Why a Probate Lawyer Sees Problems with Do-It-Yourself Wills

April 29, 2019

These documents could save money but can lay estate planning traps.

Income Taxes to file for a Deceased Person

April 24, 2019

Do I file 2018 tax returns for my father? He passed away in October 2018.

Maryland Augmented Estate Law Protects Spouse with a Bigger Piece of the Pie

April 21, 2019

A new “Maryland Augmented Estate Law” has been enacted by the legislature. This law greatly enlarges a husband’s or wife’s protections to receive at least a minimum “Piece of the Pie” at death. It expands new rights about which assets a surviving spouse can elect to receive at the death of their spouse. It is a significant factor to consider in creating or reviewing your Revocable Trust or Last Will and Testament. Current law provides protections so that a spouse cannot be disinherited. It has long been the law that, absent a valid prenuptial agreement (or postnuptial agreement), a surviving spouse could opt to receive one-third of the deceased spouse’s assets instead of what the will provided. This is called taking an Elective Share, as it is a right that must be exercised by the spouse and is not automatic. In most cases, this right did not include assets the deceased spouse held in a revocable trust. In addition, the spousal inheritance right did not apply to assets passing by beneficiary designation, such as life insurance, pay on death accounts or individual retirement plans. The Augmented Estate law will allow a surviving spouse to reach such assets if left out of the planned inheritance. It also potentially increases the portion for surviving spouses without children, increasing it from one third to one half of the augmented estate. If you are married and are leaving everything, or most things, to your spouse, this new law will not affect you. However, for couples who are separated or who do not plan to provide his or her spouse, this law could impact you significantly. Even if this is irrelevant to your marriage, or if you are single, it is now an important consideration when planning for your descendants. If you are concerned about the stability of your children’s marriages, or if you want to protect their inheritance from divorce, the impact of this new law should be considered when revising your plan. The creation and structure of trusts to protect beneficiaries from potential marital problems will be more important. Time is needed to see the full implications of this new Augmented Estate Law. Although, it clearly increases the advisability of prenuptial or postnuptial agreements for people getting married who have children from prior relationships. The law will take effect in October 2020, so there is time to adjust your planning if needed. I foresee significant work for estate litigation attorneys because of this change. As always, we are here to make modifications to your estate plan necessitated by changes in the law to make sure your plan accomplishes your goals. For the Full text of the bill, http://mgaleg.maryland.gov/2019RS/bills/hb/hb0099f.pdf Is Prenuptial Agreement a Good Idea?

Family Meetings to Help Aging Parents

March 26, 2019

If your parents are at a point where they struggle with their financial affairs, increasing your family communication can help them get the help they need.

Mom and daughter spending time together in the living room on a cloudy day

How Your Caregiver Can Get Paid and Treated Fairly

March 19, 2019

Siblings of the caregiver sometimes resent the fact that the person providing the care gets paid by the government, even though it is a modest wage.

What Can You Do If Your Dad Leaves You Out of His Will?

March 13, 2019

There are limited actions you can take, if you’re disinherited.

What is Probate and Should you Avoid it? Part V

March 7, 2019

Probate is what’s left over When someone dies, property will be transferred from them to someone else by Title or Contract. One form of trust transfer is a Revocable Living Trust. When I think of a Trust, I picture a “Box” to take the title of the property. Assets transferred into the trust, or “Funded into the Trust”, do not need to be transferred through the probate process, because the death of the Trust creator does not affect the title of the property. The idea is to put the property into the box while you are alive. If you do so, where is the title when you die? It’s in the Trust, just as it was before death. Probate is not needed to help change title. However, a Living Trust is not a magic box. It will only avoid court for assets that are transferred to it. To avoid Court, you must do work: you need to dedicate the time, effort and persistence required to transfer the titles. For most banks, account numbers stay the same. The checks don’t need to say “Trust” on them as long as the statements do. The account will still be in your social security number, as the trust is not separate taxpayer while the Grantor is living. Not all assets get funded into a Trust. Assets such as Life Insurance, retirement plans, deferred compensation accounts, thrift savings plans, and annuities are handled by beneficiary designation and are not transferred into a revocable trust. Automobiles are not usually transferred into a Trust. We estimate that most of our clients spend 20 to 30 hours on the funding process, mostly in filling in new account forms and waiting for bank personnel to figure out how to do what you are asking. You can take consolation in this: if you don’t go through this effort, your chosen loved one who is named executor will be doing so. A large part of the gift a trust represents to the family is that you spend the time and effort, so they don’t have to. It also means revising deeds so that the titled owner is the Trust. When someone dies, we meet with the successor trustee, and are focused on what the titles say, and who are designated beneficiaries on the contracts. That is where the rubber meets the road. What if things are missed. We create a short will, called a “Pour over Will” to catch loose ends which get missed in the funding process. The Will simply says “Put the probate assets into the trust” in legal mumbo jumbo. To use this type Will, you need to go to the probate court and open a probate filing. In Maryland, for estates of under $50,000, the process is relatively simple and is often opened and shut on the same day. A significant added bonus to a living trust is that is works very well to allow management of assets if you are no longer able to do so. But

