Frequently Asked Questions

Working with Assure

It depends.  

Digital access to an expanding universe  of legal information and forms has made it possible for many  individuals to handle more simple legal matters on their own.   However, this takes time that many people don’t have, adds an additional burden to their already full plate, and bears the risk of future complications and potentially high financial costs if legal documents were not prepared correctly of if the correct procedures were not adequately followed.   When it comes to ensuring the security of your family and the management of your assets, it is important to make sure you have expertise and experience on your side to ease some of those burdens, reduce your risks, and make your life more manageable.

Additionally, because your life and assets are unique, a “one size fits all” approach to life and estate planning may not be sufficient to meet your needs.  Generic forms with boilerplate language that can be printed off of estate planning websites for a smaller fee will likely not reflect your unique circumstances or meet your specific goals.  They may save you money in the short term, but cost you much in the long term if your vending machine estate planning does not actually represent the complexity of your situation, is legally deficient in either content or process, or fails to actually help you achieve your goals.  Additionally, you run the risk of family conflict and legal disputes if your efforts have not adequately protected your assets or estate.   Since most people’s circumstances are complex and varied when it comes to their family, finances, goals, and complications, having the right experience on your side will save you time, money, and worry by making sure that each step in your life planning process is done right the first time.    

 

Hiring a lawyer to assist you with your unique legal matters can be one of the most important decisions you ever make.   We may be the right fit for you if you identify with any of the following statements:

You’re looking for a trusted adviser who takes the time to get to know you personally and seeks your input as they approach your legal planning and representation matters.

You have complicated legal issues that may require a more complex approach to addressing them.

You’re looking for something more than just legal documents. You’re looking for a trusted adviser and committed representative.

You  think of your life in terms of both short term and long term goals and want to create a cohesive and effective approach toward achieving them. 

You value experience and expertise in obtaining professional services

We recognize that things come up, and we’re always happy to discuss alternative fee arrangements such as flat fee billing and fee installment payment plans. 

By its nature, the process of obtaining legal services is a unique experience for each individual.  During your initial consultation, and regularly throughout your engagement, we will discuss with you what your experience will look like, including the upcoming milestones, deliverables and deadlines along the way.  Having said that, most engagements follow the general process outlined HERE.

Estate Planning Basics

A will is a document which provides for the distribution of property owned by you at the time of your death, in any way you see fit, subject to certain laws and restrictions. 

Wills can be simple or complex, the complexity of which depends on a wide variety of personal, family, tax and business circumstances and objectives.   A will that distributes all of a person’s estate at their death outright is often referred to as a “simple will.”  Alternatively, a will that creates one or more various types of trusts in order to control the use and management of a person’s assets, or to provide for the protection of those assets from creditors even after the person is deceased is often referred to as a “complex will.” 

Besides directing the distribution and use of a person’s assets after they are deceased, a will, whether simple or complex, can and should provide for the designation of those people who will administer the estate and take legal custody of any minor children. The consequences of not thoughtfully selecting these “fiduciaries” can be extremely detrimental to the carrying out of a person’s intents and desires after they are gone.   Without a will and without specifying the fiduciaries for your family, you leave your family’s care and the distribution of your assets to chance and guesswork and the impartial workings of default laws. 

Dying without a will (“intestate”) will cause a person’s estate to be distributed according to the laws of the state in which the person resides upon their death.   Varying from state to state, these laws  merely represent legislature’s best guess as to how the average person would want their estate distributed and who they would want it distributed to.  In practice, however, these guesses do not take into account the special, unique, and often complicated circumstances that exist in most people’s lives. A will allows a person to exercise their personal preferences even after they’re gone instead of leaving important decisions to a stack of default laws that do not care about that person or their unique circumstances.

A will is not all powerful.  It is still subject to certain laws and restrictions.   A will cannot be used to avoid paying taxes, nor can it be used to avoid probate, even if these things are written into the will.  A will cannot be used to transfer property that you hold jointly with someone else.   A will cannot leave a gift that is contingent on someone marrying, divorcing, or changing religion.  And a will is not the place to provide for the long term care of someone else (there are other legal vehicles for that).

