Don't we all just love thinking about making our legal plans and thinking about our own mortality? I mean, really, there is just nothing more exciting, right? Okay really, we'd much rather spend our time watching water boil than think about who will take care of our kids if we should die or who will be the one to tell the doctor to pull the plug if all hope is lost.
Did you know that it is estimated that only about 1/3 of all adult Americans have actually taking the time to prepare the life and estate plans? So what about the other 2/3 of the population? Are they just simply irresponsible. Not likely. So maybe it is just a matter of procrastination. I mean, if we're young, healthy, etc, thinking about our death seems years away.
So what causes people to procrastinate with this very important task people must handle.
It really is normal behavior to avoid things that are unpleasant. How many look forward to doing our taxes... even if we know we will get a refund... it is just the "hassle" of gathering all the paperwork. We all know that death is unavoidable and that we should get our affairs in order to prepare for it and to ensure our families are protected. But since most adults under the age of 60 do no see their death as being in the near future, they don't see the urgency to plan now.
I mean, people are living longer these days so even if you live to a ripe old age, however, the downside is that, the longer you live, the greater your chances of wearing out physically and mentally before you pass on. Have you visited a nursing home lately?
So part of the "unpleasant-ness" of estate planning is people's age (or lack of old age for some), for some it may be the "hassle" of paperwork, for others it may be avoiding interpersonal relationships. For example, maybe you are not on good terms with family members and therefore, deciding who will take care of your children and/or who should inherit your assets, is some you have no idea what to do about. Whatever the reason, is really is just another excuse.
Excuses, Excuses - we all have them and I am sure we all can justify and rationalize a "reason" why we procrastinate on something. It is an amazing talent we, as humans, have mastered to a tee.
Take these rational excuses as examples to why someone has not set up their estate plan yet:
"We don’t have time, because we are getting ready to do some traveling."
Ironically, most people spend more time packing their luggage, than they do making proper estate plans. And in the the worse case scenario... what if something happens during the flight?
"My son can’t get away from work to come with me for an initial consultation."
Well, if you wait until you are incapacitated or dead, your son can take off work to sort through your assets, squabble with his siblings, hire an attorney and develop an almost first-name relationship with the probate judge.
"Since my children all get along, there’s no need to bother with any planning."
That may be true, but will they know your specific wishes for your home, your bank accounts and your investments, not to mention your heirlooms like the kind over which you and your siblings fought after your parents died.
"We don’t have an estate tax problem." or "Why, my business has no value without me."
Perhaps, but the IRS may not agree with you, especially given your inventory, equipment, real estate, loyal customer base and goodwill.
"It’s too expensive."
You have spent a lifetime working hard to build your estate. A small investment now will save potentially tens to hundreds of thousands of dollars in unnecessary probate costs and taxes. What price tag can you put on that kind of peace of mind?
SO WHAT ARE YOU STILL WAITING FOR?
Don't we all know someone or a friend of someone who has gone through the devastating emotional and financial hardship when a loved one has passed away without proper planning. Wouldn't you sleep better at night knowing you wont have to place your family in that predicament when you overcome your estate planning procrastination.
Schedule an estate planning consultation today... it's free... so what are you still waiting for? Call 925-301-7195 or visit www.LivingTrustsbyAmy.com for more information.
Thursday, August 27, 2009
Wednesday, August 19, 2009
Conservatorships...What, why, who, and how to prevent them
WHAT:
A conservatorship is when someone is legally appointed to be responsible for the financial affairs of another person who has been legally deemed to be unable to manage their financial affairs for him or herself. (Also known as guardianship of the “estate” – typically as it may relate to minor children vs. guardianship of the “person”)
WHY/WHO:
In many situations, a person may still be physically or mental able to care for themselves on a day to day basis, yet due to decreasing health, disability, judgment, etc, they may need help managing their finances. Examples may include, but are not limited to:
Persons with physical or mental condtions that prevent them from managing their own
financial affairs;
Persons who have legal authority to take over responsibility for them; and
When other forms of help with financial management will not adequately protect them.
HOW:
A conservator is typically appointed through probate court proceedings. A petition must be filed with the probate court by anyone who has a concern for an individual's financial well-being.
The petitioner has a buden to prove the individual is unable to manage their financial affairs on their own supported by medical and/or other sworn statements with any other supporting evidence. There is generally a court hearing, and if there is a contest by the allegedly incompetent individual and/or as to who hould be appointed as the conservator, the case will typically go to trail.
Once appointed, a conservator assumes financial management for the conservatee and generally receives compensation for performing these duties. This compensation is overseen by the court and is paid from the assets of the incompetent individual. The conservator will be also be responsible to account for all expenditures, and for the assets of the estate, typically on an annual basis or more frequently if ordered by the court.
If the legally incapacitated person is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated person to participate to the extent he or she is able. In some circumstances, a court may appoint a conservator to perform a certain set of tasks which are beyond the ability of the legally incapacitated person, while permitting that person to manage his or her own affairs for other financial tasks which remain within his or her ability.
CHECKS AND BALANCES:
The court supervises the conservator's actions by requiring that permission be obtained in advance of certain major transactions (i.e. home sales, withdrawal of retirement investments, etc), and through annual accountings, in order to ensure that the legally incapacitated person's assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.
