Is Your Will “Fair”?

When it comes to your children, should everyone be treated equally? 

Sometimes parents have a difficult choice to make when writing a will.  One child may be financially successful and secure.  Another child could have a low paying public service job.  There may be a child with special needs or a child who is unable to manage finances responsibly.  While there may be good reasons to differentiate between children, unequal allocations of an estate can strain sibling relationships and create unintended ill will in the surviving family. 

So, what is fair?

Family dynamics differ.  The amount of assistance provided to children during life time maybe unequal.  The amount of care provided by one child for an aging parent can further complicate the challenge. 

 

So, what is fair?

Have you considered meeting with your children to explain your wishes and obtain agreement or, at least, understanding?   Unless you have discussed with your children any unequal distributions, I highly recommend equal distribution under your will.

Aftermath of a Hurricane or the Perfect Storm

I was talking to my Dad a couple of days before Hurricane Sandy (reduced to a storm at that time) was due to hit our area in Pennsylvania.  He had already referenced it as the perfect storm with 3 weather systems colliding, this time on land.  These perfect storm scenarios have happened out at sea but rarely on land.  But, here we all were waiting on land for the collision.

Though we were without electricity for 5 days, it was nothing compared to those who are still without electricity, have severely damaged homes; have no homes to go to; or, have loss loved ones in the aftermath of a perfect storm.  Many of us ask, how can we help?  What can I do? 

I was moved by my friend's story.  Though still without power in New Jersey, she was able to obtain a generator to use sparingly since probane was not easy to obtain.  She has now taken in a 94 year old and 91 year old couple who live in her neighborhood and has offered another spare room to her neighbors without power. Yes, in each of our own way, we can reach out to help. We do not have to wait for direction or permission or some organized venture. What can you share!! What can you give!! Answer and move on it!!

Felice Vazquez, 40, of Hoboken, greets a neighbor as she mans a table providing hot drinks and snacks on Washington Street as the buildings around them remain without power due to damage caused by Superstorm Sandy, Nov. 4, 2012, in Hoboken, N.J. (John Minchillo/AP Photo )

A good samaritan provides electricity for storm victims to charge electronic devices on 11th Street, Oct. 31, 2012 in Hoboken, N.J. (Jeff Zelevansky/Getty Images)

Workers try to clear boats and debris from the New Jersey Transit's Morgan draw bridge, Oct. 31, 2012, in South Amboy, N.J. (Mel Evans/AP Photo )

 

People line up to fill gas containers at the New Jersey Turnpike's Thomas A. Edison service area, Oct. 31, 2012, near Woodbridge, N.J. (Mel Evans/AP Photo )

People wait to use a pay phone on Bright Beach Avenue, Oct. 31, 2012, in the Brooklyn borough of New York. (John Minchillo/AP Photo )

 

Vidal Gore Dies at 86

The author, playwright, politician and commentator whose vast and sharpened range of published works and public remarks were stamped by his immodest wit and unconventional wisdom, died Tuesday at age 86 in Los Angeles. 

Vidal Gore was revered by many throughout his varied and vast career.  His legacy included hundreds of essays, the best-selling novels “Lincoln” and “Myra Breckenridge” and the Tony-nominated play “The Best Man,” a melodrama about a presidential convention revived on Broadway in 2012.

How will you be remembered?  Contact us at www.ythlaw.com for all your estate planning needs.

When sending your Child to College a Power of Attorney is a Must Have!

If you have a young adult (18 or older) or you are a young adult, it is important to have powers of attorney in place.  Parents are often surprised that they do not automatically have access to their child’s healthcare information or other college records.  If your child is in an accident, you do not want to go through red tape to address their health needs.  But, that is what will happen if the right documents are not in place.  

As a young adult, you want to have someone you trust and who cares about you available to handle your health issues and other affairs if you are in a car accident, have a serious sports injury or experience some other traumatic event.  Your medical information can only be shared with the person you designate.  Prepare for the unexpected to assure the road to recovery does not take a detour. 

Here are some answers to your important questions. 

When does an agent sign the power of attorney? The agent does not have to sign at the time that you sign your power of attorney. The agent's signature does not have to be notarized only your signature. Your agent signs when you are in need of their help. 

How do you revoke an agent's authority? You should maintain your original powers of attorney. If you no longer want a person to serve as your agent, then the powers of attorney should be destroyed and new ones entered into. If your agent has an original power of attorney, then you must get it back and destroy it. Otherwise, you have to inform those individuals who may rely on the power of attorney that you have revoked your agent's authority. ALWAYS appoint someone whom you trust.

