Month: March 2019

Can A Cell Phone Video Become a Will?

What if a grandmother made a statement, while in an intensive care unit, that she wanted everything she owned to go to a grandchild and a brother-in-law? What if that statement was captured on a cellphone as a video? The question was a real one, posed by a reader of My San Antonio in the article “Can a video be used as a Will?”

There are two reasons why a cellphone video is unlikely to be accepted as a will by any court. One is that the cellphone video does not follow the formality of how a will is created and executed. Another is the statue of frauds, which basically says that to be lawfully valid, certain promises must be in writing.

Not only does a will need to be in writing, it must show clear intent to dispose of assets after death. The writing must be dated and signed by the person who is making the promise (the testator). If the will is written by the testator in his or her handwriting, it is known as a “holographic” will. If the will is typed or in someone else’s handwriting other than the testator, which is known as a “formal will,” then it must also be signed by two independent witnesses and must be notarized. The person who is having the will created (again, the testator), must also have legal capacity for the will to be valid.

In some states, including Texas, there was a time when a spoken will, known an a “nuncupative will” could have been recognized. However, that is no longer the case and a verbal will is no longer valid. Even when a nuncupative will was accepted, it was only accepted for inexpensive personal effects, not large assets or real property.

Some states, including Florida and Nevada, now allow a person to make a will online or on their computer and never have it transferred to paper. These are called “digital” or “electronic” wills. In these cases, e-signatures are allowed to be used. Other states have considered bills allowing digital wills, but the bills did not pass. The Florida law allows the digital will to be e-signed, but it must be witnessed by two independent individuals and it must be e-notarized. It should be noted that the will process is not permitted to be used by a person, who is in an end-stage illness or who is legally considered a “vulnerable adult.”

In the state of Texas, the grandmother in the example above is considered to have died without a will, meaning that she died “intestate.” Texas law will determine how her assets are distributed, and that will depend on her relationships and her survivors. If she was married and all children are from that marriage, her assets go to her spouse. If she was married and had children from a prior marriage, her assets are split unevenly between those children and her spouse. If there is no spouse, assets go to her children. There is a tremendous burden placed on the heirs of those who die without a will, since it does take a long time to figure out who their heirs are.

If she had a properly executed legal will, all these issues would be moot. Anyone who owns a home needs to have a will, and this should have been something that was taken care of, long before she became ill.

If you don’t currently have a will, or you have a will needs revision, we invite you to request an estate planning consultation with one of our experienced, Madison area, estate planning attorneys.


Reference: My San Antonio (Feb. 18, 2019) “Can a video be used as a Will?”

Have You Accomplished This Critical Task?

Motley Fool’s article, “Nearly Half of Americans 55 and Over Are Making This Huge Financial Planning Mistake,” notes that almost 50% of Americans 55 and older don’t have an estate plan. If you’re missing a plan, it’s critical to make the time to get these important documents written, before something tragic happens and heirs are left in the lurch.

While creating an estate plan might be uncomfortable, delaying won’t keep you from having to contemplate your own mortality. Not creating an estate plan places your family in a tough spot, if something happens and there’s no plan.

Another reason that people put off writing an estate plan, is that they don’t want to make their children uncomfortable by getting them involved in the process. Adult children are also frequently hesitant to start a dialog about parents’ estate planning. Nonetheless, those discussions are important to have.

Wills, trusts and estate plans are not just for wealthy people. If you own anything, including a home, a car and any bank accounts, you need an estate plan.

If you don’t have an estate plan, you won’t have the opportunity to direct the way in which your property is distributed. Instead, the laws of probate will instruct how your investments and belongings are disbursed after your death.

Once you have the documents created, keep them in a safe place—no, not in a shoebox under your bed. Instead, buy a fireproof safe and store them there. In addition, give your children or loved ones access, so they’re able to locate your plan in the event that it’s required.

It’s common to get advice that you should store your estate plan in a safe deposit box at your bank. That works if your children or other trusted people in your life are permitted access to it. However, if you’re the only account holder on that safe deposit box, your family may need to go through some legal machinations to get into it. When you enlist the help of an estate planning attorney to create your estate planning documents, she should also be informed of where you have stored the original documents. That’s another great benefit to having an attorney create your plan, rather than going it alone.

Creating a plan can be unpleasant business, but it’s not something you should put off. Having the documents in place will give you peace of mind—you’ll know that your wishes will be executed as you desire. That’s reason enough to stop delaying and get going. If you’re interested in speaking with one of our experienced Madison area estate planning attorneys, we invite you to request a consultation.


