be his wife, child, brother, sister or distant relative.”

Most people aren’t going to have a large number of strangers show up after they die who pretend to be relatives, says the article “Here’s why you don’t want to die without leaving a will” from Arizona Central. However, there are many other reasons to have a will. In Arizona, an estate creditor can step in and become your personal representative after death, if you haven’t designated someone to administer your estate and your family members don’t step up to be involved.

Are you still not convinced? Without a will, you have no say in who inherits your money and possessions, which will be distributed according to the laws of your state.

Here are some tips to help get your estate plan started:

Work with an estate planning attorney. Using an attorney provides accountability, ensures that your wishes are reflected in the estate plan and makes sure that your will is deemed valid by the court. All too often, online documents are found to be deficient, declared invalid and the family is left with the laws of the state.

Name an executor. Your will should include the name of an executor, who will be responsible for handling your financial affairs after you die. She will manage your assets, identify what bills need to be paid, file state and federal tax returns and keep records of anything done on behalf of your estate.

Keep your will in a safe location. Make sure your executor has a copy and knows where it is. Tell your family where it is.

Don’t forget a residuary clause. If you forget to include any assets, a residuary clause will name someone who will receive them.

Don’t forget other important documents. That means a power of attorney and an advance directive. The advance directive spells out what kind of medical treatment you would want, if you are unable to communicate. Power of attorney gives a person you name the authority to act on your behalf.

What if my family fights a lot? Your best bet will be to name a private fiduciary to act as your personal representative. That way, no one can be accused of playing favorites, and a family history of sibling rivalry won’t undermine your wishes.

Make an appointment with a local estate planning attorney, who knows the laws of your state and can work with you to create an estate plan designed for your specific family situation. Both you and your family will enjoy the peace of mind of knowing that you are prepared for the future.

Reference: Arizona Central (June 21, 2019) “Here’s why you don’t want to die without leaving a will”

Why We All Need to Have an Estate Plan

“If your family, especially your children, are still heavily dependent on you, you can still provide for them through proper estate planning, even if you are no longer present.”

Putting off estate planning is never a good idea. Life happens, and before you know it, “someday” arrives. Having an estate plan is advisable for everyone, says the South Florida Reporter in the article “Why Estate Planning is so Important.” It doesn’t matter if you are rich or poor—you need an estate plan. People with families who depend upon them, as well as singles who don’t, need an estate plan.

What exactly does estate planning mean? Estate planning is planning for the disposition of your assets, when you have died. It’s also done to protect you and your family, in the event you become incapacitated and cannot convey your wishes to others. It protects your family from complications, unnecessary costs and delays about distributing your estate.

Having an estate plan means that you have taken the time to plan out what you want to happen to your property and how you want to take care of your family when you are gone. For those who have young children, your last will and testament is the document used to name the person who will raise your children. It also lets you appoint a separate person (although it can be the same person) who will look after your finances, with regard to your children.

Without a will, a court will decide what should happen to your children and your property. The court must follow the laws of your state, which may not be what you had in mind. Let’s say you have a brother who lives far away and from whom you are estranged. If you don’t have a will and he is your legal next-of-kin, in some states he will inherit everything you own. It’s far better to have a will.

Estate planning also includes tax planning. Having an estate plan that is created by an experienced estate planning attorney with knowledge of tax planning will allow you to minimize your tax liability and make sure more of your assets are passed to the next generation, than are passed to the government.

Having an estate plans gives you the opportunity to take a long look at your life and your legacy. How do you want to be remembered? Do you want to leave behind part of your estate to a charity, a school or a healthcare facility that has been important to you or another family member? Planning for charitable giving is also part of an estate plan. Some people give because they are seeking tax benefits, but many are generous because they are creating a legacy.

Your estate plan can include a letter to your heirs explaining why you have made the decisions you have about your possessions and assets. This kind of letter is not a legally enforceable document. However, if there is a dispute about your will, it can be used to support your intentions.

Note that even the best estate plan needs to be updated every few years. Tax laws have changed with the new federal tax laws that were adopted in 2017. If your estate plan has not been reviewed by your estate planning attorney since 2017, it’s time for a review.

Reference: South Florida Reporter (June 12, 2019) “Why Estate Planning is so Important.”

Johnny Hallyday’s Estate Battle Pivots on Instagram Posts

“Johnny Hallyday, known as the French Elvis, built his six-decade show business career on old-fashioned rock ’n’ roll, but he also kept up with the times technologically.”

