What Happens If A Beneficiary Dies Before Receiving An Inheritance?
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What Happens If A Beneficiary Dies Before Receiving An Inheritance?

This beneficiary article is from California and deals with California Law. New York is different.

When the beneficiary of a deceased person’s probate estate or living trust dies during the course of administering the estate and before the full distribution of the inheritance has been made, things can get sticky.

Let’s say a mother dies and her estate is in the process of being probated when her son dies. The son’s estate can claim his inheritance, which it will in turn distribute to the beneficiaries of his estate, according to a recent article, “Beneficiary dies prior to receiving inheritance” from the Lake County Record-Bee.

This might require probating the deceased child’s estate. Whether or not probate is required, depends both on the value of the son’s own estate, which is increased by the amount of the unreceived inheritance. Another factor is whether all or some of the son’s estate passes to a surviving spouse or registered domestic partner.

In California, probate is required when the gross value of a deceased person’s estate exceeds $150,000 and passes to someone other than the decedent’s surviving spouse or registered domestic partner. Estate planning in California, as in other states, is important to lessen the impact of probate.

No probate is needed to transfer assets to a decedent’s surviving spouse or registered domestic partner. They are entitled to use a spousal property court petition to transfer title to real property and other assets held in the name of the deceased spouse into their partner’s name, as relevant.

If the estate is under $150,000, probate is not required and the estate can often be settled by affidavits, or, if the deceased owned real property worth more than $50,000, a small estate petition to confirm title to real and personal property. However, there are instances where probate of a small estate is necessary, because of the decedent’s debts or figuring out who is entitled to receive a portion of the estate.

This type of situation illustrates the benefits of holding assets in a living trust. This avoids probate, spousal property petitions and small estate petitions. Any time property is worth more than $50,000, it makes sense for the owner to hold title to the property in a trust.

Who will then, inherit the son’s estate? If he had a last will and testament, it is the governing document. If he had a revocable living trust, then he likely will also have a “pour-over will,” which “pours” everything over in the estate to the revocable living trust.

Either way, it’s likely the son’s heirs will need to be probated. With no will, the son’s heirs inherit according to the laws of intestate succession.

If the estate has been planned properly, even the complex situation described above will be more manageable. If neither the mother nor the son had an estate plan, it could take many years to unravel the estate. An estate planning attorney can create a plan that is designed with the laws of your state in mind and address many unexpected situations.

Reference: Lake County Record-Bee (December 7, 2019) “Beneficiary dies prior to receiving inheritance”

 

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Simple Mistakes to Avoid in your Estate Plan.

There’s so much information available today, good and bad, that it is not always easy to know which is which. Just as we should not perform surgery on ourselves, we are asking for problems if we try to manage our estate plan without professional help. That’s the good advice from the article “Examining three common mistakes of estate planning” from The News-Enterprise.

For one thing, the roles of power of attorney agent and executor are often confused. The power of attorney agent acts in accordance with a document that is used when a person is living. The power of attorney appointment is made by you for someone to act on your behalf, when you cannot do so. The power of attorney expires upon your death.

The executor is a person who you name to handle matters for your estate after your death, as instructed in your last will and testament. The executor is nominated by you but is not in effect, until that person is appointed through a court order. Therefore, the executor cannot act on your behalf, until you have died and a court has reviewed your will and appointed them to handle your estate.

Too many people opt for the easy way out, when it comes to estate planning. We hear that someone wants a “simple will.” This is planning based on a document, rather than planning for someone’s goals. Every estate plan needs to be prepared with the consideration of a person’s health, family relationships, and finances.

Many problems that arise in the probate process could have been prevented, had good estate planning been done.

Another mistake is not addressing change. This can lead to big problems while you are living and after you die. If you are healthy, that’s great—but you may not always enjoy good health. Your health and the health of your loved ones may change.

Family dynamics also change over time. If you only plan for your current circumstances, without planning for change, then you may need to make many updates to your will.

The other thing that will occur, is that your estate plan may fail. Be realistic, and work with your estate planning attorney to plan for the many changes that life brings. Plan for incapacity and for long-term care. Make sure that your documents include secondary beneficiaries, disability provisions, and successor fiduciaries.

