November 1

Continuing Lifetime Trusts for Your Children: What’s the Benefit?

When it comes to Estate Planning, most of us think of the classic document that we’ve always heard references to—the Will.  The piece of paper that says who gets your “stuff” after you pass away.  Surely everything will go to the children when you and your partner have passed, right?  That’s perfectly fine.  However, let’s introduce a better way to send money and other assets to your children (especially minor children) that will truly set them up to thrive once you’re gone.

Why Wills Leave your Children Exposed

Wills, and even Living Trusts that call for “outright” distributions, are generally deficient when it comes to protecting assets for your children.  When you say “everything will go equally to my son and my daughter” without any associated trust language, each of them will inherit 50% in a lump sum, and without any legal protections or direction.  Consider these scenarios:

  • A young boy’s parents die tragically when he’s 12. On his 18th birthday, everything that he inherited from them will become available for him to spend as he pleases.  His parents had no reason to know that he’d be addicted to drugs and have many negative influences in his circle of friends.
  • A 42-year old woman inherits from her mother. To make matters worse, her husband files for divorce 8 months later.  The entire inheritance, which was deposited into a joint checking account, is subject to the divorce proceedings.

These examples illustrate that we are doing our children a horrible disservice (“grossly negligent,” in attorney-talk) if we fail to trust-protect money for them using continuing lifetime trusts.

What is a Continuing Lifetime Trust?

In short, it’s a declaration of “I love you” as you make your grand departure.  A continuing lifetime trust is a trust fund that you establish for your children within your Living Trust, that they benefit from after your death.  These trusts hold and protect the money your children inherit from you, and can even enjoy broad protection from divorce, creditors, lawsuits and bankruptcy proceedings!  This is possible because, technically speaking, your children don’t “own” the money residing in these trusts—the trusts do.  In general, if we don’t own something, it can’t be taken from us.  However, your children are the only people who have the right to access the account, so for all intents and purposes, it is earmarked for them.  What’s more… you can also fully customize these trusts, so that the exact purposes for which you’d want them (or not want them) to be able to access money are plainly laid out.

 

To capitalize on the gift that the law provides us, contact an Estate Planning attorney to establish a Living Trust for yourself.  Make sure that the attorney is proficient in higher-level Estate Planning, since continuing lifetime trusts are not your run of the mill documents that every attorney can prepare.  Next, “fund” your trust properly by asking your Financial Advisor to change the beneficiary of your account or life insurance policy to your trust.  This routes all dollars to your trust after your death, so that all the protections and other benefits discussed here can be enjoyed by your children.

 

-Attorney Bryan M. Etter

Wiley Etter, LLC

October 11

Does my Will need to be updated?

Having an updated Will is crucial!

Keeping an updated Will is highly important. Any time you or any of your family members experience a major life change, it is crucial that you review your Will. 

Such changes can include:8212889798_4d41622880_z

  • Significant increase or decrease of assets or liabilities
  • Incapacity or death of a family member or beneficiary
  • Divorce
  • Birth of a new child or adoption
  • Long-term change to a relationship

You should also consider updating your Will if:

  • A Guardian, Executor, or Trustee moves away, dies, or is no longer willing or able to serve
  • Your children are no longer minors, or are old enough to handle financial matters on their own
  • You move to another state
  • You wish to eliminate gifts to certain beneficiaries

If you experience any of these changes and do not update your Will before you pass away, your legacy may not be carried out in the way you would have wanted it to be.

How do I update my Will? It is simple.

There are two options when it comes to updating your Will:

1. You can sign a new Will that revokes the earlier one; or
2. You can sign a codicil to the existing Will.

February 4

Super Bowl Breaches of Contract

Super Breaches of Contract

It’s the morning of much-anticipated Super Bowl XLIX, and as fans in Patriots gear buzz about this coffee shop, a certain attorney can’t help but think about some of the legal implications of this huge game.

Just like Patriots fans on Super Bowl Sunday, contracts, and the law regulating them, are everywhere around us. The legal concept looms over the purchase of my dark roast coffee with a shot of espresso. It governs the relationship between customer and cable provider, which allows you to watch the game. And it’s ever-present for the hundreds of NFL fans who suddenly lost the opportunity to witness this historic event live in Glendale, AZ.

While acknowledging that many worse realities litter our newsfeeds every day, I was saddened to read recently that many fans who purchased Super Bowl tickets will not be able to enjoy the experience. It’s a common practice for resale brokers to sell a ticket to a sporting event, with the assumption that they’d acquire the already “sold” ticket at a later date from a third party, at a price point that results in a profit on the original sale. Confused? So are the hundreds of unsuspecting and now “SOL” football fans who were notified in the last few days that the broker they bought Super Bowl tickets from were unable to fill their order, due to terribly unfavorable market forces.1 Tickets were far harder to come by, and were being sold at far higher prices than the resale brokers expected. This unfortunate reality has left fans empty handed… many of whom had already boarded a plane and arrived in Arizona, and all of whom had made sacrifices, plans and promises to be in attendance for this event. So what happens now? What is their recourse?

