Round Rock, TX Attorney Blog

Thursday, July 2, 2015

Implementing a Digital Component to an Estate Plan

What do I need to know about ‘digital estate planning,’ particularly with regard to my intellectual property and online assets? 

In today’s modern times, estate planning encompasses more than the family jewels and heirloom China. With the concept of “digital assets” expanding rapidly, clients and estate planners alike should be intimately aware of the pitfalls awaiting anyone failing to take this property component into account. 

Discussed below are several facets of digital estate planning, ranging from simple password management to transferring high-value online assets. If you have additional questions about preparing for the future, please do not hesitate to contact the Winters Law Firm as soon as possible! 

Password and portfolio management

In the olden days, an executor could simply access the contents of one’s financial portfolio by opening the file cabinet drawer and withdrawing the appropriate file folder. Today, however, it is increasingly common for all financial information to be stored digitally – and many folks forgo the option of even receiving a paper statement. 

Accordingly, a comprehensive estate plan should include a password manager detailing the login information accompanying all savings, checking, investment, and retirement accounts. The information should be continually updated as passwords change, and should be stored with all other estate planning documents to make it accessible for the executor. 

Online assets

Many people make a living online, including bloggers, writers, photographers, and developers. From an intellectual property perspective, the contents of a valuable blog or digital portfolio can be extremely important to safeguard, and should be provided for in an estate plan accordingly. Likewise, planners should ensure that personally valuable family mementos stored digitally are properly addressed either outside the estate plan or within the personal property section of a will or trust. 

Social media

A social media presence is virtually unavoidable in today’s world. However, social media profiles should be taken down as soon as practicable following the death of the account holder – if out of nothing more than respect for the family. Of course, many may choose to leave condolences or final messages for the deceased’s family, but a comprehensive estate plan should include login information and instructions for the deactivation and/or removal of an account when necessary. Otherwise, it can be very difficult for an executor to handle this issue – resulting in the perpetual presence of the profile, which can be very difficult for survivors. 

If you would like to add a digital component to your estate plan, or would like to speak to a knowledgeable estate planning

attorney, please contact the Winters Firm, serving clients in Porter County and Valparaiso, Indiana, today at (219)307-4373. 

Tuesday, June 30, 2015

Are Non-Compete Agreements Appropriate For My Business?

The aim of non-compete agreements is to bar departing employees from working for your business competitors or from starting a competing business. These agreements used to be reserved for high-level employees or people working in certain fields who had access to sensitive information. While non-compete agreements are becoming more common, they are only enforceable to a limited degree and in some states not enforceable at all.

In considering whether a non-compete agreement can be enforced, courts generally examine whether there is a legitimate business interest at stake and whether the agreement is narrowly crafted to protect that interest. Courts tend to disfavor restrictive covenants such as non-compete agreements because it limits commerce and can prevent an individual from earning a livelihood. Here are a few factors to consider when looking to implement a non-compete:

  • What is unique about my business? If there is something about your business that sets it apart from its competitors - a product, a process, a method of doing business - a non-compete agreement could protect your advantage. It might also be wise to consider other protections such as patents.

  • Over what area would I need a non-compete to apply? Would employees be barred from working at a competing business across the street? In the same city? Within 50 miles? Within the same state? The larger the radius, the less likely a court is to enforce it.

  • To which companies would a non-compete need to apply? Are your employees going to be able to get jobs in your field if they leave your company, or would your agreement make them essentially unemployable? Courts typically frown on agreements that leave people completely out of work.

  • How long would a non-compete need to last? The shorter the time an employee is restricted by the agreement, the more likely the court is to find the restriction reasonable.

  • Under what circumstances would the non-compete kick in? If an employee is fired, are they going to face the same restrictions as an employee voluntarily leaving your employ?

When considering any agreement with your employees, including restrictive covenants such as non-compete agreements, it is important to consult an experienced business law or employment law attorney who can properly advise you and help you craft an agreement that is likely to be enforceable.

Tuesday, June 23, 2015

Basics of Pre-Planning for Long-Term Care

What are the best strategies to consider in anticipation of needing long-term skilled nursing care?

Based on current data, the average annual cost for a stay in a nursing home in Indiana is a staggering $60,000 per year. For many middle-class Americans, this amount – particularly if both spouses need care – is enough to deplete a sizable nest egg in just a few short years, leaving nothing for future generations. As such, it is vital to consider the advantages of long-term care planning long before the need arises, and an elder law attorney can help you best understand your options. 

