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Saturday, November 7, 2015

Why Choosing an Executor is One of the Most Important Decisions in the Estate Planning Process

Should I appoint all four of my children to serve as co-executors?

When a person dies, it becomes necessary to begin the estate administration process. For those dying with a Last Will and Testament, the terms of this document dictate not only the distribution of the estate, but the person(s) responsible for ensuring that all debts are paid, properties are sold, and beneficiaries are paid. In sum, it’s a big job, not for the faint of heart.

Choosing an executor is an extremely important component of the estate planning process. When it comes time to make this decision, testators often assume that the best course of action is to simply appoint all of their children, who will then work together to get the job done in a timely and efficient manner. In some cases, this may be the best arrangement. More often than not, , however, appointing a group of individuals – particularly the children of the decedent– to handle the administration of the estate leads to conflicts, bickering, and tension.

When choosing an executor, it is often advised to select one person who possesses a responsible nature, is somewhat savvy financially and has the ability to complete the task at hand. When selecting an executor, consider each candidate’s place of residence, as it is often difficult to administer an estate from several states away. Likewise, consider whether the candidate is responsible, punctual and trustworthy – as these are all necessary qualities for the proper administration of an estate.

After selecting an executor, it is usually a good idea to select an alternate person to take over in the event the first executor is unable, unwilling, or predeceases the testator. In any event, all executors should be notified of their role, and should be willing to take on the responsibility from the outset.


Monday, October 26, 2015

8 Things to Consider When Selecting a Caregiver for Your Senior Parent

As a child of a senior citizen, you are faced with many choices in helping to care for your parent. You want the very best care for your mother or father, but you also have to take into consideration your personal needs, family obligations and finances.

When choosing a caregiver for a loved one, there are a number of things to take into consideration.

  1. Time. Do you require part- or full-time care for your parent? Are you looking for a caregiver to come into your home? Will your parent live with the caregiver or will you put your parent into a senior care facility? According to the National Alliance for Caregiving, 58 percent of care recipients live in their own home and 20 percent live with the caregiver. You should consider your current arrangement but also take time to identify some alternatives in the event that the requirements of care should change in the future.
  2. Family ties. If you have siblings, they probably want to be involved in the decision of your parent’s care. If you have a sibling who lives far away, sharing in the care responsibilities or decision-making process may prove to be a challenge. It’s important that you open up the lines of communication with your parents and your siblings so everyone is aware and in agreement about the best course of care.
  3. Specialized care. Some caregivers and care facilities specialize in specific conditions or treatments. For instance, there are special residences for those with Alzheimer’s and others for those suffering from various types of cancer. If your parent suffers from a disease or physical ailment, you may want to take this into consideration during the selection process
  4. Social interaction. Many seniors fear that caregivers or care facilities will be isolating, limiting their social interaction with friends and loved ones. It’s important to keep this in mind throughout the process and identify the activities that he or she may enjoy such as playing games, exercising or cooking. Make sure to inquire about the caregiver’s ability to allow social interaction. Someone who is able to accommodate your parent’s individual preferences or cultural activities will likely be a better fit for your mother or father.
  5. Credentials. Obviously, it is important to make sure that the person or team who cares for your parent has the required credentials. Run background checks and look at facility reviews to ensure you are dealing with licensed, accredited individuals. You may choose to run an independent background check or check references for added peace of mind.
  6. Scope of care. If you are looking for a live-in caregiver, that person is responsible for more than just keeping an eye on your mother or father—he or she may be responsible for preparing meals, distributing medication, transporting your parent, or managing the home. Facilities typically have multidisciplinary personnel to care for residents, but an individual will likely need to complete a variety of tasks and have a broad skill set to do it all.
  7. Money.Talk to your parent about the financial arrangements that he or she may have in place. If this isn’t an option, you will likely need to discuss the options with your siblings or your parent’s lawyer—or check your mother’s or father’s estate plan—to find out more about available assets and how to make financial choices pertaining to your parent’s care.
  8. Prepare. Upon meeting the prospective caregiver or visiting a facility, it is important to have questions prepared ahead of time so you can gather all of the information necessary to make an informed choice. Finally, be prepared to listen to your parent’s concerns or observations so you can consider their input in the decision. If he or she is able, they will likely want to make the choice themselves.

