Tuesday, May 31, 2016

Newly Revised Act Helps Fiduciaries Do Their Job With Digital Assets

Indiana passed the adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA) in its 2016 legislative session.  “The UFADAA does not create new law insomuch as it mends a large gap that prohibits fiduciaries from doing their legally mandated job,” explains Victoria Blachly on the American Bar Association website.

For years now, our attorneys at Geyer & Associates have been cautioning clients to consider their online assets, along with their real estate and investment accounts, when it comes to estate planning.

What is included under the category of online or digital assets?
  • Email accounts
  • Picture and video files
  • Social networking sites (Facebook, Twitter, Instagram, etc.)
  • Domain names
  • Games
  • Tablets, flash drives, CDs and DVDs
Do you have bank or investment account statements delivered to you online? asks Blachly. What about the hundreds or thousands of photographs of your charming family or adorable pets stored on-line? Even if an authorized user has the password to access your account, is that a fraudulent cybercrime?  All these questions and more lead to one inescapable issue, she says: the Internet is outrunning the law.

Now, we’re happy to report, a newly revised UFADAA is reducing the roadblocks estate representatives have been facing in dealing with digital assets in an estate.  “The revised
UFADAA  is an overlay statute designed to work in conjuction with a state’s existing laws on probate, guardianship, trust, and powers of attorney,” Blachly explains.

Key provisions of the Uniform Fiduciary Access to Digital Assets Act include:
  • A fiduciary of a user may request that a custodian terminate the user’s account (the custodian must comply within 60 days).
  • Users may name another person to have access to the account, and those online instructions are legally enforceable.
  • Estate representatives have access to one year’s worth of records if relevant to resolving fiscal assets of the estate.
At Rebecca W. Geyer & Associates, we believe the key takeaway for clients is that the UFADAA gives Internet users the power to plan for the management of their digital assets in the same way as they plan for their tangible property.

It’s crucial for all Power of Attorney documents to include a digital property section!

- by Rebecca W. Geyer

Wednesday, May 25, 2016

Wills Come in a Variety of Flavors

While there’s little doubt that a will is one of the basic building blocks in an estate plan, few people are aware that “last wills and testaments” come in more than one form.
“The will that most people think of, called a simple will, is a legal documents that applies to only one person,” explains author Linda C. Asher in Your Indiana Wills, Trusts, & Estates.  To be legal, every will, she adds, need to include a number of elements:
  • Beneficiary
  • Executor
  • Clauses, which might include a survival clauses, a guardianship clause, giving clauses about real and personal property, a residuary clause, an appointment clause.
In discussing wills with our estate planning clients at Geyer law, we explain some of the tasks accomplished through a will, which, in addition to leaving assets to specified beneficiaries, include:
  • Paying debts, including credit card balances, personal loans, mortgage payments, final bills and funeral expenses
  • Designating a guardian for minor or incompetent children
  • Naming a conservator to handle the inheritance of minors or incompetents
  • Naming an executor to carry out all the terms of the will
Linda Asher explains that there are several “hows” to a will:

1.  Holographic wills
These are handwritten document signed by you but not witnessed by anyone else. – Indiana does not recognize holographic wills.

2.  Nuncupative will (oral or spoken wills)
Noncupative wills are used if someone is on his or her deathbed and there is only personal property of little or no value.  Indiana does recognize nuncupative wills under those circumstances, Asher points out.

3.  Video wills.
Video wills will probably not be recognized as valid wills. However a video will could be prepared in conjunction with a written will. The Indiana Probate Court, Asher explains, could use the video as evidence of a testator’s intentions and the mental state of a testator by the Indiana Probate Court. Even if not legally valid for settling an estate, recording messages to loved ones might be something you want to do, the author adds.

- by Kimberly Lewis of Rebecca W. Geyer & Associates

Friday, May 20, 2016

The DIY Estate Planning Project

“Those who seek to replace proper professional advice with a do-it-yourself online documents in complex fields like estate planning should understand the effects of their actions.  One should bear in mind that even those with fairly sophisticated skills think twice before venturing beyond their area of expertise,” cautions the American Bar Association special task force.

