Orlando Estate & Elder Law

Publicity Rights - Worth Planning

Intellectual property rights are mostly determined by federal law and international agreements. When a copyright holder passes away, it makes little difference where he or she lived. However, publicity rights, which govern who can use a person’s image and likeness, are different. They are mostly a matter of state law.

When a famous musician passes away, there is almost always a spike in interest in the musician’s work. This might lead someone to believe that the copyrights to that work are extremely valuable, but the truth is that in most cases they are not.

There is comparatively little money to be made by selling musical works. The musician’s publicity rights are often far more valuable to the estate than any copyrights.

This creates unique estate planning issues as IP Watchdog explains in “How do Estates Monetize Images and Intellectual Property of Dead Celebrities?”

Unlike copyrights which are the subject of federal laws and the same everywhere in the U.S., publicity rights are a matter of state law. Their scope changes from jurisdiction to jurisdiction. A deceased celebrity who lived in Florida may leave an estate with very different publicity rights than a deceased celebrity who resided in New York.

Virtually every jurisdiction in the U.S. does recognize publicity rights, but the details vary. Some foreign jurisdictions, such as the United Kingdom, do not recognize the rights at all.

What this means for anyone with publicity rights to protect is that it is very important to plan for them in an estate plan. It is vital to make sure that the laws in the state in which you reside are fully accounted for in your estate plan.

If publicity rights might be part of your estate, or even if not,  is it time for an estate update?

Reference: IP Watchdog (Aug. 10, 2016) “How do Estates Monetize Images and Intellectual Property of Dead Celebrities?”

Estate Tax Implications of Presidential Choices

In all of the controversies surrounding this year’s presidential election the estate tax is receiving little attention even though some people believe the result could have major implications for the future of the tax.

The race for the White House is awash in controversy after controversy. Media coverage is dominated by private email servers, who is or is not acting Presidential, trade policy, responsibility for terrorists groups, suspected Russian hacking, and who should or should not be allowed in the country.

Most of the policy differences between the candidates tend to get lost in the noise.

There are real differences between Donald Trump and Hillary Clinton on policy and one of those differences is what to do with the estate tax.

New York Times columnist Paul Krugman in “Hair Meets Heirs” recently discussed how this election could have lasting ramifications for the future of the estate tax.

Donald Trump has proposed to abolish the estate tax entirely while Clinton is proposing to expand it. Krugman is a well-known liberal economist so it should not be surprising that he favors Clinton’s proposal and dismisses Trump’s.

The interesting thing about his opinion is not which side he favors. Instead, it is that he believes a large margin of victory for Hillary Clinton could open the door to Democrats being much more aggressive about the estate tax in the future.

America is very divided over the estate tax and that probably is not going to change anytime soon.

Whichever side you take in the debate, it is worthwhile to understand the differences between the presidential candidates and what the election could mean for the future of the estate tax.

Your own estate tax planning is a bit more manageable.  If I can assist, please contact my office.

Reference: New York Times (Aug. 10, 2016) “Hair Meets Heirs”

Blended Family Finances - Smooth or Rocky

When a parent gets remarried there is likely to be tension between the new spouse and the children from previous relationships. Much of that tension can be eased by ensuring the family finances are properly handled.

On television and in movies blended families tend to be shown in one of two extremes. They are either portrayed as naturally harmonious with everyone getting along or they are portrayed as constantly fighting with children and step-parents always at odds.

The reality is usually somewhere in between.

Blended families usually do have some tensions, but by properly managing the current and future finances much of that tension can be alleviated.

Recently, Advisor.ca offered some advice about ways to do that in “Five ways to navigate blended-family finances,” including:

• Make sure all estate planning documents are updated to reflect the circumstances of the blended family. Asset distributions may need to be modified to make sure everyone gets a fair share of a parent’s estate.
• Choose an executor (personal representative)  carefully as you will need to designate someone who has the respect and trust of both the new spouse and the previous children.
• Creating a trust and a gifting plan can be great ways to make sure adequate provision is made for everyone in the family. Trusts can be used to make sure a spouse has the necessary resources to live on and that children from a previous marriage cannot be cut off from receiving an inheritance.
• Buying life insurance can be another good idea as it can provide needed cash for expenses and help equalize inheritances when assets are difficult to divide.
• In many situations the best thing to do is to get a prenuptial agreement before getting remarried.

Whatever you do, seek the counsel of a qualified estate planning attorney.  Please schedule a consultation if I can be of assistance.

Reference: Advisor.ca (Aug. 3, 2016) “Five ways to navigate blended-family finances,”

Paper Claims to Have Identified Prince’s Son

If a California newspaper is correct, then dividing up Prince’s estate will be much easier than previously thought. The paper claims that DNA tests have proven that Prince has a son.

Recently, the Minnesota probate judge overseeing the Prince estate threw out the claims of 29 people who said they were related to the late musician. Most people took that to mean that there were six possible heirs left to Prince’s fortune and that they will have to undergo DNA testing.

