New Perils of Arizona Beneficiary Deeds

I first wrote about using an Arizona beneficiary deed to avoid probate on November 13, 2012.

A recent decision of the Ninth Circuit Bankruptcy Appellate Panel reveals a major shortcoming that should affect the popularity of beneficiary deeds.  In Jones v. Mullen, BAP No. AZ-12-1644-DPaKu, the panel decided that the debtor’s interest in real property acquired because of the death of his grandmother 3 days after the debtor filed a Chapter 7 bankruptcy petition was property of the bankruptcy estate.  The bankruptcy trustee was allowed to sell the debtor’s post-petition acquired interest in the real property.  The debtor’s creditors benefited from the decedent’s beneficiary deed rather than the intended grantee, the decedent’s grandson.

Beneficiary deeds have become so popular and widely available on the internet, many people create beneficiary deeds without consulting a lawyer or otherwise gaining an appreciation for some of the more common pitfalls.  Leaving property outright to an intended beneficiary heads the list of problems that can be avoided with planning.  This mistake could be made in a Will or a trust as well as a beneficiary deed, but most trusts and many Wills are prepared by lawyers who have the opportunity to counsel their clients and discover whether or not special circumstances exist which suggest adoption of a different plan.

Bankruptcy laws can disrupt an estate plan and cause a detrimental unintended consequence.  A well constructed estate plan considers potential obstacles such as unforeseen bankruptcy filings and poor timing and “plans” for such possibilities in ways that a beneficiary deed form cannot.

Interestingly, in Jones, the decision did not rely on the 180 day clawback rule of §541(a)(5) for inheritances, but rather reconfirmed a 24 year old case, Neuton v. B. Danning (In re Neuton), 922 F.2d 1379 (9th Cir. 1990), decided using §541(a)(1).  The controlling law in the Ninth Circuit is that a contingent interest becomes property of the bankruptcy estate upon the filing of a petition, subject to divestiture and valuation issues.  Here, when the contingency occurred, Grandma’s death, during the pendency of the bankruptcy case, the debtor was left with no recourse and the interest was sold for the benefit of the bankruptcy estate and the debtor’s creditors.

The Ninth Circuit consists of California, Oregon, Washington, Nevada, Hawaii, Alaska, Montana, Idaho and Arizona.  The result could be different in other states that don’t have the same precedent.

The Jones case is a perfect example of the old adage “that for the want of a nail, the horse was lost.”  Although a beneficiary deed may be inexpensive to create and avoids probate, it also contains none of the protections many folks want for their descendants.  If any adverse conditions exist on the date of death, the decedent’s estate plan will be frustrated.

This is just one example of how beneficiary deeds may be innocently misused.  Failure to adequately identify who takes the property if the originally named beneficiary fails to survive the grantor is another common mistake that can be avoided with careful planning and competent drafting.

In the proper circumstances, a beneficiary deed can be a time and money saving alternative to probate, but unforeseen consequences can assure that the simple idea is not a good one.  Before using a beneficiary deed, make sure you have identified not only the benefits you desire, but the risks and pitfalls not often discussed.  I can help you analyze whether a beneficiary deed is a good solution for you.  For this or any other estate planning concern, call me today.

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Observations From The Trenches: Logical Estate Planning

Over my many years practicing law I have become a niche lawyer concentrating on estate planning. A growing part of my estate planning practice involves administration of trusts and estates. An inevitable part of trust or estate administration is resolving contested matters. Unhappily, a large number of those disputes become litigated matters instead of models of dispute resolution. Worse yet, if the patriarch or matriarch is still alive they are often heartbroken when their children cannot agree about basic issues facing the family.

As I enter my 32nd year of practicing law, I realize my clients value my common sense experience just as much as my legal technical expertise.

As a result I no longer tell people I “prepare wills and trusts” because I realize the will, trust, or power of attorney is only a tool. I seldom see disputes or problems with documents, but I often see disputes or problems because assets are not properly titled, beneficiary designations are not up to date, or the chosen role players are not adequately equipped. A better answer when I am asked what I do is to say that I am a problem solver; I am a family lawyer, I am an estate lawyer focusing on the affordable and efficient transition of wealth and values in an environment that protects loved ones from the problems that come with inheriting money.

