April 16th marks National Healthcare Decisions Day in the United States. Ahead of NHDD, results from a recent study by VITAS Healthcare shows that the COVID-19 pandemic has inspired Americans to consider their own healthcare plans and wishes for end-of-life medical care. Although more Americans are recognizing the need for a healthcare plan in the face of the COVID-19 pandemic, a large percentage of Americans still fail to establish a written plan and discuss their wishes with loved ones.

Put a Plan on Paper and Communicate to Loved Ones

A written plan is the first critical step in making sure your healthcare wishes are carried about by your caregivers. Discussing your plan with loved ones is also important to help alleviate confusion and stress in the event that you become very ill or need end-of-life care. The controversy and guilt that may result when family or loved ones are forced to make decisions regarding your care without your guidance could last for years after you pass away. Below are two important healthcare decision documents.

Healthcare Power of Attorney

The healthcare power of attorney allows you to select one or more individuals to make decisions regarding your medical care in the event that you are incapable of doing so. This document outlines the scope of your agent’s powers regarding your medical care. Powers may include the authority to consent to care, admit or discharge you from a hospital or other care facility, have access to your medical records, make plans for the disposition of your body, and everything in between according to your personal wishes.

Living Will

A living will expresses your wishes for end-of-life medical care. If you are in a terminal state as determined by a physician and incapable of making a decision regarding your end-of-life care, your living will can take over as the legal representation of your wishes. By taking this decision out of the hands of loved ones, you can help prevent disagreement and regret for those you leave behind.

Communicating healthcare wishes to loved ones is an imperative but often forgotten aspect of a healthcare plan. When the time comes to put your healthcare wishes to work, clarity and understanding will make this process much more manageable for your loved ones.

You have decided to establish a trust to manage your assets for your loved ones, but who should be in charge? Typically, the grantor, or the person creating the trust, serves as trustee during his or her lifetime. Upon the death or incapacity of the original trustee, a successor trustee is needed to either continue management of the trust, or to handle distribution of trust assets and trust termination. While many grantors prefer to appoint a family member or close friend to the role of successor trustee, the duties of a trustee can be quite overwhelming. As such, it is important to keep the magnitude of the trustee position in mind when making this decision. Some factors to consider when selecting a trustee include:

• Financial proficiency and ability to meticulously manage fiduciary responsibilities

• Organizational and administrative capacity

• Potential risk and legal liability

• Family dynamics

• Professional trustee or co-trustee possibilities

• Full understanding and agreement by the trustee

A trust can be a very useful tool to provide for loved ones now and in the future, avoid probate, preserve privacy, and minimize estate taxes. Selecting the proper trustee is crucial to the effective execution of a trust. For more information on what you and your trustee need to know as you work toward setting up a trust, this recent piece from MarketWatch provides some valuable insights.

Many legislative changes are expected over the coming months as our country transitions to a new administration. Although the Biden administration’s plans for estate tax reforms have not been fully detailed, signals from Biden’s campaign indicate that two major changes will likely be introduced to Congress:

• Reduction of the lifetime exemption. The current $11 million lifetime exemption amount (adjusted annually for inflation) that went into place as part of the Tax Cuts and Jobs Act of 2017 (an increase from the previous $5 million exemption) is set to expire at the end of 2025. For the year 2021, individuals may gift up to $11.7 million during life or at death without gift or estate tax consequences. If left unchanged, this amount would continue to increase with inflation until 2026 when the exemption amount would return to $5 million. However, many expect that the Biden administration will propose adjusting the lifetime exemption amount downward, possibly to $3.5 million per individual.

• Elimination of the stepped-up basis for capital gains at death. Currently, inheritors enjoy the benefit of a stepped-up basis on capital assets (certain investments such as stocks and bonds, real estate, cars, etc.) upon a decedent’s death. This means that appreciated capital assets previously owned by the decedent are valued at the fair market value as of the decedent’s date of death for tax purposes. As such, any capital asset appreciation that occurred prior to the decedent’s death is not subject to capital gains taxes under current federal estate tax law. The Biden tax plan seeks to eliminate the stepped-up basis, which means that any appreciation on capital assets held by the decedent during his or her lifetime would be subject to capital gains taxes. Further, Biden’s tax plan has proposed a long-term capital gains tax increase that could double the capital gains tax rate for wealthy individuals.