What is Probate and Should you Avoid it? Part IV

February 28, 2019

Probate is what’s left over At the end of the day, there may be some things left over to go through probate, meaning they didn’t avoid the process by title or contract. What’s so bad about that? I don’t know that there’s anything so terrible about probate. It is a necessary process to transfer title of property if no other options have been exercised. People who I have worked with in the Probate Court are generally helpful and dedicated. The Court imposes deadlines which make the case move through the system. However, the two main reasons people want to avoid the probate court, or any other court process are money and time. I often here attorneys say that probate is not that bad in Maryland. Actually, I only hear attorneys say that. In Maryland there are various court costs, bonding fees, probate fees, and attorney’s fees as well as Personal Representative’s commissions. The highest of these fees are often attorney’s fees. What’s so bad about that? The allowable fees for attorneys and Personal Representatives are combined is about 3.6% of the assets. For example, suppose the deceased person has a house worth $300,000 and a mortgage of $250,000, which figure is used to calculate the allowable fees and commissions? The formula is based on the gross assets, not the net assets. The allowable commissions and fees for a $300,000 probate are $11,880. In this example, the allowable fees are 24% of the net value ($11,880/$50,000). I generally estimate 2% to 4% as the administrative expenses for most families in probate. Additionally, probates ordinarily take somewhere between 9 months and 18 months to complete. If assets are complicated in nature, the time could be much longer. For small Estates, meaning under $50,000, the process can be much shorter. An additional reason some of my clients want to avoid probate is that your Last Will and Testament is a public record. Someone going to the Courthouse can read your Will, see the values of all the assets passing through the court system, learn the timing of distributions, and find out who gets what and when to they get it. This is more information than some many of my clients want to share with the public.

What is Probate and Should You Avoid It? Part II

February 14, 2019

Probate is what’s left over I draw about ten frying pans a week on a legal pad. This is not due to my great artist ability. Last week I explained that Wills work through a process called Probate. When someone dies, property may be transferred by title, such as the transfer of a house to a spouse when the first spouse dies. It is easy and essentially automatic. If a person dies and the title doesn’t convey ownership, then a contract may do so instead. More about that next week. There are only three ways assets transfer at death: By Title, by Contract, or by Probate. If the title and contract don’t transfer ownership, then a probate estate does. If a decedent as a will, this is activated then: if not, then the law of the state of they lived in writes one for them. Since the dead person is not here to transfer title, that role is given to the Personal Representative. Once appointed, that person can sign contracts, deeds, tax returns, etc. All this is done with the oversight of the probate Court. Probate is not bad: it serves a necessary function. Many year ago, I was part of a bar association discussion years ago about probate and its avoidance. I was advocating the use of Revocable Living Trusts as reasonable alternatives to Court supervised transfers. I felt like a baby harp seal hunter at a PETA meeting. The outrage and venom directed at me for suggesting that Probate was to be avoided” were palpable. Most of the lawyers present, and the then Register of Wills, insisted as a strong refrain that “Probate is not that bad…” The only people I have heard insist that this is true are attorneys and Probate Court personnel. I pointed out the hypocrisy of this by position by asking “How many of you have your life insurance policies and/or retirement plans payable to their probate estates?” Of course, no one did so, because naming a beneficiary was simple and the probate Court could be avoided. If probate isn’t so bad, then why no? Maybe because of administrative fees, Court costs, Attorney fees, Personal Representative Commissions, which in Maryland can be 3.6% to 4%. Maybe because the court process can cause long delays before funds are available: from seven months to several years is not unusual. Finally Probate records are public, meaning that your neighbor can go to the Court, read your will, find out who is getting what, when they get it, and who is in control. For some of my clients, keeping this private is preferable. Is short, probate is time consuming, expensive and is completely public. The Court process provides supervision, which is some cases is badly needed. Most of my clients name people that they trust and don’t want supervised. To weigh out your options, its best to seek the advice of an estate planning attorney. Note: This is the Second of a Series of Five to be published

The Queen is Gone, and She Didn’t Have an Estate Plan

December 11, 2018

We all procrastinate about something. The time may never seem right to deal with your inevitable death. Aretha Franklin. the “Queen of Soul” has passed away, leaving an $80 million estate and no estate plan, according to Investment News in “Aretha Franklin estate echoes planning problems of Prince.” Franklin was not married so the estate will pass to her four children. It’s similar to the situation that occurred when Prince died unmarried and without a will in 2016. Had she been married her estate could have passed tax-free to a spouse and there would have been planning opportunities available at that time. Franklin’s four kids will now receive equal shares of her estate. However, they will have to pay a considerable amount in taxes. She was a resident of Michigan, which does not have an estate tax, so there won’t be a state estate tax. However, the federal government takes 40% of portions of the estate valued over $11.18 million. In other words, a $27.5 million tax bill. Without the benefit of a trust being established by a will, those assets will be taxed again by the federal government at the time that the four heirs pass, when the money moves to her grandchildren. Celebrity estates, like that of Franklin, must undergo a complex valuation process to correctly assign an approximate future value of income. Like Prince, there are image rights and music royalties, and the buzz surrounding her death is likely to inflate its value and the tax that will be levied. While Michigan does not have an estate tax, the state does have a “postmortem right of publicity,” meaning that her heirs have the right to legally protect her image for commercial use. Her postmortem rights of publicity are expected to be extremely high, because of her iconic stature as a musician, songwriter and cultural touchstone. Estates of celebrities and creative artists are required to be valued and the appraisal must be reconciled with a parallel appraisal conducted by the IRS. Remember Michael Jackson’s situation? The estate initially valued his name and image at $2,015, while the IRS valued it at more than $434 million. One of Franklin’s children reportedly has special needs. This could put him in a precarious position. If he inherits a large sum of money, he will no longer be eligible for any government programs. Given the size of his inheritance that will not be a problem. For those with less wealth, however, that is why estate planners encourage the use of special needs trusts. This not only protects the child’s eligibility but protects them from misusing the money or being scammed by unscrupulous individuals. Even if you are not an entertainer with assets that total in the millions, an estate planning attorney can advise you in creating an estate plan that fits your unique circumstances. Reference: Investment News (Aug. 22, 2018) “Aretha Franklin estate echoes planning problems of Prince”

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