Reference: Motley Fool (February 16, 2019) “Nearly Half of Americans 55 and Over Are Making This Huge Financial Planning Mistake”

Using Trusts to Maintain Control of Inheritances

Trusts, like estate plans, are not just for the wealthy. They are used to provide control, in how assets of any size are passed to another person. Leaving an inheritance to a beneficiary in a trust, according to the article from Times Herald-Record titled “Leaving inheritances to trusts puts you in control,” can protect the inheritance and the asset from being mishandled.

For many parents, the inheritance equation is simple. They leave their estate to their children “per stirpes,” which in Latin translates to “by roots.” In other words, the assets are left to children according to the roots of the family tree. The assets go to the children, but if they predecease you, the assets go to their children. The assets remain in the family. If the child dies after the parent, they leave the inheritance to their spouse.

An alternative is to create inheritance trusts for children. They may spend the money as they wish, but any remaining assets goes to their children (your grandchildren) and not to the surviving spouse of your child. The grandchildren won’t gain access to the money, until you so provide. However, someone older, a trustee, may spend the money on them for their health, education and general welfare. The inheritance trust also protects the assets from any divorces, lawsuits or creditors.

This is also a good way for parents, who are concerned about the impact of their wealth on their children, to maintain some degree of control. One strategy is a graduated payment plan. A certain amount of money is given to the child at certain ages, often 20% when they reach 35, half of the remainder at age 40 and the balance at age 45. Until distributions are made to the heirs, a trustee may use the money for the person’s benefit at the trustee’s discretion.

The main concern is that money not be wasted by spendthrift heirs. In that situation, a spendthrift trust restricts payments to or for the beneficiary and may only be used at the trustee’s discretion. A lavish lifestyle won’t be funded by the trust.

If money is being left to a disabled individual who receives government benefits, like Medicaid or Supplemental Security Income (SSI), you may need a Special Needs Trust. The trustee can pay for services or items for the beneficiary directly, without affecting government benefits. The beneficiary may not receive any money directly.

If an older person is a beneficiary, you also have the option to leave them an “income only trust.” They have no right to receive any of the trust’s principal. If the beneficiary requires nursing home care and must apply for Medicaid, the principal is protected from nursing home costs.

Our estate planning attorneys are able to review your family’s situation and determine which type of trust would be best for your family. If you want to make sure you maintain control of inheritances, we invite you to request an estate planning consultation.


Reference: Times Herald-Record (Feb. 16, 2019) “Leaving inheritances to trusts puts you in control”

How Do I Incorporate Charitable Giving into My Estate Plan?

One approach frequently employed to give to charity, is to donate at the time of your death. Including charitable giving into an estate plan, is a great way to support a favorite charity.

Baltimore Voice’s recent article, “Estate planning and charitable giving,” notes that there are several ways to incorporate charitable giving into an estate plan.

Dictate giving in your will. When looking into charitable giving and estate planning, many people may start to feel intimidated by estate taxes, thinking that their family members won’t get as much of their money as they hoped. However, including a charitable contribution in your estate plan will decrease estate tax liabilities, which will help to maximize the final value of the estate for your family. Talk to an experienced estate attorney to be certain that your donations are set out correctly in your will.

Donate your retirement account. Another way to leverage your estate plan is to designate the charity of your choice as the beneficiary of your retirement account. Note that charities are exempt from both income and estate taxes. In choosing this option, you guarantee that your favorite charity will receive 100% of the account’s value when it’s liquidated.

A charitable trust. Charitable trusts are another way to give back through estate planning. There is what is known as a split-interest trust that lets you donate assets to a charity but retain some of the benefits of holding the assets. A split-interest trust funds a trust in the charity’s name. The person who opens one receives a tax deduction when money is transferred into the trust. However, the donors still control the assets in the trust, and it’s passed onto the charity at the time of their death. There are several options for charitable trusts, so speak to a qualified estate planning attorney to help you choose the best one for you.

Charitable giving is a component of many estate plans. Talk to one of our estate planning attorneys about your options and select the one that’s most beneficial to you, your family and the charities you want to support.


Reference: Baltimore Voice (January 27, 2019) “Estate planning and charitable giving”
Medicaid crisis planning

Power of Attorney, Living Wills: Before a Crisis Strikes

The last thing you want to be doing at three in the morning when you are heading to the hospital to meet up with your frail mother-in-law is wondering if anyone has signed a health care directive.  However, all too often, this is how the scenario unfolds, says Expert Click in the article “How to Get Power of Attorney for Aging Parents.