In recent years, the ABA explains, do-it-yourself (DIY) providers have emerged in many fields, ranging from income tax preparation to estate planning. DIY providers promote themselves by charging low rates for documents that would cost much more if produced by an attorney. Concerns about replacing proper professional advice with online documents prompted the ABA to form a Task Force to consider the issues that arise when consumers use DIY options for estate planning.

While the Task Force has not yet presented its final report, their fundamental concern is simple and important to consider. Discussing wills, the Task Force states:

          “A will is one of the few human acts that survives death.  It carries a legacy
           that can have lasting financial and emotional consequences on those who
           matter most -- our loved ones.  Mistakes made in the drafting of such an
           important document can profoundly alter familial relationships, leaving our
           family members at best confused or disappointed and at worst locked in hostile

“Who will explain your intentions?” is the question the Task Force raises. (If a dispute arises, the court would hear different opinions about the decedent’s intentions from interested family members.  Who would the court believe?   Many judges look for the opinion of someone who had conversations with the deceased, someone who does not benefit from the will, and that someone, more often than not, is an estate planning lawyer.

“The Task Force concludes, at least on preliminary review, that the average person should proceed with caution in using DIY estate planning as a substitute for a proper, professionally-drafted plan.”
As an estate planning attorney who has been assisting clients with legal matters for mmany, many years, I must say, I agree!

- by Rebecca W. Geyer

Tuesday, May 17, 2016

Nursing Home Residents' Fundamental Rights Protected

“You keep all your fundamental civil or human rights and liberties when you are admitted to a nursing home,” explains the Indiana State Department of Health.
Basic rights include:
  • the right to be treated with respect and dignity in recognition of your individuality and preferences
  • the right to quality care and treatment that is fair and free from discrimination
  • the right to have relatives or a legal representative act on your behalf to exercise these rights when you are unable to do so yourself
There are rights that have to do with admission, including:
  • The facility must inform you of all of your rights, in a language or manner that you understand.
  • The facility must inform you of all its rules and regulations, including transfer and discharge policies.
  • You have the right to carefully review and understand all contracts and agreements prior to signing.
  • You have the right to apply for Medicare and Medicaid and the right to information and assistance in applying for those programs.
  • You cannot be asked to give the facility a security deposit if you are a Medicare or Medicaid beneficiary.
Privacy and safety-related rights include:
  • Privacy during your visits or meetings, in making telephone calls, and with your mail
  • Privacy in your room and during bathing, medical treatment, and personal care
  • Keeping your personal and health records confidential
  • Reasonable security of clothing and personal property.
  • Freedom from verbal, physical, sexual, and mental abuse; corporal punishment; neglect; and involuntary seclusion
At Rebecca W. Geyer & Associates, we are able to reassure the adult children of clients who reside in Indiana nursing homes that our state has an Ombudsman Program. Trained professionals can assist their parents in exercising their rights.

For information about the Ombudsman Program in your area, call or write:

State Ombudsman
Division of Aging and Rehabilitative Services
P.O. Box 7083, MS 21
Indianapolis, IN 46207-7083

- by Corinna A. Smith of Rebecca W. Geyer & Associates

Friday, May 13, 2016

Elder Care Stresses and Disputes

“Caring for an aging loved one can be one of the most stressful family milestones,” writes Jeff Anderson in aplaceformom.com. “The sheer difficulty of the task, its high costs, as well as underlying family issues can collide to create a perfect storm of discontent.”

Anderson lists no fewer than then reasons families tend to fight about senior care:
  1. Adult siblings view parents’ needs differently
  2. Parents resist care
  3. Past family issues and earlier roles resurface
  4. One child does all the heavy lifting
  5. One child excludes others from decision making
  6. Paying for senior care is a challenge
  7. Parent caregiving needs to be balanced with raising a family
  8. The level of care needed by each of the parents differs
  9. There is disagreement about end-of-life care
  10. There are disputes over inheritances
“Those of you who read the posts on the AgingCare.com forum will see the cold, hard facts, writes Carol Bradley Bursack.  “You will see that, for many, the chances of a civil family meeting where you hash out the needs of your elders and agree who does what are, well, nil.  You will see caregivers stressing over siblings accusing them of spending too much of their parents’ money to care for their parents.  You will read the pleas for help from the one sibling who has quit his or her job to care full time for an ailing parent being either ignored by siblings, or worse, being accused of predatory intentions because they are ‘running the show’.”