Springing Power of Attorney.   There is another type of power of attorney referred to as a springing power of attorney. It can only be used if a doctor has certified your incapacity and such certification must be attached to the power of attorney for it to be effective. The springing power of attorney is revoked once you regain capacity.

Call me today and I'll get your child's Power of Attorney done before they leave for school.

Selecting a Guardian Might Come With Some Drama

Just before the news broke regarding the guardianship of Michael Jackson’s children, I received this question.  Can the selection of guardian for minor children withstand a legal challenge by the grandmother?   In this particular situation, a non-relative was chosen by a couple as the guardian of their children.  The wife’s mother was not pleased when she found out her daughter’s decision. 

Selecting the guardian for your minor children is one reason for having a Will.  Even though your selection could be challenged (it’s the American way), it does not mean it will be successful.  The courts generally uphold the appointment of the guardian selected by the parents. Any challenge would have to allege and demonstrate that the guardian selected is unfit or unable to properly care for the children.  The court considers what is in the best interest of the child.  Status as a relative is not a controlling or determining factor.  A grandmother does not have a legal right to override the parents’ selection merely because the grandmother prefers to serve or have a relative serve as guardian.  Parents are generally in the best position to determine who would be in the best position to care for their children.   

That being said, it is wise to have conversations regarding guardianship with those whom you know will be upset with your selection and work through those issues during your lifetime.  Further, you should update your selection as circumstances change, including aging, financial stability and interest.  It is not in your child’s best interest for them to be embroiled in a legal battle when they have already lost so much.

The Importance for the LGBT Community to Engage in Estate Planning…

It is just as important, if not more important, for

couples of the same gender to engage in estate planning.

I was talking with a CPA specializing in estate planning about the unique tax issues that arise in domestic relationships. Specifically, she expressed that couples of the same gender, unlike married couples, have no IRS exclusion for property or monetary transfers between them. Such transfers could be subject to gift tax and transfer tax. If there are significant assets involved in a separation betweencouples of the same gender, even if the financial provider wanted to be fair with property division, the tax consequences may be prohibitive. After the lifetime exclusion of 5 million, which may go back to 1 million, the excess will have a gift tax imposed. The maximum gift tax rate in 2012 is 35%, and it may be raised in later years. The gift tax rate is a hefty tax for anyone to pay.
To the extent you can address tax situations as well as protect your relationship, cohabitation/domestic partnership agreements are advisable. They are particularly beneficial in the following situations:

1. when a second person's name is added to a deed after considerable equity has already been established in the home during ownership by the first owner. The agreement will help clarify ownership interest in the real estate.

2. when property purchased jointly is only held in one person's name

3. when one person is the financial provider and the other is a homemaker

4. when unequal contributions are made towards the purchase of jointly held property

5. when there is an interest in giving benefits or rights to another that are not required or available under the law

6. when assets are co-mingled or combined

7. when there are family members who may dispute the interest of a domestic partner.
It is always wise to have an agreement between couples of the same gender. There are many situations that we can not anticipate, and having an agreement in place is always helpful.

Call me today if you have questions pertaining to Estate Planning for the LGBT Community

Dark Knight Rises - Aurora, Colorado

President Barack Obama hugs Stephanie Davies, who helped keep her friend, Allie Young, left, alive after she was shot during the movie Aurora movie theater shootings in Aurora, Colorado.

When I heard about the tragedy Friday morning the 20th, my heart went out to all the families directly affected and all of us who can only imagine the pain.  We can not allow such senseless tragedy to take over even our simple pleasures. 

This pass weekend my family gathered to celebrate my mother's 76th birthday.  Of course, one of our usual outings with the children during these festivities is going to the movies.  But, naturally, we took pause as the Aurora tragedy continued to unfold.  No one was up for a midnight Batman so Spiderman won out.  Those going to the movie were much more vigilante in assessing their surroundings.  But, come on, is this how we must live our life?  Can we, as a people, as human beings, figure out how to take back control over the simple act of going to the movie with your children? 

I ask because I do not know the answer.  I blog, I tweet, I facebook, I ponder!!

Planning Ahead - Get Your Affairs in Order

Woody Allen is credited with saying, “If you want to make God laugh, tell him your plans.”  I would be the first to admit that we certainly aren’t in control of as much as we’d like to think we are.  So, in my estate planning with clients, I like to take a look at where they have been.  That is the back story, the legacy piece that we ALL have and that keeps my work interesting, intriguing and varied.

More than plan, I create a map, of sorts, for my clients.  The future has many twists and turns, alternative routes, hills and valleys.  Our estate planning "map" could include Wills, Trusts, Powers of Attorney, Gifting, etc.  It provides for our intentions BUT allows the details to unfold in accordance with the universal principles.  The estate planning  "map" for each client has flexibility and often is updated with changing circumstances.

