Estate Planning

Serving Southwest Florida

Helping clients plan for their family's future, by creating an efficient, thoughtful and comprehensive estate plan that preserves their legacy and gives them peace of mind.

Review Your Estate Plan

This post will touch on why it is important to review your estate plan. Transferring the management of assets if and when you are unable to manage them yourself because of disability or death is the basic reason for an estate plan. This goes for people with $100 or $100 million. Whether you know it or not, you already have an estate plan, because every state has laws addressing how assets are managed and who will inherit your assets, known as the Laws of Intestacy, if you do not have a will created. However, the estate plan created by your state’s laws might not be what you want, explains the article “Auditing Your Estate Plan” appearing in Forbes.

To take more control over your estate, you’ll want to have an estate planning attorney create an estate plan drafted to achieve your goals. To do so, you’ll need to start by defining your estate planning objectives. What are you trying to accomplish?

  • Provide for a surviving spouse or family
  • Save on income taxes now
  • Save on estate and gift taxes later
  • Provide for children later
  • Bequeath assets to a charity
  • Provide for retirement income, and/or
  • Protect assets and beneficiaries from creditors.

You should review your estate plan, especially if you haven’t done so in more than three years. It will show whether any of your goals have changed. You’ll need to review wills, trusts, powers of attorney, designations of healthcare surrogate, beneficiary designation forms, insurance policies and joint accounts.

Preparing for incapacity is just as important as distributing assets. Who should manage your medical, financial and legal affairs? Designating someone, or more than one person, to act on your behalf, and making your wishes clear and enforceable with estate planning documents, will give you and your loved ones security. You are ready, and they will be ready to help you, if something unexpected occurs.

There are a few more steps, if your estate plan needs to be revised:

  • Make the plan, based on your goals,
  • Engage the people, including an estate planning attorney, to execute the plan,
  • Have a will updated and executed, along with other necessary documents,
  • Re-title assets as needed and complete any changes to beneficiary designations, and
  • Review your estate plan every few years and more frequently if there are large changes to tax laws or your life circumstances.

Let us help you review your estate plan.  Call us at (941) 473-2828.

Reference: Forbes (Sep. 23, 2020) “Auditing Your Estate Plan”

 

Funding a Trust with Life Insurance

How would funding a trust with life insurance work, and could it be a good option for you? A recent article in Forbes “How to Fund a Trust With Life Insurance” explains how this works. Let’s start with the basics: a trust is a legal entity where one party, the trustee, holds legal title to the assets owned by the trust, which is managed for the good of the beneficiary. There can be more than one person who benefits from the trust (beneficiaries) and there can be a co-trustee, but we’ll keep this simple.

Trusts are often funded with a life insurance policy. The proceeds of the policy provide the beneficiary with assets that are used after the death of the insured. This is especially important when the beneficiaries are minor children and the life insurance has been purchased by their parents. Funding a trust with the insurance policy offers more control over how funds are used.

What kind of a trust should you consider? All trusts are either revocable or irrevocable. There are pros and cons to both. Irrevocable trusts are better for tax purposes, as they are not included as part of your estate. However, with an $11.58 million federal exemption in 2020, most people don’t have to worry about federal estate taxes. With a revocable trust, you can make changes to the trust throughout your life, while with an irrevocable trust, only a trustee can make changes.

Note that, in addition to federal taxes, most states have estate taxes of their own, and a few have inheritance taxes. When working with an estate planning attorney, they’ll help you navigate the tax aspect as well as the distribution of assets.

Revocable trusts are the most commonly used trust in estate planning. Here’s why:

  • Revocable trusts avoid probate, which can be a costly and lengthy process. Assets left in the revocable trust pass directly to the heirs, far quicker than those left through the will.
  • Because they are revocable, the creator of the will can make changes to the trust as circumstances change. This flexibility and control make the revocable trust more attractive in estate planning.

If you are funding a trust with life insurance, be sure the policy permits you to name beneficiaries, and be certain to name beneficiaries. Missing this step is a common and critical mistake. The beneficiary designations must be crystal clear. If there are two cousins who have the same name, there will need to be a clear distinction made as to who is the beneficiary. If someone changes their name, that change must be reflected by the beneficiary designation.