I have become a bore to many of my clients, financial planners, and others because of my obsession of putting my clients’ financial affairs in order before they reach the point in time when they can no longer do it themselves because of death or diminished capacity or ability. It is not a simple task and I force everyone connected to the plan to stop making assumptions and actually prove to me that everything is in order.

I have banished from my office the idea that anyone can take an action that gets work off their desk without being able to explain how the step taken moves a problem one step closer to resolution. Each day, I tackle the most unpleasant problem on my desk first to be sure I can clear my head. Seldom is the least pleasant also the most difficult or most important; often it is the longest neglected or the most time critical.

To me, these thoughts have become the logical basis of my philosophy of helping clients. Taking to heart my 2 favorite mottos – “begin with the end in mind” (from Stephen Covey’s 7 Habits of Highly Effective People) and my favorite Eisenhower quote – “plans are useless but planning is indispensable,” I clearly see the mission I must accomplish for my clients.

If you have not been in to see us for awhile, call us today to ensure that your family affairs are in order. We will work together until we have a high degree of confidence that your estate plan will work as intended in as many different scenarios as we can reasonably envision. If you are not yet a client and you would like to see this planning in action, call me and I will send a “Welcome Kit” to start you on our journey together.

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Is Something Rotten In The Maricopa County Probate System?

I’ve been a practicing lawyer in Scottsdale for over 30 years and I have never witnessed a fire-storm like the rage that has engulfed the probate system in the past two years.

I’d like to bring some sanity to the story and suggest a sensible solution.

If you haven’t read the horrible stories or the outrage generated by the current probate system you can catch up on the horror here, at AZCentral.com.  The stories you will read here are indeed sensational and terrible stories.  Most of them involve lawyers who are personally known to me as caring competent lawyers, and who were tangled up in difficult cases or inadequate safeguards and procedures.  The cases feature over-reaching by professionals, inability of the courts to provide adequate supervision, and victims and their families who (for various reasons) simply failed to plan.

Before you read and join in the hysteria, let me give a little bit of background: the entire probate process is an extremely emotional and technical exercise, which requires interaction between laypeople and professionals, with a system that tries to be effective for all cases—from the very small to the very large.  Lapses in the conduct of the administration in which individual cases are conducted, the frail nature of the system, and its inability to provide adequate oversight show the system at its worst.

When a reporter tells a story of a client being charged several hundred dollars to cancel magazine subscriptions you aren’t necessarily getting the entire story. You may get a quick impression of the frustration and final outcome, but you don’t get to see how the story actually unfolded.  While the fiduciary may have thought one phone call would suffice, the actual process could entail a determination of whether another family member wanted the subscription, a flurry of messages and return calls, file reviews, etc.  Suddenly what should have been a simple quick solution has mushroomed into a nightmare.  Multiply by this each step in the probate process and it is truly a catastrophic handling of the case.

But if you are outraged by these stories (and there are plenty of reasons to be outraged,) remember that you have a choice.  There are many competent, ethical lawyers out there, and many equally competent and compassionate private fiduciaries; but even the best lawyers and fiduciaries can’t help if the clients have not adequately prepared for the end of life struggle.

There simply is no substitute for an adequate estate plan.  Readers must know the difference between having just a will or a trust, or creating a whole estate plan.

Prospective clients ask whether they need a Will or a trust and what is the difference.  The real question should be “what is an estate plan?”  Just having a Will or a trust and financial and health care powers of attorney is not a complete plan.  Today, most assets can pass to beneficiaries without going through probate, but they won’t necessarily pass to the people you want, the way you want, when you want, unless you have created a thoughtful plan.  And those assets may not even get to the transfer stage if consumed during the end of life process by expenses, private fiduciaries, and lawyers.  Then when the remaining assets do pass to beneficiaries, if the plan has not been carefully constructed the assets in an inadvertent plan will be unnecessarily exposed to the creditors and spendthrift habits of the beneficiaries.

