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Give Your Trust an Annual 10 Point Checkup

Give Your Trust an Annual 10 Point Checkup

This is the check engine light on your estate plan.  I’m going to give you ten quick and easy things everyone can check off on their estate plan.

1. Banks

Trusts avoid probate because they are funded with your assets, and yes, that includes your bank accounts.  It is important that your successor trustee be able to instantly take on your responsibilities if you should become incapacitated or pass away.  If you have assets outside the trust, that hinders their ability to carry out the job you’ve given them.  If you’re wondering about adding your child to your bank account, read this first.

2. Real Estate

Have your purchased a new piece of property or refinanced?  If you have, you may have a significant asset outside your trust and exposed to probate.  Check your deed to see if it names you as trustees or if you’re holding title as something else - joint tenants for example.  Talk to your estate panning attorney about any real property not in your trust.

3. Beneficiary Designations

Life insurance and retirement plans are controlled not by a will or trust, but by the beneficiary designations, typically using a form provided by the company.  Most of the time these assets should not be placed in your trust, but there are exceptions for both life insurance and retirement plans.  If you aren’t sure, check with your attorney.

4. Other Assets

In California it is typical to leave vehicles outside of the trust, but have a general assignment to the trust.  Other assets such as business interests and individually held stock shares require specific steps to transfer into the trust.

5. Power of Attorney

Your financial decision maker should have a copy of the document.  In addition, your banks should have a copy as well.  Most financial institutions have a policy of rejecting Power of Attorney that are over 5 years old.  If you just let your power of attorney sit in your trust binder, and 10 or 15 or 20 or more years later your agent dusts it off and brings it into a bank,

6. Health Care Directive

Just like the Power of Attorney should go to the bank, your Health Care Directive should go to your doctor.  If there is an emergency, your family shouldn’t have to worry about finding your estate planning binder, digging out the Directive and bringing it to the emergency room.  If you give it to them ahead of time, the hospital can just look in their records.

7. Trustees

If you created your trust when you children were young, you probably named a trusted relative or friend as the trustee.  Now that your children are grown, it is time to review whether that should be changed.

8. Beneficiaries

How you distribute your estate is unique to every family, and should be something that is reviewed regularly.  Does your estate plan accurately reflect your current wishes of who gets what?

9. Financial Position

Some changes in financial situation can impact how your estate plan works.  In some instances recent changes in federal estate tax law can allow estate planning attorneys to simplify your estate plan.  If you’ve downsized and simplified, maybe your estate plan should be updated.  By the same token, if your proverbial ship has come in, and your estate is significantly larger than it was when you created your estate plan originally, you should review your plan for the best tax and asset protection strategies.

10. Changes in Family Dynamics

Some plans are built around assumptions about how children will react, or particular assets that one or two children care about that the others don’t.  You should review those assumptions regularly, and if they’ve changed, make sure your plan can either handle the change, or change your plan.

Your family is relying on having an effective estate plan to save them from legal headaches.  Spend a few minutes each year to run through this quick checklist to make sure everything will work the way you want it to work.

Tax Benefits of Buying a Second Home

Buying a second home can provide you with a place to relax, unwind, and escape from it all. It can also provide you with substantial savings if you take advantage of these tax benefits of buying a second home.

Mortgage Interest

Mortgage interest paid on up to $1.1 million in debt on your first and second homes is fully deductible. Typically, this rule only applies if you treat your second home as a home and not a rental property. But some mortgage interest may still be deductible if you occasionally rent out your second home. To benefit from this deduction, you must use the property for 14 days or more than 10% of the number of days you rent it out a year, whichever is longer.

Tax-Free Profit

You can take up to $500,000 in profit from the sale of a home tax-free if it is your primary residence and you meet the two-year ownership and use requirement. Typically, you do not get the same tax benefit from the sale of a second home. But people have taken advantage of this rule by converting their second home to their primary residence before the sale, thus reaping the tax-free profit.

But in 2009, Congress added a few more restrictions to limit the amount of tax-free profit you can take from a second home. Now, a portion of the profit from the sale of a second home is taxable. The portion is determined by the ratio of the amount of time after 2008 you treated the residence as a second home or rental property and the amount of time you owned it.

Buying a second home can offer many benefits. But to maximize the value of your investment, work with a lawyer to make sure you are not overlooking any potential legal, insurance, financial, or tax problems or opportunities. You must meet other requirements—such as living in the home for two years before you sell it—to take advantage of some of these tax benefits. A Personal Family Lawyer® can help you ensure you meet the requirements, so you can reap all the benefits of owning a second home.