Create an estate plan that works with today’s circumstances, but also anticipates what the future may bring.

Reference: The News-Enterprise (Nov. 18, 2019) “Examining three common mistakes of estate planning”

Suggested Key Terms: Estate Planning Attorney, Probate, Last Will and Testament, Executor, Power of Attorney, Agent, Incapacity, Beneficiaries, Successor Fiduciaries

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Tips for Choosing a Fiduciary

One of the important tasks in creating a complete estate plan is selecting people (or financial institutions) to represent you, in case of incapacity or death. Most people think of naming an executor, but there are many more roles, advises the article “What to consider when appointing a fiduciary?” from The Ledger.

Here are the most common roles that an estate planning attorney will ask you to select a fiduciary:

  • Executor or personal representative, who is named in your will and appointed by the court to administer your estate.
  • Agent-in-fact (under a durable power of attorney) who manages your financial affairs while you are living, if you are unable to do so.
  • Health care surrogate who makes health care decisions on your behalf while you are living, if you are incapacitated.
  • Trustee of a trust document; administers the trust that you have created.
  • Guardian: a person who makes health care and financial decisions on your behalf, if the court determines that other roles, like health care surrogate or agent-in-fact, are not sufficient.
  • Guardian for minor children: person(s) who make decisions for your children, if you are not able to because of death or a loss of capacity before the children reach adulthood.

The individuals or financial institutions who take on financial roles are considered fiduciaries or a fiduciary; that is, they have a legal duty to put your well-being first. Their responsibilities may include applying for government benefits, managing and invest your assets and income, deciding where you will live and working with your attorneys, financial advisors and accountants.

Many people name their spouse or eldest child to take on these roles. However, that’s not the only option. A few questions to consider before making this important decision include:

  • Does this person have the experience, skill and maturity to manage my financial affairs?
  • Does this person have the time to serve as a fiduciary?
  • Would this person make the same health care decisions that I would make?
  • Can this person make a difficult decision for my health care?
  • Does this person live near enough to arrive quickly, if necessary?
  • How old is this person, and will they be living when I may need them?
  • What kind of response will my family have to this person being named?
  • Are my assets substantial enough to require a financial institution or accountant to manage?

These are just a few of the questions to consider when choosing a fiduciary or health care agents in your estate plan. Speak with your estate planning attorney to help determine the best decision for you and your family.

Reference: The Ledger (Oct. 16, 2019) “What to consider when appointing a fiduciary?”

 

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Healthcare Directive -When Can Parent Legally Make an End-Of-Life Decision?

Healthcare Directive – Twenty-one-year-old Damaire was brought to Erie County Medical Center in the early morning hours. Damaire’s father was told that the person found Gordon on the side of the road, wrapped in a blanket and dropped him off at the hospital.

He was brain dead. He had no gunshot or stab wounds, and there were no signs of blunt-force trauma.

“I thought I would be seeing my son hurt some type of way that was very bad,” said Gordon’s father Mister Sommerville. “But, when I got there I saw my son had no trauma…and they can’t explain to me why he’s lifeless.”

Sommerville was told by his son’s mother Regina Gordon-Sayles that their boy was brain-dead at the hospital.

WKBW’s recent article, “A man was found brain-dead, but neither parent could legally make an end-of-life decision” reports that Gordon-Sayles said that she was a single mother of five and said that Sommerville had not been involved in Damaire’s life. However, he became very involved, when it came time to make a decision about his passing.

Damaire’s mother was set to remove her son off the respirator, but his father refused to consent.

“I was so confused about why I needed another consent,” said Gordon-Sayles.

The problem is that neither parent could give legal consent to take their son off life support, because Damaire hadn’t designated either parent as his healthcare directive. Under Article 81 of the New York State Mental Hygiene Law, the matter would have to go to a judge, who would start the process to appoint the best person to handle end-of-life decisions.

A medical power of attorney, also called an “Healthcare Directive” or “Health Care Proxy,” is a document that allows a person to provide someone with the authority to address health care decisions on their behalf, if they’re not able to do so themselves.