There are many other types of trusts, including testamentary trusts and special needs trusts. Your estate planning attorney will know which trust is best for your situation. Make sure to fund the trust and update beneficiary designations, so the trust will achieve your goals.

Let us help you with funding a trust.

Reference: Forbes (Sep. 17, 2020) “How to Fund a Trust With Life Insurance”

Suggested Key Terms: Estate Planning Attorney, Power of Attorney, Will, Trust, Life Insurance, Trustee, Beneficiary, Testamentary, Special Needs, Revocable, Irrevocable

Gift Planning In Estate Planning

The time period available to take advantage of the high transfer tax exemption gift planning has driven many to make or give more serious thought to making large gifts, while exemptions are certain. However, not everyone is ready or able to give away large amounts of wealth, in case they may be needed in the future. For those who are concerned about needing these assets, there are some strategies that can build flexibility into gift planning, reports the article “Five Ways to Build Flexibility Into Your Gift Planning” from Financial Advisor Magazine.

Spousal Lifetime Access Trust, or SLAT, is one option for married couplies. This is a type of irrevocable trust that includes the grantor’s spouse as one of the beneficiaries. The couple can enjoy the gift tax exemption, because the trust is funded while one spouse is living, but they can also have access to the trust’s assets because the grantor’s spouse may receive both income and principal distributions. A few things to keep in mind when discussing this with your estate planning attorney:

  • If both spouses want to create a SLAT, be careful not to make the trusts identical to one another. If they are created at the same time, funded with the same amount of assets and contain the same terms, it is possible they will not withstand scrutiny.
  • The term “spouse” has some flexibility. The spouse could be the current spouse, the current spouse and a future spouse, or a future spouse for someone who is not yet married.

Special Power of Appointment is a power granted to a person to direct trust assets to a specified person or class of people (other than the power holder, the estate of the power holder or the creditors of either one). This gift planning strategy allows the holder to direct distributions to one or more people, change the beneficiaries of the trust and/or change the terms of the trust, as long as the changes are consistent with the power of appointment. Note the following:

  • The permissible appointees of a power of appointment can be broad or narrow, and the grantor may even be a permissible appointee for outright distributions.
  • If the grantor is a permissible appointee, special care must be taken when naming the power holder(s) to avoid any challenge that the trust was always intended for the grantor. The trust may need to have multiple power holders, or a third party, to agree to any distributions.

A Trust Protector is a person who has powers over the trust but is not a trustee. This is an increasingly popular option, as the trust protector has the ability to address issues and solve problems that were not anticipated when the trust was created. The Trust Protector may often remove or replace trustees, make changes to beneficiaries, divide the trust, change administrative provisions, or change trust situs.

A Disclaimer is a gift planning tool used when a gift recipient renounces part or all of a gift transferred to them. When a gift is made to a trust, the trust instrument is used to specify how the assets are to pass, in the event of a disclaimer. If the grantor makes a gift to the trust but is then concerned that the gift is unnecessary or the grantor might need the assets back, the trust can provide that the assets revert to the grantor in the event of the disclaimer.

Planning with Promissory Notes is another way to include flexibility in the timing, implementation and amount of gift planning. An asset is sold by the grantor to a grantor trust in exchange for a promissory note. There are no income tax consequences, as the sale is to a grantor trust. If the sale is for full market value, there is no gift. The grantor gets to decide when, and if, to make a gift with the promissory note.

Speak with your estate planning attorney to determine which, if any, of these strategies is the right fit for you and your family. While it is impossible to know exactly when and how the federal exemptions will change, there are many different tools that can be used while waiting for any changes.

Reference: Financial Advisor Magazine (Sep. 10, 2020) “Five Ways to Build Flexibility Into Your Gift Planning”

 

Pablo Picasso’s Estate Planning Disaster

Pablo Picasso’s probate was a perfect example of an estate planning disaster.  Picasso left behind 1,885 paintings, 1,228 sculptures, 7,089 drawings, as well as tens of thousands of prints, thousands of ceramic works and 150 sketchbooks when he passed away in 1973. He owned five homes and a large portfolio of stocks and bonds. “The Master” fathered four children with three women. He was also thought to have had $4.5 million in cash and $1.3 million in gold in his possession when he died. Once again, Picasso did not leave a will. Distributing his assets took six years of contentious negotiations between his children and other heirs, such as his wives, mistresses, legitimate children and his illegitimate ones.