Choosing a caregiver for your parent is an important decision that weighs heavily on most adult children but with the right planning and guidance, you can make the best choice for your family. Once you find the right person, make sure to follow up as care continues and to check in with your mother or father to ensure the caregiver is the perfect fit.

 


Thursday, October 22, 2015

Estate Planning Lawyer to Take Plea: Victims Say She Stole Millions

Why is it important to choose a fully reputable estate planning lawyer?

Sarah Laux is an estate planning attorney from Wisconsin who has been accused in a 33-count criminal indictment of stealing $3 million from two of her wealthy older clients. Her indictment includes five counts, including fraud, money laundering and filing a false tax return, which could have resulted in a four-year prison term. It now appears that she will plead guilty to all five counts in exchange for cooperating in the attempt to restore as much of her clients' money as possible from her remaining assets.

Apparently, until her downfall, Laux was successful in luring older wealthy clients with seminars at which she provided food and drinks. Her background did not raise anyone's suspicions. After earning her law degree from Marquette University in 2004, she worked for her father's small law firm until 2009. Though the details have yet to be uncovered, she ended up owing eight of her clients $626,000. This information came to light when she admitted it in a petition seeking to give up her law license.

It is unknown how she met her first victim, an old-money client from Milwaukee from whose estate she managed to divert approximately $1 million. In her most lucrative crime, she is accused of taking $2 million from a couple whose son says she persuaded them to invest in particular funds, but never invested the money she received from them. Their claimed loss is substantiated in federal and state insurance commission records.

Such outrageous fraudulent behavior, though rare among estate planning lawyers, does occur and can be financially and emotionally devastating to its victims. This is why it is extremely important that you trust your estate only to a well-established attorney who not only has strong credentials, but who also has a well-earned reputation for honesty and dependability.


Monday, October 19, 2015

Start-up Business: When is the Best Time to Consult with a Lawyer?

If you are starting a new business venture, it is vital that you assemble your team of advisors immediately. Many entrepreneurs are short on cash during the start-up phase and forego hiring of legal counsel or other professional advisors in order to preserve capital for other aspects of the business venture. But this approach is usually penny-wise and pound-foolish. Especially since many small business start-up lawyers are a lot more affordable than you think.

Your attorney can be an invaluable member of your team of advisors. Business attorneys have seen first-hand the mistakes entrepreneurs make and know how to structure transactions to avoid them. It is best to consult with an attorney early on in the process, before you formally organize the company because the foundational issues are critical to the long-term success of your new venture.

There are many issues to be considered; and the earlier you do so, the better. You’ll want to ensure you choose the most advantageous business structure. From C-Corporations to S-Corporations to Limited Liability Companies and other hybrid entities, you have many options. They must all be carefully considered, in light of your particular situation. How many owners and who they are, liability issues, licensing restrictions, and anticipated profits all play a role in determining what type of entity affords you the most asset protection, and costs you the least in taxes.

During this foundational process, your legal advisors can also help you determine equity splits, which can save you headaches down the road. For example, it is generally advisable to avoid dividing business ownership according to percentages. Doing so can create problems later if additional investors need to be brought in. However, if the appropriate number of shares are authorized at the outset, and issued according to a plan for long-term company growth, you ensure your company can access capital in the future.

Vesting schedules can also be established before stock is issued to the company founders, enabling the initial shareholders to obtain full ownership rights to their shares over a period of time. However, this may not be advantageous in every situation, and must be carefully considered.

Even after your initial formation is complete, there are still a number of legal issues that require your attention. There are agreements to negotiate which may include leases, employment contracts, independent contractor agreements, customer purchase or service agreements and many more.

Steps should be taken early on to protect your intellectual property. Depending on the nature of your business, you may need to obtain and enforce patents and copyrights. If your company has a “brand” you will likely want to obtain a federal or state trademark to protect it for your own exclusive use.

The federal and state employment regulations can be onerous. From verboten interview questions to potential allegations of discriminatory hiring practices, a start-up lawyer can help you avoid the pitfalls and ensure you have a happy, productive work force.

Finally, your attorney can help you identify and secure other professionals and services, such as accountants, recruiters, bankers and even start-up friendly print shops and website development and hosting services.