As elder law attorneys,  Rebecca W. Geyer & Associatescouldn’t agree more with what Bursack says next:  “Ideally, before things get to this stage, you’ve had conversations with your parents about how they want their needs met during their later years. They’ve made out the papers naming a Power of Attorney for Health Care and a Power of Attorney for financial affairs.”

“Ideally, as well, all siblings are aware of these papers, what they contain and all are in agreement.  Ideally – taking care of the elders becomes a family affair,” Bursack concludes.  Amen to that!

Tuesday, May 10, 2016

Protect Your Estate By Being Aware of Stranger Danger

Identity theft becomes a bigger issue each year, leading the Federal Trade Commission to enumerate the steps to take in order to protect your personal information. In fact, during tax refund season, “stranger danger” seems to be all around us. In fact, at Geyer & Associates, we think protecting ourselves – and our aging parents – from scams has become a vital element in estate planning.

Scam Email and phone calls:
“An unexpected email purporting to be from the IRS,” explains identitytheft.gov, “is always a scam. The IRS does not initiate contact with taxpayers by email or via social media.”  If you or a parent receives an email claiming to be from the IRS, that email should be forwarded to phishing@irs.gov.

An unexpected phone call from someone claiming to be an IRS agent (usually threatening you with arrest or deportation if you fail to pay) – that’s a scam, too, and so is any call requesting information so as to send you a refund.  Calls like these should be reported to the Treasury Inspector General for Tax Administration at 1 800 366 4484.

Your Social Security Number:
  • Don’t give a business your Social Security number just because they ask.
  • Don’t carry your Social Security card with you.
  • Keep your financial records locked up.
  • Don’t give personal information over the phone, through the mail or on the Internet unless you are sure you know whom you are dealing with.
E-filing is another way to combat identity theft. While a paper return is handled by dozens of people – mail clerks, letter openers, paper organizers, scanners, approvers, etc., electronic returns are handled predominantly by computer, the FTC advises.

Of course, one way to protect your “future” estate is protecting elderly parents from being scammed. “It can be a challenge, but it’s wise to discuss with your parents their susceptibility to crime and ID theft,” says U.S. News.

“Many of us have a parent, friend or neighbor who would benefit from a friendly reminder that seniors are prime targets for scam artists,” says Ken Hunter of the Council of Better Business Bureaus. “We can help prevent them from losing their money, their dignity and their sense of security.” How?
  • Tell your parents never to hire anyone who shows up unsolicited at their door.
  • Tell them never to make an “on-the-spot” decision under pressure “not to miss the opportunity”.
  • Put their phone number on the National Do Not Call registry.

At Geyer & Associates, we believe that, for both younger and older generations, protecting against scams is a vital element in estate planning!

Saturday, May 7, 2016

In Financial and Estate Planning, Helping Can Hurt

“For every financially dependent child there is an equally responsible financial-enabling parent,” observe Bradley Klontz and Anthony Canale in the Journal of Financial Planning. That’s not good: financially dependent adult children who continue to rely on their parents well into their 30s, 40s, and 50s can be a significant threat to the financial health of financial planning clients, the authors say.

Sure, the giving of money is always done with the intention to help.  Still, it can be quite damaging, and, at its worst, financial enabling can feed a gambling or drug habit; at best, it can lead to a life of amotivation, the two financial planners remark.

Financial dependence can cause:
  • A lack of creativity, drive, motivation and passion
  • Enables a dependent adult who pursues multiple degrees in a variety of fields without ever settling on a career
  • Depression and listlessness in the child due to lack of job related interactions, challenges, and feedback mechanisms
 How can the enabler break the cycle?
  • Set a date at which time the financial aid will be stopped
  • Offer to pay for psychotherapy, career counseling, or coaching
  • Develop a support system for keeping the new plan in place
The same issue of unhealthy financial dependence applies to estate planning, point out John Horn and Dera Johnsen-Tracy in the AAII Journal.“ Many of us have loved ones who have repeatedly demonstrated that they will never be financially responsible.” Clearly, naming this type of individual as a direct beneficiary may serve only to contribute to a gambling or drug addiction, or result in assets being claimed by creditors in a bankruptcy or income tax proceeding,”

Often, it is better to create a lifetime “spendthrift trust” to hold the inheritance for the benefit of that individual for his or her lifetime while protecting the assets from creditors.
At Geyer & Associates, we often recommend inserting a spendthrift clause in a trust, in order to prevent the creditors of any beneficiary from touching the assets so long as those assets remain in the trust. That restriction remains in effect even in if and when your beneficiary declares bankruptcy.