Celebrity Net Worth’s recent article entitled “When Pablo Picasso Died He Left Behind Billions Of Dollars Worth Of Art … Yet He Left No Will” explains that Picasso was creating art up until his death. Unlike most artists who die broke, he had been famous in his lifetime. However, when he died without a will, people came out of the woodwork to claim a piece of his valuable estate. Only one of Picasso’s four children was born to a woman who was his wife. One of his mistresses had been living with him for decades. She had a direct and well-documented influence on his work. However, Picasso had no children with her. Talk about an estate planning disaster.

A court-appointed auditor who evaluated Picasso’s assets after his death said that he was worth between $100-$250 million (about $530 million to $1.3 billion today, after adjusting for inflation). In addition to his art, his heirs were fighting over the rights to license his image rights. The six-year court battle cost $30 million in legal fees to settle. But it didn’t settle for long, as the heirs began fighting over the rights to Picasso’s name and image. In 1989, his son Claude sold the name and the image of Picasso’s signature to French carmaker Peugeot-Citroen for $20 million. They wanted to release a sedan called the “Citroen Xsara Picasso.” However, one of Picasso’s grandchildren tried to halt the sale because she disagreed with the commission paid to the agent who brokered the deal—but oddly enough, the consulting company was owned by her cousin, another Picasso.

Claude created the Picasso Administration in Paris in the mid-90s. This entity manages the heirs’ jointly owned property, controls the rights to exhibitions and reproductions of the master’s works, and authorizes merchandising licenses for his work, name and image. The administration also investigates forgeries, illegal use of the Picasso name and stolen works of art. In the 47 years since his death, Picasso has been the most reproduced, most exhibited, most stolen and most faked artist of all time.

Pablo Picasso’s heirs are all very well off as a result of his art despite his estate planning disaster. His youngest daughter, Paloma Picasso, is the richest, with $600 million. She’s had a successful career as a jewelry designer.  She also enjoys her share of her father’s estate.

Let us help you prevent an estate planning disaster.

Reference: Celebrity Net Worth (Sep, 13, 2020) “When Pablo Picasso Died He Left Behind Billions Of Dollars Worth Of Art … Yet He Left No Will”

Suggested Key Terms: Estate Planning Lawyer, Wills, Intestacy, Probate Court, Inheritance, Asset Protection, Will Changes, Will Contest, Power of Attorney

Do You Make These Estate Planning Mistakes

To avoid common estate planning mistakes, estate planning should be a business-like process, where people evaluate the assets they have accumulated over time and make clear decisions about how to leave their assets and legacy to those they love. The reality, as described in the article “5 Unfortunate Estate Planning Myths You Probably Believe,” from Kiplinger, is not so straightforward. Emotions take over, as does a feeling that time is running short, which is sometimes the case.

Reactive decisions rarely work as well in the short and long term as decisions made based on strategies that are set in place over time. Here are some of the most common estate planning mistakes that people make, when creating an estate plan or revising one in response to life’s inevitable changes.

Estate plans are all about tax planning. Strategies to minimize taxes are part of estate planning, but they should not be the primary focus. Since the federal exemption is $11.58 million for 2020, and fewer than 3% of all taxpayers need to worry about paying a federal estate tax, there are other considerations to prioritize. If there is a family business, for example, what will happen to the business, especially if the children have no interest in keeping it? In this case, succession or exit planning needs to be a bigger part of the estate plan.

The children should get everything. This is a frequent response, but not always right. You may want to leave your descendants most of your estate, but ask yourself, could your lifetime’s work be put to use in another way? You don’t need to rush to an automatic answer. Give consideration to what you’d like your legacy to be. It may not only be enriching your children and grandchildren’s lives.