Our team has the knowledge and experience to navigate the laws and restrictions of a properly prepared will.  You can be assured that your estate will be distributed in the way you want it, without the worry of loopholes or legal contests.

A  trust is a legal vehicle that can be designed and funded to accomplish a vast number of different financial, tax management, charitable, or personal support purposes.  More specifically, a trust is a legal relationship between a person or organization who contributes assets into the trust (the “grantor” or “trustor”) to another person or entity that holds, manages and distributes those assets (the “trustee”) for the benefit of one or more persons or organizations designated by the grantor (the “beneficiaries”).  Depending on the specific purpose of the trust, the assets contributed to the trust can be real estate, personal property, intellectual property, or other intangible assets such as stocks, bank accounts and debt instruments.  Upon “funding,” the trustee becomes the legal owner of those assets, and the beneficiaries become equitable owners.  A person may be both a trustee and a beneficiary of the same trust.

Trusts can be created during your life or upon your death as directed in your will.  A trust created during your life is referred to as an “inter-vivos” trust, and one created upon your death is referred to as a “testamentary” trust.  A trust created during your lifetime may be revocable or irrevocable.  A revocable trust allows you, as the grantor, to revoke or change it at any time, for any reason at all, and most often without any adverse tax or legal consequences.  An irrevocable trust cannot be revoked or changed by the grantor except in limited ways and under limited circumstances and is far less flexible.   Procedurally, trusts can also be established to avoid the often onerous and time-consuming process of administering a deceased person’s will through the judicial process known as “probate.”  Trust property with a named beneficiary is not subject to the probate process.

Whatever your circumstances, there is a trust that can be constructed to best help you achieve your personal and financial goals and provide for the ongoing well-being of your family.

Absolutely not! 

Trusts can be set up in a variety of ways and for a myriad of reasons that apply to a wide range of financial circumstances. For instance, many young parents with limited assets choose to create trusts for the benefit of their children in case both parents die before all their children have reached an age with sufficient maturity to handle property. In that case, a trust permits the trust assets, which may just be the proceeds of a life insurance policy, to be held as a single undivided fund to be used for the support and education of minor children according to their respective needs, with eventual division of the trust among the children when the youngest has reached a specified age. This type of arrangement has an obvious advantage over an inflexible division of property among children of different ages without regard to their level of maturity or individual needs at the time of such distribution.

Another example of the need for a trust, regardless of financial ability, would be when you are seeking to support an adult special needs child without disqualifying that child from receiving needs-based governmental disability benefits such as SSI and Medicaid. A carefully prepared revocable or irrevocable trust would allow you to supplement the benefits your child receives in order to provide them with the extras that the government benefits don’t cover. 

Whether you have large financial holdings or modest savings, a trust can help protect your assets and provide for your family in the ways that matter most, now and in the future.

It depends, of course, on your circumstances and your objectives in establishing the trust.

A “revocable living trust” is a trust that is legally in existence during your lifetime, designates at least one trustee currently serving, as well as a backup trustee, and owns property which you have transferred to it during your lifetime. While you are living, the trustee (who may be you) is responsible for managing the property. Upon your death, the trustee is directed to either distribute the trust property to your beneficiaries, or to continue to hold it and manage it for the benefit of your beneficiaries. 

Like a will, a living trust can provide for the distribution of property upon your death. Unlike a will, it can also (a) provide you with a vehicle for managing your property during your lifetime, and (b) authorize the trustee to manage the property and use it for your benefit (and your family) if you should become incapacitated, thereby avoiding the appointment of a guardian for that purpose.

Whether you should have a living trust depends on a number of factors which include: 1) your short and long-term personal and financial goals, 2) the makeup of your assets and liabilities, 3) your existing and potential income and estate tax situation, and 4) the time and expense of pursuing other alternatives, such as irrevocable trusts, simple or complex wills, and the use of non-probate assets.  

No matter your situation, our team can help you decide on the right way to protect and distribute your assets in the way that meets your individual and unique goals and provides for the ongoing security and support of your family.