Now that the Democratic Party controls both the House and Senate, it is very likely that tax reforms will be made. However, with other pressing issues including COVID-19 and economic relief, many believe that changes to the current tax structure will likely not occur until the end of 2021 and will not go into effect until 2022. As such, this year should provide time to consider making gifts, perhaps recognize capital gains early, or make other adjustments to address the impact these changes could have on your estate plan.

References for additional information:

Biden’s Tax Proposals and Estate Planning (Skadden)

What Does A Biden White House Mean For Estate Planning? (Forbes)

10 Biden Tax Plans (MarketWatch)

Joe Biden’s Tax Plans for the Next Few Years (Kiplinger’s)

2020-2021 Capital Gains Tax Rates - and How to Calculate Your Bill (NerdWallet)

With the end of 2020 in sight, a few last minute estate planning considerations provided by JD Supra can help you close out this turbulent year with confidence and a clean slate:

1. Make gifts of cash to public charities to take advantage of tax laws;

2. Have discussions regarding your estate plan with your family over the holidays;

3. Review and update your estate plan every few years or after a major life event such as a birth, death, or marriage;

4. Check account ownership and beneficiary designations to make sure they still reflect your wishes;

5. Make sure your family knows how you would like your affairs to be handled in the event of your incapacity and where all pertinent documents (powers of attorney, living wills, advance directives, etc.) are stored;

6. Investigate life insurance options for the benefit of your dependents or loved ones; and

7. Finalize or pledge charitable gifts that qualify for 2020 tax purposes.

Wishing you joy and happiness this holiday season, and a safe and bright start to a brand new year!

With the holiday season upon us, especially this year, care and concern for family and loved ones takes on particular importance. Although contemplating what will happen to our assets should we lose capacity or pass away is not a typically joyful holiday pastime, thinking broadly about your main goals for your estate plan can provide a positive starting point. To help you get started, below are some of the most common estate planning objectives:

• Provide financially for oneself, spouse, children, or other friends and family members

• Minimize estate and income tax consequences

• Appoint a guardian for children

• Give to charities, churches, or other organizations

• Contribute to educational costs of loved ones

• Protect assets from creditors

• Appoint representatives in the event of incapacity

• Simplify the process of asset transfer for family members

• Give specific items of personal property to family or friends

• Avoid the probate process

Taking the time to consider what you wish to accomplish with your estate plan can make the process seem less daunting and provide a clear roadmap for developing your plan. For more information on ways to meet your estate planning objectives, take a look at this recent piece from Forbes.

When I started my estate planning business seven years ago this week, I never would have dreamed that I would be meeting clients in a makeshift outdoor office.  Yet, here we are.  While law school does not prepare attorneys to operate in a global pandemic, it does prepare us to maintain composure while navigating unexpected twists and turns.  To say there were a lot of those this year would be a drastic understatement.

As the COVID-19 pandemic took over our lives, estate planning came to the forefront of the minds of many.  My business has doubled over last year through the pandemic.  Thank you to my clients for entrusting me with your estate planning needs, particularly through this turbulent time.  I am incredibly grateful for the grace all of my clients have shown while listening to my children carrying on in the background of Zoom meetings and phone calls with good humor and kind understanding.  Your flexibility in moving to virtual appointments and meetings in our driveway, garage, or patio has made this stressful time manageable.  I am so thankful for your amiability.

As always, thank you to my family, friends, and professional network for your continued support.  Your referrals are so appreciated and your trust in me to serve your clients and loved ones is truly meaningful.

A review of your estate plan is always warranted after a major life change. A new marriage after divorce is no exception. If you have remarried, it is important to make sure your estate plan reflects your current situation. Below are a few problematic situations that can arise if you fail to update your estate plan after remarriage:

1. Unintentional disinheritance of your new spouse. This can occur if you fail to update your will, trust, or real estate ownership to reflect your intent to distribute assets to your new spouse or to allow your new spouse to live in your home after you pass away. Some state laws may pass your assets to your children rather than your new spouse if you do not specifically provide for distributions to your spouse.

2. Unintentional disinheritance of your children from a previous relationship. Oftentimes, spouses will leave their assets to each other with the expectation that the surviving spouse will eventually pass along remaining assets to the predeceased spouse’s children upon their death. Unfortunately, without a trust or another protective measure, your children may not inherit as you had previously planned if the surviving spouse alters distributions in their own estate plan.

