Orlando Estate & Elder Law

Life and Death Issues Changing

“Death isn’t what it used to be. Write a will, put stock certificates and the deed to your home and a few other pieces of paper in a safe deposit box and you were set for life for the hereafter.”

Estate planning must now include intangible assets that didn’t exist just a few years ago, as well as those that have been around since people started owning private property. Today, says Forbes in the article “Estate Planning for Crypto And Other Digital Assets: What You Need to Know,” there are new kinds of property and new laws that govern them.

Some of the old rules still apply and you need a will. One of the things in that will, needs to be naming an executor who will be in charge of ensuring that your assets are distributed, according to the wishes you state in your will. When it comes to digital assets, things get a little tricky.

The hardest part of digital assets for many people, is how to give access to your digital property. The law has changed. If you own cryptocurrency, you’ll need to list your “crypto keys,” so your executor and heirs can know what is in your estate and be able to access it.

You may need to educate them so they understand what the assets are, the location of the keys and access control that you use for security. You probably know access control as PINS, passphrases, multisignature or timeclock requirements.

The challenge is, if you die and no one has access to your cryptocurrency keys, your heirs may never be able to access them. They’ll need to know what exchanges you use (Bitcoin, Ethereum, and others) and a list of the digital wallets you own for each.

Most heirs want to sell the crypto property quickly since the currency is volatile. No one wants to be criticized for losing substantive value in the estate because they didn’t move quickly enough.  They also don’t want to be brought to court, for failing to look out for the fiduciary interests of the estate.

You’ll need both the proper legal planning and technical planning.

Most states with laws about digital assets have adopted a model that was written to include things that have not been invented yet.

Electronic signatures on wills is another digital issue entering the estate planning arena. Most estate planning attorneys are not enthusiastic about this.  However, the change is coming, says an attorney on the drafting committee of the Uniform Law Commission.

National College of Probate Judges President Tamara Curry says she expects that judges are going to have to get up to speed on crypto assets in the next three to five years, since courts will become inundated with estates that include crypto currency and other digital assets.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Resource: Forbes (Aug. 14, 2018) “Estate Planning for Crypto And Other Digital Assets: What You Need to Know”

‘LOVE’ Does Have To Do With It

“A judge is being asked to order a variety of groups to provide any records of his assets. The estate of Indiana, who died in May, is initially estimated to be worth $50 million.”

Eight attorneys representing individuals and organizations connected to the late artist Robert Indiana, creator of the iconic “LOVE” sculpture, are asking that future hearings be held in closed sessions to protect people’s privacy and the value of some of his works of art, reports Press Herald in a recent article titled “Attorneys want hearings on the value of Robert Indiana’s estate held behind closed doors.”

Atty. James Brannan, who represents Indiana’s estate, is requesting information in a testimonial hearing to better determine the estate’s value.

 Due to the disagreement, Judge of Probate Carol Emery postponed the testimonial hearing and set a new date for a hearing in mid-September. The first scheduled witness will be Indiana’s caretaker, Jamie Thomas.

Brannan has petitioned the court to order Jamie Thomas, the Morgan Arts Foundation, Michael McKenzie and American Image to provide documentation on any assets they may have, that belong to the estate, including contracts for royalties.

The attorneys representing Thomas said he’s concerned about confidential matters becoming public. The judge has asked attorneys to file arguments on how she can justify closing the proceedings. It’s not easy to do, because of the First Amendment.

The attorney said the publication of information about where pieces of art are located would create a safety issue and information about the number of existing artworks could have an impact on the value of pieces that are up for sale.

Indiana’s will wanted proceeds from the estate to be used to restore his home to museum quality and serve as an art environment that would be open to the public for classes and lectures, and to preserve his collection and the property itself.

The will directed that Jamie Thomas be the executive director of the museum.

The Maine Attorney General’s Office is monitoring the disposition of the estate because of its size and  since a large portion of the estate was set to be given for a charity.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Resource: Press Herald (Aug. 7, 2018) “Attorneys want hearings on the value of Robert Indiana’s estate held behind closed doors”

Find a Good Match for Your Estate Plan

“Searching for a lawyer who can help you put together a good estate plan, may seem like a daunting task.  However, with a little help, you should be able to find several qualified lawyers to choose from.”

Finding an estate planning attorney who can help you create an estate plan that works for your family, is an important first step in creating an estate plan. You’ll want someone you are comfortable with, who is respected by other professionals and will be able to help your loved ones during emotional times. An article from The Balance, “Tips for Finding an Estate Planning Attorney,” offers some useful pointers.