The Santa Monica Observer recently report on this in “SMObserved Finds Prince Rogers Nelson's Son--Uncanny Resemblance!”

The article claims that DNA testing has proved that another, previously unknown, man is Prince’s son, which would make him the musician’s sole heir.

The newspaper reports that Sheila Steman was a musician who used to perform in many of the same clubs as Prince. The story indicates that her son, Anthony Steman, may have been the result of a relationship with Prince.

The judge overseeing the case ordered that the results of the genetic testing of Steman be kept under seal, which the paper believes is proof that Steman is Prince’s son.

However, there could be other reasons for the decision and it is unclear how a small California paper would have such inside knowledge of a Minnesota court case that has received lots of attention from much bigger media outlets.

While Anthony Steman might prove to be Prince’s son, at this point it should still be viewed as a rumor.

To make sure there are no questions about who inherits from you, allow me to help you get your plans in order.

Reference: Santa Monica Observer (Aug. 9, 2016) “SMObserved Finds Prince Rogers Nelson's Son--Uncanny Resemblance!!”

Redstone’s Granddaughter Files Suit

Sumner Redstone’s granddaughter has joined the ongoing legal battle over his competency and business interests. She has filed a lawsuit to have herself reinstated to the family trust.

The ongoing Massachusetts probate court battle over the competency of Sumner Redstone has major implications for his businesses and their many shareholders. Whether Redstone was competent when Viacom CEO Philippe Dauman was ousted from his position on the trust that controls Redstone’s business interests has the potential to affect the long term viability of the business.

Underlying all of this, however, the heart the case is the common issue of undue influence and whether Redstone’s daughter is manipulating him. His granddaughter believes that is what happened and she has joined the case asking that she be reinstated to the family trust.

The Daily Mail reports on this development in “Sumner Redstone's granddaughter sues for $6million and seat on family trust after saying her aunt Shari was abusive and even threatened to kill her.”

The granddaughter has previously accused her aunt of threatening to kill her and declaring that Redstone should not be taken to a hospital if he gets ill. She claims that Redstone did not trust his daughter’s business judgment and wanted her to have nothing to do with running his businesses.

Redstone and his daughter were estranged for several years and the current legal battles began when the daughter reentered the mogul’s life and he began changing his estate plan to favor her.

While that does not mean there was undue influence and that Redstone is not competent, it does lead to the possibility of it.

Even if your family does not have this much drama or money, a good plan is essential to avoid disputes.  Please contact my office to arrange a consultation.

Reference: Daily Mail (Aug. 3, 2016) “Sumner Redstone's granddaughter sues for $6million and seat on family trust after saying her aunt Shari was abusive and even threatened to kill her.”

Time Limited for Decisions About Inherited Retirement Accounts

Beneficiaries of retirement accounts face big decisions and limited time.

Inheriting spouse has many options and limited time to decide as recently discussed by Market Watch in “Inheriting a retirement account? Lump sum payouts can be costly.”

They include:

• Lump Sum Cash Payment – The surviving spouse has the option of cashing out the account with a single lump sum payment. This is the most costly option in terms of taxation.
• Monthly Benefits – Most plans allow a surviving spouse to receive a monthly benefit for life. Whether this is a better option than taking a lump sum depends on the life expectancy of the surviving spouse. It is also a good choice if the surviving spouse does not want to invest the money.
• IRA – A surviving spouse can normally transfer the account assets into an IRA. The assets will then be treated as if they were always the property of the surviving spouse.
• Inherited IRA – Transferring into an inherited IRA is another option available to a surviving spouse. This is can be very beneficial if the surviving spouse is much younger than the pensioner.

These are the typical options, but it is important to look at the planning documents to make a final determination about which one is best in any given situation.

In my estate planning practice, I can guide you in your options and help determine the best decision for you.  Please schedule a consultation before time runs out.

Reference: Market Watch (July 25, 2016) “Inheriting a retirement account? Lump sum payouts can be costly.”

Planning for the Unthinkable - Alzheimer’s Disease

Good estate planning does not just concern itself with what happens to your assets after you pass away. It also takes into account the things that you might need at the end of your life, including the possibility of getting Alzheimer’s disease.

Obviously, major components of any estate plan include determining who gets your assets after you pass away and the best methods to accomplish that. For many people these are only aspect of estate planning they consider.

In reality, however, it is extremely important that estate planning does not stop there.

A big part of estate planning is also making sure that your needs will be met at the end of your life. Ideally, this is done so you will still have an inheritance left for your heirs. As there is a good possibility that at the very end of your life you will be sick and in need of care, estate planning is thus also about planning for that sickness.

As Market Watch points out in “What to know about Alzheimer’s and retirement planning,” getting care for Alzheimer’s is more expensive than getting care for other common end of life conditions. Therefore, the cost of Alzheimer’s is a good benchmark for planning.