Unfortunately, these situations occur more frequently than we would wish. Making a bad situation more heartbreaking is traumatic for the family.

The situation is a matter of liability for the hospital. Every person has the right to due process, when it comes to making decisions for themselves, even in death. However, if that person can’t make a decision for herself, a judge must intervene and appoint an appropriate party.

Damaire’s father didn’t like the care his son was getting at ECMC and wanted more of an investigation into why the young man was in a brain-dead state, when doctors found only marijuana in his system. Doctors told both parents that they were restricted in the type of drugs for which they could screen, without an autopsy.

Damaire’s case went before a judge to appoint a proxy. The judge decided to continue his investigation into the case and didn’t take any action for more than a week. Damaire’s heart stopped beating the next day. His mom said a friend of his told her the truth about what happened to him, days later.

“He got ahold of some fentanyl, and I don’t know if my baby was laced…I don’t know if he took it himself, but it had something to do with fentanyl.”

“I was told when it happened, my son went into attack mode, he dropped, and they put him on the porch because they didn’t want to be charged with it.”

An Estate Planning Attorney can help you decide.

Reference: WKBW (November 5, 2019) “A man was found brain-dead, but neither parent could legally make an end-of-life decision”

 

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Do I Need POD Account for my Checking Account?

When you open up most investment accounts, you’ll be asked to designate a beneficiary. This is an individual who you name to benefit from the account when you pass away. Does this include checking accounts?

Investopedia’s recent article asks “Do Checking Accounts Have Beneficiaries?” The article explains that unlike other accounts, banks don’t require checking account holders to name beneficiaries. However, even though they’re not needed, you should consider naming beneficiaries for your bank accounts, if you want to protect your assets.

Banks usually offer their customers transfer-on-death POD account. This type of account directs the bank to transfer the customer’s money to the beneficiary. The money in a POD account usually becomes part of a person’s estate when they die but is not included in probate, when the account holder dies.

To claim the money, the beneficiary just has to present herself at the bank, prove her identity and show a certified copy of the account holder’s death certificate.

You should note that if you are married and have a checking account converted into a POD account and live in a community property state, your spouse automatically will be entitled to half the money they contributed during the marriage—despite the fact that another beneficiary is named after the account holder passes away. Spouses in non-community property states have a right to dispute the distribution of the funds in probate court.

If you don’t have the option of a POD account, you could name a joint account holder on your checking account. This could be a spouse or a child. You can simply have your bank add another name on the account. Be sure to take that person with you, because they’ll have to sign all their paperwork.

An advantage of having a joint account holder is that there’s no need to name a beneficiary, because that person’s name is already on the account. He or she will have access and complete control over the balance. However, a big disadvantage is that you have to share the account with that person, who may be financially irresponsible and leave you in a bind.

Remember, even though you may name a beneficiary or name a joint account holder, you should still draft a will or trust. Speak with a qualified estate planning attorney to make sure about all your affairs, even if your accounts already have beneficiaries.

Reference: Investopedia (August 4, 2019) “Do Checking Accounts Have Beneficiaries?”

 

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What Will New Acts of Congress Mean for Stretch IRA s?
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What Will New Acts of Congress Mean for Stretch IRA s?

The SECURE and RESA acts are currently being considered in Congress. These acts may impact stretch IRA s. A stretch IRA is an estate planning strategy that extends the tax-deferred condition of an inherited IRA, when it is passed to a non-spouse beneficiary. This strategy lets the account continue tax-deferred growth over a long period of time.

If a parent doesn’t need her Required Minimum Distributions, does it make sense to do a gradual Roth IRA conversion and use the RMDs to pay taxes on the conversion? Or should the parent invest the RMDs in a brokerage account?

There are several options in this situation, according to nj.com’s recent article, “With Stretch IRAs on the way out, how can I plan for my children’s inheritance?”

Congress is considering legislation with the SECURE and RESA Acts, that would eliminate the ability of children to create a stretch IRA, one that would let them to stretch distributions from the inherited IRA over their lifetimes.