Tuesday, October 13, 2015

Wills vs. Trusts 101

What is the difference between a will and a trust? Do I need one, either, both or neither?

First of all, there is a wide range of differences among types of trusts, but here we will focus on revocable living trusts. A revocable living trust is basically a separate entity in which assets are deposited and withdrawn during one's lifetime. The person who contributes assets to the trust is called the “settlor.” The person who receives the benefits of the trust is called the “beneficiary.” The person who maintains the trust is known as the “trustee.” When the assets are in the trust, they are titled in the name of the trustee. A key benefit to any type of trust is that the assets bypass the probate process upon the death of the settlor.

One of the most obvious benefits to a trust is that the “settlor” can keep his or her estate plan private. A will is filed in court upon the death of the testator, and thus becomes a public record. A trust, however, is a private document. Therefore, if privacy is necessary, a trust may be the way to go.

Another less obvious benefit to having a trust is that it makes handling an estate with real property in multiple states much easier. Without a trust, if the decedent owns real property in more than one state, a probate proceeding must be opened in both states to handle the disposition of that property upon the decedent’s death. If a trust is the owner of the property, however, it can pass to the beneficiary without the unnecessary expense of duplicative probate proceedings.

If you are married, and have substantial assets, a trust can lower your estate’s tax bill. Also, if you are in a second or subsequent marriage, and you and your spouse have separate beneficiaries, you will find that avoiding the probate process altogether can be significantly easier. For those who are single, trusts can, among other benefits, help avoid a court-supervised guardianship. If you have minor beneficiaries, trusts can help your children avoid the pitfalls of inheriting wealth at a young age.

To explore the differences between these two common types of estate planning, consult the experienced attorneys at the Winters Law Firm, serving clients throughout Northwest Indiana. Call us at 219-307-4373.


Monday, October 12, 2015

Protecting Your Vacation Home with a Cabin Trust

Many people own a family vacation home--a lakeside cabin, a beachfront condo--a place where parents, children and grandchildren can gather for vacations, holidays and a bit of relaxation. It is important that the treasured family vacation home be considered as part of a thorough estate plan. In many cases, the owner wants to ensure that the vacation home remains within the family after his or her death, and not be sold as part of an estate liquidation.

There are generally two ways to do this: Within a revocable living trust, a popular option is to create a separate sub-trust called a "Cabin Trust" that will come into existence upon the death of the original owner(s). The vacation home would then be transferred into this Trust, along with a specific amount of money that will cover the cost of upkeep for the vacation home for a certain period of time. The Trust should also designate who may use the vacation home (usually the children or grandchildren). Usually, when a child dies, his/her right to use the property would pass to his/her children.

The Cabin Trust should also name a Trustee, who would be responsible for the general management of the property and the funds retained for upkeep of the vacation home. The Trust can specify what will happen when the Cabin Trust money runs out, and the circumstances under which the vacation property can be sold. Often the Trust will allow the children the first option to buy the property.

Another method of preserving the family vacation home is the creation of a Limited Liability Partnership to hold the house. The parents can assign shares to their children, and provide for a mechanism to determine how to pay for the vacation home taxes and upkeep. An LLP provides protection from liability, in case someone is injured on the property.

It is always wise to consult with an estate planning attorney about how to best protect and preserve a vacation home for future generations.


Friday, October 2, 2015

Elder Abuse in the State of Indiana

What is elder abuse?

People are living longer than ever before. With increasing lifespan comes the undeniable fact that more and more elderly people will be unable to care for themselves. Some of these people will be cared for in long-term care facilities and others will be cared for by their loved ones in a home setting. While it may seem safer to be cared for by a loved one at home, it seems that the great majority of the elderly who are abused suffer mistreatment at the hands of their families and friends. The Indiana Prosecuting Attorneys Council (IPAC) recently held a conference addressing many of the issues posed by elder abuse in the state.

Elder abuse is the willful or negligent mistreatment of a vulnerable older person that results in harm or the risk of harm. Elder abuse can be physical, emotional, sexual, financial and may stem from neglect as well as intervention. This abuse is illegal in all 50 states and is often regulated by an agency devoted to protecting vulnerable adults, such as Adult Protective Services. Unfortunately, many of the abused never speak up , either because they are either embarrassed, afraid, unaware, or unable to communicate.