Because a Will or a trust is just a tool, the emphasis in my practice is on The Plan and how those tools will be used.  Dwight D. Eisenhower said that while plans are useless, planning is indispensable. The important work is understanding the pitfalls likely to waylay assets in the end of life process, and empowering your family and professionals to address your plans in an ethical way, so that the end result can be as close to what you intend as possible.

If you want to avoid your legacy becoming a sorrowful story of drained assets and battling distant heirs, call me today and get started on the planning process.   If you know anyone who wants the peace of mind that they have a plan that works, I welcome referrals.

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Confessions Of An Estate Planner

Do I provide what my clients really want?

It has been suggested that estate planning lawyers rely too heavily on what they think clients want, providing services that are the easiest and most economical to give, rather than listening to what our clients really want.

As a result we give our clients hefty estate planning binders containing long documents covering every imaginable situation, and lengthy instructions that give our clients the impression that this work is too complicated for anyone other than professionals, so they need to come back to us to interpret the documents we prepared for them.  But as important as they are, revocable living trusts, pourover wills, financial durable general powers of attorney, health care powers of attorney, living wills and an assortment of related documents are all simply tools of the trade.  They should not be the end result.

I’ve met many people who tell me they have a great estate planning attorney, but I’ve met very few who can tell me why they think so.

I’ve been an attorney since 1979 and have concentrated on advanced estate planning techniques and strategies since 1998.  I have litigated contested probate cases that go awry when the planning fails.  And I have testified as an expert witness on trust matters that almost always arise because the lawyer did not adequately listen to the client’s needs and desires.  The listening failure often occurs because the lawyer failed to ask the right questions.  I’ve interviewed many clients, and I bring my unique experience to each client experience; yet I still find the most difficult part of my job is getting clients to express what they really want.

Right now I want to rededicate myself to creating estate plans that work.  To me, a good plan is one that accomplishes my client’s objectives in a cost efficient manner.  Cost efficiency means avoiding as much estate tax, administrative expenses, and legal fees as possible. It begins with the initial client meeting and isn’t finished until the assets are safely distributed as desired by my client.

I believe the process must begin by intimately knowing what my client owns and values, how each family dynamic works, and my client’s hopes, dreams, and aspirations for how these assets accumulated over a lifetime can be used to assure the comfort of my client, the future success of my client’s descendants, and the support of my client’s favorite causes.

Although a good clear set of documents is a necessary tool, establishing a strong ongoing relationship is even more important, and the linchpin to any successful plan. If you are relieved at “completing” the estate planning process merely because you sign your documents, but don’t identify your estate planning lawyer as among your most trusted advisors, I haven’t done my job.  If you sign a will or trust and then check it off your to do list to never think of it again, then I haven’t done my job.

However, if you are able to think about your estate plan without becoming melancholy, then I have done my job.  If you relish knowing you can call me whenever you have a problem, without fear of the “meter running,” then I have done my job.

These are a few of the things I believe go into a good relationship.  Now I’m interested in whatyou want in a good client attorney relationship.  I’m listening; please share your thoughts with me.  Your comments will help me be a better advisor for all of you.  I look forward to hearing from you online or in person.

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Do You Know What You Don’t Know?

I recently came across a New York Times article that reminded me of an all too common experience I encounter in my estate planning practice. In the article author Ron Lieber recounts his experiment with 4 different Do-It-Yourself will drafting software programs and the outcome. Although Lieber goes through the pros and cons of each software program, his final conclusion is that while these programs may make you feel safe, they simply can’t give you the level of protection a trained attorney can—and in some cases these programs actually do more harm than good.