One foundational principle to understand from the outset is that Medicare does not cover long-term care past 120 days. In other words, a patient needing skilled nursing care longer than four months will need to self-pay. As explained above, paying $5,000 or more per month for a nursing home residency can quickly deplete one’s entire life savings in just a few short years, leaving many to ponder if an alternative option may be better. 

Medicaid Planning

As opposed to Medicare, the Medicaid program does offer full-time benefits for those needing long-term care in a nursing home. However, the program is need-based, and is only available to those who can show a true financial need for long-term care benefits. 

Generally speaking, a Medicaid applicant may only have a small amount of income and assets – not including the family home if the applicant’s spouse is still in residence. Accordingly, pre-planning for long-term care (i.e., Medicaid eligibility) requires the disposal of assets to reach the maximum threshold. Under Medicaid guidelines, below-market transfers of property will trigger a penalty period if the transfer occurred within five years of the date of application. Likewise, any transfers of property made during this five-year “look back” period will result in a penalty congruent with the value of the transfer – and the amount of months the applicant could have paid for with the funds. 

Use of irrevocable trusts is also a way to protect assets from Medicaid regulation, as any property transferred to trust is considered to be no longer “owned” by the trust creator, and therefore is not counted as an asset for Medicaid purposes. Of course, careful drafting of an irrevocable trust is an essential component to the long-term care planning process, and we encourage you to contact a knowledgeable attorney as soon as possible. 

If you are considering long-term care costs and would like to discuss your options, please contact the Valparaiso and Porter County elder law attorneys at the Winters Law Firm by calling (219)307-4373 today. 

Monday, June 1, 2015

The Importance of Health Care Powers of Attorney

How can I ensure that I stay at home until I die?

One of the most common questions we get from our clients when we are putting together health care power of attorney documents is whether the document will allow their designee to put them into a nursing home against their wishes, because, “I want to live at home until I die.” In typical lawyer fashion, we answer, “It depends.”

Health care power of attorney powers do not kick in automatically, so you need not worry about being “put into the old folks home” the minute you sign the document. The powers you are giving your designee are “springing,” which means they spring into effect only when needed - when you are unable to make decisions for yourself. 

This means you cannot be put into a nursing home if you do not want to be so long as you are able to adequately care for yourself or arrange for someone else to care for you in your home. 

If, at some point in time, you can no longer physically take care of yourself and are mentally unable to make arrangements for someone else to care for you, the health care power of attorney then springs into effect. The person you designated then has full authority to direct your care, which includes the power to put you into a nursing home or other facility.

There are certain things you can do to help you maintain your independence as long as possible. 
• First and foremost, you should think long and hard about who you are granting health care decision-making rights to. The right person for the job is someone who is going to respect your wishes. Do not pick someone you do not trust absolutely because the nursing home decision is just one of many decisions they could be making on your behalf. 
• Talk with the person you have chosen to be your health care decision maker while you are still able to do so! They cannot follow your wishes if they do not know what they are. This can be a difficult conversation to have since nobody likes to think about being too sick or injured to take care of themselves, but it is critical to make time to have it. 
• If carefully drafted, and sufficiently funded, a living trust can protect you from unwanted admission to a nursing home even after you are no longer able to care for yourself or make decisions about your own care. With a trust in place, you can designate a trustee that will arrange and pay for your care out of trust assets in the exact manner you specify. So long as there are sufficient assets in the trust to pay for the care you require, you need not worry that you will be taken out of your home.

The knowledgeable attorneys at the Winters Law Firm have extensive experience with estate planning utilizing wills, trusts and various other tools that can help you carry out your wishes for the future. Call us today at (219)307-4373 to schedule a consultation. We are based in Valparaiso, Indiana, and serve clients throughout Northwest Indiana.

Friday, May 29, 2015

Elder Abuse in Indiana

What should I do if I suspect my elderly relative is being abused?

Until recently, elder abuse was something people didn’t really talk about. But over the past few years, Indiana has gotten serious about tackling this issue. In fact, Indiana is the only state that has tied its Adult Protective Services (APS) Program directly to its criminal justice system, allowing for easier prosecution of abusers.

The state investigates three different types of elder abuse reported to it:
* Physical Abuse: Any touching (battery) of a person in a rude and insolent manner.
* Neglect: The intentional withholding of essential care or service. Abandonment of an individual is also considered neglect.
* Exploitation: The intentional misuse of a person's property, person or services for financial gain.

If you suspect that your elderly relative is being abused, you can take immediate action by calling Indiana’s APS hotline at (800) 992-6978.