4 Cryptocurrency Risks and Scams and How to Navigate Them — Part 2

Last week, we shared the first part of our series on cryptocurrency risks and scams, and if you haven’t read it yet, you can do so here. In part two, we discuss two more common traps to be wary of when investing in digital currency.

If you are considering using cryptocurrency as an investment vehicle, talk with us first.

3. Pyramid/Ponzi Schemes That Will Trade For You
Because dealing with cryptocurrency can be a complex affair, online scammers have developed complicated cons similar to traditional pyramid and ponzi schemes. People have lost a lot of money in such scams, and unless you’re well-versed in the technology, they can be difficult to spot.

One giant red flag to watch for is giving your money to others who invest/trade for you, or if you only get paid when you recruit new members.

Also avoid buying upfront “packages” (The Gold Package) promising varying returns. And if you see the words “This isn’t a pyramid scheme” in the marketing materials, you may want to look a little more closely!

Unless you get to hold the keys to your private wallet containing your crypto directly or trade via a reputable exchange like Coinbase, you very well could be dealing with a scammer. And while plenty of people will make money in cryptocurrency pyramid/ponzi schemes, many will lose. That could include you or people you care about, if you get involved in crypto this way.

4. Fake ICOs (Initial Coin Offerings)
While new cryptocurrency can be created without any public investment or offering, many use an Initial Coin Offering (ICO) to fund their startup initiative. ICOs are basically IPOs (Initial Public Offerings) for cryptocurrency and a highly effective way to crowdfund vast sums of money extremely quickly. In fact, recent ICOs have raised millions of dollars in mere minutes.

This speed comes from the fact that ICOs are barely regulated—a good thing if you’re looking to raise money quickly and avoid the rigorous and time-consuming regulations involved with traditional capital raising. But it can bad, too, as the lack of regulation is a big neon welcome sign to scammers.

The lack of legal oversight has resulted in numerous fake ICOs being created by crypto con men, who go to great lengths to convince potential investors of their fake coin’s legitimacy. If you’re just getting started with cryptocurrency, it’s probably best to avoid ICOs until you really understand what you are investing in. In fact, that’s a good rule of thumb with any crypto investment, if you don’t understand the technology beneath it, start by learning that—and understand “what this crypto actually does”—before you invest. Contact us if you’d like help with that.

Of course, not all ICOs are fake, and if you’re tech-savvy, they can be quite lucrative. In fact, many tout ICOs as the future of venture capitalism and fundraising.

But no venture capitalist would ever fund a startup without proper vetting, and the same applies to altcoins. Check the background of the people directly involved with the project and those serving as advisors. Use Google and social media like LinkedIn to verify these are real people with stellar reputations, and their advertised skills and knowledge match those found on online resumes and CVs. And make sure you understand what the cryptocurrency proposes to do and that you believe the team behind it can accomplish that goal, as with any business investment you would make.

And as with any investment, beware of deals that promise unrealistically high returns and/or just sound way too good to be true—that’s sign they likely are.

If you’re serious about adding cryptocurrency to your family’s investment portfolio, take the next step in your education by contacting your Personal Family Lawyer®. As your trusted advisor, we’ll help you incorporate cryptocurrency into your family’s financial and estate planning, so you can get the most bang for your crypto buck.

4 Cryptocurrency Risks and Scams and How to Navigate Them — Part 1

It’s no secret that Bitcoin and other brands of cryptocurrency are one of the hottest new investment opportunities. And if you’re not already invested, you may be considering how to get in, what exactly is the best way to get in, and you should definitely be considering risks and potential scams that are easy to get caught by if you’re not eyes wide open on the issues surrounding cryptocurrency.

Launched in 2009, Bitcoin was the first cryptocurrency, and since then, it has evolved from something only computer geeks and hackers talked about into a global phenomenon that’s transformed how the entire world views money.

Bitcoin is still the most popular—and valuable—digital currency. As of November 2017, a single Bitcoin was worth more than $10,000, with the currency’s total market capitalization at roughly $158 billion. Bitcoin’s smashing success spawned a legion of other coins, known as “altcoins,” such as Ethereum, Litecoin, and Ripple, and the global market value for all cryptocurrency is currently more than $300 billion.