Although elder abuse can go undetected, there are signs to look out for. Unexplained injuries, suspicious financial transactions, and changes in the relationship between the elder and the caregiver often point to abuse of some kind. In Indiana, local prosecutors handle the work of Adult Protective Services. There are only about 40 investigators in the state and last year they handled approximately 10,000 cases. Needless to say, the agency is understaffed. IPAC has determined that they are in need of more investigators but are unsure of the exact number. The above-mentioned conference can be seen as the first step to reforming Indiana’s elder care system. It brought together professionals from various fields to discuss important issues relating to elder care. IPAC hopes to have a clearer picture of what reforms are needed by the beginning of the coming legislative session.

Elder abuse is a huge problem across the country. Fortunately, you can take estate planning measures to decrease your chances of becoming a target. Contact Gerald Winter of Winters Law Firm in Porter County and Valparaiso, Indiana to learn more by calling 219.307.4373.


Tuesday, September 29, 2015

Avoiding Common Mistakes in Estate Planning

Estate planning is designed to fulfill the wishes of a person after his or her death. Problems can easily arise, however, if the estate plan contains unanswered questions that can no longer be resolved after the person's demise. This can, and frequently does, lead to costly litigation counter-productive to the goals of the estate. It is important that will be written in language that is clear and that the document has been well proofread because something as simple as a misplaced comma can significantly alter its meaning.

Planning for every possible contingency is a significant part of estate planning. Tragic scenarios in which an estate planner’s loved ones predecease him or her, though uncomfortable, must be considered during the preparation of a will to avoid otherwise unforeseen conflicts. 

Even trained professionals can make significant mistakes if they are not well versed in estate planning. An attorney who practices general law, while perfectly capable of preparing simple wills, may not understand the intricacies of trusts and guardianships. A great many attorneys, not aware of the tax consequences of bequests involving IRAs, may leave heirs with unnecessary financial obligations. If an attorney is not knowledgeable enough to ask the proper questions, he or she will be unable to prepare an estate plan that functions efficiently and ensures the proper distribution of the estate's assets.

In spite of the wealth of an individual, the estate may be cash deficient if that wealth is tied up in assets at the time of the individual's death. Problems can also result if an estate planner has distributed assets into joint bank accounts or accounts with pay on death provisions. If the executor of the estate does not have access to funds to pay the estate's bills or taxes, the heirs of the estate may run into trouble.

Even if estate planning is handled well from a logistical point of view, lack of communication with loved ones can interfere with a will's desired execution. A tragedy that incapacitates the testator can occur suddenly, so it is imperative that a savvy estate planner confers with loved ones as soon as possible, making them aware of any future obligations, such as life insurance premiums that must be paid and informing them of the location of any probate documents and inventories of assets. Such conversations ensure that the individual's wishes will be carried out without complications or delay in the event of an unexpected incapacity.

In addition to communicating logistical information, it is also essential to schedule a personal conversation with loved ones that makes clear any sentimental bequests or large gifts that require explanation. This avoids the shock or discomfort that may arise after one's death during which a well-thought-out decision is questioned as impulsive or irrational. Such direct communication of one's plans avoids unnecessary envy, arguments or rivalry among family and friends.

Consulting with attorneys who specialize in estate planning is the cornerstone of creating a plan to ensure that one's desires are carried out and that all the bases are covered. Estate planning attorneys serve as invaluable repositories of all information necessary to strategizing a plan that not only meets one's personal needs and desires, but is legally binding.


Monday, September 21, 2015

Disaster DIY: Business Law Edition

Have you ever watched the TV show Disaster DIY on HGTV? The premise of the show is that many people have no idea what they are doing when it comes to home remodeling, but they try the “do it yourself” (DIY) approach  anyway. The host of the show then comes in to save the day, repairing what the DIYers have messed up, and teaching them how to do perform certain tasks.

This show has many parallels to the world of business law. It is tempting to try and find a DIY solution to legal issues. Budgets are tight, and professional legal advice can seem like a luxury when you are first starting out or struggling to meet quarterly goals, so many businesses adopt a DIY solution when what they really need is a good lawyer.