An important part of lifetime planning, a power of attorney gives one or more persons the authority and power to act on your behalf as your agent. The power may be limited to a particular activity, such as closing the sale of your home, or be broader in its application. The power may give temporary or permanent authority to act on your behalf. The power may take effect immediately, or upon the occurrence of a future event, such as mental or physical disability.

The most important reason to appoint a power of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity.   These conditions may be temporary, due to travel, accident, or illness, or they may be permanent.  Another reason to appoint a power of attorney is convenience. If you are buying or selling assets and do not wish to appear, or are unable to close the transaction in person, you may appoint someone to take your place with legal authority.

If you do not have a power of attorney and thereafter become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you.  In this case, you will have little or no say in who the court appoints or what the specific bounds of that person’s authority are with respect to acting on your behalf. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. 

In the context of marriage, a power of attorney may still be necessary. Most states recognize the right of a spouse to make financial and medical decisions on behalf of their incapacitated spouse. However, there are various matters in which the mere fact that the couple is married might be insufficient to allow the non-incapacitated spouse to act (e.g. redirecting federal pension and benefits, etc.) To make sure that you’ve covered all of your bases and have planned for these unforeseen conditions, you should have a power of attorney, even if you are married. 

Special Needs Planning & Guardianships

A special needs trust or supplemental needs trust (SNT) is a special purpose trust designed to manage assets for the benefit of a person with special needs in order to protect their access to important government means-tested benefits.   These government benefits typically place a cap on the amount of assets a beneficiary may personally hold.  Like all trusts, an SNT is defined by the relationship between a trustor or grantor (the person who funds the trust), a trustee or administrator, and a beneficiary.  Placing assets in an SNT allows a trustee to provide for quality of life items for a special needs beneficiary in a way that does not disrupt their ability to continue receiving government benefits.  

A special needs trust may be a first party trust, a third party trust, or a pooled trust.   All three name the person with special needs as the beneficiary. A “first-party” special needs trust holds assets that belong to the person with special needs, such as an inheritance or an accident settlement. A “third-party” special needs trust holds funds belonging to other people who want to help the person with special needs. A pooled trust holds funds from many different contributors who want to aid in the care of a special needs individual.

Whatever your financial circumstances, setting up an SNT is a great way to provide for the long term care of your special needs loved one and alleviate your concerns regarding their continued welfare.  But because this type of trust is a specialty trust with specific needed language and rigorous requirements to make it valid, you should have the assistance of experienced legal counsel in establishing the trust.

A Guardianship is a judicial process whereby one person obtains from a court the legal right to care for and make decisions for another person who is unable to make decisions for themselves due to incapacity or special needs.  A guardian can be given the right to make decisions over the incapacitated individual’s finances, movement, employment, health care, and even voting rights.  A guardianship that grants the guardian only some rights, such as financial decisions but not health care decisions, is called a “limited guardianship.” Alternatively, a guardianship that grants the guardian all rights, including all financial, health care, and physical rights is considered a “full guardianship.” When determining whether a limited or full guardianship is necessary, the court’s primary consideration is for the individual whose rights are being restricted or taken away and making sure that the guardian’s authority is only as broad as it needs to be to ensure the guarded individual’s health, safety, and well-being. 

 

Yes, you do, if your child is limited or without the ability to make decisions for themselves.

Parents of a special needs child are often under the assumption that they will still be able to make parental decisions for their child even after they legally become adults.  However, generally speaking, any child who reaches the age of majority (18 in most states), including a child with special needs, becomes an adult under the law and is entitled to all the rights and privileges of citizenship. In fact, in many states, a certain number of those  rights, including the right to seek medical care without a parent’s permission, attach well before a child legally becomes an adult. So, just being the parent of a child with special needs does not automatically give you the right to make decisions for your child when they become an adult.    You will need to file for guardianship.

You can file for guardianship in your child’s early teenage years if you want to be sure that you are able to control all medical decisions with regards to your child and have access to their medical records (this is typically the first kind of guardianship that is sought, and is a limited guardianship because it has a very narrow scope of application).  Later, you can file for other forms of guardianship, whether a limited or full guardianship, depending on the extent of your child’s need and capacity.  Like other guardianships, the court will grant only as much guardianship as is necessary for the best interests of the special needs individual, meaning that if your child has the capacity to make certain decisions for themselves, the court will not restrict those rights.   

