Protecting Yourself, Your Business, and Your Loved Ones: Power of Attorney

It is just an average day, nothing seems out of place, until…the phone rings. It is the phone call that you never want to receive but dread receiving every day. Your spouse, child, or loved one is in the hospital and is unconscious. Arriving at the hospital you begin to feel the adrenaline running through your body. Then the doctor asks whether you have a power of attorney for health care decisions for your loved one. You answer “No” and now the doctor will not discuss with you what is happening.

Most individuals do not think of obtaining a power of attorney until they are married, until they have children, until a medical condition exists, or until it is too late. At these points in someone’s life, there is a belief that this document is necessary. Unfortunately, the inability to make your own decisions can happen at any time. Without a power of attorney, no one – not your spouse, parent, or adult child – has an automatic right to your medical records or can make medical or financial decisions. Your business partner has no automatic right to make business decisions on your behalf. When your child reaches the age of majority (which is 18 in Missouri), you can no longer automatically obtain their medical records or make decisions for them about their healthcare or financial needs.

If you do not have a power of attorney, anyone, including a parent, who wants to make healthcare or financial decisions on your behalf must file for a guardianship (for all care and placement decisions) and/or conservatorship (to manage assets) with the probate court. Continue reading »

If You Own Cryptocurrency, It’s Time to Update Your Estate Plan!

Traditional estate planning is daunting enough for the average individual, family, or small business owner, but now there is an additional curveball to deal with: cryptocurrency. More and more individuals and business owners are acquiring digital assets such as cryptocurrency, a digital asset that is generated online and can be traded.

Cryptocurrency and other digital assets were not considered in many older estate plans. If you currently have any cryptocurrency or plan to acquire any in the future, make sure you discuss it with your estate planning attorney and update your estate plan documents accordingly. It is imperative that your estate plan documents include language that covers your digital assets, just as it covers your more traditional assets. Your trust or will should specifically mention digital assets and cryptocurrency and how they should be distributed to your beneficiaries. The provisions in your will or trust can make a big difference in who will inherit the asset.

Cryptocurrency can be extremely difficult to discover after an owner’s death or incapacity. Make sure you leave your successor fiduciaries detailed instructions on how to access your cryptocurrency. Fiduciaries are the individuals, or in some cases, companies, you name in your estate plan to handle your assets in the event of your incapacity or death. A fiduciary can be a trustee, executor, personal representative, or attorney-in-fact. Failing to provide information on your digital assets can result in losing those assets entirely after your death or incapacity if no one knows you have such assets or where to find them. Continue reading »

Using LLCs to Hold Investment Properties: Asset Protection and Estate Planning

We recently discussed the benefits of putting real estate investment properties into LLCs in “Asset Protection and Estate Planning Perspective on the Importance of Holding Investment Properties in an LLC.”

More individuals and families are turning to rental properties as an investment strategy and are essentially small business owners. It is critical that you protect your personal assets from liability by setting up a legal entity to be the owner of the properties.

The best option for most of these types of small businesses is to form a Limited Liability Company (LLC). Continue reading »

Estate Planning Misconceptions of Small Business Owners

Estate planning is the process of making advance arrangements regarding your assets if you become incapacitated and determining asset distribution upon your death. It sounds simple, but many misconceptions about estate planning exist.

Misconception #1: I will avoid probate because I have a will.

A will only applies to your assets without named beneficiaries and does not help you avoid probate after your death. Assets held solely in your name without named beneficiaries must go through probate, a court-supervised process to inventory your assets, pay your debts, and distribute the remainder of your assets to your heirs or beneficiaries. Assets that pass-through probate are subject to court costs, attorney’s fees, and personal representative or executor fees. The process typically takes at least one year.

Misconception #2: My will alone determines how my assets will be distributed after my death.

Many people believe that their wills ultimately decide what happens to their assets after death. However, regardless of the terms of your will, your assets will pass to the joint owner or named beneficiary(ies) (a/k/a Payable On Death or Transfer On Death) on any bank account, life insurance policy, retirement plan (401k), or similar account with a named beneficiary designation.  A good estate plan ensures that such assets are distributed as you wish.

Misconception #3: My trust will allow my estate to avoid probate without being funded.

Merely creating the trust is not sufficient to avoid probate. It is important to meet with an estate planning attorney to discuss ways to avoid probate, such as creating a revocable living trust, and to make sure your plan is consistent with your wishes. Your attorney can also help ensure that the trust is properly funded, with your assets placed into the trust or with the trust named as the beneficiary of your assets.

Misconception #4: Estate planning only deals with my assets after my death. Continue reading »

Rights of Will and Trust Beneficiaries

After the death of a family member, people are often left wondering what interest they have in the deceased’s assets. At a time of grieving, it can be difficult to know where to begin. Lack of information or misinformation can leave potential beneficiaries in the dark as to the manner in which the deceased’s assets will be transferred.

Obtaining Wills, Trusts, and Other Documents

Fortunately in Missouri, and many other states, potential beneficiaries have rights allowing them access to information regarding the estate. In Missouri, if a will exists for a decedent, the original will must be filed with the probate court upon the death of the creator of the will. The will becomes public record at that point. If a family member believes that a will exists but has not been filed, that family member can open a probate estate with the court in order to try and require production of a will or other estate plan documents.

Similarly, trust beneficiaries often have rights to obtain copies of trust documents. Trusts do not have to be filed with the court but instead may be maintained privately by the named trustee. However, in most circumstances, trust beneficiaries are entitled to a copy of the relevant trust documents and can require production of them through a lawsuit, if necessary.