Under the proposed SECURE and RESA Acts under consideration, the maximum deferral period will be 10 years. If the beneficiary is a minor, the period would be 10 years or age 21.

The best planning strategy for a parent would depend on her overall finances and what she wants for her children’s inheritance.

The conversion to a Roth may be a good planning move, depending on her tax bracket. Putting the money in a brokerage account is also an option.

A parent may also want to think about using the RMD proceeds to purchase a life insurance policy held by an irrevocable trust for the benefit of her children.

It’s best to contact an experienced estate planning attorney, so he or she can review the details of the parent’s finances and help her choose the best options for her situation.

Reference: nj.com (October 15, 2019) “With Stretch IRAs on the way out, how can I plan for my children’s inheritance?”

 

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What Did Chicago PD Actress Marina Squerciati Receive from her Mom’s Boyfriend’s Will?

Millionaire John R. Jakobson’s son, who is the executor of his father’s estate, is attempting to stop Marie Squerciati from speaking out by using the dead man’s statute, which protects the assets of the dead from claims of communication by the living to serve their interests.

Wealth Advisor’s recent article, “Wall Street mogul John R. Jakobson promised mistress that their love child Marina Squerciati would get a ‘big surprise’ in his will–then left Chicago PD star Nothing” reports that documents filed with the Manhattan Surrogate Court state vague terms the man who died aged 86 in April 2017— and who reportedly had many affairs—allegedly used when stating plans for his will.

‘I’m a gentleman and you may read into that only good,” the senior Jakobson purportedly told his mistress in 1981 about their alleged daughter, now 37, who went on to star as Officer Kim Burgess on Chicago PD.

The mogul’s widow, Joan Jakobson, said she didn’t know about Mariana, who kept her family life a secret, until she found out she was left out of the will. Jakobson’s three living children from his marriages were included in the will. However, the family of the man, who at 25 became one of the youngest people to buy a seat on the New York Stock Exchange in 1955, has refused to acknowledge her as one of his children.

Marina is the allegedly product of his affair with her mother Marie Squerciati, who was a television writer in the 1970s and 80s and reporter for the Village Voice, as well as The New York Times. The affair was said to have lasted for a year and led to Marina’s birth in 1981. For her whole life, Marina kept her father’s identity a secret, as he allegedly paid her mother $1,200 a month for more than 20 years. That monthly check was used for Marina’s nanny and for her apartment in New York City. Jakobson also reportedly paid for Marina’s schooling including the $175,000 tuition for Dalton School, then $131,000 for her education at Northwestern University, where she graduated from in 2003 with a bachelor’s degree in theater.

Even though Jakobson made oral promises that he’d provide a “substantial” trust for Marina in his will, it looks like he didn’t. When Marina got engaged, her mother allegedly asked Jakobson for a gift to which he allegedly reaffirmed that she “would receive money under his will.”

In her court filings, Marina contends that the price of her silence was “extraordinary” and that she missed out on the opportunity to build a relationship with her alleged father and was denied “any relationship whatsoever with her half-siblings.”

The Squerciatis contacted his estate last fall to ask if Marina was named a beneficiary, according to court papers.

Attorneys for the family say Marina’s claims have “no basis in fact or law” and “amounts to nothing more than an avaricious attempt to enforce an alleged, vague oral promise made to [her] mother, rather than to herself, and which resulted in no legally recognizable injury to her.” They note that even if Marina could prove that Jakobson was her father, she had no written evidence of his promise to leave her money in his will… and that she had “ample opportunity as an adult” to have her father put his word in writing.

Marina was offered a $50,000 settlement by the Jakobson lawyers.

Reference: Wealth Advisor (October 14, 2019) “Wall Street mogul John R. Jakobson promised mistress that their love child Marina Squerciati would get a “big surprise” in his will–then left Chicago PD star Nothin

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Sharing Legal Documents and Passwords

While parents are alive and well is the time to prepare for the future, when they begin to decline. An adult child who is a primary agent and also executor has questions about organizing documents and managing storage in a digital format, as well as how to secure their passwords for online websites. The advice from the article “Safe sharing of passwords and legal documents” from my San Antonio is that these two issues are evolving and the best answers today may be different as time passes.