Having guardianship does not place you at odds with your child, but puts you in a position to protect them and make decisions with regards to their life and care when they are unable to competently make those decisions for themselves. 

 

It depends on your needs and circumstances. 

Although most people obtain guardianship for their special needs child when the child becomes an adult, there are certain rights granted to children well before they turn 18. One such right is the right to seek medical attention without parental knowledge and, in some states, even parental permission.  In those cases, and depending on the circumstances, it may be appropriate to seek a guardianship over your child sooner rather than later in order to ensure that your special needs child is making safe decisions when it comes to their health and mental welfare. 

As mentioned above, most guardianships over special needs children are put into place when the child turns 18. This can be for a number of reasons, including assisting a child in renting a place to live, helping a child manage their finances and health care issues, and protecting your child against predatory third-party financial practices that could seriously impact their futures (e.g. opening credit card accounts, payday loans etc.).  But one of the most common reasons for obtaining a guardianship over a child when they become an adult is to access governmental disability benefits to which the child may not have been entitled to as a minor. The benefits could include SSI and Medicaid benefits. While a minor, a child may not qualify for these means-tested benefits due to the fact their parent’s assets are counted against the minor child’s eligibility.  That may cease to be the case, however, when your child become an adult.

The Petition.

Guardianship is a judicial process that begins when the prospective guardian files a petition in the appropriate court where the prospective ward resides.  Even if the petitioner is the parent of an adult special needs child, and the child consents to the guardianship, a guardianship petition must be filed and the court process followed.  

Guardian-ad-Litem, Medical Evaluation, and Investigation. 

After the petition is filed, the prospective guardian or “petitioner” serves the ward with the petition and the court schedules a hearing to determine if guardianship is necessary or appropriate.  Usually, there is 60-90 days between the time the petition is filed and the hearing taking place, and in that time, several key things must happen. First, the ward has an opportunity to object to the petition, in which case the court will ensure that the ward is provided with legal counsel and will schedule a trial date.  At trial, the petitioners and the ward, through their respective attorneys, can present evidence, argument, and testimony as to why a guardian should or should not be appointed.  Second, the court will also appoint a guardian-ad-litem, whose role is to look out for the best interests of the ward and to conduct an appropriate investigation  and evaluation of the petitioner’s claim to ensure that the petition is not over or under reaching. Third, the petitioner will arrange to have an evaluation of the ward performed by a medical professional to substantiate that the petition is warranted. 

 Once the guardian-ad-litem completes their investigation, they will prepare and submit a formal report to the court, along with a recommendation as to the necessity of the proposed guardianship.  The guardian ad litem will then work with the petitioner to craft the scope and duration of the proposed guardianship before submitting it to the court for review.

Guardianship Hearing and Order.

After the 60-90 day window, the guardianship hearing will take place.  At the hearing, the presiding judge may ask additional questions and seek additional clarification before deciding to sign the order approving guardianship. Once that happens, the proposed guardian will normally be required to participate in a guardianship education class (usually held online), and execute an oath whereby they agree to take upon themselves all of the legal and fiduciary obligations of a guardian as established by state and federal law.

Post-Appointment.

Once the court formally appoints the legal guardian, the guardian takes upon them a significant number of rights and obligations related to the care of the ward and the appropriate possession and management of the guardianship assets for the ward’s benefit. Among these is the right to set up bank accounts to hold the guardianship assets, deal with the ward’s institutional relationships (e.g. schools, government agencies, employers, etc.), and  prepare and file reports regularly with the court, and to notify the court when there are changes in the circumstances or needs that gave rise to the guardianship in the first place. 