Estate planning for Alzheimer’s is not just about money. It is also about making sure you have already planned ahead and legally appointed a capable person or persons who can look after your affairs. That means getting a durable power of attorney and a health care power of attorney (healthcare surrogate designation).

As an estate planning attorney who is a specialist in elder law, I can help you with all of the necessary details.

Reference: Market Watch (July 7, 2016) “What to know about Alzheimer’s and retirement planning”

Medicare Law Now Informs Patients of Status & Cost

Because of a quirk in Medicare’s reimbursement policy some patients have been hit with thousands of dollars in unexpected out-of-pocket expenses. A new law does not fix the quirk, but it at least mandates that patients must be notified before the costs accrue.

Doctors and hospitals are often hesitant to formally admit Medicare patients into a hospital. This is because, if they are later found to have done so inappropriately, Medicare will not reimburse them for the costs.

Instead of formally admitting patients, many doctors keep the patients in the hospital under observation. The distinction in status makes no difference to the patients at the time. They will receive the same treatments. However, it makes a big difference if a Medicare patient is later admitted to a nursing home for treatment and rehabilitation.

Under such circumstances, Medicare will not cover the nursing home stay unless the patient was formally admitted into a hospital for at least three days. This leaves many patients without insurance coverage for their nursing home care and they are required to pay for their stays.

Congress has moved to help alleviate this problem as the New York Times reports in “New Medicare Law to Notify Patients of Loophole in Nursing Home Coverage.”

Under the new law Medicare patients who have been in a hospital under observation for 24 hours must be given notification about their status and what that can mean for subsequent Medicare reimbursement. This should give patients the opportunity to speak with their doctors and request that they be formally admitted to the hospital.

Some members of Congress are also seeking to fix the problem completely and allow time spent in a hospital under observation to count the same as time spent formally admitted to a hospital as the same for reimbursement purposes.

Please contact my Elder Law practice if you would like more information on financing rehab or nursing homes stays.

Reference: New York Times (Aug. 6, 2016) “New Medicare Law to Notify Patients of Loophole in Nursing Home Coverage.”

Thieves Targeting the Elderly

Millions of elderly people in the U.S. live alone and many of them suffer from loneliness and diminished capacity. That makes them vulnerable to thieves.

Criminals like to pick the easiest targets that they can find. For many thieves that means they like to target the elderly. They tend to have liquid assets and tend to be trusting.

The U.S. has millions of elderly citizens who live alone and who are vulnerable to people who would take advantage of them.

Recently, the Washington Post, in “Elderly, lonely and suffering from dementia — to thieves, the perfect mark,” wrote about a case where a woman met an 81-year-old man at the store, married him a week later and then proceeded to drain his bank accounts for her own benefit.

She was recently convicted for her crimes.

No one is certain how much money is stolen from elderly people every year because many cases go undiscovered or unreported. Estimates have ranged into billions of dollars a year. Often after the money is stolen it is impossible to get it back.

Even when the thief is caught and convicted for their crimes, the money has already been spent and the thief has no way to pay restitution.

Elderly people are advised to be careful about whom they trust.

If a person is new in an elderly person’s life and seems overly friendly, then the elderly person would be wise to guard his or her bank accounts carefully. However, because many elderly people suffer from a diminished capacity with age, they cannot prevent elder abuse on their own.

Consequently, it is important that friends and family members remain on the alert for it as well.

A qualified elder law attorney can help create trust arrangements to provide essential checks and balances on an elderly person's assets.  Please get in touch if you have concerns about a family member or friend.

Reference: Washington Post (July 25, 2016) “Elderly, lonely and suffering from dementia — to thieves, the perfect mark,”

Remarriage and Estate Planning

If you are planning to get remarried, it is important that you revise your estate plan before doing so, especially if you have children from a previous marriage.

One of the most challenging things for estate lawyers and probate courts to administer is the estate of someone who passes away without a current plan, who was married at the time of death and who had children from a previous marriage. In these cases, it has to be determined how much the spouse is entitled to and how much should go to the children from the previous marriage.

Depending on the terms of the divorce, an ex-spouse could also be entitled to certain assets of the deceased. Most of the difficulty can be avoided if, before getting remarried, people revisit their estate plans and make sure they are updated properly to reflect the expected marriage.

This was the subject of a CNBC article titled “Getting remarried? Protect your assets and your interests.”

The article lists some common estate planning mistakes that people make when getting remarried, including:

• Not deciding whether beneficiary designations on financial accounts should be changed.
• Not having a plan for which assets can be comingled with the new spouse’s assets and which should not be.
• Not having an estate plan at all.
• Not considering a prenuptial agreement.
• Failing to give proper verbal instructions to family members.
• Not deciding whether a house needs to be re-titled.
• Not purchasing long term care insurance or otherwise planning for nursing home care.

Why take chances? As an experienced estate planning attorney, I can help you cover all of the bases.

Reference: CNBC (July 28, 2016) “Getting remarried? Protect your assets and your interests.”