Safe and shareable password storage is a part of today’s online life. However, passwords used to access bank and investment accounts, file storage platforms, emails, online retailers and thousands of other tools used on a desktop are increasingly required to be strong and complex and are difficult to remember. In some cases, facial recognition is used instead of a password.

Many rely on their internet browsers, like Chrome, Safari, etc., to remember passwords. This leaves accounts vulnerable, as many of these and other browsers have been hacked.

The best password solutions are stand-alone password managers. They offer the option of sharing the passwords with others, so parents would provide their executor with access to their list. However, there are also new laws regarding digital assets, so check with your estate planning attorney. You may need to create directives for your accounts that specify who you want to have access to the accounts and the data that they contain.

Storage of legal documents is a separate concern from password-sharing. Shared legal documents need to be private, reasonably priced and secure.

Some password managers include document storage as part of the account. The documents can be uploaded in an encrypted format that can be accessed by a person, who is assigned by the account owner.

Document vault websites are also available. You will have to be extremely careful about selecting which one to use. Some of the websites resell data, which is not why you are storing documents with them. One company claims to offer a “universal advance digital directive,” which they say can provide digital access worldwide to documents, including an emergency, critical and advance care plan.

The problem? This company is located in a state that does not permit the creation of a legally binding advance directive, unless it is in writing, includes state-specific provisions and is signed in front of either two qualified witnesses or a notary.

Talk with your estate planning attorney about securing estate planning documents and how to protect digital assets. Their knowledge of the laws in your state will provide the family with the proper protection now and in the future.

Reference: my San Antonio (October 14, 2019) “Safe sharing of passwords and legal documents”

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Remaining Even and Fair in Estate Distribution
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Remaining Even and Fair in Estate Distribution

Treating everyone equally in estate planning can get complicated, even with the best of intentions. What if a family wants to leave their home to their daughter, who lives locally, but wants to be sure that their son, who lives far away, receives his fair share of their estate? It takes some planning, says the Davis Enterprise in the article “Keeping things even for the kids.” The most important thing to know is that if the parents want to make their distribution equitable, they can.

If the daughter takes the family home, she’ll need to have an appraisal of the home done by a certified real estate appraiser. Then, she has options. She can either pay her brother his share in cash, or she can obtain a mortgage in order to pay him.

Property taxes are another concern. The taxes vary because the amount of the tax is based on the assessed value of the real property. That is the amount of money that was paid for the property, plus certain improvements. In California, property taxes are paid to the county on one percent of the property’s “assessed value,” also known as the “base year value” along with any additional parcel taxes that have become law. The base year value increases annually by two percent every year. This was created in the 1970s, under California’s Proposition 13.

Here’s the issue: the overall increase in the value of real property has outpaced the assessed value of real property. Longtime residents who purchased a home, years ago still enjoy low taxes, while newer residents pay more. If the property changes ownership, the purchase could reset the “base year value,” and increase the taxes. However, there is an exception when the property is transferred from a parent to a child. If the child takes over ownership of the home, they will have the same adjusted base year value as their parents.

If the house is going from parents to daughter, it seems like it should be a simple matter. However, it is not. Here’s where you need an experienced estate planning attorney. If the estate planning documents say that each child should receive “equal shares” in the home, each child receives a one-half interest in the home. If the daughter takes the house and equalizes the distribution by buying out the son’s share, she can do that. However, the property tax assessor will see that acquisition of her brother’s half interest in the property as a “sibling to sibling” transfer. There is no exclusion for that. The one-half interest in the property will then be reassessed to the fair market value of the home at the time of the transfer—when the siblings inherit the property. The property tax will go up.

There may be a solution, depending upon the laws of your state. One attorney discovered that the addition of certain language to estate planning documents allowed one sibling to buy out the other sibling and maintain the parent-child exclusion from reassessment. The special language gives the child the option to purchase the property from the other. Make sure your estate planning attorney investigates this thoroughly, since the rules in your jurisdiction may be different.