Once we have our  estate planning "map" which details our wishes, needs and desires, we can focus with clarity around our intent and accept that the details are not within our control, only our intentions.  Contact us at www.ythlaw.com

A Will Serves Many Purposes

On this hot, 97 degree day in July, I share with you this hot tip.  Really, truly, for the most part, none of us know how we might die.  We know we will die, but not when or how.  So when folks say "I do not need a Will, I have "nothing"," I share this story.

A young man's mother was killed in an automobile accident.  The other driver ran a red light going at a high rate of spend in his deliver vehicle.  He survived with minor injuries and was declared to be at fault.  He was sued by the son for wrongful death of the mother.  The insurer for the driver's fleet of deliver trucks settled the suit for excess of $900,000.  Though the mother had "nothing" her estate now is worth $900,000.  Who gets her assets?  She was estranged from her husband for 17 years (never divorced) and she had 3 children (her son with whom she lived, a daughter with drug issues and another daughter who died leaving her only grandchild).

The intestate law would distribute the estate to the husband, son and daughter.  The grandchild would not be entitled to any of the estate.  Is this the result that would have been intended if a Will was done?

Contact us at www.ythlaw.com for your probate, estate planning and elder law needs.

Beneficiary Designations are Important

I was recently working on an estate matter which demonstrated the importance of updating and keeping track of your beneficiary designation.  Many of our seniors obtain life insurance to provide for their funeral.  However, the person designated as the beneficiary does NOT have to use the monies for the funeral.  They could choose to keep the money for their own benefit.  

In this case, the person designated her brother as the beneficiary under her life insurance policy.  He had agreed to use the money to take care of her funeral expenses.  Since he WAS her closest living relative, he would not have to come out of pocket to bury his sister.  WELL, her brother predeceased her and her secondary beneficiary was her niece (her brother's daughter) who did not have the same interest as the decedent's brother.  The niece wants to use the insurance to purchase a house and is only willing to provide some funds towards a funeral.  What is to be done?  Either the other family members will have to all contribute towards a funeral or there will be a cremation or an inexpensive service, less than what would have been affordable with the insurance proceeds. 

SO, keep your beneficiaries up to date BUT more importantly it would be better to just prepay your funeral and not depend on others to use insurance proceeds in your best interest.  Contact us with your estate planning, probate, guardianship, and business succession planning needs at www.ythlaw.com

Prenuptial Agreements and the Business Owner

I was talking with a new business owner.  He just purchased a service station and was so excited about this new venture.  He had worked in the business since high school and so was quite sophisticated in business matters at such a young age of 29.  He had also met the love of his life on an on-line dating service.  Now, his dilemma is he wants to get married but does not want to have his business part of the assets of this new union.  Not a problem at all with the use of a Prenuptial Agreement.

A business owner may want to protect his exclusive rights to the business if the marriage fails, as in the case for this business owner, or control the diposition of the buiness after his death, ie. for parents or the child of a prior marriage.  For purposes of best practices, the following should always be consider and done:
1.  Make sure it is voluntary and not done under duress.
2.  Make a fair financial disclosure.
3.  Share the proposed agreement well before the wedding and even before the wedding date is set.
4.  Demonstrate some fair negotiation if one party clearly is less well off than the other.
5.  Each party should have their own counsel even if one has to pay for the others.
6.  Fairness should be demonstrated in the process when their is an economically weaker party.

Contact us for all your probate, guardianship, estate planning, business succession planning and prenuptial agreement needs at www.ythlaw.com.

I am back to my blogging.  I started answering questions posted on AVVO.  As a result, I did not blog as much.  However, I think the information shared blogging helps people i n their quest to understand the world of estate planning.  AND so, I am back and will be posting more and more informative blog posts for you and your family. 

Today, I mentioned the importance of a Special Needs Trust to supplement funding to those with disabilities on governmental assistance.  Specifically, I am looking at the type of Special Needs Trust referred to as third party funded trust.  These are trusts that do not hold monies of the disabled person but money of one who wants to care for the disabled person, a parent, grandparent or other relative.  If you provided these funds directly to the disabled person, then their benefits could be affected.  You do not want to have that happen.  So look into creating a Special Needs Trust at your earliest convenience. 

We are here to help at www.ythlaw.com

RSVP Today: 215.321.4033

You’re invited to our next Free Seminar

May 3, 2012

The Guardianship Process:

Learn How to Become Guardian for a Loved One

Whitney Houston Dies at 48. A Legacy of Musical Talent

Whitney Houston was a Pop Diva of the 80's and 90's. with a musical career prior to that time and after.  We all have our favorite Whitney songs.  I loved her performance of "The Greatest Love of All", "I Wanna Dance with Somebody", "I Believe in You and Me" and my all time favorite is "I Will Always Love You".  I enjoyed her performances in The Body Guard and every Christmas we enjoy watching The Preacher's Wife. 