Unfortunately, despite the state’s best efforts, abuse continues. According to the Indiana Prosecuting Attorneys Council:
• Approximately 90 percent of abusers are family members - most often adult children, spouses, partners and others.
• 1 in 14 cases of elder abuse are never reported to the authorities.
• There are more than 5.1 million elders over 65 with some type of dementia and, of those, 50 percent experience some kind of abuse.
• It is estimated that $5.3 billion is added to the nation's annual health expenditures due to direct medical costs associated with violent injuries to older adults.
• It is estimated that in 2009, $2.9 billion was the annual financial loss by older victims of financial exploitation; a 12 percent increase from 2008.
Beyond calling the hotline, there are several things you can do to protect your loved ones as they age. 

First, don’t be afraid to investigate if you suspect abuse is occurring. Be sure to document your findings by taking pictures, writing down important dates, and generally getting as much information down on paper as possible. This can often be awkward since abusers are often family members, but it is important.

At the Winters Law Firm, we regularly help families protect their elder relatives, or themselves, by designating appropriate guardians, setting up trusts and putting other safeguards into place that limit the opportunities for abuse. Our experienced elder law attorneys can advise you about what steps to take. We are based in Valparaiso, Indiana, and we serve clients throughout Northwest Indiana. Call us today at (219)307-4373 to arrange a consultation.

Thursday, May 28, 2015

Why Your Will is Not the Right Place for Your Funeral and Burial Instructions

How should I communicate my wishes about my funeral and burial to my family?

Many people have very specific wishes about what they want their funeral to be like and what they want to happen to their body after they die. A very common misconception is that those wishes should be included in your will.

Putting your funeral plans and burial wishes in your will almost guarantees they will not be followed. Family members often do not look at the will until after the deceased has been buried. Sometimes wills are not easily found. Access might be difficult because the deceased kept the will at the bank in a safety deposit box (unless you share access to the lock box, this is not a good place for your will). 

So, if you have specific plans for your funeral and remains, what should you do? First and foremost, talk to your loved ones about what your wishes are. This is often an uncomfortable conversation to have, but it is an important one. Telling your family what you want to happen will help them. Second, you should put your wishes into writing. This reduces the chance that your desires will be ignored, misremembered or forgotten completely. We recommend that you then store this document in a secure, yet easily accessible, location where you have told your loved ones it can be found.

The experienced estate planning attorneys at Winters Law Firm can assist you with any question you have about what many find to be a difficult topic. Call us today at (219)307-4373 to schedule a consultation. We are based in Valparaiso, Indiana, and serve clients throughout Northwest Indiana, including Porter County, Lake County, Newton County, Jasper County and La Porte County.

Wednesday, May 27, 2015

4 Items to Bring to Your Initial Estate Planning Consultation

How can I prepare for creating an estate plan?

For most people, a trip to their attorney’s office is as about as welcome as a root canal. We get it. We know you would rather be doing almost anything else with your time. So, we’ve put together this list of four items you should bring to your first estate planning meeting in order to shorten the amount of time you will spend at our office.

1. A general idea of what you hope happens to your family and your property after you die.

Most people make an estate plan because they want to ensure that their family members are taken care of after they are gone. Beyond that, what other goals do you have? Reducing taxes? Ensuring your business is able to continue operating without you? Preserving your legacy?

We cannot write a plan to fit your needs and desires if you don’t know what it is you want. Once we know what goals you have in mind, we can begin to put a plan into place that will make your vision a reality.

2. A list of the family, friends and organizations you would like to include in your estate plan.

Most people have already started thinking about who they want to inherit particular special items. That’s great! But it is only a small part of what you should be thinking about before coming to your first estate planning meeting at our office. 

You should also be thinking about:
• Who is going to care for your children if you die unexpectedly?
• Who would you like to make medical decisions for you?
• Will that same person be in charge of your finances?
• Who is going to be in charge of following the instructions you leave?
• Who would you select as a back-up if your first choice for any role is unable or unwilling to do what you ask?
Ideally, you will have spoken to all of the people you are considering giving a role to or passing items on to in order to double check that they are on board with your plan before you come into our office. At the very least, make sure you have the full names, addresses and other contact information for each person and organization you plan to name in your estate plan.

3. A list of large assets that will need to be taken care of in the plan.

Many of our clients are surprised by how large their estate is. It is not because we are finding hidden assets or long lost inheritances, it is because they have never put together a full list of all the items that actually make up their estate.