The Internet also encourages many businesses to DIY their legal issues, whether its access to legal info or various forms. But the problem is that advice on the Internet is not always accurate, particularly since business law is different in every state.

After pursuing the DIY route and disaster ensues,  business owners are forced to call in the professionals to clean up the mess.  Unlike the TV show, where the show’s producers cover the DIYers costs, the costs of fixing a legal DIY disaster rest solely on the business or the business owner. It often costs businesses significantly more to rework a legal framework that wasn’t carefully thought through. There are two reasons for this. First, proactive legal help is always going to be more cost effective than legal triage; it’s infinitely more costly to actively fight a pending lawsuit than it does to carefully draft and implement needed policies. Second, the results that even the best attorney can salvage from an awful situation are not likely to be as as ideal or as cheap as it would have been to avoid the disaster altogether.


Thursday, September 17, 2015

Trinkets & Treasures: How to Properly Distribute Personal Property and Heirlooms

I would like to ensure that my valuable jewelry is distributed to certain family members. Can I accomplish this in my Will?

When it comes to creating and executing a Last Will and Testament, it is important to address both real and personal property. Real property is a term referring solely to land, whereas personal property basically involves everything else. Also known as “tangible” personal property, this can include jewelry, furs, antiques, fine art, firearms, and any other heirlooms – regardless of market value.

Many people mistakenly skip over the vital step of describing their personal property wishes in their Will, trusting that family members will know who gets what. In the aftermath of the death of a loved one, however, it is often difficult to determine precisely which piece of art was to go to which niece, and which nephew was to inherit the gun collection. Accordingly, this can create the perfect storm of emotions, creating unnecessarily family strife.

A better alternative is to include a personal property memorandum in a Will that must be honored at the time of death, and may be attached to a Will as an addendum. In this memorandum – which may be handwritten – the testator may list individual pieces of property along with the intended recipient. So long as the document is signed by the testator (or by another person at the testator’s direction), the memorandum must be upheld as valid in the event of a conflict and cannot be overlooked during the estate administration process.

Some pieces of personal property, such as firearms or artwork, come with accompanying documentation of authenticity – making proper distribution more complex. For these reasons, it is not uncommon for a testator to decide to place these items in trust to avoid the hassle of probate. This is an experience in which an estate planning attorney can be invaluable.

If you would like to discuss your options with regard to your valuable or priceless personal property, please do not hesitate to contact Winters Law Firm, serving clients throughout Northwest Indiana at 219.307.4373.


Monday, September 7, 2015

When Will I Receive My Inheritance?

If you’ve been named a beneficiary in a loved one’s estate plan, you’ve likely wondered how long it will take to receive your share of the inheritance after his or her passing.  Unfortunately, there’s no hard or and fast rule that allows an estate planning attorney to answer this question. The length of time it takes to distribute assets in an estate can vary widely depending upon the particular situation.

Some of the factors that will be involved in determining how long it takes to fully administer an estate include whether the estate must be probated with the court, whether assets are difficult to value, whether the decedent had an ownership interest in real estate located in a state other than the state they resided in, whether your state has a state estate (or inheritance) tax, whether the estate must file a federal estate tax return, whether there are a number of creditors that must be dealt with, and of course, whether there are any disputes about the will or trust and if there may be disagreements among the beneficiaries about how things are being handled by the executor or trustee.

Before the distribution of assets to beneficiaries, the executor and trustee must also make certain to identify any creditors because they have an obligation to pay any legally enforceable debts of the decedent with those assets. If there must be a court filed probate action there may be certain waiting periods, or creditor periods, prescribed by state law that may delay things as well and which are out of the control of the executor of the estate.

In some cases, the executor or trustee may make a partial distribution to the beneficiaries during the pending administration but still hold back sufficient assets to cover any income or estate taxes and other administrative fees. That way the beneficiaries can get some benefit but the executor is assured there are assets still in his or her control to pay those final taxes and expenses. Then, once those are fully paid, a final distribution can be made. It is not unusual for the entire process to take 9 months to 18 months (sometime more) to fully complete.

If you’ve been named a beneficiary and are dealing with a trustee or executor who is not properly handling the estate and you have yet to receive your inheritance, you should contact a qualified estate planning attorney for knowledgeable legal counsel.


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