Contract Law is littered with a process-based chain of events, definitions, etc. that the average person rather not fully dive into. Not a problem… the cliff notes version will be more than sufficient to get the point across. When the rabid Patriots or Seahawks fans input their credit card information and waved “goodbye” to thousands of dollars in exchange for a ticket that would be received in the mail at a later date, a contract (or legally enforceable promise) was formed. Flash forward a week, when the ticket broker was ultimately unable to produce the purchased item, we have our breach of contract.

The default rule in breach of contract situations is that the “injured” party will receive “compensatory damages” from the breaching party. Not to spoil the surprise, but compensatory damages are a monetary award designed to compensate the injured party as a result of the breach.2 This award includes the party’s expectation damages, which is analogous to your typical “reimbursement.” For example, if a fan paid $2,000 for a ticket that never came, the resale broker must compensate that person for the lost $2,000. Shocking, right?

An injured party is also entitled to “consequential damages.” This incorporates indirect expenditures that the person made in reliance of the contract. In this situation, consequential damages would reimburse a fan for the plane ticket he/she purchased to go to the game, for example. The damage must “flow from the breach,” and be reasonably foreseeable to both parties at the time they entered the contract. So, although the ticket broker would likely be on the hook for the fan’s Glendale hotel room, they’ll dodge a bullet with regard to the $5,000 VIP club access pass purchased for the night before the game.

Contract Law remedies are designed to retrace steps in an effort to put the injured party back in the same financial place they would be had the contract been properly performed. Many argue that this approach doesn’t account for emotional damage and disappointment, and they are correct. Years ago, a group of decision-makers, who probably had far more grey hairs and thicker spectacles than I do, decided that inflating damages for the purpose of punishing the wrongdoer, or softening the emotional blow on the non-breaching party, was not a core consideration in breach of contract cases (absent fraud).

Hopefully you made some Super Bowl caliber memories by reading this blog entry. I can promise you, no compensatory damages will be awarded for your lost time. Until next time, Wiley Etter, LLC wishes you all the best.

Bryan Etter

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1http://espn.go.com/nfl/playoffs/2014/story/_/id/12255886/hundreds-super-bowl-tickets-fall-through

2http://www.legalmatch.com/law-library/article/types-of-damages-available-for-breach-of-contract.html

June 24

Think Twice Before You Gift Your House to Your Children

Giving away your home to your children before you pass away can have major tax consequences and prevent legacy planning opportunities. In spite of this, many people follow outdated advice of giving away property before they pass away.

Historically, estate and death taxes were applicable to most of the population. Today however, the Federal estate and gift tax exemption sits at $5.34 million per person. Many states have no estate and gift tax and those that do also have exemptions ranging from low to high. It is estimated that 99.7% of the population will not be subject to estate taxes. Thus, planning for the distribution of your assets to your family has changed.

A family home (especially when held for many years) is often a family’s most highly appreciated asset. When an appreciated asset is sold, the owner must pay capital gains taxes on the profit (there are some exemptions). The original cost of the property is referred to as the tax basis. When property is given away prior to death, the person receiving the gift also receives the giver’s tax basis. For example, suppose you or your parents bought a house years ago for $150,000 and it is now worth $350,000. If you give the house to your children (or your parents to you), the tax basis will be $150,000. If your children sell the house, they will have to pay capital gains taxes on $200,000 — the difference between $150,000 and the selling price. Recent changes to capital gains and income tax laws put the highest long term capital gains tax rate at 23.8%

On the contrary, if a home (or most other property) is inherited after the owner passes away, the person inheriting the property gets a “step up” in the tax basis. This means the basis would be the current value of the property. Thus, if you or your parents are not likely to be subject to estate taxes, inheriting the property through their estate can have significant capital gains tax savings.
Beyond the tax consequences, gifting a house to you can affect your parents’ eligibility for Medicaid coverage or long-term care. There are other options for giving a house to children, including putting it in a trust or selling it to them. Trust planning also allows parents to provide asset and wealth protection to their children. Before you or your parents give away a home, you should consult with one of our attorneys, who can advise you on the best method for passing on their home.

(1) http://www.politifact.com/truth-o-meter/statements/2010/dec/14/bernie-s/sen-bernie-sanders-says-997-american-families-woul/

September 17

Guest Post:Transfers (Gifts) Can Lead to Being Sued by Nursing Homes

Attorney Wiley believes in working with a wide range of specialists.  It is difficult to be the best at everything; so, we frequently work with other attorneys to ensure that our clients obtain the highest level of care.  While Attorney Wiley helps many of our clients with elder care issues we often bring in Hank Weatherby to assist with more complex cases. Hank is an industry leader in the field and we often trust our clients to his care. Hank Weatherby, recently wrote an article on a new Connecticut law and the potential to be sued by Nursing Homes which we felt would be beneficial to our community.  If you have any questions about medicaid or Eldercare and you would like to setup a meeting with Hank at our North Haven office do not hesitate to contact us.

By Hank Weatherby – http://www.weatherby-associates.com
The Connecticut legislature recently passed a new law concerning Medicaid eligibility which allows nursing homes an additional basis to sue to recover lost revenue because a resident, or their spouse or agent under a power of attorney, transferred his or her assets to a third party. The law goes into effect October 1, 2013, but on its face it appears to apply to gifts and other transfers made in the two years before that date.