3. Depletion of assets prior to the surviving spouse’s death. If a trust is used to pass assets to a surviving spouse with the remainder to pass to the predeceased spouse’s children, there is a risk that the surviving spouse could use up trust assets, often for medical or nursing home expenses, leaving little or nothing for the predeceased spouse’s children. Instead of a trust, you could utilize a life insurance policy payable to your spouse while leaving your other assets to your children to avoid this situation.

4. Unintentional distribution of assets to former spouse. While a divorce decree typically negates gifts to a former spouse by will, if you fail to remove your former spouse as a beneficiary on retirement accounts, life insurance policies, and the like, your assets could end up passing to your former spouse. In addition to keeping all beneficiary designations up to date, it is important to make sure your financial and medical powers of attorney have been updated to remove any powers granted to a former spouse.

For more information, see this helpful piece by Barron’s detailing potential solutions to these common estate planning mistakes after remarriage.

Avoiding probate is a common goal for those establishing estate plans. The probate process is the system through which the assets included in a deceased individual’s estate are distributed according to wishes expressed in the decedent’s will, or through state intestacy laws if no will was created. The transfer of assets through a probate court can result in attorney and court fees as well as other expenses and delays that many individuals wish to avoid. Only assets that do not transfer automatically upon an individual’s death are included in that individual’s estate. As such, setting up assets to transfer automatically upon death can reduce the size of an estate, thus minimizing costs and complexities associated with the probate process. Below are some helpful tips shared in a recent Forbes piece highlighting some of the best ways to utilize an estate plan to avoid probate:

1. Payable-on-Death Designation: Designating beneficiaries on life insurance policies, retirement, investment, and other accounts, as well as payable-on-death beneficiaries on simple checking and savings accounts will ensure the non-probate transfer of financial assets.

2. Transfer-on-Death: Indiana and Ohio both allow individuals to set up transfer-on-death beneficiaries on titles to real property and vehicles. Upon the original owner’s death, the transfer-on-death beneficiary will receive such property outside of the probate process.

3. Joint Ownership: By adding a joint owner to property or financial accounts, assets belonging to the original owner can become the property of the joint owner seamlessly upon the original owner’s death without the involvement of the probate court.

4. Revocable Living Trust: Some individuals place their assets into a revocable living trust during life. Upon the grantor’s death, assets that have been transferred into the trust will pass to beneficiaries according to the terms of the trust without ever going through probate.

5. Gifts: Finally, you can reduce the size of your estate by making gifts of property during your lifetime that you would have otherwise made through a will after your death. A smaller estate can result in lower probate court fees and a more timely distribution of your assets after your death.

Although assets passing through the probate process will eventually be distributed according to your will or state intestacy laws if you do not have a will, taking a few fairly simple steps now to ensure that your assets will transfer outside of the probate process can save time, money, and energy for loved ones down the road.

In a world of heavy news, time for some lighter reading! We are often warned about the potential for trouble if we neglect our estate plans, but even celebrities are not immune to estate planning blunders. For the average American, estate planning failures can lead to a messy and potentially expensive legal process for loved ones left behind. For celebrities, such mistakes are often magnified by the typically massive value and public nature of their estates. Sonny Bono, Marilyn Monroe, Michael Jackson, and Prince are just a few celebrities whose assets became tied up in unintended legal battles after they passed away. For a little brain break, check out this ThinkAdvisor piece detailing thirteen surprising celebrity estate planning calamities.

If nothing else, the past few months have given many of us a greater appreciation for the value of our homes. A home is typically the largest non-financial asset Americans own at the time of death. As such, the transfer of one’s home is often a major consideration during the estate planning process. Whether the goal is to avoid probate, minimize capital gains, or attempt to qualify for Medicaid, there are several ways a home can be transferred through an estate plan.

If you have been in your home for a number of years, the value of your home has likely appreciated markedly since the time of purchase. Therefore, simply gifting your home to a loved one during your lifetime could have significant capital gains tax implications. So, what are some effective ways to plan for a transfer of your home while minimizing capital gains? Below are a few options:

1. Living Trust: By transferring a home into a living trust, the home is immediately taken out of the original homeowner’s estate. This means that when the original homeowner passes away, the transfer of his or her home will not involve a probate court. Upon the death of the original homeowner, a home that has been placed in a trust can be sold and proceeds distributed to loved ones with the benefit of a stepped-up basis for capital gains considerations.