Disability & Benefits Planning

Disability planning involves the use of legal and financial tools and services to ensure that the physical, emotional, mental and financial needs of individuals impacted by a temporary or permanent disability are met.   Some of the key tools and services that are used to plan for disability include:

Powers of Attorney

A power of attorney gives one or more persons the power to act on your behalf as your agent. The power may be limited to a particular activity, such as closing the sale of your home, or be general in its application. The power may give temporary or permanent authority to act on your behalf. The power may take effect immediately, or only upon the occurrence of a future event, usually a determination that you are unable to act for yourself due to mental or physical disability.  

Guardianships

Guardianship is a judicial process whereby one person (guardian) obtains from a court the legal right to care for and make decisions for another (ward), usually a minor or an adult who is unable to make decisions for themselves due to incapacity or special needs.  Depending on the specific circumstances and need, a guardian can be given the right to make decisions over the ward’s finances, movement, employment, health care, and even voting rights.   A guardianship that grants only some rights, such as power to make financial decisions but not healthcare decisions, is called a “limited guardianship.”  A guardianship that grants the guardian all rights to make decisions for another, including those listed above, is considered a “full guardianship.”

Revocable Living Trusts

A “revocable living trust,” or “living trust,” is a trust that is legally in existence during your lifetime, designates at least one trustee who currently serves, as well as a backup trustee, and owns property which you have transferred to it during your lifetime. While you are living, the trustee (who may be you) is generally responsible for managing the property for your benefit. Not only can a revocable living trust provide for the distribution of your estate upon your death, it can also serve as a very effective vehicle for managing your property should you become incapacitated, thereby avoiding the appointment of a guardian for that purpose.

Irrevocable Living Trusts

Like a revocable living trust, an irrevocable trust provides for the management of a grantor’s assets by a trustee for the benefit of a beneficiary. But because it’s irrevocable, various forms of this type of trust can provide key disability benefits for both grantors and beneficiaries. One type of irrevocable trust is a supplemental or special needs trust. With this type of irrevocable trust, a grantor may transfer assets into a trust for either their own benefit or for the benefit of another. Either way, the assets can be held outside of the beneficiary’s estate such that the beneficiary can continue to qualify for government means tested benefits such as SSI and Medicaid. These irrevocable trusts can be powerful disability planning tools, but they are complex and must be carefully drafted and administered.   

SSI & Medicaid

 The Supplemental Security Income (SSI) program pays benefits to disabled adults and children who have limited income and resources.  SSI benefits are also payable to people 65 and older without disabilities who meet the financial limits. Combined with some form of advanced trust planning, such as the supplemental needs trust, these “means-tested” benefits can provide for both the short and long-term care of those who are disabled or have special needs. 

Long-Term Care Insurance

Long-term care insurance is an insurance product that helps pay for the costs associated with long-term care that are generally not covered by health insurance, Medicare, or Medicaid.

 

Determining whether or not an individual is “disabled” for purposes of receiving state or federal disability benefits, protections or entitlement, can be a very complicated legal process that depends greatly on the benefit being sought. 

Disability Under the Social Security Act

Generally speaking, in order to determine whether or not a child is disabled for purposes of receiving Social Security Income (SSI) and Medicaid, disability is defined as someone who has a  physical or mental impairment, including an emotional or learning problem, that results in marked and severe functional limitations and can be expected to last for at least a year or more. The definition for an adult is the same except that the impairment must result in the inability to do any substantial gainful activity, which is defined as as any full-time or part-time work activity that pays or has the potential to pay an average monthly wage of at least $1,220.  When determining whether or not a person’s disability prevents them from engaging in gainful work, the Social Security Administration looks to what extent the individual can engage in Activities of Daily Living, or ADLs, which include toileting, driving a car, getting dressed, preparing meals and feeding themselves.

Disability under the Americans with Disabilities Act (ADA)

Separately, the determination of disability under the Americans with Disabilities Act (ADA) has nothing to do with the person’s ability to earn a living or make money.  Specifically,  the ADA makes it unlawful to discriminate against people who have physical and/or mental impairments that substantially limit one or more “major life activities,” such as walking, talking, seeing or reading. While the ADA sets forth some specific examples, the law was created to be interpreted broadly to cover as many different conditions and impairments as possible.