She is now among the many muscial giants who have passed on.  She will be missed and may her family, friends and fans find comfort in memories of her and the tremendous musical legacy she left behind.  

Soul Train's Creator Dies at 75

I grew up on Soul Train.  I was a teenager when it first aired.   Top artists of the times appeared on Soul Train.  However, what stood out most for me, was the awesome dancing.  To this day, when you get a group of adults together at a party with great dance music, the "Soul Train" line is formed.  And the memories take over even though the body can not necessarily take you there!! 

Don Cornelius was clearly a legend who will be missed by family, friends and admirers.

Legendary Coach Joe Paterno Dies at 85

For over  46 years, Joe Paterno served as head coach of Penn State's Nittany Lions.   He won over 409 games and took the Nittany Lions to 37 bowl games and two national championships- earning a spot in the Hall of Fame.  More than 250 of the players he coached went on to the NFL.

What will be the legacy of this man who in the last few months of his life endured bitter scrutiny over a failure to take action that many felt he was compelled to take and did not?  Some still feel that he should and will go down as the greatest football coach in the history of the game.

When it is all said and done, it is our legacy that we leave behind.  Though we do not ultimately write it (some with forethought actually do), our life's work has to speak for itself.  The difference that we make while we live is the purpose that we served.  It should be how any fiinal act in our life is judged.

Contact us at http://www.ythlaw.com/ for your estate planning, probate, guardianship and elder law needs.

 

Legendary Jazz Singer "Etta James" Dies

The legendary jazz and blues singer Etta James dies at 73.  She was a pioneer whose legacy will be remembered as her ever-changing sound has influenced rock and roll, rhythm and blues, pop, soul and jazz.  She was one of the most important female artists of her time. 

We will follow her estate as it is settled between her heirs. For now, we remember her music and her life.

Contact us at http://www.ythlaw.com/

Q and A about POA...

Question: My Dad made me his POA (2008) in 2011 he had a stroke, nursing homes, now he is home.
He has dementia now. Last week had a violent episode with me. He has a heart defibulator and
out of fear he would get sick I asked my sister to come and take him with her. Now she does not
believe he has dementia or I was even attacked and is discouraging him from coming back to his house.
He is left home alone during the day in her 1 bedroom appt while she works and he is diabetic on 2 types of insulin.
I live with him and am also his caregiver but at this point he does not want me to care for him
he believes he can care for himself.
Legally what can I do as his POA to get him back to his home safe environment or to an assisted living facility?

Answer: 

The Power of Attorney does provide you with broad authority to act on your father's behalf. However, he also has the right to revoke the Power of Attorney once given. If he is not in agreement with your actions on his behalf, it could become difficult for you to assist him. 

If you do believe he is incapacitated, you may have to go through the more formal process of Guardianship to accomplish your goals. This would require you to be able to demonstrate to a court that your father can no longer handle his affairs. This will have to be supported by physicians and other experts. You will need an attorney to assist you in this process if you believe your father's incapacity can be documented. 

To get your POA drafted today call us for an appointment!

Are You Responsible for Your Parent's Debts?

This question is often asked in the nursing home context.  What obligation do children have to their parents when they are in need of continued care but can no longer afford it?

Well, Pennsylvania does have a Filial Support Law where a child may be held  liable for the debts of their parents.   How often it is used is unclear but it is on the law books and available to nursing homes trying to collect unpaid bills.

You  want to encourage your parents, or help them, to apply for medicaid if you anticipate they may not have the funds to continue to pay for their nursing home costs.  Many nursing homes will provide this support but are not all do so and further they may or may not adequately handle it.

Therefore, you want to be proactive and seek the necessary professional guidance so that you are protecting your parents as well as your financial security.  Contact us to discuss all your elder law and estate planning needs at www.ythlaw.com 

Happy New Year!!!

Well it is 2012.  Other predictions notwithstanding, what are your desires for the New Year.  I have many and a few I share here with you:

When I open my mouth, I want words that are true, supportive and unhurtful to always come forth.
When I open my mouth, I want wholesome, lifesustaining and health promoting substance to go in.

When I open my eyes, I want to see the brighteness of the day and the good in humankind.
When I open my eyes, I want to take a reflective look at myself to make the change that I want to see.

When I open my heart, I want to love unconditionally.
When I open my heart, I want to be one with the Creator of all things.

I wish you much happiness and peace in the New Year!!