In financial and estate planning – helping can sometimes hurt!
 - by Ronnie of the Rebecca W. Geyer blog team

Thursday, May 5, 2016

Estate Planning the Second Time Around - Part Two

Estate planning for second marriages (after divorce or death of a first spouse), especially when there are children from prior marriages, is a challenge. One big part of that challenge is planning for the primary residence.

Whereas couples married for the first time tend to own their home in joint name, in a second marriage situation, the primary residence is commonly titled in one party’s name, notes Ann-Margaret Carrozza, writing in the Huffington Post “Thought must be given to the survivor’s living arrangements upon the death of the owner of the home”.

The most common remedy, Carrozza explains, is to grant the non-owner spouse a life estate in the home. “This approach makes intuitive sense, but can sometimes have unwanted consequences,” she adds. The family would be unable to either sell the home or use it, even if the surviving spouse were to
  • move away
  • get remarried
  • end up in a nursing home
A better option, the author adds, would be to grant the surviving spouse “rights of occupancy”.
From a practical point of view, Carrozza reminds readers, the divorce rate for second marriages exceeds 60%, so, beyond establishing who gets what in the event of death, prenuptial agreements can be used to address all these financial issues that tend to arise in second marriages.

At Geyer & Associates, we’ve found that to be very good idea. As hard as couples may find it to discuss money matters, death, and children’s inheritances, communicating on these sensitive areas, particularly when done with an estate planning professional as moderator and guide, can actually work to strengthen the relationship.
In fact, it’s been our experience that the biggest benefits of prenuptial agreements – whether used in first marriages or second – come about because of the conversations that go into creating them!

- by Kimberly Lewis of Rebecca  W. Geyer & Associates

Monday, May 2, 2016

Estate Planning the Second Time Around

Planning for the traditional nuclear family is straightforward, as the Texas Probate Lawyer so aptly points out.  In most situations, the husband and wife want to leave the estate to the surviving spouse, with the assets going to the children after the death of both spouses.  In fact, there’s a nickname for this common estate planning arrangement: the “sweetheart disposition”.

Estate planning for second marriages (after divorce or death of a first spouse), especially when there are children from prior marriages, is a lot more difficult. The spouses will typically want to provide for their surviving partner, but, “at the end of the day,” texaslawyer.com explains, “they want to be sure the assets end up with their children (not the surviving spouse’s children).”

There are problems with beneficiary designations as well, estateplanning.com cautions. “More than likely, the estate planning methods you relied on in your first marriage will not work now.”
  • Many people name their spouse as beneficiary of life insurance policies, IRAs, and other retirement plan accounts.  That allows the spouse-beneficiary to name anyone he/she wants as new heirs, bypassing your children.
  • If your new spouse is much younger than you are, your children may be waiting for many years before receiving an inheritance from you.If one spouse becomes ill and needs to apply for Medicaid, the combined assets of the couple will be considered “available” to pay for care.
Historically, says Ann Margaret Carrozza, writing in the Huffington Post, the compromise solution for second marriage estate planning has been to provide that the estate be held in trust for the lifetime benefit of the surviving spouse, with the widow/er receiving income and perhaps even some principal from the trust assets.

State law comes into play as well, preventing a spouse from being totally disinherited, giving him/her no less than the greater of $50,000 or 1/3 of the entire probate estate.

As Carrozza remarks ruefully, “Love may be lovelier – but it is also a whole lot more complicated the second time around.  Everybody wants to do the right thing for everyone involved: both spouses, his children, her children, and sometimes grandchildren. At Geyer & Associates, our goal is to help create the perfect, tailor-made, plan for each of our clients, especially those in second marriage situations..

- by Corinna A Smith of Rebecca  W. Geyer & Associates