Unfortunately, I am often the bearer of this kind of bad news after the damage is done.  Lawyers consulted after a death cannot undo the damage done by an inadequate or incomplete estate plan, we can only do the necessary work to administer the estate and transfer the assets, hopefully, but not always, to the intended loved ones.  Unlike writing on a blank slate if nothing had been done, first, I must erase the unintelligible mess before I can begin.  This is generally expensive, meaning that the self help remedy defeats its own purpose by becoming more expensive than had the client consulted a competent lawyer in the first place.

The Attorney General of the state of Washington agrees with me.  In an announcement explaining the terms of a recent settlement with LegalZoom, the Attorney General expressed concern that the advertising and service offered was misleading because although it provided forms, it couldn’t provide the advice necessary for a consumer to determine if the forms were being completed properly.  The enforcement of its unauthorized practice of law rules is a major victory for unwary consumers and a lesson for us all.

Something happening in Washington may seem far away from our lives here in Arizona, but this is a serious issue that affects anybody considering an estate plan—or legal work of any kind!  I strongly urge you to look closer at the NYT’s article at the top of this post and then the announcement from the State of Washington.

It all comes back to the fact that you simply don’t know what you don’t know. Finding professional advisors whom you trust to help you determine your intent, to spend the time it takes to know you and your family, and to design an estate plan that will be efficient in terms of cost and effectiveness is of the utmost importance.

In the midst of designing an extraordinarily complex plan recently, I delivered drafts for review of multiple trusts and documents to the clients, one of whom honestly asked if they needed to hire someone to read and explain the words to them.  In the same week, a prospective probate client delivered a perfectly organized file consisting of 30 or more documents that had been prepared by a combination of document preparers and online do-it-yourself packages, all of which looked very good and which had taken a very long time to create and organize.  Unfortunately, all of those documents individually (and certainly the group as a whole) failed to achieve any of the primary purposes – it did not avoid a probate process, it did not transfer the assets to the intended persons, and it will not avoid legal fees.

What do these 2 seemingly disparate examples have in common?  Without knowing what they didn’t know, the client and the prospect were unlikely to make the right decision without relying on the expertise of a competent professional.

I believe estate planning is an important partnership.  If you teach me about your family, your finances, and your hopes, dreams, aspirations, and intentions, then I will teach you the law that must be applied to achieve the result you want to obtain.

The rest is just hard work.  Legal documents are tools to achieve a result.  Anyone can buy a hammer and saw at the local hardware store, but not everyone can build the house they want to live in.  You have spent a lifetime acquiring knowledge and skills and applying your talents to build a life; do you really want to take a chance not knowing what you don’t know?

Estate taxes, gifting, revocable and irrevocable trusts, heirs and beneficiaries, trustees and executors, estates, probate, Last Will and Testaments, power of attorneys, health care directives, and more are the language and stock in trade of good estate planning; using them correctly is difficult.  EVERY case is “fact specific” which means that your circumstances and intentions dictate how the resulting documents are drafted.  Form documents are like a broken clock that is right only twice a day.  Your family may pay a terrible price for the false sense of security of form documents.

Laws and common practice are complex and ever changing.  If you want an estate plan that works, call me.

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Choosing The Right Home Care For Your Aging Parents

Guest post by Jude Tarris, President of Valley of the Sun Homecare.

It’s 8pm on a recent Tuesday as I arrive at the airport for my red eye flight.  I’m heading to New York for a conference that starts in the morning.  As I’m waiting at the gate I can’t help to notice a man visually upset, pacing back and forth and constantly getting on and off the phone.  I’m trying to mind my own business but can’t help but notice that he is extremely stressed and I can only wonder what the problem may be.  Twenty or so minutes pass by and they begin boarding the jet.  The same man is still in disarray and he is now standing behind me in line.  I was planning on getting a few hours of much needed sleep and now I’m certain he is going to take a seat next to me.  Sure enough as I take my seat in 17A he comes in right behind me in 17B.

As he stakes his claim to the middle seat he begins rummaging through a bunch of loose papers.  It’s at this time I start to pick up on the telephone conversations he is having.  It appears there is some sort of medical emergency with a family member and he is on his way to help.