Ask your accountant. Many estate planning attorneys work closely with accountants to address tax issues. Your accountant should know a few estate planning attorneys that they work on a regular basis. They are likely to need to coordinate some issues, so a good working relationship between the two is a plus.

Ask another attorney. If you have retained attorneys in setting up a business, buying a home or reviewing a contract, ask that attorney who they use for estate planning. You should also ask about client referrals. Attorneys in other practice areas recognize that their knowledge about business law or real estate law, does not give them the same training and skill set of an estate planning attorney.

Ask your financial advisor. Many financial advisors consider estate planning a critical part of their client’s overall financial plan. Most have a handful of estate planning attorneys for referral. If your financial advisor has not asked if you have a will, they are missing an important task of their job—looking out for all aspects of your life, not just your investments. Go ahead and ask the financial advisor who prepared their own estate plan.

Contact the local probate court. This isn’t for everyone, especially if you live in a large city. However, in a smaller community, the town clerk knows most of the attorneys and those that are well-liked by judges. Practicing in a small town is different than in a big city.  Therefore, attorneys who work well with others, may be more effective in certain matters.

Visit the attorney’s website. You want to make sure they have the right credentials, that they focus in estate planning and that they share your values.

Maybe the best tip of all: Make an appointment. When you sit down with an estate planning attorney and have a face-to-face conversation, you’ll really know if they are the right fit for you and your family.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Resource: The Balance (July 31, 2018) “Tips for Finding an Estate Planning Attorney”

Bucket List? 1. Estate Plan

“Many seniors may be more focused on their bucket lists, than worrying about having their financial affairs in order.”

Seniors should be having some heart-to-heart discussions with their spouses and loved ones about their wishes concerning their assets and their final days, according to Intermountain Catholic in “Retirees Have Several Financial Issues to Consider.” After a loved one dies, family members are often left dealing with the expenses of their medical care and funeral. To be left to deal with these issues while grieving adds another layer of heartbreak. It doesn’t have to be this way.

Many people put off making a will.  This means that their property won’t be distributed as they would want. If you don’t already have a will, contact an estate planning attorney and get started right away. Without a will, your estate will be distributed according to the laws of your state.

Ask your estate planning attorney if a trust may be appropriate for your planning, so your trusted heir can succeed you as a trustee and then divide the estate, according to your wishes.

Don’t put your 401(k) or IRA savings accounts into trusts. The IRS will see that as a 100% withdrawal and you’ll be charged the taxes on it for the year the withdrawal was made. That one mistake could, and has, decimated lifetimes of savings.

You’ll want to grant a trusted family member or friend the power of attorney and medical power of attorney, so your affairs can be handled if you should become unable to do so. If you do not want “heroic measures”—CPR and other medical procedures done to bring someone back to life if they are unresponsive—then you’ll want to discuss a Do Not Resuscitate (DNR) form with your doctor. That form will need to be with you and you should tell others about it, so they can instruct medical personnel accordingly. Otherwise, EMTs and doctors are required by law to take whatever measures they deem necessary to keep you alive.

If you haven’t already applied for Social Security, you may wish to go to your local Social Security office to discuss what benefits are available to you and how to collect them.

Most seniors qualify for Medicare, but there are many different plans. It is also likely that you’ll need supplemental plans to cover costs, including prescriptions.

Your best bet: sit down with an experienced estate planning attorney who can help you create an estate plan that is best for you and your family.  You should also have conversations with your family members about tough topics, so when the time comes for them to act on your behalf, they’ll be ready.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Intermountain Catholic “Retirees Have Several Financial Issues to Consider”

Will or a Revocable Trust? It Depends

Many people assume that Revocable Living Trusts are just for wealthy people.  However, the benefits that they can offer to someone with even minimal wealth are significant.

One of the more common questions for estate planning attorneys is asked and addressed in an article from thebalance.com, “Will or Revocable Living Trust—Which Do You Need?” It’s a good question because many people don’t understand how important having a will is even if you don’t have a large amount of property. The following are some factors to consider, when speaking with your estate planning attorney about wills and different types of trusts.

Mental Disability Planning. Regardless of your net worth, you might want to consider a Revocable Living Trust for mental health planning. A properly drafted Revocable Living Trust, which should be prepared by an experienced estate planning attorney, will have provisions to determine mental capacity outside of a court proceeding. It will also state your wishes about taking care of you and your finances, in case you do become mentally incapacitated. It is likely that such a document could keep your family out of a court-supervised guardianship.