Accounting of Assets

Trustees, executors, administrators, and agents under a power of attorney all have some duty to account as to the assets and liabilities of the probate estate or trust.  After being appointed by the probate court, executors and administrators of wills have an obligation to file an inventory of assets and a corresponding obligation to advise the court concerning the liquidation or disposition of those assets.

Trustees of trusts have similar accounting requirements and are required by law to provide periodic accountings to the beneficiaries showing the assets, liabilities and expenses of a trust. If any of these fiduciaries fail in their accounting obligations, certain categories of heirs and beneficiaries have rights to compel the executor, personal representative, or trustee to prepare accountings and either file them with the court or provide the accounting to beneficiaries. Continue reading »

A Family Member Died, Now What? How to Begin Winding up a Relative’s Legal Affairs

The death of a loved one is never easy and will likely be an emotional time for you, your children, family, and friends. You may have a lot of things running through your head about what needs to be done, when, and how. To assist you through this difficult time, here’s an outline (in no particular order) of legal considerations necessary to begin the process of winding up your relative’s affairs. You can pursue these in order or at the same time. If it makes you more comfortable, you can skip ahead and contact an attorney at the outset. Finally, it is important to communicate with other family members so these efforts aren’t duplicated.

Order Death Certificates

One of the first things to do is obtain a certified death certificate of your relative and specifically multiple certified copies of the death certificate. Your relative’s financial and service providers, debt holders, the court, contracting parties, and many other institutions may need to see a death certificate to verify your relative’s death before they will begin their internal processes of closing your relative’s accounts. While some institutions will accept copies, many require a certified death certificate, which you or your attorney can get from your county vital records office. Depending on the office, it may take some time to process your requests, so performing this step sooner rather than later is recommended. Also, please note that death certificates are often ordered by the funeral home at the time the service is planned.

Gather Your Relative’s Estate-Planning Documents

If your relative had a will, trust, or any other estate-planning documents designed to transfer any property upon death, gather those documents together. For items with specific titles, e.g. the relative’s home, vehicles, and financial accounts, check for beneficiary or transfer on death provisions. Ideally, you will locate original copies of your relative’s estate planning documents. If you just have copies, consider whether another relative has the original document or where it might be located. If the documents are located in a bank safe deposit box, a bank officer may enter the box for the sole purpose of retrieving and filing a last will and testament.

Take a Preliminary Accounting

When you are gathering your relative’s estate planning documents, you will want to start taking a preliminary accounting of your relative’s assets. Here is a general checklist of information and documents to gather in preparation for your meeting with your attorney. In general, take note of the following: Continue reading »

A Family Member Died, Now What? Preparing for the Initial Meeting with the Attorney

In our recent post “A Family Member Died, Now What? How to Begin Winding up a Relative’s Legal Affairs,” we outlined several actions to take to start winding up a deceased relative’s legal affairs, including gathering your relative’s estate-planning documents and taking a preliminary accounting of your relative’s property.

Below is a general checklist of information and documents which will be helpful for you to assemble in preparation for meeting with your attorney. It is not necessary to have the checklist completed prior to the initial meeting. However, for reference, you may want to print this post, fill it out, and bring it with you to the initial meeting. Continue reading »

Estate Planning – Why It’s Important for You

Recently we’ve heard a number of stories about estate planning blunders that have resulted in huge tax costs and undesired distribution of assets. While a $50 million mistake certainly makes for good headlines, the fact is that quality estate planning is not just for the rich and famous.

It is common for people of all kinds to find themselves in similar situations when loved ones die, albeit with less fortunes involved – all because the deceased did not plan appropriately for death or disability.

Estate planning is all about your control over what happens to the assets you have accumulated during your life (including planning to minimize estate tax) and your control over your health care decisions.

Benefits of Estate Planning

1.    Avoiding probate of your assets. Probate is a court process by which the heirs of an estate are determined and the deceased person’s assets are distributed to those heirs. The benefits of avoiding probate include:

• Your assets can be distributed to or held for your beneficiaries in a timelier manner.
• Your estate avoids costly statutory attorneys’ fees.
• Assets can be held for minor children without court involvement.
• Your estate is distributed to your intended beneficiaries versus under Missouri law. Continue reading »

Transfer on Death Deed Now in Illinois

On January 1, 2012, the Illinois Uniform Real Property Transfer on Death Act (Act) goes into effect. The Act permits owners of real property in Illinois to execute a deed which will allow for the property to be transferred to a designated beneficiary upon the owner’s death. If the property is owned jointly, the deed will transfer ownership upon the death of the second owner to the designated beneficiary.

The Transfer on Death Deed varies from its counterpart in other states in that it requires the deed to be executed with the formality of a Last Will and Testament. The deed must be witnessed by two witnesses, notarized, and the witnesses must attest that the person signing the deed is of sound mind. The deed requires certain language such as that it is not effective until the death of the owner and must be properly recorded before the death of the owner. Continue reading »

Lifetime Trust or Outright Distribution – How to Leave Your Assets to Your Beneficiaries

There are several ways you can leave your children (or other beneficiaries) your assets upon your death.

One option is an outright distribution. I call this the “here’s your inheritance” method. Upon your death, after payment of expenses and debts, your child receives their full share of the assets outright.

A second option is the staggered distribution method. This method gives your child a percentage of their inheritance at certain ages, dates, or events. A typical example is upon your child turning 30, he or she will receive one-third of their inheritance, at age 35 another third, and final distribution of the entire amount at age 40. In the meantime, your child would typically receive distributions of the principal and income of his or her share for needs such as a house down payment, educational expenses, or even a monthly stipend for living expenses. Another example would be an incentive based trust. With this trust, your child will receive 1/2 of his or her share if he or she graduates college and the remaining distribution if he or she maintains full-time employment for at least two years. Continue reading »