A health care power of attorney permits another individual to make medical decisions when a person is unconscious or unable to make a medical decision.  This is also often the time the adult child is asked if there is a living will.

Both the living will, and the medical and financial power of attorney documents should be created and executed well in advance of the emergency trip to the hospital. However, unfortunately, this is not always the case.

Planning for unexpected medical situations, by having the power of attorney and living will in place in advance is better. Even young people need these documents since accidents happen.

The problem of having these documents for elderly people is that they are sometimes resistant to having them created. You may need to have more than one discussion before they agree to complete the forms. While you are working on getting these documents for your parents, have them prepared for yourself and for your adult children.

No one plans to become sick or to be in an accident. However, the reality is, even if we are lucky enough to avoid accidents or illness, we all age. By having these documents in place, we can be assured that when help is needed, decisions can be made by someone you choose.

The power of attorney and living will require more than just signing off on a piece of paper. They need to include the person’s understanding of what the documents mean, finding the right person to appoint and discussing the medical and financial desires of the person, so the power of attorney agent agrees to fulfill that person’s wishes and has no qualms about following their directions.

Sometimes the person named on these two important documents is not a family member, but a respected and trusted friend or even a professional. Family members are often overcome by emotion at the time of a medical crisis and are unable to make critical decisions. You know your family best: will they be able to act in a time of crisis? If not, you’ll want to name someone else in these documents.

These decisions should be done in conjunction with preparing a will, so the estate plan is in place. Our estate planning attorneys can take you and your family through the process and will be able to answer any questions you or your aging parent may have. If you or your parents do not have these important documents in place, we invite you to request a consultation with one of our experienced estate planning attorneys.


Reference: Expert Click (Feb. 12, 2019) “How to Get Power of Attorney for Aging Parents.

When Was the Last Time You Talked with Your Estate Planning Attorney?

If you haven’t had a talk with your estate planning attorney since before the TCJA act went into effect, now would be a good time to do so, says The Kansas City Star in the article “Talk to estate attorney about impacts of Tax Cuts and Jobs Act.” While most of the news about the act centered on the increased exemptions for estate taxes, there are a number of other changes that may have a direct impact on your taxes.

Start by looking at any wills or trusts that were created before the tax act went into effect. If any of the trusts use formulas that are tied to the federal estate tax exemption, there could be unintended consequences because of the higher exemption amounts.

The federal estate tax exemption doubled from $5.49 million per person in 2017 to $11.18 million per person in 2018 (or $22.36 million per couple). It is now $11.2 million per person in 2019 (or $22.4 million per couple).

Let’s say that your trust was created in 2001 when the estate tax exemption was a mere $675,000. Your trust may have stipulated that your children receive the amount of assets that could be passed free from federal estate tax, and the remainder, which exceeded the federal estate tax exemption, goes to your spouse. At the time, this was a perfectly good strategy. However, if it hasn’t been updated since then, your children will receive $11.4 million and your spouse could be disinherited.

Trusts drafted prior to 2011, when portability was introduced, require particular attention.

Two other important factors to consider are portability and step-up of cost basis. In the past, many couples relied on the use of bypass or credit shelter trusts that pay income to the surviving spouse and then eventually pass trust assets on to the children, upon the death of the surviving spouse. This scenario made sure to use the first deceased spouse’s estate exemption.

However, new legislation passed in 2011 allowed for portability of the deceased spouse’s unused estate exemption. The surviving spouse’s estate can now use any exemption that wasn’t used by the first spouse to die.

A step-up in basis was not changed by the TCJA law, but this has more significance now. When a person dies, their heir’s cost basis of many assets becomes the value of the asset on the date that the person died. Highly appreciated assets that avoided income taxes to the decedent, could avoid or minimize income taxes to the heirs. Maintaining the ability for assets to receive a step-up in basis is more important now, because of the size of the federal estate tax exemption.

Beneficiaries who inherit assets from a bypass or credit shelter trust upon the surviving spouse’s death, no longer benefit from a “second” step-up in basis. The basis of the inheritance is the original basis from the first spouse’s death. Therefore, bypass trusts are less useful than in the past, and could actually have negative income tax consequences for heirs.

If your current estate plan has not been amended for these or other changes, make an appointment soon to speak with one of our qualified estate planning attorneys. It may not take a huge overhaul of the entire estate plan, but these changes could have a negative impact on your family and their future.


Reference: The Kansas City Star (Feb. 7, 2019) “Talk to estate attorney about impacts of Tax Cuts and Jobs Act”

What Does the Tax Cuts and Jobs Act Mean for My Estate Plan?