Out of concern I ask him if everything is ok.  He is quick to answer, telling me he just got a call a couple hours ago that his mother had fallen in the shower, and he has no idea what he needs to do to help take care of her.  “She has been declining in health over the past couple years”, he says, “and now this happens. She refuses to move back home with my family and doesn’t want to move into a retirement home either.  She has to make a choice now.”  I ask him if he ever considered home care, to which he replies that he’s not familiar with that option.  After learning more about his concerns for his mother I suggest he look into having a caregiver come into her home.  It seems that she mostly needs is a little extra help around the house with preparing meals, housekeeping, transportation to the grocery store and doctor appointments. Just as importantly she needs some companionship, and he needs the peace of mind that comes with knowing that she is being looked after.

If given the choice most seniors would prefer to age in place as opposed to moving into an assisted living facility, nursing home, or become a burden by moving into their adult children’s home.  Home Care is often the best option for your aging parent.  Not only will they feel most comfortable at home but it could also be more affordable than the alternative.  You should, however, do your homework when deciding which home care company to hire to take care of your loved one, especially here in Arizona where the non-medical home care industry is unregulated.  The following 10 questions are a good starting point to ask prospective agencies prior to hiring to ensure you are putting your loved one in good hands.

  1. What kind of background check do you do on your workers?Since trust is critical when hiring someone to help your parent in a home setting, background checks are a must have screening tool.  Valley of the Sun Homecare conducts a 50 state criminal background check prior to hiring.  We feel it is essential to hire caregivers with a blemish free background because they will be working in the home of your vulnerable loved one.
  2. Are your caregivers bonded?If someone is bonded, her work is basically insured, and your parents will be covered if she breaks the washing machine or steals something. Caregivers at Valley of the Sun Homecare are bonded just in case.
  3. How do you handle a worker’s sick days, vacation days, and holidays? Will you automatically send a replacement caregiver?Valley of the Sun Homecare will automatically send a backup caregiver who has previously been introduced to your loved one.  Everyone needs breaks and time off, especially home health workers. Find out how agencies cover for worker absences and what’s required from your end.
  4. Do you check your workers’ driving record and driver’s license?If you need someone to drive your parent, even occasionally, it’s important to know what kind of driver you’re getting.  And if the worker will be driving your parent’s or your car, check with the insurance company to find out how to include new drivers.  Valley of the Sun Homecare conducts MVD checks on all caregivers and also has additional auto insurance coverage.
  5. Do you provide any training for your workers?It is important that your caregiver properly knows how to care for your loved one.  Valley of the Sun Homecare provides training at the time of hire and on an on-going basis.  In addition, we don’t hire caregivers who don’t have at least 1 year of experience.
  6. Do you have clients I can talk to about their experiences?Ask for several references. This is one of the best ways to get a sense of how an agency performs over time.  Valley of the Sun Homecare will be happy to get you in contact with some references.
  7. Are your caregivers employees or independent contractors?Valley of the Sun Homecare employs their caregivers.  Some agencies function more like job referral services, linking independent workers with jobs rather than managing their own employees. With independent contractors, you’ll be required to do more paperwork and supervision.
  8. What’s the turnover rate of your workers?People who are happy with their work make better employees. See if you can get a reading on this.  Valley of the Sun homecare pays their caregivers on average 10% more than the competition which allows us to attract and retain the best caregivers available.
  9. Do you accept payment from insurance companies?If your parent has long-term care insurance that pays for the cost of in-home care, you’ll want to make sure the agency accepts this kind of payment. If not, you’re probably better off using one that does.  Valley of the Sun Homecare will help you through the Long Term Care Insurance and Veteran’s Aid & Attendance process.
  10. Will you take care of all required payroll paperwork for my parent’s caregiver?A significant amount of paperwork is involved when employing someone, covering such matters as taxes, Social Security, and disability. One plus to hiring from an agency such as Valley of the Sun homecare (and the reason it’s usually more expensive than hiring independently) is that it normally does this for you. Still, it never hurts to double-check.
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The New Reality Of Single Member Limited Liability Companies (SMLLCS)

If you’re looking for a way to protect your assets from creditors and lawsuits you should consider creating a Limited Liability Company (LLC).  An LLC is a business entity that combines the benefits of a business partnership and a corporation and protects your assets while still allowing you to retain control over them.  Desirable characteristics of LLC include that it can be formed by a single member, does not have to have a business purpose, and does not require a separate tax return or annual filings to maintain its existence.  LLCs can be a wonderful tool… but not all LLCs are created equal.