A good indication that something belongs in your estate is that you had to fill out paperwork when you bought it or set it up. Property, cars, bank accounts, insurance policies, retirement accounts, season tickets to the Colts - all of these are examples of the types of items you should be listing.

4. An open mind and a positive attitude. 

Thinking about death is hard. Nobody wants to do it. Nobody enjoys doing it. But it is something that needs to be done. Preparing yourself to face this task emotionally is just as important as getting your paperwork in order. 

The experienced Winters Law Firm estate planning team is ready to help you with every step of planning for your family's future. We are based in Valparaiso, Indiana, and we serve clients throughout Northwest Indiana. Call us today at (219)307-4373 to arrange a consultation.

Tuesday, May 19, 2015

Using an A/B or ‘Bypass Trust’ to Avoid Double Estate Taxation

My spouse and I maintain assets approaching the federal estate tax threshold. Should we look into transferring our assets to trust? 

Currently, the federal government may impose an estate tax on transferred assets of $5.43 million per individual, or $10.86 million per couple, with a top taxation rate of 40 percent. For higher net-worth couples, a 40 percent tax rate on their hard-earned wealth is simply unthinkable – and fortunately, there are strategies available to avoid this type of tax burden for both the surviving spouse and the ultimate beneficiaries. 

An experienced estate planning attorney, such as Gerald Winters, can help you best meet your financial goals.  One option  many couples have chosen when dealing with this situation is creating a bypass trust.  These trusts, also known as A/B trusts, will address the death of each spouse individually, obviously beginning with the death of the first spouse. Assuming the trust is properly funded, the death of the first spouse will trigger a division of assets into one of two sub-trusts. Sub-trust A will be held for the benefit of the surviving spouse, and is accessible to him or her as needed for the duration of his or her life. Sub-trust B will hold assets in an amount, which does not exceed the federal or state tax threshold, and will remain in trust for the benefit of named beneficiaries, other than the surviving spouse. This way, when the surviving spouse passes away, the contents of Sub-trust B will bypass his or her gross estate for the benefit of the couple’s children or next-of-kin and escape any valuation for estate tax purposes. 

Executing an A/B or bypass trust has additional benefits aside from estate tax savings. Probably one of the biggest benefits of an A/B trust is the ability to skip the probate process upon the death of the second spouse, which will save a significant amount of time and unnecessary expenses. In addition, managing trust assets through the use of a trustee helps to maintain family privacy – particularly upon the distribution of real estate and other titled assets. 

If you are interested in a bypass Trust, or have any other estate related questions, contact trusted Porter and Valparaiso County estate planning attorney Gerald Winters at the Winters Law Firm by calling at (219)307-4373 today. 

Monday, May 18, 2015

Legal Capacity and Estate Planning

How does a loved one’s dementia diagnosis impact estate planning?

If a loved one has been diagnosed with dementia, it makes proper estate planning more important and it also raises issues of whether the person has the ability to make his or her own planning decisions. Only people who have legal capacity to sign legal documents can do so.

Legal capacity is the level of judgment and decision-making ability needed to sign official documents. Just because someone has been diagnosed with dementia does not mean he or she necessarily lacks legal capacity. However, if legal capacity is lacking, any document signed by the person has no legal effect. In this case, a conservator may be needed to make decisions for the person’s benefit.

If the person has legal capacity, the following documents should be drafted and executed before that capacity is lost. 
• A living will can enable the person to spell out what kind of medical treatment he or she wants, or does not want, including the use of artificial life support. An agent can also be named to make decisions for this person when the capacity to make medical decisions is lost.
• A health care power of attorney can also name an agent to make medical care decisions above and beyond end of life medical treatment.
• A financial power of attorney can give another person, an agent, the ability to manage the person’s financial affairs and pay bills. This agent needs to be organized, good at handling money and trustworthy. An agent needs to act in the person’s best interests and not spend money for his or her own affairs.
• A will allows a person to decide how assets will be divided following his or her death, after all debts have been paid. Without a will, these assets will go to the next of kin by action of state law. If that is not what the person wants, a will or some kind of trust document should be created so the person’s wishes can be fulfilled.

People often consult with estate planning attorneys after a life-changing diagnosis like dementia is made. The Winters Law Firm has helped many families cope with these situations, and we understand their wants, needs and fears. We are based in Valparaiso, Indiana, and we help clients throughout Northwest Indiana. Call us today at (219)307-4373 for a consultation so we can talk about your family’s situation and how we can help you through a difficult time.

Monday, May 11, 2015

Who Owns A Business's Customer List?