Minor Beneficiaries.  This is what happens all too often: young parents have a life insurance policy or a retirement account through work. They divorce and one of the parents decides to name a minor child as a beneficiary. It is also possible that both parents could die while the children are still minors. What happens to these assets? They are placed in a court-supervised guardianship for the benefit of the minor until the child reaches 18. Parents can instead set up a Revocable Living Trust, naming the trust as the primary or contingent beneficiary of the life insurance or retirement account. They must then name a trustee to accept and manage the funds instead of a court-appointed guardian. Children who are 18 years of age are usually not ready to deal with large sums of money. With a Revocable Living Trust, the parents can dictate how old the children will be when they receive their inheritance. Some kids are ready at age 21, while others are not ready until they are 30 or ever.

Singles Need to Plan Also. If you have assets titled in your name and no legal partner you could use a Revocable Living Trust to keep you and your assets out of a court-supervised guardianship and allow beneficiaries to avoid the cost of probate.

Planning for Second Marriages. If you and your spouse have children from prior marriages, you may have different beneficiaries. A Revocable Living Trust can ensure that each of your estate assets will be distributed where you want, outside of probate.

Don’t Forget to Fund. This last step gets forgotten all too often. If you create any kind of a trust, don’t forget to fund it and update and coordinate your beneficiary designations.  Otherwise, it won’t accomplish what you want.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: thebalance.com (June 29, 2018) “Will or Revocable Living Trust—Which Do You Need?”

Stodgy Probate and Cryptocurrency

The death of Matthew Mellon shows how a lack of planning can cause problems for an estate that contains a lot of cryptocurrency.

At the age of 21 Matthew Mellon, a member of the famous family of bankers, inherited $25 million through a trust that was created for him. Illustrating the dangers of giving that much money to someone so young, Mellon was not cautious with the money and developed a costly habit.

He recently passed away on the way to rehab, at the age of 54. If that was the entire story Mellon would be a good cautionary tale about why it is important to carefully structure large inheritances.  However, there is more to the story as the Wills, Trusts & Estates Prof Blog discusses in "Matthew Mellon's Cryptocurrency is Being Held in Probate."

At some point, Mellon became heavily invested in cryptocurrency, which eventually made him a billionaire. At the time of his passing, his cryptocurrency holdings are believed to be worth around $100 million. However, the problem is that cryptocurrency can be extremely volatile.

Since his passing, Mellon's holdings have already fluctuated more than 30% in value. To get the holdings, however, his estate first has to go through probate.  This would ordinarily take a long time in this case. The estate is seeking permission to sell the cryptocurrency now, in case the value of the holdings crashes.

Mellon presents another cautionary tale as well. If you have a lot of cryptocurrency, you should make estate plans that do not require cryptocurrency to go through probate.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Wills, Trusts & Estates Prof Blog (May 20, 2018) "Matthew Mellon's Cryptocurrency is Being Held in Probate."

Estate Planning Is Not Dead

Now that the estate tax exemption has been doubled, some people are saying there is no longer a need for estate planning. However, estate plans have never been mostly about avoiding the estate tax.

For people who do not want to take the time to plan for their own estates, it might seem like 2018 has started out to be a good year. It has been so good that some people are talking about the death of estate planning itself, because the federal estate and gift tax exemptions have been doubled. They also think that there is no need to have plans to avoid those taxes.

However, most people who planned for their estates before this year were not subject to the federal estate tax anyway, because there have always been other reasons to make an estate plan. Those other reasons still exist.

Recently, Kiplinger discussed some of those reasons in "Is Estate Planning Now Dead?" including:

• A few states still have estate and inheritance taxes of their own. Some of them have lower thresholds than the federal exemption limit. People in those states might need to plan around those taxes.
• In many states, probate is a very expensive and time-consuming process, giving people good reasons to get an estate plan that avoids probate completely.
• Estate planning is also a good way to avoid any particular issues that might come up with an unplanned estate. For example, if any heirs have potential problems, like financial or drug issues, estate planning can help make sure that any inheritance is not wasted.
• Estate planning is also the best way to avoid fights between family members over who should get what from the estate.

Contact a qualified estate planning attorney to get your affairs in order without delay.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Kiplinger (May 1, 2018) "Is Estate Planning Now Dead?"