Reference: Davis Enterprise (Oct. 27, 2019) “Keeping things even for the kids”

 

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How Long-Term Care Services and Supports Compare Across the United States

Many Americans have little or no retirement savings. When they retire, the hard, cold reality hits them. They cannot afford to live in the community, where they raised their children. They will have to look for a less expensive place to live. One of the most significant expenses for aging adults is long-term care. If you are looking at different options for where to settle for your golden years, you should explore how long-term care services and supports compare across the United States.

The AARP Public Policy Institute compiles a reference book every year, called “Across the States: Profile of Long-Term Services and Supports.” Over the last 25 years, the book has grown to include thousands of data points and valuable analysis to make sense of the numbers.

The 2018 edition of the AARP reference book contains a wealth of information for people wanting to find a state that offers generous services and support to seniors. You can find information by state about things like:

  • The current age demographics and expected numbers for the future
  • How many people in the state are disabled
  • How much care costs in that state
  • Information on the numbers of family caregivers
  • Services available in the home and community
  • Nursing facilities
  • The long-term services and supports which Medicaid provides in that state
  • Demographic data about income, poverty and living arrangements
  • Private long-term care insurance statistics (95 percent of Americans do not carry this insurance)

We do not have a national system that provides Medicaid-funded long-term services and supports (LTSS). Unlike Medicare, Medicaid programs are different in every state. Medicare does not provide long-term care services, so most people rely on Medicaid to pay for some of all of their LTSS. One state might have all the services you need at little or no cost, and a neighboring state might provide much less assistance. Some people improve their quality of life immensely, by moving to a nearby state.

Differences in State LTSS Programs

The 2018 AARP report is 84 pages long, so we cannot cover all the details in this article. Here are a few of the highlights:

  • Some states (including New Mexico) spend 73 percent of their total LTSS funds on home and community-based services (HCBS) for the elderly and disabled, compared to only 13 percent in some other states (Kentucky and New Hampshire). Adequate care services in the home and community can make it possible for a person to continue living at home, rather than having to move into a nursing home.
  • Some states are spending less on LTSS and HCBS now than they did in 2011.
  • Southern states have higher rates of poverty among older adults than other regions of the country. Fewer than 30 percent of the people age 65 and over in Alaska, Hawaii, New Hampshire, and Maryland live below 250 percent of the national poverty level. This compares to 42 percent of older adults living in Mississippi, Louisiana, Tennessee, New Mexico, Kentucky, Alabama, Arkansas, and West Virginia. Since part of the Medicaid funds come from state sources, a poorer state will have more people in need but fewer dollars to fund the services they need.
  • The demographics about people in need encompass more than just poverty. Cognitive difficulties and self-care needs are factors as well as income. These needs vary significantly from one state to the next. Only five percent of older people in Colorado have self-care needs, compared to 11 percent in Mississippi. Only six percent of older people in South Dakota have cognitive challenges, compared to 12 percent in Mississippi.
  • Medicaid spent a total of $75 billion on home and community-based care services for older adults in 2013, compared to family caregivers, who provided services worth $470 billion in that year.
  • Oregon has 121 units in assisted living and residential care communities per 1,000 people age 75 or older. Louisiana only has 20 units per 1,000 people in this age group.
  • Only seven percent of people living in long-term care facilities in Hawaii receive antipsychotic medication, compared to 20 percent in Oklahoma.

You should consider many factors when evaluating where to live when you retire. Get information from multiple sources. Get advice from friends, relatives and social services agencies.

Every state makes its own regulations. Be sure to talk with an elder law attorney near you to find out how your state might differ from the general law of this article.

References:

AARP. “Across the States: Profiles of Long-Term Services and Supports.” (accessed October 31, 2019) https://blog.aarp.org/thinking-policy/across-the-states-profiles-of-long-term-services-and-supports

AARP. “Across the States 2018: Profiles of Long-Term Services and Supports.” (accessed October 31, 2019) https://www.aarp.org/ppi/info-2018/state-long-term-services-supports.html?CMP=RDRCT-PPI-CAREGIVING-082018

 

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