Many businesses have customer lists that they consider their own private property.  It is common, however, for sales representatives and other employees to regard customer lists as theirs too, something they can take to a new employer. 

Employment agreements, confidentiality agreements, non-competes, and non-solicitation agreements can all be used to eliminate confusion over whether a customer list is transferable or not. 

In the absence of clear contractual protections, however, case law and state "trade secret" statutes may decide whether a list is the exclusive property of a business.  If the list is a "trade secret," a business owner may have an easier time protecting it and obtaining damages for its use by ex-employees and competitors.  47 states have adopted some version of the Uniform Trade Secrets Act, which provides for penalties and remedies for the misappropriation of trade secrets.

When is a list a trade secret?

Generally, a list receives "trade secret" protection if, first, it contains information not readily ascertainable from public sources.  Merely listing customers and general contact information is usually not enough to elevate the information to trade secret status.  Second, owners must usually take some measures to keep the information confidential.

What steps can a company take to ensure that a list is viewed as a trade secret?

The following are elements which, when present, can lead to a customer list being deemed a trade secret.

• The list contains unique, non-public information about each customer, such as ordering history, needs and preferences, and private phone numbers and e-mail addresses.  The more a customer list contains valuable details painstakingly compiled about each customer, the less likely a court is to say that the list could have been readily assembled from public sources. 

•  The list is marked "private" or "confidential," and employees are informed that it the property of the company. 

• Electronic versions of the list are password-protected, and access is limited to certain users.

• Printed copies are kept under lock and key.

• When the list is shared with third parties, there is a confidentiality agreement.

• The owner can show that time and effort were invested in building and maintaining the list.

A recent case involving former employees of an insurance company shows how these factors can influence a court.  In that case, the customer list contained more than just customer names, birthdates and drivers' license numbers.  It also contained laboriously compiled information about the amounts and types of insurance each customer had bought, the location of insured property, the personal history of policyholders, policy termination and renewal dates, and other potentially valuable details.  The list conferred a powerful, competitive advantage and the court deemed it a "trade secret."

Meeting the criteria spelled out in that case and in the suggestions above does not guarantee that a customer list will be deemed a protected trade secret.  It could, nonetheless, increase the odds.

Tuesday, April 28, 2015

Avoid Family Feuds through Proper Estate Planning

A family feud over an inheritance is not a game and there is no prize package at the end of the show. Rather, disputes over who gets your property after your death can drag on for years and deplete your entire estate. When most people are preparing their estate plans, they execute wills and living trusts that focus on minimizing taxes or avoiding probate. However, this process should also involve laying the groundwork for your estate to be settled amicably and according to your wishes. Communication with your loved ones is key to accomplishing this goal.

Feuds can erupt when parents fail to plan, or make assumptions that prove to be untrue. Such disputes may evolve out of a long-standing sibling rivalry; however, even the most agreeable family members can turn into green-eyed monsters when it comes time to divide up the family china or decide who gets the vacation home at the lake.

Avoid assumptions. Do not presume that any of your children will look out for the interests of your other children. To ensure your property is distributed to the heirs you select, and to protect the integrity of the family unit, you must establish a clear estate plan and communicate that plan – and the rationale behind certain decisions – to your loved ones.

In formulating your estate plan, you should have a conversation with your children to discuss who will be the executor of your estate, or who wants to inherit a specific personal item. Ask them who wants to be the executor, or consider the abilities of each child in selecting who will settle your estate, rather than just defaulting to the eldest child. This discussion should also include provisions for your potential incapacity, and address who has the power of attorney.

Do not assume any of your children want to inherit specific items. Many heirs fight as much over sentimental value as they do monetary items. Cash and investments are easily divided, but how do you split up Mom’s engagement ring or the table Dad built in his woodshop? By establishing a will or trust that clearly states who is to receive such special items, you avoid the risk that your estate will be depleted through costly legal proceedings as your children fight over who is entitled to such items.

Take the following steps to ensure your wishes are carried out:

  • Discuss your estate planning with your family. Ask for their input and explain anything “unusual,” such as special gifts of property or if the heirs are not inheriting an equal amount.
  • Name guardians for your minor children.
  • Write a letter, outside of your will or trust, that shares your thoughts, values, stories, love, dreams and hopes for your loved ones.
  • Select a special, tangible gift for each heir that is meaningful to the recipient.
  • Explain to your children why you have appointed a particular person to serve as your trustee, executor, agent or guardian of your children.
  • If you are in a second marriage, make sure your children from a prior marriage and your current spouse know that you have established an estate plan that protects their interests.

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