Arizona asset protection enjoys a competitive advantage over the laws of many other states because the drafters of the Arizona LLC law omitted creditor friendly portions of the Uniform Laws that allowed creditors to foreclose their charging order liens to realize on the underlying assets owned by the LLC.  This puts Arizona LLCs among the country’s elite LLCs for asset protection.  This enhanced protection is commonly known as the “charging order as the exclusive remedy,” and until recently was thought to be absolute in states like Arizona.  However, this enhanced protection is now being eroded by developing case law, and even in an LLC-friendly state such as Arizona the yellow flag of caution must be out for a Single Member LLC (SMLLC) as protection of its assets from its member’s creditors.

THE BATTLE BETWEEN CREDITORS AND SMLLCS

In the 2003 Colorado bankruptcy case Ashley Albright, the Court allowed a bankruptcy trustee to stand in the shoes of the debtor and control the assets of the debtor’s SMLLC.  First thought to be an aberration limited to its facts, in fact that decision was correctly decided and a warning to all SMLLCs.  The true lesson of that case is stay out of bankruptcy court if you expect to protect the assets in a SMLLC because the bankruptcy trustee steps into the place of the debtor and can control the assets inside the SMLLC if there are no other members to protect.

Then in 2005, in an Arizona bankruptcy case case, In re Ehmann, a decision since vacated when the parties settled, Judge Haines articulated a theory that if a limited partner had a passive role in the governance of a family limited partnership, the bankruptcy trustee could under some circumstances succeed to the interest of the debtor limited partner, formulating a theory about the impact of the executory nature of the limited partnership interest.  While not particularly interesting because it broke no new intellectual ground –the bankruptcy trustee always had that bundle of rights, the case is interesting and instructive because the general partner governed the limited partnership to the detriment of the bankruptcy trustee giving rise to a right to dissolve the partnership and reach the underlying assets, the case is nevertheless instructive.  The case is important because it is the vanguard case signaling that the remedy of judicial dissolution can be used by creditors in a variety of circumstances where no other remedies exist.

The next important case is the recently published Florida Olmstead case where the Florida Supreme Court failed to decide the question certified to it by the Federal District Court about the remedies available against a SMLLC, but rather held that a charging order was not the exclusive remedy against a single member limited liability company because single member limited liability companies lacked other members whose interests needed to be protected.

The Florida Supreme Court refused to interpret the state statute and instead chose to fashion a remedy designed to protect creditors against artificial barriers in collection procedures.

It has been suggested elsewhere that a strict reading of exclusive remedy statutes (such as the one in  Arizona) invites judicial activism to shape remedies as did the Florida Supreme Court which has now given it’s imprimatur to the creditor friendly theory.

ARIZONA-SPECIFIC SMLLCS

Although SMLLCs are good asset protection entities protecting a member’s other assets from claims by creditors of the SMLLC (commonly called inside out protection), even that protection is limited if the member has signed a guarantee or can be held directly responsible as the actor giving rise to the claim.

The importance of the omission in Arizona law of the right to foreclose the charging order means a judgment creditor is entitled to a lien against a member’s interest in an LLC, but the creditor is only entitled to receive distributions that would otherwise be made to the member.  If the LLC makes no distributions, then the creditor receives nothing except the satisfaction of making life difficult for the debtor.  In states that follow the Uniform Laws or have their version of the charging order statute, the creditor may foreclose its lien on the member’s interest and force its way into the governance of the LLC; this is not the case in Arizona.