ENDING:
A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the conservatorship. A particular conservator's role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over management of the legally incapacitated person's assets. A conservatorship also ends upon the death of the legally incapacitated person.
HOW TO PREVENT THEM - OR AT LEAST CHOOSE YOUR CONSERVATOR IN ADVANCE:
Through proper estate planning, a general or springing durable power of attorney will allow you to appoint someone you trust (as well as some alternates) to manage your financial affairs in the event of your incapacity or incompetency. These powers may be broad or limited in scope. For example, you may name one person to manage all of your personal financial affairs and another person to manage business affairs on your behalf if the need arises. You may also leave some powers to be controlled by a court for additional protection if you so desire. With a properly executed power of attorney with nominated agents and conservators, those persons nominated by you may not have to seek appointment by the court in the event of your incapacity or incompetency.
Additionally, when assets are placed in a living trust, the sucessor trustee also has power to manage your affairs in the event of incapacity, for which a will alone does not provide.
Disclaimer:The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
A conservatorship is when someone is legally appointed to be responsible for the financial affairs of another person who has been legally deemed to be unable to manage their financial affairs for him or herself. (Also known as guardianship of the “estate” – typically as it may relate to minor children vs. guardianship of the “person”)
WHY/WHO:
In many situations, a person may still be physically or mental able to care for themselves on a day to day basis, yet due to decreasing health, disability, judgment, etc, they may need help managing their finances. Examples may include, but are not limited to:
Persons with physical or mental condtions that prevent them from managing their own
financial affairs;
Persons who have legal authority to take over responsibility for them; and
When other forms of help with financial management will not adequately protect them.
HOW:
A conservator is typically appointed through probate court proceedings. A petition must be filed with the probate court by anyone who has a concern for an individual's financial well-being.
The petitioner has a buden to prove the individual is unable to manage their financial affairs on their own supported by medical and/or other sworn statements with any other supporting evidence. There is generally a court hearing, and if there is a contest by the allegedly incompetent individual and/or as to who hould be appointed as the conservator, the case will typically go to trail.
Once appointed, a conservator assumes financial management for the conservatee and generally receives compensation for performing these duties. This compensation is overseen by the court and is paid from the assets of the incompetent individual. The conservator will be also be responsible to account for all expenditures, and for the assets of the estate, typically on an annual basis or more frequently if ordered by the court.
If the legally incapacitated person is capable of participating in financial decisions, the conservator is ordinarily required to permit the legally incapacitated person to participate to the extent he or she is able. In some circumstances, a court may appoint a conservator to perform a certain set of tasks which are beyond the ability of the legally incapacitated person, while permitting that person to manage his or her own affairs for other financial tasks which remain within his or her ability.
CHECKS AND BALANCES:
The court supervises the conservator's actions by requiring that permission be obtained in advance of certain major transactions (i.e. home sales, withdrawal of retirement investments, etc), and through annual accountings, in order to ensure that the legally incapacitated person's assets are being properly managed, bills are being paid, nobody is misappropriating funds, and the estate is not being wasted.
ENDING:
A conservatorship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the conservatorship. A particular conservator's role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor conservator to take over management of the legally incapacitated person's assets. A conservatorship also ends upon the death of the legally incapacitated person.
HOW TO PREVENT THEM - OR AT LEAST CHOOSE YOUR CONSERVATOR IN ADVANCE:
Through proper estate planning, a general or springing durable power of attorney will allow you to appoint someone you trust (as well as some alternates) to manage your financial affairs in the event of your incapacity or incompetency. These powers may be broad or limited in scope. For example, you may name one person to manage all of your personal financial affairs and another person to manage business affairs on your behalf if the need arises. You may also leave some powers to be controlled by a court for additional protection if you so desire. With a properly executed power of attorney with nominated agents and conservators, those persons nominated by you may not have to seek appointment by the court in the event of your incapacity or incompetency.
Additionally, when assets are placed in a living trust, the sucessor trustee also has power to manage your affairs in the event of incapacity, for which a will alone does not provide.
Disclaimer:The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
Friday, August 14, 2009
Fraudulent Transfers - BEWARE
Did you know that when someone tries to do something to remove an asset to avoid creditors after a lawsuit has been filed, is is most likely a "fraudulent conveyance". If has been recommended that individuals in high risk professions must keep some assets available to creditors so that the courts don't look to seize assets that may have been transferred to relatives or into protected entities (S Corps, LLC, Irrevocable Trusts, etc.)
If you tried to establish and irrevocable trust as a way to protect family assets from future lawsuits, make sure you discuss the laws against defrauding creditors (present and future) that may be relevant to any asset transfers into said trust as a way to keep those assets out of the reach of creditors.
In essence, a fraudulent conveyance requires that someone transfer an asset with the INTENTION of hindering, delaying or defrauding creditors.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
If you tried to establish and irrevocable trust as a way to protect family assets from future lawsuits, make sure you discuss the laws against defrauding creditors (present and future) that may be relevant to any asset transfers into said trust as a way to keep those assets out of the reach of creditors.
In essence, a fraudulent conveyance requires that someone transfer an asset with the INTENTION of hindering, delaying or defrauding creditors.
Disclaimer: The information provided is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem. Use of this information or any related information does not create an attorney-client relationship between Amy Alvis and/or Living Trusts by Amy. The opinions expressed at or through this site are the opinions of the individual authors and does not reflect the opinions of any firm or attorney.
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