If you haven’t reexamined your estate plan in light of the changes in the Tax Cuts and Jobs Act, do so now, says The Kansas City Star in its article “Talk to estate attorney about impacts of Tax Cuts and Jobs Act.”

A big change in the tax law is the doubling of the federal estate tax exemption from $5.49 million per person in 2017 to $11.18 million per person in 2018 (or $22.36 million per couple). In 2019, the federal estate tax exemption is $11.4 million per person (or $22.8 million per couple).

You should review any wills or trusts drafted prior to the passing of the 2017 legislation. If the trusts use formulas tied to the federal estate tax exemption, then there could be unintended ramifications because of the new larger exemption amount.

You should also look at trusts drafted prior to 2011, when portability was introduced. This legislation allows for “portability” of the deceased spouse’s unused estate exemption. Therefore, the surviving spouse’s estate can now use any exemption amount that wasn’t used by the first deceased spouse’s estate.

The Tax Cuts and Jobs Act didn’t change the step-up of basis. However, the unintended effects of this “non-event” are potentially more significant now. When the decedent dies, the heir’s cost basis of many assets becomes the value of the asset on the date of their death. Thus, highly appreciated assets that avoided income taxes to the decedent, could also avoid or minimize income taxes to the heirs.

Maintaining the ability for assets to receive a step-up in basis is a more important part of estate planning now, because of the larger federal estate tax exemption. However, note that beneficiaries who inherit assets from a bypass or credit shelter trust upon the surviving spouse’s death don’t benefit from a “second” step-up of basis. Instead, the basis of the heir’s inheritance would be the original basis on the first spouse’s death.

As a result, bypass trusts are much less useful than in the past and could have negative income tax impacts for the heirs. This is particularly true, if the assets appreciated significantly after the first spouse’s death or if there was a relatively long amount of time between spouses’ deaths. If your current trust establishes a bypass trust at your death, you might want to ask your estate attorney about restructuring how the bypass trust is funded for the larger federal estate tax exemption.

If you haven’t looked at your estate planning documents with an estate attorney recently, do it in 2019. We invite you to request an estate planning consultation with one of our experienced, Madison area, estate planning attorneys.


Reference: The Kansas City Star (February 7, 2019) “Talk to estate attorney about impacts of Tax Cuts and Jobs Act”

Can I Draft My Own Will?

A common question among people is “Can I write my own will?” or “Do I really need a lawyer to do my estate planning?”

The Frisky‘s recent article, “Why You Should Hire A Lawyer to Write Your Estate Plan,” says that writing your own estate plan can be a complicated thing—and one that a non-attorney may find very difficult.

It’s More Than a Will. Many people believe that a will and an estate plan are the same. This is not true. An estate plan is a legal strategy that prepares you for potential incapacity and eventual death. A will is a legal document that’s part of the estate plan.

Money, Time and Energy Savings. Creating your own estate plan will be more time-consuming than you may have thought. Hiring a lawyer to do this will cost you—but it will cost you more, if you decide to do it on your own. Hiring a lawyer for your estate plan will save you time, because he or she is trained in the law to do it the right way.

If you do finish your own estate plan and you realize that it really is a mess, you can hire a lawyer to do it over for you. However, calculate how much time, energy, and resources you’ve spent on making on your quick DIY estate plan. Work with our experienced estate planning attorneys and create a sound estate plan.

It’s Complicated. If you don’t fully understand what you’re doing, estate planning can drive you nuts. That’s because every word you write is crucial. Everything you write counts and may be interpreted differently. The law in this area also changes all the time. Agencies in the federal government, the IRS and the courts are always creating new regulations and decisions. Our estate planning attorneys monitor all of this, making sure your estate plan is in compliance and taking the best advantage of the current law.

Objectivity. Another thing our attorneys add to the mix—in addition to legal expertise—is objectivity. Our experienced estate planning attorneys will give you a clean, unbiased view of your current situation, along with a fair and honest assessment of your options.

Feel free to reach out to us to request an estate planning consultation. Our attorneys will take the time to listen to your goals and offer a strategy to create an estate plan that protects your legacy and cares for you and your loved ones.


Reference: The Frisky (February 6, 2019) “Why You Should Hire A Lawyer to Write Your Estate Plan”

Should I Put My Firearms in a “Gun Trust”?

If you’re a gun collector, while you likely have heard the term “gun trust,” you may not know what it is, how it works or how it can be of use in an estate plan.

Kiplinger’s recent article, “Own a Gun? Careful: You Might Need a Gun Trust,” explains that a gun trust is the common name for a revocable or irrevocable management trust, that’s created to take title to firearms.