Disability under the Individuals with Disabilities Education Act (IDEA) 

Yet another legal framework that takes a different view of disability is the Individuals with Disabilities Education Act, or IDEA.  The IDEA protects children in the K-12 school system who have disabilities and entitles them to a free and appropriate public education. The IDEA covers a wide range of disabilities, including:

1) Specific Learning Disabilities (SLD), such as Dyslexia, Dysgraphia, Auditory Processing Disorder, and Non-verbal learning disability.

2) Other health impairment, which is an umbrella term that could include conditions such as ADHD, which affects a child’s ability to pay attention and executive function.

3. Emotional disturbance, such as anxiety disorder, OCD, or clinical depression. 

4. Autism Spectrum Disorder, and other developmental disabilities. 

5. Speech, vision and auditory impairments, such as full or partial blindness, or speech pathologies.

6. Orthopedic impairments,such as cerebral palsy.

7. Intellectual disabilities, such as down syndrome.

8. Traumatic Brain Injuries or TBIs.

Children with one or more of the above disabilities are entitled to receive appropriate accommodations and modifications to the general education curriculum to ensure that they have reasonable access to the educational system.

 

Under the Social Security Act, there are two primary types of disability benefits– those that are means-tested and those that are available regardless of means.  For purposes of determining eligibility, “means-tested” benefits are those to which an individual is eligible due to their income and asset situation.  Social Security Income (SSI) are means-tested benefits. Only those individuals who earn less than a specific amount per month in income or, alternatively, have less than a certain value of assets qualify for SSI. 

Unlike SSI, Social Security Disability (SSD) benefits are not means-tested. To quality for SSD, you simply have to have a qualifying disability, but do not have to show financial need. 

Qualifying and applying for means-tested benefits can be a complicated and long process. As of this writing, a disabled person who holds more than $2,000 in  assets (bank accounts, land, stocks, etc.) is ineligible for SSI.  Also, the more income a person earns in a month, the less that monthly SSI benefit will be.   And for children, the assets and income of their parents are generally considered “deemed” to the child for purposes of determining eligibility.   So the thresh hold for eligibility can be quite high.

Anyone seeking to navigate the eligibility maze could benefit from the help of an experienced adviser who is well equipped and knowledgeable about the process to help you successfully overcome each hurdle and qualify for benefits.

Yes, you can give away assets in the present in order to qualify for means-tested benefits in the future, but there is a price– a penalty period in which you or your loved one will not have benefits available to them.  In fact, the more you give away in order to qualify for means-tested benefits, the longer you will have to wait in order to receive them. Under the social security laws, this is called the “look back” period, and it is determined by considering  the amount you have given away and the average cost of care on a monthly basis. 

For instance, if you are looking to help a loved one qualify for long-term care by transferring their assets to yourself, a friend, or another family member, the government will divide the total amount transferred out of your loved one’s estate by the periodic cost of long-term care in the area in which they reside to determine the look-back, or penalty period. For the duration of this period, your loved one would be unable to receive the means-tested benefits. If they don’t transfer the assets out of their estate, then that period of time represents their “spend-down” period, or the period of time in which they will use their own assets to fund their long-term care needs.

Probate & Trust Administration

Probate is the court supervised process of authenticating a last will and testament of a deceased person  (“decedent”), if one was made, and thereafter distributing the decedent’s assets to creditors and inheritors.  Probate is a process that typically lasts 6-9 months depending on the complexity of the estate.

Most states require that anyone in possession of the will upon the decedent’s death must file it with the probate court as soon as is reasonable, after which a hearing is scheduled to determine if the will is valid.  In cases where there is no will, the probate process will still need to be followed to pay the deceased person’s debts and distribute the remainder of their estate.

If the deceased has left a will, it may designate an executor or executors of their estate who will oversee the probate process, including handling any complications that arise, and settling the estate.   However, the named executor is not legally required to accept the position as executor.  If they decline, or if there is no executor named, the court will usually appoint a next of kin– usually a surviving spouse or adult child.  This administrator will perform the same functions as an executor but without the guidance of a will document to execute their duties.