2. Life Estate: By reserving a life estate in a home, the original homeowner maintains the right to live in the home during his or her lifetime. Upon the original homeowner’s death, the home transfers (with a stepped-up basis) to the named beneficiary. It is important to keep in mind that the original homeowner gives up many ownership rights to the property, including the ability to mortgage or sell the home, during his or her lifetime.

3. Transfer on Death Deed: Also known as a Lady Bird deed, a transfer on death deed allows the original homeowner to maintain full control and possession of the property during his or her lifetime. Upon the death of the original homeowner, the home will transfer to the named individuals outside of the probate process.

When all factors and options are taken into consideration, an estate plan can be a very useful tool for arranging the transfer of a home. To learn more, check out this recent article published by Forbes.

A huge thank you to so many who shared and took advantage of the free health care power of attorney and living will promotion over the past 4 months! Wishing everyone a fun and safe 4th of July!

While establishing a comprehensive estate plan is essential, your plan could prove useless if your loved ones do not know how to access it when needed. Hunting for an estate plan during an emergency situation is not something a scared or grieving loved one should have to do. Especially in consideration of the unpredictability and seriousness of COVID-19, it is important to make sure your will, powers of attorney, and living will are easily accessible should you become ill or incapacitated. In a recent article, Forbes provides some ideas for storing a “go package” containing your most important estate planning, insurance, and medical documents in a convenient spot where it can be quickly retrieved by you or a loved one.

Recommended documents and information to compile in the “go package” include:

1. Medical power of attorney or advance directive;

2. Living will;

3. Financial power of attorney;

4. Last will and testament;

5. Living trust agreement;

6. Copy of insurance and/or Medicare card and information;

7. General medical history including chronic conditions, prescriptions, supplements, over-the-counter medications, and allergies;

8. Full legal name, birth date, and Social Security Number;

9. Emergency contacts; and

10. Contact information for medical providers.

Storing these items in a spot near the exit to your home where the package can be easily picked up on the way out the door or in another conspicuous location that is known to your loved ones can save time and stress in an emergency.

Choosing a guardian for young children is almost always the most difficult estate planning decision parents face. If you are a parent, imagining someone else raising your children is unsettling. Worse, imagining a scenario in which your children must adapt to the loss of their parents in addition to an entirely new living situation is gut-wrenching. Though parents often agonize over this daunting decision, it is important to keep in mind that a probate court will make this decision for you if you do not express your wishes in your will or other written document before you pass away. While there is no perfect formula for selecting a guardian for your children, below are a few items for consideration:

1. Choose a friend or family member with shared values who will likely apply these same principles to raising your children.

2. Consider the guardian’s age, health, and general capacity to raise your children until adulthood.

3. Weigh the guardian’s financial stability. The guardian may manage your children’s inherited assets until they reach adulthood. Alternatively, parents may choose to name a separate individual to manage their children’s financial assets if another person would be more qualified.

4. Keep in mind that this decision is personal to you, the parents, and the future you see for your children. The opinions of others may be helpful, but should not control your final decision.

5. Ask the person you select to serve as guardian in advance to make sure they understand and agree to the undertaking.

6. List backups in case things change down the road and your first choice guardian no longer has the capacity or desire to handle raising your children.

All parents want the best for their children, so the anxiety parents feel when selecting a guardian is understandable and expected. Rest assured, you are not alone in these feelings of hesitation. Expressing your wishes in writing after careful deliberation is the best way to ensure the future you want for your children.

To all the moms out there navigating a brand new normal and juggling emotions ranging from guilt and fear to joy and gratitude, we are in this together one day at a time. Wishing you all a very Happy Mother’s Day!

In the face of a global crisis, I wish you comfort in holding on to what is important and trusting that these times will pass. As uncertainty abounds, please feel free to continue to contact me with any questions or planning needs. Document review and consultations are always free of charge. I will continue to offer free health care powers of attorney and living wills until July 4th, 2020. If you or a loved one need these or any other planning documents, please be assured that I work quickly to deliver documents promptly and coordinate witnessing and notarization.

Through this unsettling time, some have taken the opportunity to pontificate, some to take action, and others to simply tune out the noise and wait for it to end. The beauty lies in the fact that we live in a country where we are free to do as we choose, yet recognizing that the vast majority of Americans are suffering, sacrificing, and doing their individual best for the sake of all. Thank you to all of the helpers across every industry giving it your very best when we need you the most. May we always remember those who choose with humility and courage to stay standing in our corner through our greatest trials refusing, without exception or excuse, to let us fall.

*EXTENDED THROUGH 7/4/2020*