In single member limited liability companies, this means the creditor may have an absolute right to distributions from the SMLLC, but the debtor retains control over the assets of the SMLLC and the timing of distributions.  This is a most undesirable result from the point of view of the debtor.

WHAT DOES THIS MEAN FOR YOU?

The battle will continue over the distinction between economic rights and governance rights in SMLLCs. How much deference to a plain reading of the statute can asset protectors expect from judges in cases with difficult fact patterns will continue to present a quandary to most.  Practitioners have long argued peppercorn theories of additional members, but the modern genre of reverse piercing and judicial dissolution arguments in an increasingly hostile judicial environment require you to stand up and take notice rather than relying only on statutory constructions.  It will be increasingly important that documents are well drafted in a state with favorable laws and that the ownership and governance provisions of your operating agreements be given particularly attention to achieve your specific goals.  Most importantly specific facts must be analyzed because beginning with the best structure is the key to long term success.

If you think a custom crafted LLC will benefit you, give me a call.

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Round Table Discussion: Estate Planning Or Asset Protection?

A typical Thursday night finds me meeting with other lawyers and discussing ideas useful in our respective practices.  Although always trying to find new ideas to help clients, these meetings, reminiscent of old style writer’s salons, are particularly useful because of the opportunity to exchange views in an open setting.  No idea is too simple or outlandish and all opinions are welcome.  It is a refreshing opportunity to be the one asking the stupid question and being amply rewarded with a wealth of knowledge and experience.  The food and drink is usually good, but no match for the companionship.

Recently we were discussing provisions for naming and removing successor trustees and the differences between granting the right to trustees, protectors, and beneficiaries.  I was particularly interested in what powers could be used in what situations with or without running afoul of grantor trust rules that cause assets in an irrevocable trust to be included in the taxable estate of the grantor or beneficiary.

These are important discussions, but often buried in the “black box” of our trusts because the clients lose interest after answering the questions of control, use, and taxes.  My role is to understand the client’s intentions and providing the most flexible rules that still meet the client’s objectives.

Our discussions frequently involve the relatively new “decanting” power under Arizona law, which allows a trustee of an irrevocable trust to make a new trust and add or exclude beneficiaries under certain circumstances.

This evening the point was made that for asset protection purposes attorneys should ensure that there is a power to exclude beneficiaries, and the discussion then quickly turned to whether that was a power best granted to a trustee or a protector in the context of which office could best wield the power in conjunction with a beneficiary’s right to remove and replace the trustee or protector without inadvertently creating a general power of appointment—which would cause estate tax inclusion in the estate of the person wielding the power.

The flash of knowledge that struck me was that although the power to exclude beneficiaries was crucial to a thoughtful asset protection trust, it would almost certainly not sit well with most of my clients that their successor trustee could exclude their chosen beneficiaries, except under very limited circumstances.

That in turn led to the idea of how to design a trust which would grant the power, but include adequate guidelines as to when the power could be exercised, so as to enhance the protection beneficiaries will have from their creditors yet reassure the grantor that the power will not be used to subvert the client’s intentions.

The trusts I create contain many instances of this type of analysis to ensure that my clients are always on the leading edge of what is possible.

If you found this article interesting, please share it with a friend or make a comment.  If you would like to find out more about purposeful planning, please call me.

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Why Use A Lawyer For Estate Planning When You Can Do It Yourself?

Do you think you can create your own estate plan?  In the right circumstances, the answer may be yes… But how do you determine what are the right circumstances?  A recent US News and World Report article on do-it-yourself planning gives both sides of the argument.

There is a growing recognition that not enough people have estate planning documents and many wills, trusts, and powers of attorney are sold through the internet and by non-attorneys.  These DIY plans have the benefit of being inexpensive, but often fail to provide for your loved ones in the manner you intended.

I am frequently contacted after a death by a family member whose loved one paid for the least expensive plan only to discover that the plan didn’t work for any number of different reasons.  When contemplating an estate plan, lawyers owe a specific duty of competence to their clients (as well as other duties arising from the special attorney client relationship)—a DIY program or “fill in the blanks” document feels no such duty, and often neither do the people or companies who sell them.