My children are very different, but it’s only fair that I leave equal amounts to all of them. Treating your children equally in your estate plan is a lot like treating them exactly the same way throughout their lives. One child may be self-motivated and need no academic help, while another needs tutoring just to maintain average grades. Another may be ready to step into your shoes at the family business, with great management and finance skills, but her sister wants nothing to do with the business. The same family includes offspring with different dreams, hopes, skills and abilities. Leaving everyone an equal share doesn’t always work and is a common estate planning mistake.

Having a trust takes care of everything. Well, not exactly.  Estate planning mistakes can even be made with trusts.  In fact, if you neglect to fund a trust, your family may have a mess to deal with. A sizable estate may need revocable or irrevocable trusts, but an estate plan is more complicated than trust or no trust. First, when an asset is placed into an irrevocable trust, the grantor loses control of the asset and the trustee is in control. The trustee has a fiduciary duty to the beneficiaries, not the grantor of the trust. The beneficiaries include the current and future beneficiaries, so the trustee may have to answer to more than one generation of beneficiaries. Problems can arise when one family member has been named a trustee and their siblings are beneficiaries. Creating that dynamic among family members can create a legacy of distrust and jealousy.

My estate advisors are all working well with each other and looking out for me. In a perfect world, this would be true, but it doesn’t always happen. You have to take a proactive stance, contacting everyone and making sure they understand that you want them to cooperate and act as a team. With clear direction from you, your professional advisors will be able to achieve your goals as well as avoid estate planning mistakes.

Let us help you avoid estate planning mistakes.

Reference: Kiplinger (Sep. 17, 2020) “5 Unfortunate Estate Planning Myths You Probably Believe”

 

What’s Involved in the Probate Process

SWAAY’s recent article entitled “What is the Probate Process in Florida?” says that while every state has its own laws, the probate process can be fairly similar. Here are the basic steps in the probate process:

The family consults with an experienced probate attorney. Those mentioned in the decedent’s will should meet with a probate lawyer. During the meeting, all relevant documentation like the list of debts, life insurance policies, financial statements, real estate title deeds, and the will should be available.   The lawyer will prepare and file petitions and documents and explain the probate process.

Filing the petition. The probate process would be in initiated by the personal representative (executor in other states) named in the will. He or she is in charge of distributing the estate’s assets. If there’s no will, you can ask an estate planning attorney to petition a court to appoint a personal representative. When the court approves the estate representative, the Letters of Administration are issued as evidence of legal authority to act as the personal representative. The personal representative will pay state taxes, funeral costs, and creditor claims on behalf of the decedent. He or she will also notice creditors and beneficiaries, coordinate the asset distribution and then close the probate estate.

Noticing beneficiaries and creditors. The personal representative must notify all beneficiaries of trust estates, the surviving spouse and all parties that have the rights of inheritance. Creditors of the deceased will also want to be paid and will have three months to make a claim on the estate.

Obtaining the letters of administration (letters testamentary) obtained from the probate court. After the personal representative obtains the letter, he or she will open the estate account at a bank. Statements and assets that were in the deceased name will be liquidated and sold, if there’s a need. Proceeds obtained from the sale of property are kept in the estate account and are later distributed.

Settling all expenses, taxes, and estate debts. By law, the decedent’s debts must typically be settled prior to any distributions to the heirs. The personal representative will also prepare a final income tax return for the estate. Note that life insurance policies and retirement savings are distributed to heirs despite the debts owed if they transfer by beneficiary designation outside of the will and the probate process.

Conducting an inventory of the estate. The executor will have conducted a final account of the remaining estate. This accounting will include the fees paid to the personal representative and attorney, probate expenses, cost of assets and the charges incurred when settling debts.

Distributing the assets. After the creditor claims have been settled, the personal representative will ask the court to transfer all assets to successors in compliance with state law or the provisions of the will. The court will issue an order to move the assets. If there’s no will, the state intestate succession laws will decide who is entitled to receive a share of the property.

Finalizing the probate process. The last step in the probate process is for the personal representative to formally close the estate. The includes payment to creditors and distribution of assets, preparing a final distribution document and a closing affidavit that states that the assets were adequately distributed to all heirs.  Learn more about the probate process by contacting our office.