Revocable trusts are used more often, because they can be changed during the lifetime of the grantor.

While it’s true that any legally owned weapon can be placed into a gun trust, these trusts are specifically used for weapons that are classified under the National Firearms Act (NFA) Title II of the Gun Control Act of 1968. These include Title II weapons, such as a fully automatic machine gun, a short-barreled shotgun and a suppressor (“silencer”).

What is an important reason why a gun trust may be a component of an estate plan? When the grantor owns Title II weapons, the transport and transfer of ownership of such heavily regulated firearms can easily be a felony, without the owner or heir even realizing he or she is breaking the law.

A gun trust provides for an orderly transfer of the weapon upon the death of the grantor to a family member or other heir. However, that transferee is required to submit to a background check and identification process, before taking possession of the firearm.

An NFA Title II weapon, like a suppressor, can only be used by the person to whom it’s registered. Therefore, allowing a friend or family member to fire a few rounds with a Title II weapon at the local range is a felony! A gun trust can be used to allow for the use of the Title II weapon by multiple parties. Each party who will have access to and use of the weapon, should be a co-trustee of the gun trust and must go through the same required background check and identification requirements.

An owner of a large collection of firearms may find it easier to transfer ownership of his or her weapons to a gun trust, even if the person doesn’t own any Title II weapons. There are several benefits to doing this, such as protecting your privacy, allowing for the disposition of your collection and addressing the possibility of incapacity. A gun trust can also ease the process for your heirs. You don’t want to run afoul of the complex laws regarding the use and ownership of firearms, especially Title II firearms. Leaving a large collection of Title I weapons—or even a single Title II weapon—in an estate to be dealt with by an executor or trustee, can be extremely troublesome. Fortunately, it’s avoidable with the use of a gun trust.

Speak to one of our estate planning attorneys who are experienced and understand the federal and state laws on the ownership and transfer requirements of all firearms.


Reference: Kiplinger (February 6, 2019) “Own a Gun? Careful: You Might Need a Gun Trust”

Think You’re Not in Favor of the Estate Tax? You’ll Be Surprised

There are many headlines right now about proposals to increase taxes on wealthy people.  While this sentiment crosses party lines, the majority of people have generally always been in favor of wealthy Americans paying more taxes. However, for some reason, the estate tax has always been looked at as a bad tax that is unfair, observes this article titled “People like the estate tax a whole lot more, when they learn how wealth is distributed” from The Washington Post.

The use of the phrase “death tax” hasn’t done much to enhance the federal estate taxes’ likability. It is the tax on a person’s estate and is paid when the person dies. Many people feel like it’s an unfair tax, levied during a time of a family’s grief. However, a research study from Sweden has revealed some interesting responses to how people feel, when questioned about wealth inheritance. Sweden abolished its estate tax in 2004.

The study gave participants information about wealth inheritance in three bullet points:

  • Inherited wealth represents about half of all wealth in the population.
  • Those with the highest incomes inherit the most.
  • A majority of Swedish billionaires have inherited their fortunes.

Others in the study were not given this information. The group who received this information were more likely to support the estate tax than those who did not. Of the people who did not receive these three facts, 25% supported the estate tax. Here’s the interesting thing: support among the group that did receive these facts stood at 33%, meaning the support for the tax was boosted by about 8 percentage points.

It boils down to this: people who do not know much about wealth distribution are likely to think an estate tax is not a good thing. The larger implication is that once people have a greater understanding of how wealth is distributed (or in this case, not distributed), they are far more likely to support an estate tax.

Similar studies in the U.S. have come to the same conclusion. People were asked if the estate tax should be abolished. Half of them were told that the tax effects only estates worth more than $5 million. In that group, support for keeping the tax was 46%. In the other half, people who were not told that fact, 27% didn’t want to keep the tax.

Generally speaking, most Americans don’t know as much about wealth distribution. One study revealed that Americans think the bottom 60% of the country owns a little more than 20% of the total wealth. The bottom 60% of this country owns 1% of the total wealth. Ninety percent of wealth is held by the richest 20% of families, with the richest 1% owning 40% of it.

Regardless of where you sit on the economic scale, and whether you think the estate tax should be abolished, your assets will be more likely to be passed to the next generation, if you have an estate plan in place.

If you’re interested in learning more about putting an estate plan in place that passes your assets onto your loved ones, a consultation with one of our estate planning attorneys is the first step.


Reference: The Washington Post (Feb. 6, 2019) “People like the estate tax a whole lot more when they learn how wealth is distributed”
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