The huge amounts of money transitioning into the world of cryptocurrency has attracted equally large numbers of investors, looking to tap into this seemingly boundless source of new money. However, because it’s largely unregulated, involves extremely complex technology, and offers significant anonymity, the cryptocurrency market has also garnered the attention of cyber criminals.

Indeed, cryptocurrency’s brief history is filled with stories of people losing major money through hacking and a variety of other traps and scams. As with any new investment opportunity, the key to safety with cryptocurrency is education. While you should always do your own research before investing, here are a few of the most common scams to watch for and how to know whether investing in or using cryptocurrency is right for you.

1. Shady Exchanges

A cryptocurrency exchange is an online platform for trading one cryptocurrency for another or for fiat currency like the U.S. dollar. These platforms are where you buy in and cash out your cryptocurrency, so they’re essential to the crypto market. Exchanges typically charge a fee for each transaction and are based on current market rates or rates set by sellers/brokers.

Bitcoin’s popularity has caused the number of exchanges to explode, but not all exchanges are trustworthy. In the past, major exchanges have disappeared overnight and taken all of the digital currency with them, while others offer horrible customer service, and/or make getting your money out extremely difficult.

Your best bet is to stick with the largest, most popular exchanges like Coinbase, Kraken, and Bittrex. That said, legitimate smaller exchanges are out there and can be used safely, provided you’ve done your research. Indeed, there are numerous websites that rank and review crypto exchanges for quality, security, and customer service. If the reviews are largely negative, note that it’s difficult to cash out your altcoins, or mention the customer service is exceptionally poor and/or slow, steer clear.

2. Picking Your Wallet

In order to store cryptocurrency, you’ll want a digital wallet, as that’s the safest way to hold your cryptocurrency. Exchanges are for buying and selling, but not the safest for storing.

Your cryptocurrency wallet doesn’t actually “store” money like a traditional wallet; rather, it stores passcodes, known as keys, that allow you to send and receive digital currency to and from the wallet. There are many different wallets available, but not all of them are totally secure.

Wallets come in two forms: hot and cold. A “hot” wallet stores your cryptocurrency in a location that’s connected to the internet—exchange-based wallets, desktop wallets, and mobile wallets. Because they’re connected to the internet, hot wallets are the most convenient, but that also makes them vulnerable to hacking. A “cold” wallet, conversely, stores your cryptocurrency in a location that’s completely offline. Ironically, the most secure type of wallet for storing digital currency is a cold “paper” wallet.

Paper wallets involve printing out your keys and storing them in a secure location. While paper wallets are the most secure option, if you lose the codes, it’s the same as losing paper currency—you’re screwed, meaning there is no way to recover your investment. Paper wallets are also inconvenient—you have to send your money back to an exchange to use it—which can be a pain if you’re using cryptocurrency on a daily basis.

If you primarily use cryptocurrency as a long-term investment, you should store all of your crypto in a paper wallet. If you’re receiving, spending, or trading frequently, however, you should use both a hot/online and paper/offline wallet. Like real-world wallets, store the money you need for the day in your hot/online wallet, but keep the majority of your funds in a paper/offline wallet for safekeeping.

In all cases, whether you have crypto in a hot wallet, paper wallet, or directly in an exchange, make sure you’ve given the details of where it’s stored and how to access it to the people who need to know in case you’re incapacitated or when you die. Otherwise, it’s completely lost. If the people you love don’t know how to find and access it, it’s the same as it not existing at all. Please talk with us about this if you have any cryptocurrency now that may not have been included in your estate plan, or if you do obtain any in the future. Remember: if your family doesn’t know how to access it, it will be lost if you become incapacitated or when you die.

In addition to safety, investing in cryptocurrency comes with an array of other legal, financial, and tax issues you’ll need to consider. The good news is, as your Personal Family Lawyer we can guide you through these challenges and help you incorporate cryptocurrency investments into your family’s overall financial and estate-planning strategies. Contact us today to get started.

Next week, we’ll continue with part two in this series on cryptocurrency risks and scams.

Pay For a Loved One’s Education With an Education Trust Fund

Today’s parents are all too familiar with the budget-busting cost of funding a child’s college education. It can be challenging enough to put aside sufficient savings for a single child’s education, but for multiple kids, the price tag can make donating a kidney for extra cash seem downright reasonable!

In fact, a survey by The College Board found that the “moderate” cost for all expenses (tuition, fees, books, room and board) for a year of in-state public college averaged $24,610 in 2016-2017. A similarly moderate budget for a private college averaged $49,320.