Reference: SWAAY (Aug. 24, 2020) “What is the Probate Process in Florida?”

 

Cashing In Your Life Insurance Policy

Investopedia’s recent article entitled “Cashing in Your Life Insurance Policy” explains that there are some drawbacks to cashing in your life insurance to meet your immediate cash needs—one of which is potentially compromising your long-term goals or your family’s financial future. However, if other options aren’t available, life insurance—especially cash-value life insurance—can be a good source of needed income.

Cash-value life insurance, like whole life and universal life, builds reserves in its excess premiums plus earnings. The deposits are held in a cash-accumulation account within the policy. These cash-value life insurance policies offer the chance to access cash savings within the policy through withdrawals, policy loans, or partial or full surrender of the policy. Another option is to sell your policy for cash, which is called a life settlement.

While cashing in your life insurance policy might be useful during stressful financial times, you could face unwanted consequences, depending on the way you use to access the funds. You can generally withdraw limited amounts of cash from a life insurance policy. The amount you can take differs, based on the type of policy you have and the carrier. The big advantage of cash-value withdrawals is they’re not taxable up to your policy basis, provided your policy isn’t classified as a modified endowment contract (MEC). That’s a term given to a life insurance policy, where the funding exceeds federal tax law limits.

You should also note that cash-value withdrawals can have some unexpected or unrealized consequences. For one, the withdrawals that decrease your cash value could reduce your death benefit, which is a potential source of funds you or your family might need for income replacement, business purposes, or wealth preservation.

Cash-value withdrawals aren’t always tax-free, like when you take a withdrawal during the first 15 years of the policy, and the withdrawal causes a reduction in the policy’s death benefit. If so, some or all of the withdrawn cash could be subject to taxation. The withdrawals that reduce your cash surrender value could also make your premiums go up to maintain the same death benefit. Otherwise, your policy could lapse.

If your policy has been classified as a modified endowment contract, the withdrawals generally are taxed pursuant to the rules applicable to annuities. The cash disbursements are considered to be made from interest first and are subject to income tax and possibly a 10% early-withdrawal penalty, if you’re under the age of age 59½, when you take out the funds.

Most cash-value policies let you borrow money from the issuer, using your cash-accumulation account as collateral. The amount you can borrow depends on the value of the policy’s cash-accumulation account and the contract’s terms. The borrowed amounts from non- modified endowment contract policies are not taxable, and you don’t have to make payments on the loan, even though the outstanding loan balance might be accruing interest. However, loan balances typically decrease your policy’s death benefit. Therefore, your beneficiaries might receive less than you intended. An unpaid loan accruing interest also reduces your cash value. This can cause the policy to lapse, if insufficient premiums are paid to maintain the death benefit. If the loan is still outstanding when the policy lapses or if you later surrender the insurance, the borrowed amount becomes taxable to the extent the cash value (without reduction for the outstanding loan balance) exceeds your basis in the contract.

Policy loans from a policy that’s seen as a MEC are treated as distributions. As a result, the amount of the loan up to the earnings in the policy will be taxable and could also be subject to the pre-59½ early-withdrawal penalty. Note that withdrawing money or borrowing money from your policy can reduce your policy’s death benefit. Surrendering the policy also means that you’re giving up the right to the death benefit altogether.

When you surrender or cancel your policy, you can use the cash any way you want. However, if you surrender the policy during the early years of ownership, there will probably be surrender fees that will drop the cash value. The gain on the surrendered policy is also taxed. If you have an outstanding loan balance against the policy, additional taxes could be incurred.

Look at other options before cashing in your life insurance policy, like borrowing against your 401(k) plan or taking out a home equity loan. Each has its drawbacks, but based on your current financial circumstances, some choices are better than others.

As the policy owner, if you sell your life insurance policy to an individual or a life settlement company in exchange for cash, the new owner will keep the policy in force (and pay the premiums). They’ll also get a return on the investment, by receiving the death benefit when you die. The big advantage to a life settlement is that you may receive more for the policy than by cashing it in (surrendering the policy). While life settlements can be a valuable source of liquidity, remember these issues:

  • You relinquish control of the death benefit
  • The new policy owner(s) has access to your past medical records and usually the right to request updates on your health; and
  • The life settlement industry is very marginally regulated, so it’s hard to determine your policy’s value, which makes it tough to know if you’re getting a fair price for your policy.