The French rocker started using Instagram in 2012 and shared a mix of his personal and professional life with fans. Instagram has now helped two of his children defeat his widow in the first stage of an estate battle for an estate that the French news media values at tens of millions of dollars, reports The New York Times in the article “French Rock Star’s Instagram Defeats His Widow in Inheritance Battle.”

When Mr. Hallyday died in 2017, two testaments were found in a safe deposit box. One, which was written in Los Angeles, appointed his wife Laeticia as sole heir and manager of his estate. The will completely excluded his grown children from two prior relationships, David Hallyday and Laura Smet. This is not permitted under French laws of inheritance.

The two children have been fighting to prove that their father lived most of his life in France, and not in the United States.

Laeticia, who was the singer’s fourth wife, told a court outside of Paris that Johnny had settled in Los Angeles in 2007, their daughters Jade and Joy went to school in Los Angeles and he had received a green card in 2014. Court documents also reflect her telling about his fascination for Elvis Presley and American culture.

However, his son David offered something that was a bit more concrete: a chart of where the couple spent their time from 2012 to 2017, based on Johnny’s Instagram posts.

The chart revealed that Johnny spent at least 151 days in France in 2015 and 168 days the year after. He then spent eight straight months in France, mostly because of his illness, before his death in 2017.

The court accepted the children’s argument, ruling that it, and not an American court, had the competence to make decisions on Johnny’s estate.

The battle over the inheritance includes the performer’s rights on more than 1,000 songs, as well as properties in France, California and on St. Bart’s in the Caribbean. The French public has been fascinated by his life and now, by the estate battle. An estimated 15 million people watched a tribute to him in Paris after his death, when he received a hero’s tribute.

This case is an example of how social media and the law intersect. As we live more and more of our lives online, social media posts are increasingly being used as evidence. The newness of the material is similar to what happened in the early 20th century, when the telephone was still relatively new and the admissibility of conversations on the telephone as evidence, was still being debated.

Reference: The New York Times (May 29, 2019) “French Rock Star’s Instagram Defeats His Widow in Inheritance Battle.”

A Checklist for Your Family

“If you are among the 30% of adult Americans who have prepared an estate plan, congratulations. By taking the steps needed to create a plan that is unique to your needs, you are ensuring that your goals for the future will be achieved and the people you wish to benefit will not be forgotten.”

Now, to the 70% of Americans who DO NOT have an estate plan, the article “Senior Spotlight: Composing the ‘family love letter’” from the Lockport Journal should help you understand why this is so important. One reason why people don’t take care of this simple task, is because they don’t fully understand why estate planning is needed. They think it’s only for the wealthy, or that it’s only for old people, or even that it’s only about death and taxes.

Consider this idea: an estate plan is about protecting yourself while you are alive, protecting your family when you have passed and leaving a legacy for the living.

Some of the main elements of an estate plan are to create and execute documents that provide for incapacity and death, as well as provide information about your assets, liabilities and wishes.

You’ve spent a lifetime accumulating assets. It is now time to sit down with family members and have a heart-to-heart talk about the details of the estate and what your intentions are with respect to its distribution. The subject of death can be challenging for all. However, discussing your estate plan is vital, if you want to protect your family from what might come after you are gone. Each family has its own goals, so it’s a good idea to talk about it frankly, while you still can.

Without discussions and an estate, the chances of a family split, assets not going where you had intended and unnecessarily higher costs in taxes and legal fees, are a very real possibility.

If speaking about these topics is too hard, you may want to write your family a love letter. It would contain all the information that your family would need at the time of your death or if you become incapacitated because of illness or injury.

Your estate plan should also include the documents needed, so your family can make decisions on your behalf, if you are incapacitated. That includes a power of attorney, a health care directive and may include others specific to your situation.

Ideally, all this information will be located in one convenient place. Don’t put it on a computer where you use a password. If the family cannot access your computer, all your hard work will be useless to them. Put it in a folder or a notebook, that is clearly labeled and tell family members where it is.

They’ll need this information:

• A list of your important contacts — your estate planning attorney, financial advisor, CPA, insurance broker and medical professionals.
• Credit card information, frequent flier miles.
• Insurance and benefits including all health, life, disability, long-term care, Medicare, property deeds, employment and any military benefits.
• Documents including your will, power of attorney, birth certificates, military papers, divorce decrees and citizenship papers.

Think of these materials and discussions as your opportunity to make a statement for the future generation. If you don’t have an estate plan in place already or if you have not reviewed your estate plan in more than a few years, it’s time to make an appointment for a review. Your life may have not changed, but tax laws have, and you’ll want to be sure your estate is not entangled in old strategies that no longer benefit your family.