But don’t freak out just yet! If you’re savvy about estate planning, you can use an education trust fund to save for your child or grandchild’s education expenses and specify exactly how you want those funds used.

You can create an education trust that is payable during your lifetime (living trust) or upon your death (testamentary trust). The disbursements from the trust are designated for a beneficiary's education, and you can specifically designate how and when the funds are to be distributed—meaning the beneficiary can only receive the funds if they’re compliant with your terms.

Education trusts can be used to fund not only a traditional university education, but any type of learning institution, such as trade schools, educational workshops, community colleges, and private academies. Or even alternative education, such as travel, workshops, retreats, business building programs, and the like. You get to decide exactly how broad or how limited the use of the funds can be.

Trusts can be created for multiple beneficiaries, whether through separate trusts for each individual or a single trust that funds all beneficiaries. If a single trust is established for multiple beneficiaries, you can require the assets to be distributed in a number of ways: equally, using a set amount, by percentage, or the decision as to how much each beneficiary receives can be left to the trustee’s discretion.

Education trusts aren’t generally set up as tax-saving vehicles, as would be the case with a traditional 529 Plan (which does provide tax savings, but has much more restrictive use). That said, there could be some tax savings if the income of the trust is taxed at your beneficiary’s tax rate, which could be lower than your personal tax rate on income.

The only part of the trust that will be taxable is income earned by the investments in the trust (interest and dividends). The trust owes yearly income taxes on income above $600; however, if the trust distributes that income, the beneficiary is responsible for paying taxes at their rate.

The trust is only responsible for taxes on income not distributed by year’s end. And that income is taxed at trust tax rates, which could be higher than the beneficiary’s rate—and possibly even higher than your personal tax rate, so make sure you are clear about whether income should be distributed before year’s end for each year the trust earns income.

If the education trust is irrevocable, meaning that the gift cannot be taken back, and the amount contributed is less than the annual gift tax exemption amount ($14,000 in 2017), then no gift-tax return is required. If the gift exceeds that amount, then it would be necessary to file a gift-tax return, reporting the gift and using up part of your lifetime exemption of $5.49 million. A married couple can exempt $10.98 million in their lifetime.

If you’re interested in funding your children’s or grandchildren’s education using an education trust, we can walk you step-by-step through the process.

Is California’s New Transfer on Death Deed a Safe Alternative to a Living Trust?

Perhaps you’ve heard from a well-meaning friend or advisor that you can use an inexpensive Transfer on Death Deed to keep your property out of court without going to the trouble of creating a Living Trust. If so, read this before you rely on a Transfer on Death Deed to ensure that you aren’t creating more trouble for the people you love.

On January 1, 2016, Assembly Bill 139 went into effect, providing California residents with a new way to transfer residential property to their heirs. Specifically, the law creates a Revocable Transfer on Death Deed (TOD Deed), intended to be a simple tool for transferring ownership of real property to beneficiaries upon the property owner’s death.

The law was initially heralded as a welcome alternative to Revocable Living Trusts, which some believe to be costly, time consuming, and complex. A TOD Deed allows named beneficiaries to assume ownership of your residential property without undergoing probate or trust administration.

However, before you rely on a TOD Deed as a cheaper alternative to full-on Revocable Living Trust planning, consider these factors …

First, the TOD Deed only applies to certain types of real property:
1. A single-family home or condominium,
2. A single-family residence on agricultural property of 40 acres or less, or
3. A multi-family residence with no more than four units.

Moreover, a TOD Deed has several other restrictions and requirements.
1. It must be signed and dated before a notary to be valid.
2. It must be recorded within 60 days from the date it’s signed.
3. It does not permit designation of beneficiaries by class (e.g. “my siblings”).
4. It must strictly adhere to the form prescribed by the statute.

Finally, and most importantly BEWARE of these major risks:
The TOD Deed offers no protection from your creditors.

1. If your property is held joint tenancy, your joint tenant becomes the sole owner upon your death and has full control of the property, and your Transfer on Death Deed is inapplicable.

2. Unlike with a Living Trust, a Transfer on Death Deed cannot be used to manage, sell, or borrow against the property during your incapacity. This means that if you become incapacitated, there’s no action your beneficiary can take to get access to using your property as a resource for your care, as your Trustee could, if you had your property in a Revocable Living Trust.