The first task of the executor, whether named or appointed, is locating all the decedent’s assets and taking possession of them to protect them during the probate process.  Protecting the assets includes paying any taxes or mortgages, keeping insurance current, and taking physical possession of any tangible assets until the probate process is concluded.

After locating and valuing all the assets of the decedent, the executor will pay any creditors any outstanding bills left by the decedent as well as filing all estate taxes and tax returns.  The executor may use money from the estate to pay these costs.  After all claims upon the estate have been settled, the executor may distribute the remainder of the estate to the inheritors.

The probate process can be lengthy and complicated, but legal professionals who are well versed in the probate process can assist you in making it go as smoothly as possible.

An executor is a person who is named in a will to be the personal representative of the deceased person, “decedent,” as they distribute the decedent’s estate and pay any remaining creditors.  

If the executor is the person in possession of the will, they must first file it with the probate court which will validate it.

At the beginning of the probate process, it may be necessary for the executor to post bond which will protect the estate in case the executor damages any assets or makes any negligent mistakes which harm the estate.   

The executor is responsible for locating all the decedent’s assets and protecting them during the probate process.  This includes investigating and identifying all potential assets, keeping insurance current, continuing to pay taxes and make mortgage payments, and physically gathering and protecting tangible assets.

The executor also notifies creditors both known and unknown of the decedent’s death to give them the opportunity to file any claim against the estate.  This is typically done through a notice of death published in local newspapers.  The executor can use funds from the estate to pay any final bills or creditors, including any tax returns that are due for the final year of the decedents life, and the payment of estate taxes which are due within 9 months of the decedent’s death.

After making all these necessary payments, the executor will finish his duties by distributing the remainder of the assets  to the decedent’s beneficiaries in accordance with the language of the will

The first decision you will need to make is whether to accept the appointment as executor.  

It is important to know that you do not have to be the executor of your family member’s estate even if you were named in the will.  It is voluntary.  However, if you do not assume the responsibility as executor, the court will have to appoint someone else to be the personal representative of the estate.

If you do accept the designation of executor, you will oversee the process of probate, which includes validating the will, locating and gathering all of your family member’s assets, paying off any remaining creditors, and distributing the remainder of the estate.  You will also be required to protect any assets of your family member until the probate process is completed and the assets are distributed– a process which can take 6-9 months.

Although the probate process can be daunting, you can seek out professionals who can guide you through it step by step to make your temporary responsibilities both understandable and manageable.

The responsibilities of a trustee are significant and must be entered into with preparation and understanding.  A trustee of a trust is a voluntary position in that it must be accepted,  but once the trustee accepts their appointment, they cannot step down as trustee without the total agreement of all beneficiaries. 

Once the trustee accepts their appointment, they are the manager and administrator of the trust.  The trustee holds legal title to all of the trust’s assets and manages them as a fiduciary for the benefit of the beneficiaries.  The trustee ensures that any assets are safe and under their control, managing and investing the assets (if applicable) so that they are productive for the benefit of the beneficiaries. The trustee is in charge of distributing assets in accordance with the terms of the trust, managing any complications that arise, and making decisions with regards to the trust.  Additionally, the trustee must prepare any records, statements, and tax filings that are necessary during the life of the trust and report on the trust activity to the beneficiaries.  

Beyond the mere list of responsibilities, the trustee also has a fiduciary duty that requires them to act in the best interest of the beneficiaries, to show both prudence and loyalty to the beneficiaries, and to demonstrate an objective standard of care in managing the trust assets.

Acting as trustee can be complex and time consuming and may feel beyond your skills and abilities.  Anyone accepting the appointment of trustee must be aware and prepared for its significant duties.  However, there are professionals and advisers who can help you manage these responsibilities so that you can carry them out with confidence and stay clear of any personal liability.

 

Yes, a trustee is personally liable for a breach of their fiduciary duties.

A trustee’s fiduciary duties include a duty of loyalty, a duty of prudence, and other subsidiary duties.  The duty of loyalty means that a trustee must act solely in the interest of the beneficiaries.  The duty of prudence means that the trustee will act according to an objective standard of care when it comes to managing the property.  Other subsidiary duties include not showing favoritism among beneficiaries, not co-mingling trust assets with the trustee’s own personal assets, and accounting and reporting regularly concerning the trust to the beneficiaries.