Up to 30% of your proceeds may also go to commissions and fees, which reduces the net amount you receive.

Reference: Investopedia (Aug. 11, 2019) “Cashing in Your Life Insurance Policy”

Suggested Key Terms: Elder Law Attorney, Life Insurance Settlement

Settling Estate Disputes

When parents pass away without their clear intentions stated in a will or trust, their assets are often divided between their children. With no document to answer any legal questions that may arise, siblings can fight over the assets. Some even take the matter to court. It would be great to avoid these battles because, in many cases, a fight over an estate between the siblings can end their good relationship and enrich attorneys, instead of family members.  Settling estate disputes can preserve family unity and save money.

The Legal Reader’s recent article entitled “Tips to Help Siblings Avoid or Resolve an Estate Battle” says that the following tips can help siblings in settling estate disputes or assist them in preventing the fight entirely, when there are no instructions for the distribution of certain assets.

Use a Family Auction. With a family auction, siblings use agreed upon “tokens” to bid for the estate items they want.

Get an Appraisal. The division of an estate between the siblings can get complicated and end in a fight, if the siblings want different pieces of the estate and have to work out the value difference. If, for example, the siblings decide to split the estate unevenly, and one gets a car and another a house, it’s worthwhile to engage the services of an appraiser to calculate the value of these assets. That way, those pieces of smaller value can be deducted from ones of higher value for fairer distribution.

Mediation. If siblings historically don’t get along, they may battle over every trinket left as an inheritance, no matter how immaterial. In that case, you should use a mediator to help divide the estate fairly without a court battle.

Take Turns! Sometimes, if there are several siblings involved in the division of assets, they can take turns in claiming the items within the estate. All siblings naturally have to agree to the idea with no hard feelings involved. Just like Mom would have wanted!

Asset Liquidation. If everything else fails, the easiest way to divide the assets and the estate between the siblings is to go through asset liquidation and split the proceeds.

As you can see, there are a number of ways to deal with the division of the estate and assets, settling estate disputes and  preventing the legal battle between the siblings. To avoid hard feelings, stay calm, be reasonable and ask your siblings to act the same way.

Reference: The Legal Reader (Aug. 24, 2020) “Tips to Help Siblings Avoid or Resolve an Estate Battle”

Suggested Key Terms: Estate Planning Lawyer, Wills, Inheritance, Distribution of Estate Assets

Can I Revoke a Durable Power of Attorney?

Sometimes we choose the wrong person to help us manage our assets.  In an example of why it is important to be aware of the ability to revoke a Durable Power of Attorney, we look to the story of Cindy.  Cindy’s stepsister Charlotte suggests that she be given power of attorney to help Cindy with her business matters. When Cindy agrees, Charlotte’s attorney creates a Durable Power of Attorney that names Charlotte as her agent. What happened next, according to the Glen Rose Reporter in the article “Guarding against the evil stepsister,” was a nightmare.

A few weeks later, Cindy’s brother Prince found that Charlotte had moved money from Cindy’s personal bank accounts into a completely different bank, setting up joint accounts in Cindy and Charlotte’s names and granting Charlotte right of survivorship (ROS). This made Charlotte the legal owner of the account at the time of Cindy’s passing. Charlotte had also contacted Cindy’s former employer and was attempting to wrest control of Cindy’s pension. It wasn’t clear whether she was attempting to obtain the entire amount in a lump sum, but she was attempting to gain control.

Cindy realized that Charlotte was not to be trusted. However, Charlotte had the power of attorney, and all of these actions were legal. Could she revoke a Durable Power of Attorney that she had signed? The answer is yes, which is important to know.

There were two paths available to Cindy: she could immediately execute a revocation of the Durable Power of Attorney that had been used to give Charlotte authority, or have her attorney create a new power of attorney granting power of agency to another person. Either way, Charlotte would be stripped of the legal authority to act on Cindy’s behalf. Under Section 709.2110 of the Florida Statutes, a principal may revoke a power of attorney by expressing the revocation in a subsequently executed power of attorney or other writing signed by the principal. The principal may give notice of the revocation to an agent who has accepted authority under the revoked power of attorney.