3. If the beneficiary is a minor upon your death, a court-appointed custodian will need to be named to control your property until the child reaches legal age. With a Living Trust, you get to name the person to handle the property until your child reaches legal age, and you can even set up your trust so that when your child does inherit it, he or she can receive it protected from a future divorce or future creditors.

4. Title insurance companies have been reluctant to insure clear title until three years after the grantor’s death when a Transfer on Death deed is used. During this time, the beneficiary will likely be unable to sell or borrow against the property.

5. The property may be subject to Medi-Cal Estate Recovery, if you received Medi-Cal benefits.

Unless extended, the new law will sunset on January 1, 2021, but TOD Deeds executed before that date will remain valid.

Warning: Since its inception, significant flaws have been found within the statute, and some advocates believe it will lead to increased elder abuse. For more on this, read a letter from the Executive Committee of the Trusts & Estates Section of the California Bar, appended as an exhibit to the California Law Revision Commission’s Memorandum # 2017-35.

Given these concerns, we recommend against the use of the TOD Deed and advise those seeking to transfer their real estate in a manner that is best for you, and the people you love to schedule a Vision Meeting with us to choose an option that will best meet your needs.

How to Handle a Surplus of Stuff When a Loved One Ages

How to Handle a Surplus of Stuff When a Loved One Ages

As the baby boomer generation ages—and downsizes—more and more adult children will be tasked with going through their loved one’s belongings to decide what to do with everything. As more and more people downsize after retirement, china sets, furniture, heirlooms, and other belongings are often left behind and unwanted.

Traditionally, these items have been passed down to the next generation. But today, the next generation has different needs, tastes, and wants. As a result, there is a surplus of “stuff” baby boomers don’t need or have room for, and their adult children don’t want. Maybe that includes you.

This is an all too common problem with a few helpful solutions.

The thought of tossing a lifetime of belongings in the trash is more than many can bear, which explains the advent of the senior move management industry. Today, there are a plethora of professionals who can help your loved one go through each item to decide what should be kept, what should be given away, and what should go to charity or donated.

The cost of this professional service can be up to $5,000 for a large estate, but it eases the burden on the adult children and ensures the loved one’s wishes are listened to and honored.

Bear in mind, as the baby boomer generation ages, charities and nonprofits that typically accept used furniture and other belongings are faced with the burden of too much stuff. The dated styles baby boomers preferred during their prime don’t fit the tastes and needs of today’s generation. The current generation views belongings like furniture and dishes as functional and more disposable, better suited to their urban, fast-paced lives where minimalism and portability are more prized than sentimentality and tradition.

Another way to decrease the time and effort it takes to dispose of all your belongings is to be very clear about what you consider to be heirlooms and valuable items by indicating in your will, or in a separate writing ancillary to your will, exactly what’s important to you and what isn’t.
Most importantly, talk to your children or other heirs to see what they want and don’t want. And to make sure they know what’s important to you, and what isn’t. The more you can communicate about this now with your loved one’s, the better.

You may be surprised to discover that most family fights that break up families aren’t over money at all, but over the personal property of mom and dad that the kids fight over because there was not clear instructions.

As more baby boomers age and non-profits turn away dated donations, the need for thoughtful estate planning is greater than ever. A comprehensive estate plan can ensure your belongings either go to those who will cherish them or to charities that will benefit from them.

Five Reasons To Never Give An Outright Inheritance To Your Children -  and What to Do Instead!

Five Reasons To Never Give An Outright Inheritance To Your Children - and What to Do Instead!

If you’re like me, you want to leave an inheritance for your children.  It’s likely part of what you are working so hard to do. But, far too often, the way we leave those inheritances actually does more harm than good. Something no parent wants.

Giving outright ownership of our assets to the kids could put everything you’ve worked so hard to leave behind at risk. Why, how and what can you do about it?

Let me share with you the five reasons leaving an outright inheritance to your kids is a mistake and then show you the way to protect your kids’ inheritance for many, many generations.

  1. Your Child’s Future Divorce

According to current statistics, forty-two percent (42%) of our children will divorce during their lifetime.  In most divorces property is divided evenly.  So if you have a married child, or a child who will get married in the future, and you leave them an inheritance, and they later divorce, as much as half of their inheritance could go to their ex-spouse.  You aren’t working as hard as you are to support your child’s future ex-spouse, right? Good news, there is an alternative!

  1. Extreme Debt/Bankruptcy

Your child may incur such extreme debt that the only possible relief will come through bankruptcy.

Possible causes of such debt are a business venture gone bad, a health event, such as addiction, mental illness, accident, or disease that results in either a temporary or permanent inability to work in combination with staggering medical bills, or an accident, resulting in judgment, as discussed below.

Bankruptcy does happen to good people and you can ensure that the inheritance you leave behind will never be at risk due to a mistake or health issue.

  1. Lawsuit

Unintended neglect that injures someone’s person or property could wipe out an inheritance you leave your children.  For example, ACE Financial Services, Inc. in 2012 found these lawsuit judgments:

  • $49 million in California for an automobile accident where the family of 21-year-old college student sued drivers of two vehicles involved in the multi-vehicle crash. The plaintiff’s counsel claimed one defendant was sleep-deprived, while the other was on their cell phone. The plaintiff was in a coma for one month and is expected to require lifetime 24-hour care.
  • $20 million in Florida for an ATV accident where a teenage male was killed while riding an ATV on the neighbor’s property. The neighbor had invited him to drive the ATV, permitting him to operate it without proper safety equipment and without adult supervision. The teenage male struck a fence and was decapitated.
  • $11.9 million in Florida for an internet defamation suit brought by a Florida consultant against a Louisiana woman for posting defamatory statements about the plaintiff on an internet bulletin board. The defendant called the plaintiff a “crook” and a “fraud.”
  • $5.9 million in Maryland in a dog-bite case where a 16-month-old child was attacked and killed by a pit bull kept at the home of a family friend.

In the Florida ATV case, the defendants thought they were doing the neighbors’ son an act of kindness by allowing him the “fun” of driving the four-wheeler around the family property.  Apparently, they didn’t tell the young man about the barb wire on the property.  Their good intended neglect, resulting in the decapitation of their neighbor’s son, was not seen as good by the parents or the court, who ordered the $20 million judgment.

In my own personal life, a friend recently called me because he accidentally left a faucet running at a friends’ house where he was visiting and the resulting flood causes $413,000 in damage that the insurance company is now looking to collect. If he had an inheritance, it would be wiped out by this potential claim.

As we can see, well intended, but neglectful behavior on the part of your children could wipe out any inheritance you leave them.

  1. Mismanagement

I have many clients who tell me they do not trust their children to manage money.  This could mean that their children are spendthrifts, unwise investors, or easily manipulated out of the money.  And, the statistics support this for nearly 20% of inheritors.

According to Prof. Jay L. Zagorsky of Ohio State University, 40% of individuals inheriting less than $100,000 will spend or lose the entire inheritance and 18.7 % of individuals who inherit more than $100,000 will spend or lose the entire inheritance... It’s quite likely that if that inheritance was left in a different way those numbers would greatly improve. I’ll share more with you about that below.

  1. Lost Work Ethic:

My father once said, “Some people can’t handle prosperity.”  He was right. In fact, most people cannot.

For example, Thomas Stanley and William Danko in their book, The Millionaire Next Door, uncovered research showing that children who received an inheritance were worth four-fifths less than others in their same profession who didn’t.

Vic Preisser, of the Institute for Preparing Heirs, says that unprepared children who inherit money are susceptible to excessive spending, identity loss, and guilt over receiving money they didn't earn. Preisser says, "In a year to 18 months, everything falls apart -- marriage, finances -- and if there is a drug problem it becomes worse."  Thus leaving an outright inheritance to our kids, may do harm instead of good.  But there is an alternative!
As we can see, an outright inheritance is NOT the best answer for your kids.

Most lawyers would tell you that the answer is to leave your kids’ their inheritance in a Trust and they’d be right, but they would likely still distribute that Trust outright to your kids at specific ages or stages.

We’ve got a plan for your family that is far, far better.

The Alternative

An alternative to an outright inheritance to your children (“outright” meaning they both personally own and can personally lose the inheritance) is to gift your assets to your children at the time of your death via a Beneficiary Vault Trust.

A Beneficiary Vault Trust can be drafted to give your children full control of their inheritance (if you choose), but ensure they never own the inheritance. And because the rule of law is you can’t lose what you never owned, you are gifting your children with airtight asset protection, of the kind they couldn’t give themselves at any price.

When you gift an inheritance to your children via a Beneficiary Vault Trust, the trustees of the trust own the property, not your children.  Thus, if your children ever get divorced, file bankruptcy, or are ordered to pay damages in a lawsuit, they can’t lose the inheritance, simply because they never owned it.