Any breach of these fiduciary duties will result in personal liability to the trustee and can result in legal action.

Anyone accepting the appointment as trustee should be aware of these significant responsibilities.  Hiring an experienced and trusted adviser can help you avoid these liabilities and fulfill your duties with confidence.

Yes, you can.  There is nothing legally barring a beneficiary from also serving as the trustee; however, this can sometimes complicate things when it comes to fulfilling your fiduciary duties, which require that you put the interests of the beneficiaries above your own interests.  Also, the other beneficiaries may question whether your objectivity is compromised in administering the trust.  This can lead to conflict among the beneficiaries and may result in legal disputes and other negative consequences.

However, being a trustee and a beneficiary does not have to be a bad thing.  If you prepare your trust in such a way that your wishes are specific and executable with little room for interpretation and error, a beneficiary may competently serve as trustee with little risk of conflict. 

Seeking the help of an experienced attorney who can help you set up and structure your trust, or who can help you fulfill your duties as trustee, will minimize the risk of potential conflict.

Business Planning

Business succession planning is making the arrangements and preparation necessary to pass on your business either to a family member or to an interested buyer.

Only about 1 in 4 privately held businesses have a succession plan in place.  And yet, because no one remains at the helm of their business forever, succession is inevitable and should absolutely be planned and prepared for. A succession plan will minimize disputes among owners and family members and will facilitate a smoother transfer of ownership.   Other benefits from succession planning include reducing or eliminating estate and income taxes, facilitating the retirement of current leadership, and retaining control through the process rather than leaving it up to chance or circumstance.

Since you likely want your business to outlast you, planning for its succession is the mark of a wise steward.  Putting thought into what that transfer will look like and who or what you want to take over your business will give you peace of mind about the future health and longevity of your business.

There are many things you can do now to improve your chances at selling your business for a profit to the right buyer.  Some of them are quick and some require a lengthier effort.  But all of these steps will work for your benefit as you lay the foundation for a successful selling strategy.  

1.  Get your business appraised and realistically know its value.  Prospective buyers will either ask for one or order one.  If you have an appraisal already to show them, it lends to your credibility.  

2. Make your business profitable.  It seems common sense, but a profitable business is more likely to sell than a business operating at a loss.  Sell when your business is doing well and things are running smoothly.  If there are improvements you need to make to increase profitability, then make them.  If you are having trouble identifying how to make your business profitable then you should hire an adviser or business consultant.  

3. Renew and amp up your brand.  Make sure it is clear and consistent and reflects the strengths of your business.  Just as you would if you were preparing to sell your house, you will want to make any updates or remodels to your business that will make it look and feel more appealing and polished.   You also want to give the impression that your business is current with the times and trends.  This could include revamping your brand, updating your website, and improving your search engine optimization.  Chances are, prospective buyers will be looking up your business online and those initial impressions matter.

4. Increase your online social presence.  Prospective buyers are not just buying your business, they are buying your clients as well, and showing them a robust networking presence gives validity to the future health of the business.

5.  Choose the right timing.  Watch the economy and the business market.   When it comes to selling your business, timing is everything.  If you have the ability to wait for the right timing, you can sell when the economy is doing well and your business is doing well, and get the best price for your business. 

Yes they should.  

Taking out life insurance on the owner of a private business is part of smart planning for the continued life of the business.   Life insurance allows for business partners and employees to be able to count on their job and the business to survive even if the owner becomes incapacitated or passes away.  How much life insurance the business takes out on you will depend on your industry, the size of your business, the number of employees who work for you, and the amount of revenue you do in a year.

There are several ways to protect your personal assets from business risks and liabilities: 

1. You can choose the right entity for your business.   Corporations and Limited Liability Companys (LLCs) can protect you in a way that a sole proprietorship will not in the event there is a lawsuit against your business.

2. You can take out business insurance.  This should be planned for and budgeted from the beginning of your business.  The kind of insurance you take out and the amount will be a reflection of the kind of business you have and the type and amount of assets you own.

3. