living trust lawyer, estate planning attorney, probate lawyer, power of attorney, antioch, walnut creek, clayton

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Put simply, a Living Trust ensures that once you’re gone your final wishes will be known and properly implemented. What surprises many young people and elders alike is how many families can benefit from having a Living Trust.

 

Below I debunk six of the most common myths about Living Trusts.

 

 

  1. Estate Plans don’t need updating. There are dozens of reasons your Living Trust could become invalid or outdated over time. For example, your asset schedule could be out of date, there could be changes in family status, financial status, name changes, dead executors or beneficiaries, new grandchildren and many more changes that can affect your estate plan. It’s a good idea to review your Trust with an Estate Planning attorney every five years.

  2. Estate Plans are only for rich people. A Living Trust is much more than a plan for how to divvy up your estate, it leaves instructions for loved ones on who will be responsible for taking care of minor children, who will take care of your affairs should you become incapacitated and who will get your prized possessions. A Living Trust can even protect your assets from nursing home expenses and protect your heirs from creditors. It’s also a good idea to leave instructions to survivors about how you want your social media accounts managed and by whom. As you can see, nearly everyone can benefit from a Living Trust, not just rich people.

  3. Estate Planning is to be done as part of your retirement plan. Many of the clients we meet for the first time are preparing their Living Trust as part of their retirement plan.  Waiting this long can be a huge mistake for your family!  The best time to create your first living trust is when you first start a family, as a trust is the best way to protect your children in case of your incapacity or death.

  4. Estate Planning is only for old people.  As I stated in #3,  Living Trusts safeguard young families should the unthinkable happen. Think of a living trust as your voice after you’ve passed away or become unable to make decisions for your children, finances or your own healthcare.  Having a valid Living Trust in place will prevent your loved ones from having to make difficult decisions – guessing at your intentions- should something happen to you. It also can prevent lengthy, drawn out, expensive and contentious court battles over things like custody, debt, inheritance, etc.  Most people don’t actually want a young person to control a lot of money – with a trust you can appoint a responsible person or bank to manage the finances of your children (or grandchildren) until they are older and more responsible.

  5. Estate Plans, Trusts and Wills are expensive to set up and maintainLiving Trust estate plans are normally set up for a modest, fixed fee. There is no annual maintenance fee.  This cost is nominal compared to the cost of probate. Probate is the process surviving family members and loved ones must go through to settle your estate in court in the absence of a valid estate plan. This process can take years and can cost tens of thousands of dollars. In some circumstances trusts can also reduce or eliminate capital gains taxes, gift taxes, and offer other protection for your assets.

  6.  Trusts don’t come in pretty colors (true story!). Living trusts aren’t pretty, quick, fast or as easy as some online estate planning services would lead you to believe. A Trust is perhaps the single most important legal document you will every create. Do you really want to leave that to chance, working with a faceless chat box on an estate planning website, a paralegal or other non-attorney? Sure it may seem like a good idea to save a few bucks, but in the end, it could cause years of hardship, expense and legal battles for your surviving loved ones. Don’t be fooled by showy online resources that over-promise and under-deliver. Hire an attorney who is a State Bar Certified Specialist in trusts.

 

If you have questions about getting started with a Living Trust, Estate Plan or Will in California  or would like your existing plan reviewed contact us to schedule a consultation.

living trust lawyer, estate planning attorney, probate lawyer, power of attorney, antioch, walnut creek, clayton

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As an Estate Planning and Trust Attorney who’s been helping families preserve their legacies and avoid probate for over twenty-five years, I’ve seen it all; family squabbles turned to drawn-out legal battles; grieving children having to deal with lengthy and costly probate and surviving spouses left with the results of a bad or outdated Trust.

 

I cannot stress enough the importance of not just having a Trust, but having one that’s accurate, up to date and valid. If you or a loved one has Living Trust, these 10 warning signs that it may not work as you expect are a must read:

 

1. The Trust names dead beneficiaries or trustees – you can’t just write a Trust (or Will) and never look at it again!  We have seen many trusts that name beneficiaries who have died and the owners of the trust never made updates. To Do:  Look at your trust now and make sure all the beneficiaries and trustees and alive and well.  This is also a good time to confirm that your trustees are still willing and able to act for you.

 

2. There is no “pour over” Will – a Living Trust Estate Plan should always include a back-up Will that directs all your assets to your Trust in case something is left out.  The backup Will may still require probate, but at least the assets will go into the trust, and be available to your designated beneficiaries.  This also allows for any special provisions or restrictions in your trust to take effect.Reviewing an old estate plan

 

3. The Trust has a bad asset schedule – one key to a smooth Trust administration is a current, signed and dated asset schedule for the trust.  This allows your successor trustee to know what assets are in the trust.  This also helps avoid a full probate for assets that are listed in your Trust, but not actually owned by the Trust.  A complete asset schedule is not enough by itself – your Trust must also be on title to your real estate, bank accounts and investments (but usually not tax-deferred retirement accounts). To do:  Look at your Trust now and be sure all your assets are listed!

 

4. The Trust is not funded – assets (real estate, bank accounts, stocks, bonds, mutual funds, etc.), that are left out of your Trust may have to go through probate, and may not even go to the same beneficiaries if you don’t have a “pour over” Will. In our experience, when the time comes to administer the trust, we find that most Trusts are missing assets.  We have seen many more empty trusts than full ones!

 

5. The Trustees don’t get along – if you have appointed co-trustees and they cannot work well together, administering a trust can be a nightmare.  Even if they work well together, if they live far apart this can be challenging.

6. The Trustees are incompetent – not everyone is competent to handle your affairs. Be sure to select successor trustees who understand how to manage assets, sell property, etc.  If you have picked someone who is very good at this, but they become ill, aged, or move away, they may not be competent to handle your trust.  Trustees should also be United States citizens.  Executors of Wills are required to be citizens.

 

7. The family can’t find the Trust, or doesn’t know it exists – your Trust (or Will) won’t help your family if they cannot find it when you die.  Locking it up in a safe deposit box can be just as good is hiding it away, as banks may require a probate court order to transfer the contents of the safe deposit box! To do:  call your successor trustee (or Executor) and let them know where they can find your Estate Plan and be sure they can access it!

 

8. The Trust is in an old A-B format – older trusts, especially “AB” format trusts, may no longer work well due to changes in the law.  If your trust was done before 2012, you may have some work to do. To do:  if your trust was created before 2012 contact your Estate Planning Trust attorney and schedule a review.

 

9. The Trust wasn’t created by an attorney – sorry, if you did your own trust, went to an online Estate Plan Trust service, had a document preparer or other unskilled labor help you, it is probably not going to work the way you would wish.

 

10. The Trust isn’t signed –   We have seen trusts, Wills and powers of attorney that were not signed, witnessed and/or notarized properly, causing the documents to fail.  One of the jobs of an estate planning attorney is to make sure this does not happen! To do:  Go find your Trust right now and make sure it’s signed! Please!

 

The death of a loved one is hard enough without inheriting a legal mess. Please, look at your Trust (or Will) now, make sure it is up to date and still makes sense, and contact us if you need a review, or even a second opinion. We’re here to help!

 

living trust lawyer, estate planning attorney, probate lawyer, power of attorney, antioch, walnut creek, clayton

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Whether you voted for him or not, we can all agree that the Trump presidency will most likely bring unprecedented change to our country.

 

Many have concerns about entitlements, healthcare, taxes and civil rights.  My clients – Baby Boomers and young families who want to retire comfortably, have affordable healthcare as they age and who want to leave a legacy behind for their children and grandchildren – have concerns about what the Trump presidency means to the Affordable Healthcare Act (Obamacare), Medicare and Estate taxes.

 

I address those three issues in this blog.

Trump on Affordable Healthcare

One of the most heated debates during the election was whether Obamacare would be repealed by our new president.  Trump vowed to repeal the Affordable Healthcare Act on day one of his presidency. However, just last week, Trump nominated Representative Tom Price to head the U.S. Department of Health and Human Services (HHS) who said, according to an article in Reuters, (“Trump’s  health pick defends stocks, says Americans won’t lose insurance”),“Americans will not suddenly lose health insurance.” Price went on to say, “nobody is interested in pulling the rug out from anyone”.  Instead,  Republicans in Congress will work to repeal the law and replace it with an alternative system. (Source: Reuters)
 

In an interview with the Washington Post, Trump stated, “We’re going to have insurance for everybody. “[They] can expect to have great health care. It will be in a much-simplified form. Much less expensive and much better.”

 

The Bottom Line on Affordable HealthCare: While “Obamacare” may be repealed, it seems that neither Trump nor House Republicans want to leave Americans without universal healthcare.  I suspect there will be changes to your existing plan, and, according to Trump and his advisers, these changes will make healthcare more available and affordable for all.