You can use the Beneficiary Vault Trust as a vehicle for educating your children about investing, giving, and even business by allowing them to become a Co-Trustee of the Trust, with someone you’ve chosen and trust to support their education.

And you can even build in provisions to allow your child to become the Sole Trustee of the Trust or the right to become Sole Trustee at specific intervals, as well, giving them effective full control without the risk of ownership.

There are quite a few nifty additional ways we can structure this trust to meet the needs of your unique family and children.

When you come in for a Family Wealth Planning Session, if you desire to provide the most airtight form of asset protection for your child, and set up a structure that incentivizes them to invest and grow their inheritance rather than squander and waste it, we will discuss all the options with you then.

One of the benefits of a Family Wealth Planning Session is that you will get more financially organized than you ever have been before and understand all of the options for ensuring everything you are working so hard to leave behind to the people you love is handled with the ease, grace and care you desire.

This article is a service of Erik Hartstrom, Personal Family Lawyer,®  who develops trusting relationships with families for life.  That's why we offer a Family Wealth Planning Session,™ where we can review your family wealth needs and help identify the best strategies for you and your family. You can begin by calling our office today to schedule a time for us to sit down and talk because this planning is so important.

6 Common Mistakes Most Parents (and their lawyers!) Make When Naming Guardians

6 Common Mistakes Most Parents (and their lawyers!) Make When Naming Guardians

We all hate to think that something could happen to us, but we know it happens to others like us every day. We’ve all seen the news stories of moms and dads who leave their children with a babysitter, get into a terrible accident, and don’t make it home.

The babysitter calls and calls, but there is no one to answer. The police are summoned and the children have to be placed with Child Protective Services. It’s the thing every parent is most afraid of happening.

We’ve seen the stories of children placed in the care of people they barely know, just because they are related by blood, since there was no plan in place that dictated who would take on this incredible responsibility.

And we have seen the fallout from family fights created when mom and dad didn’t make a plan, and the family couldn’t agree on what would happen.  Or in the worst case, what happens when there is no family available.

In all cases, it’s left up to a Judge to decide when mom and dad haven’t.

But even if you have a will tucked away somewhere, is that all your children need?  Don't make these six mistakes:

1. Named a couple to act as guardians when you don’t really want both people in the couple and you haven’t said what should happen if the couple broke up or one of the partners in the couple died.

2. Only named one possible guardian. What if something happens to your first choice?

3. Have not considered financial resources when deciding who should raise your children. Your guardians do not have to (and often should not) be financial decision makers for your kids.

4. Only have a Will, which means the Court will distribute your money, it’s totally public and doesn’t protect your money from their divorce and lawsuits.

5. Did not exclude anyone who might challenge your guardian decisions or who you know you’d never want to care for your kids.

6. Only named guardians for the long-term and did not make any arrangements for the short term if you were in an accident. What would happen in those immediate hours until your permanent guardians could arrive?

Memo to Hospitals and Doctors Regarding Health Care Directives

Memo to Hospitals and Doctors Regarding Health Care Directives

Doctors and hospitals ignore directions from health care agents at their legal peril according to a recent appellate case, Stewart v. Superior Court.

After ignoring the direction from a patient’s health care agent, the hospital and doctors face claims for elder abuse, fraud by concealment, and medical battery.  The appellate court held that elders have the right to autonomy in the medical decision-making process and that deprivation of this right can constitute actionable “neglect” under California’s elder abuse laws.

Anthony Carter, a 78-year-old man, named Maxine Stewart as his health care agent.  When he was admitted to the hospital, he was advised to get a pacemaker to correct his irregular heartbeat and be placed in hospice care.  His health care agent canceled the heart surgery, suspecting that the irregular heartbeat was caused by Anthony’s sleep apnea, and sought a second medical opinion.

The hospital, following the cancellation of the surgery, convened an ethics committee and decided to proceed with the surgery anyway.  Sometime shortly after surgery, Anthony went into cardiac arrest, supposedly from complications with the pacemaker and ultimately died.  Maxine sought legal help and now the appellate court has allowed her to proceed with her lawsuit against the hospital.

The takeaway for hospitals:

Ignoring directions from a valid health care agent can constitute “neglect” under California’s elder abuse laws, leading to claims of elder abuse, fraud by concealment, and medical battery.

The takeaway for patients:

You can protect yourself by naming a health care agent under a valid Advance Health Care Directive.