Cindy had a new Durable Power of Attorney created, naming her brother Prince as her agent. The new Durable Power of Attorney had to immediately be presented to all of the financial institutions she deals with. She contacted her former employer and gave them proper notice that Charlotte no longer had authority to represent her. The new joint accounts that Charlotte had opened were then closed and individual accounts in her name only were open, which also ended the ROS. She could have returned her accounts back to the old bank or stayed with the new bank where Charlotte had opened new accounts. Cindy decided to stay with the new bank.

Cindy had to anticipate another challenge—that Charlotte might attempt to have Cindy declared incompetent and have herself named as Cindy’s legal guardian. To protect herself, Cindy’s estate planning attorney drew up documents stating that in the event Cindy ever needed someone to be her guardian, she did not want Charlotte to be named. In addition, she named the person she would want to be her guardian, if that is necessary in the future. While a judge ultimately has final discretion, the courts generally prefer naming a guardian as requested by an individual.

Your estate planning attorney can help you revoke a Durable Power of Attorney, if it becomes clear that the person you’ve named is not acting in your best interests. Having an estate plan in place in advance of any medical or mental challenges is always better, so that you are less vulnerable to anyone trying to take advantage of you during a difficult time.

Reference: Glen Rose Reporter (Sep. 10, 2020) “Guarding against the evil stepsister”

 

Letter of Instruction in Estate Planning

A letter of instruction, or LOI, is a good addition to the documents included in your estate plan. It’s commonly used to express advice, wishes and practical information to help the people who will be taking care of your affairs, if you become incapacitated or die. According to this recent article “Letter of instruction in elder law estate plan can help with managing important information” from the Times Herald-Record, there are many different ways a Letter of Instruction can help.

In our digital world, you might want to use your Letter of Instruction to record website names, usernames and passwords for social media accounts, online accounts and other digital assets. This helps loved ones who you want to have access to your online life.

If you have minor children who are beneficiaries, the Letter of Instruction is a good way to share your priorities to the trustee on your wishes for the funds left for their care. It is common to leave money in trust for “Health, Education, Maintenance and Support.” However, you may want to be more specific, both about how money is to be spent and to share your thoughts about the path you’d like their lives to take in your absence.

Art collectors or anyone who owns valuable items, like musical instruments, antiques or collectibles may use the Letter of Instruction as an inventory that will be greatly appreciated by your executor. By providing a carefully created list of the items and any details, you’ll increase the likelihood that the collections will be considered by a potential purchaser. This would also be a good place to include any resources about the collections that you know of, but your heirs may not, like appraisers.

Animal lovers can use a Letter of  Instruction to share personalities, likes, dislikes and behavioral quirks of beloved pets, so their new caregivers will be better prepared. In most states, a pet trust can be created to name a caregiver and a trustee for funds that are designated for the pet’s care. The caregiver and the trustee may be the same person, or they may be two different individuals.

For families who have a special needs member, a Letter of Instruction is a useful means of sharing important information about the person . It works in tandem with a Special Needs Trust, which is created to leave assets to a person who receives government benefits without putting means-tested benefits in jeopardy. If there is no Special Needs Trust and the person receives an inheritance, they could lose access to their benefits.

Some of the information in a Letter of Instruction includes information on the nature of the disability, daily routines, medications, fears, preferred activities and anything that would help a caregiver provide better care, if the primary caregiver dies.

The Letter of Instruction can also be used to provide basic information, like where important documents are kept, who should be notified in case of death or incapacity, which bills should be paid, what home maintenance tasks need to be taken care of and who provides the services, etc. It is a useful document to help those you leave behind to adjust to their new responsibilities and care for loved ones.  It is not a legal document, per se, and may not be enforceable, but a Letter of Instruction is a valuable method to express your preferences.

Reference: Times Herald-Record (Sep. 8, 2020) “Letter of instruction in elder law estate plan can help with managing important information”