 

Trump on Medicare

Per an article in Forbes, repealing Obamacare will have a major impact on Medicare and Medicaid: the “unheralded Medicare reforms in Obamacare, such as lower operating costs, higher quality care and a sounder financial footing for the program” will be torn apart by the proposed Trump and Republican plans to dismantle Obamacare.  Forbes also states that, “it would repeal the expansion of Medicaid, a program that provided more than 12 million low-income Americans with coverage, and replace it with nothing.”Medicare healthcare seniors

 

According to Forbes, Health and Human Services (HSS) nominee Price’s “Empowering Patients First Act” would replace the Affordable Care act, “with a 401(k)-like plan where you’d be exposed to the ravages of the private insurance market and be given tax credits based on your age.” (source: Forbes)

 

Many believe that Price’s proposed reforms could have a major negative impact on Medicare. Not necessarily in the short-term, but in the long term, his reforms could be used to dismantle our current Medicare system and instead, hand out lump sums or “vouchers” to retirees to be used to buy private insurance policies. Would this be helpful or hurtful to our aging Baby Boomers? That is yet to be seen.

 

 I have to wonder if the vouchers would be enough to cover a year’s worth of medical expenses?  According to many healthcare and medical experts, “probably not, if (the senior) has a range of expensive or chronic medical issues, as many older people do.” (source Wired)

 

The Bottom Line on Trump on Medicare. In the short term, it appears there will be no major changes to Medicare.  But we need to keep our eye on the details of HSS nominee Price’s “Empowering Patients First Act” and how that could be applied to the future of Medicare. Many believe a voucher system could have severe negative impact on seniors and healthcare.

 

Trump on Estate Taxes (AKA: “The Death Tax”) 

Much hoopla has been made over the Estate Tax, renamed by Republicans in the 1990s as the “Death Tax”. Politicians have used it as a political tool to win over constituents for decades. Democrats want to keep the tax, as a safeguard against the “accumulation of dynastic wealth” (Source: Time) or to prevent the rich from getting richer off the backs of average American and Republicans have tried (in vain) to repeal the so-called “death tax” claiming it penalizes success.Reviewing an old estate plan

According to the IRS (IRS.gov) the Estate Tax is, “the right to transfer property after your death and it consists of an accounting of everything in your estate” and through a long process of determining what gets included and excluded from your estate (deductions), a value is put on your estate to determine your Gross Estate, and a tax assessed. (To read the full tax law visit the IRS website here). Some say this is an unfair “death tax” that penalizes upwardly mobile Americans wo want to leave a legacy to their children.

 

Let’s look at the facts about the so-called “Death Tax” (Source: Time Magazine):

 

  •  The current Estate Tax affects less than one half of 1% of American estates
  •  $10.9 million is the value of a married couple’s estate EXEMPT from the Estate Tax. That means anything over     $10.9 million is subject to 40% tax ($5.45 million for singles).
  • .4% (yes, 4/10 of one percent) of decedents’ estates are subject to the estate tax.
  • $269 billion is raised for the treasury from this tax.
  • Fewer than 5000 estates would benefit each year from its full repeal

Donald Trump and Speaker Ryan have vowed to repeal the Estate Tax n 2017. What does that mean for you and me? If the value of your estate is less than $10.9 million it means absolutely nothing to your personal estate plan.  If your estate is worth more, it means your decedents will get all your estate – tax free. It also means our treasury will lose $269 Billion dollars. That revenue must be made up somewhere; either through cuts in services or higher taxes on the rest of us.

 

The Bottom Line on Trump and Estate Tax:

One possible scenario that could be a part of estate tax repeal is the repeal of the step-up in cost basis that currently occurs on death.  Today, if you inherit appreciated assets such as stock or real property, you get a new cost basis as of the date of death.  This allows heirs to sell these assets with little or no capitals gains tax.  In community property states, the surviving spouse can enjoy a 100% stepped up basis if their assets are titled correctly (such as in a living trust that designates the assets as community property. Joint tenancy does not work for this).  A loss of the stepped-up basis will force heirs to trace back the original cost basis of assets they inherit, and pay the capital gains tax on sale. The temporary estate tax repeal under the Bush administration included both a repeal of the stepped-up basis, and the new provision that capital gains tax will also be triggered by death. 

The bottom line is that if the estate tax is replaced by a due on death capital gains tax, the majority of estates may become taxable!  Careful attention to any new estate tax laws, and careful planning after the laws have gone into effect, will be critical!

 

 

The future is as uncertain as ever. How the new administration will affect our lives is yet to be seen.  Use the information above to learn and keep track of laws that may affect you.