When hiring an attorney, the documents themselves are the least expensive part of the relationship.  The client is purchasing the lawyer’s knowledge and experience applied to the client’s unique circumstances.  And although many clients believe they have a simple plan, in truth everybody has unique issues that require examination, and every client benefits from the personal relationship and the lawyer’s attention to detail.

I recently probated an estate wherein the family believed all the assets were titled either in joint tenancy with rights of survivorship or with POD designations that would avoid probate, but one single substantial bank account was improperly titled. As a result an expensive and time consuming probate procedure frustrated the family’s intentions of a quick and inexpensive administration procedure.

In two other recent cases I was able to avoid a probate despite the family having been advised that a probate was necessary to sell real property inherited from an ancestor.  In one case a less expensive Affidavit for the Collection or Transfer of Real Property was appropriate despite the title company demands.  In the other I was able to use a filing and recording proceeding so a foreign personal representative could act, even though the family had been told an Arizona probate proceeding was necessary.

Another increasingly common and painful occurrence that DIY plans aren’t likely to point out is family disputes over life insurance that occur because the decedent’s beneficiary designation is out of date due to (re)marriage, divorce, or birth or additional beneficiaries. Poorly thought out beneficiary designations for retirement accounts, or property left to minors or disabled descendants without adequate consideration for how the property is to be administered are altogether too common. Making the assumption that everything is in order and cutting corners on the review process is what dooms many estate plans.

Unfortunately, there is no bright line test for when a DIY plan can succeed.  There is just no substitute for good legal advice. So please, be careful out there!   I concentrate on creating estate plans that work using the least expensive alternatives, but without cutting corners.  If you think I can help your family, or that you would benefit from a consultation, call me.

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Trading Your Chevy In For A Cadillac: Reasons To Update Your Trust

In my last blog post I promised to give some concrete examples of why an updated trust is better than one that simply keeps the “status quo”. I will forgo the obvious examples such as inheriting money or growing your assets so that your original plan will no longer work. I’ll also skip over the obvious changes in family circumstances which make your existing plan unpalatable. These are reasons you already know. This blog post will concentrate instead on the not so obvious reasons to update.

One of the most important (and most common) reasons to update from your Chevrolet trust to a Cadillac trust is a second marriage. A subtle problem may exist when you are in a second marriage and plan to leave your assets to your surviving spouse to use, and then hope that spouse passes them along to your descendants.

A typical estate plan provides for the surviving spouse to be the income beneficiary of a credit shelter trust with the remainder passing to your children. If your estate exceeds the minimum estate tax exemption then the remainder passes to a marital deduction trust, either a limited access trust commonly called a QTIP or outright to the survivor’s trust, depending upon your family circumstances. However in many second marriages, the plan is for the amount that can pass without being subject to estate tax to pass directly to your descendants upon your death. This is fairly common when the spouse may be close in age to your children. Such plans usually satisfy the belief that it would be unfair to make your children wait for their inheritance, yet the inheritance is still shared between your spouse and your descendants.

The way most plans are written, the formula operates to leave as much to your descendants as will not increase the tax. When that number is $1,000,000, in a $2,000,000 estate the surviving spouse would get half and the descendants would share the other half. But as the exemption amount increased to 3.5 million dollars, the surviving spouse would get nothing – not the intended result. Now the reverse is true, this year there is no estate tax and that plan would completely disinherit the spouse no matter how large the estate, but next year, the descendants will share only 1 million dollars no matter how large the estate.

I believe in “modeling” or “back testing” the results to be sure you will achieve the desired result, and it pays to model or back test frequently if a sound estate plan is important to you.

Unintended consequences can arise in many ways, this is just one graphic example.

Call today and arrange for me to review your documents and back test them against your assets and your intentions. You will be glad you did!

By |Estate Planning, Wills & Trusts|Comments Off on Trading Your Chevy In For A Cadillac: Reasons To Update Your Trust