Avoid Planning Mistakes

When it comes to estate planning, there are several mistakes that people can make in setting up specific legal instruments. However, most mistakes people make are far more basic.

People who are looking to plan their estates, often have a lot of questions about what they should do. However, answering those questions can be like putting the cart before the horse.

Most estate planning mistakes can be avoided if people would ask what they should not do instead. A large percentage of messy estate administration cases in probate courts would go away if people would do that.

Market Watch recently discussed some of the things not to do in "7 common estate planning disasters and how to avoid them," including:

• Do not pass away without a will. It should be obvious. If you have no estate plan at all, you have made an estate planning mistake. However, this is a common mistake because people think they will live longer than they do and will have time to make plans later.
• Do not forget to plan for incapacity. A good estate plan will include documents planning for a time when you can no longer take care of things by yourself.
• Do not think you can get a good estate plan by purchasing a form and filling it out. Mistakes made when people do this are costly and time-consuming to fix.
• Do not make beneficiary designations on your financial accounts without considering how those designations fit into your other estate plans.
• Do not forget to review your estate plan from time to time to make sure it is still appropriate for your family.
• Do not neglect to get a new estate plan if you get remarried. This is especially important if you have children from a previous relationship.
• Do not keep any secrets from your estate planning attorney. Your attorney cannot make proper plans, if all relevant information is not disclosed. It can lead to problems in administering your estate.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Market Watch (April 26, 2018) "7 common estate planning disasters and how to avoid them."

What A Beneficiary Should Do

Should you be notified that you are the potential beneficiary of someone's estate, then what happens next depends on state laws.

When a will is filed in probate court, one of the first things normally required is to notify everyone who is named in the will or who may potentially benefit from the will. Sometimes, that can be many people, as is the case of the recently deceased actor John Mahoney.

His estate is worth approximately $5 million and there are 38 people who could be beneficiaries. Most of the time, the number of people notified is likely to be far less. If you are notified that you could potentially benefit from a will, you need to know what to expect from the probate process. This is especially true, if it is a large estate.

 This was the subject of a recent Market Watch article titled "What to do if you're like one of 'Frasier' dad John Mahoney's 38 beneficiaries."

The answer to what to expect of the probate process? It depends.

State laws vary greatly about how the probate process is conducted. Your first question might be what you can expect to receive from the estate.  However, that can take a long time to sort out. In some states, you can ask the probate court for a copy of the will that was filed. This might at least give you a general idea.

However, in other states, it is left to the discretion of the appointed executor (personal representative) whether to let people see the will. However, what the will says you should inherit, might not be what you actually receive. Other people and creditors might file claims against the estate.

What is the best thing to do if you are a potential beneficiary of a wealthy estate? Hire an estate attorney who can help you with the process in the state where the probate court is located.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: Market Watch (March 29, 2018) "What to do if you're like one of 'Fraiser' dad John Mahoney's 38 beneficiaries."

Frasier's Beloved John Mahoney Dies

Actor John Mahoney recently passed away while in hospice care. He left behind an estate that is worth millions, with many possible heirs.

Actor John Mahoney had a long and distinguished career as an actor in a variety of roles. He was best known for his award-winning work on the TV show Frasier, in which he played the main character's elderly father.

He passed away recently at a hospice, while suffering from a variety of illnesses. Friends, former co-workers and fans have shown an immense amount of grief over the loss.

One friend recently petitioned a court to open a probate case to settle Mahoney's estate, as TMZ reported in "'Frasier' Star John Mahoney Leaves Behind $5 Mil Estate."

The full details about Mahoney's estate are not yet known. The estate is believed to be worth $5 million, including real estate worth approximately $300,000. It is not clear from the initial reporting whether Mahoney had a will or trust.

It is also not clear how Mahoney might have directed the distribution of his estate between various people. Court documents do list 38 potential beneficiaries of the estate, who were friends and relatives of Mahoney.

An estate as large as Mahoney's with many potential inheritors is often a perfect recipe for conflict. Those potential inheritors may lawyer up and choose to fight over their respective share of the estate.

However, it is too soon to know whether that will happen in this case and what Mahoney might have done to make conflicts over his estate less likely to occur.

For more information about estate planning in Orlando, FL (and throughout the rest of Central Florida), visit our estate planning website and be sure to subscribe to our complimentary estate planning e-newsletter while you are there.

Reference: TMZ (March 24, 2018) "'Frasier' Star John Mahoney Leaves Behind $5 Mil Estate."