Here are a few litigation issues that may arise with Advance Directives and why it is important to date your documents:
Multiple versions
Claims of undue influence, duress and fraud
Trust scams and schemes
Common liabilities and liable parties
Multiple versions of similar documents that say different things is a common litigation issue that arises with advance directives. While you may have had one gifting scheme in place, you may have changed your mind after awhile.
Anybody who has had any interactions with estate planning attorneys knows that we like to come up with as many names as possible for the same exact thing. Advance Directives are also known as:
All of these legal devices essentially do the same thing: Setting a set of directions, to an agent, that you as the principal set forth so that somebody knows what your choices are for your end of life and after life decisions.
There is federal law that governs Advance Directives known as the Patient Self Determination Act (1992). This Act requires that all providers of services give written information to each individual concerning:
Rights to make decisions under State Law
Right to accept or refuse medical treatment
Right to formulate an advance directive
Every institution must provide you with information about advance medical directives, including the right to make your own decision, under the applicable state law. Under federal law, if any institution (including hospitals and health care agencies) wants federal funding they need to abide by this.
Estate Planning Attorney KC Marie Knox was invited by the National Business Institute (NBI) to serve as a faculty member for their Elder Law: Start to Finish seminar. The Health Care Decisions and Advance Medical Directives Webcast will take place on September 7, 2016 and will cover:
This legal course is designed for attorneys. It will also benefit nursing home administrators, financial planners, trust officers, accountants, social workers, geriatric care managers, and other professionals working with elder clients on estate planning issues.
It’s official — for 2016, the estate and gift tax exemption is $5.45 million per individual, up from $5.43 million in 2015.
That means an individual can leave $5.45 million to heirs and pay no federal estate or gift tax. A married couple will be able to shield $10.9 million from federal estate and gift taxes.
The annual gift exclusion remains the same at $14,000.
Tom was fairly successful in life and had a love for travel. To maximize his options, Tom was enrolled in several different programs which generated reward points. These points could then be redeemed for travel, hotel stays, car rentals, etc. Tom assumed that when he passed away, his accumulation of reward points would simply pass on to his kids, or whomever else he designated as part of his estate plan. Despite Tom’s intended plan, the reward programs had a different plan in mind.
Tom was enrolled in three specific reward programs, each of which was linked to a specific credit card:
Continuing from Part 1, here are 2 more suggestions you can do to make the task of being a fiduciary easier:
Digital Assets. As e-commerce and money transfers become more common, consider adding a second called “Digital Assets” and include the following:
Online only accounts like PayPal
Accounts which you have opted to access online, such as banking accounts, online businesses or activities involving the electronic transfer of funds.
It would also be of assistance to leave your online account information and passwords in a secure location that your legal representatives can access — bearing in mind the need to Continue reading →
The task of a fiduciary (e.g. executor, trustee or attorney in fact), when you are no longer around or able to provide guidance, can be a difficult one. He or she is charged with the job of gathering/marshalling all your assets. Effectively he or she is taking your place when you are unable to act or are no longer with us. To make that task easier, there are a number of things you can do. Here are some suggestions:
Non-Legal Records. There are documents, in addition to the legal ones, that may also assist your legal representative. Consider adding a section called “Records” and include the following:
Any information on pre-paid funeral or cemetery arrangements;
A list of valuable assets (such as stocks/bonds, artwork, jewelry, collectibles) and their location (such as closet safe, freezer, lockbox under bed);
Deeds for real estate holdings (residential, commercial or timeshares) with copies of related insurance policies;
As many estate planners anticipated, The Internal Revenue Service has raised the limit on tax-free transfers during life or at death. Beginning in 2015 that amount, known as the basic exclusion, will increase to $5.43 million per person, up from $5.34 million this year. This announcement, in Revenue Procedure 2014-61, indicates there will be no change in the annual exclusion, allowing you to give $14,000 in cash or other assets each year to as many individuals as you want without using the basic exclusion. The annual exclusion gifts don’t count towards the lifetime gift exemption. Another tactic is to fund a Continue reading →
This following article titled “In Support of Sensible Legislation on Digital Assets” is featured in the October 2014 issue of the San Fernando Valley Bar Association‘s Valley Lawyer Magazine (view pdf):
For the past ten or so years, new articles have abounded regarding the difficulty in accessing the digital records of the dearly departed. Famous examples include:
Justin Ellsworth, the U.S. Marine who was killed while serving in Fallujah, and his father’s desperate pleas to access his Yahoo account, which were denied.
Karen Williams, whose 22-year-old son was killed in a motorcycle accident, and her desire to access his Facebook account, which was also refused.
Both parents were faced with bureaucratic roadblocks during a time when emotions were already being pushed to their limits.
The problems associated with digital records are exacerbated by Continue reading →
Continuing from our Blog series on Digital Assets, here are a couple ways you can protect you and your family:
Identify your digital assets
You can break them down into broad categories (email, domain, storage, finances, banking, stocks, bonds, securities, taxes, retirement, insurance, credit cards, debts, utilities, businesses, social, media, loyalty and other) and for each asset identify the username, password, account number and any other identifying information necessary to access the asset.
There are many sites to store this information or you can store it to a tangible media source (such as a DVD, portable hard drive or flash drive) or Continue reading →
Los Angeles Estate Planning Attorneys 