Reference: Lockport Journal (Feb. 16, 2019) “Senior Spotlight: Composing the ‘family love letter’”

Market Volatility Has You Worried? Here’s Something You Can Control

“Today, we're going to cover an important topic regardless of market performance: putting an estate plan in place.”

When investors are faced with turbulent markets, there’s a human response to want to do something—sometimes, anything. We’re hardwired to try to take control. That doesn’t always help us make the best investment decisions. However, as reported in this Daily Camera’s article, there is something that you can do that may make you feel better: “Freaked out about the market? Resolve to get your estate in order.”

If you care about your health care, financial affairs, minor children and even your beloved pets, this is an important task to take care of. An estate plan includes legal documents that help you, when you are living and helps your heirs, when you die. In addition to a will, powers of attorney that will give your loved ones the ability to manage your affairs, if you become incapacitated. An updated will ensures that your assets go to the inheritors you chose. Don’t forget your beneficiaries.

Your beneficiaries are the people who are named on several accounts and life insurance policies. You may have named people on investment accounts, life insurance policies, IRAs, bank accounts, annuities and other assets. If you have not done a full review of those documents in a while, you want to take care of this right away. Life and relationships change over time, and the people you originally named as your beneficiaries, may no longer be the ones you would select today. Note that any changes must be made while you are living—when you are passed, the beneficiaries receive the asset, regardless of what is written in your will.

If you’re not sufficiently motivated to make an appointment with an estate planning attorney, you should be aware that if you don’t have a will, the laws of your state will determine who gets your assets and even, lacking a will that names a guardian, who rears your minor children. You may or may not be a fan of court proceedings, but if you don’t have a properly prepared will, the court is going to be making a lot of decisions on your behalf.

Contact an estate planning attorney to begin the process of putting your affairs in order. An attorney whose practice focuses in this area of the law, is most likely a better choice than one who does wills on the side. There are many complex laws in estate planning, and there are many opportunities available to make the most out of your assets and grow your legacy. An estate planning attorney will know what will work best for you and your family.

Reference: Daily Camera (Jan. 6, 2019) “Freaked out about the market? Resolve to get your estate in order”

No Estate Taxes? You Still Need an Estate Plan

“The Tax Cuts and Jobs Act of 2018 (TCJA) put in place a variety of changes to both individual and business tax structures.”

Increases in the estate tax exemption has an impact on how some people are thinking about life insurance, says ThinkAdvisor in the article “Estate Planning Is Still Important.” However, before making any changes, consider the larger picture and think long, not short, term.

Let’s start with why many people buy life insurance policies. As young parents, they buy life insurance so a surviving spouse and family will be able to continue to live in their home, pay the mortgage and send children to college. Another reason for life insurance is to cover the cost of estate taxes.

Remember the new higher estate tax exemption is federal. Your heirs may still have state estate taxes and inheritance taxes, depending upon where you live. Having an insurance policy will still help with the costs of settling an estate and paying any taxes that are due.

The new tax exemption also has a sunset date. The year 2026 may seem far away. However, it will arrive, while we are busy with our lives. It may be much harder and more expensive for an individual to purchase a life insurance policy in 2026 than it is right now.

If someone is very old or in ill health, they have a different window of time for planning. However, if you are in your middle years or relatively healthy, now is not the time to put off purchasing life insurance or to let an existing policy lapse.

We know that political landscapes change. If they do, and you want to buy a policy, there may be additional obstacles in the future.

Life insurance also serves as a tool for your estate. If your estate plan seeks to distribute an inheritance equally from assets in a traditional IRA, life insurance can become an equalizer. Let’s say one child is in a much higher tax bracket than the others. Upon receiving the IRA, they will have to pay more in taxes than the others. The child in the lower bracket will end up with a larger sum of money, having lower taxes on their inheritance. This could lead to sibling arguments, which are not uncommon when brothers and sisters become heirs. The insurance policy proceeds can be used to make up the difference.

Another point to consider is who owns the insurance policy? If it is owned by a trust, you may not have the legal right to make a change. If the trustee does not agree that the policy should be liquidated or cancelled, they may not allow the change to go forward.

Your estate planning attorney will be able to review your life insurance policies, when she reviews your overall estate plan. Each part of an estate plan works best, when all parts work in concert.

Reference: ThinkAdvisor (Jan. 11, 2019) “Estate Planning Is Still Important”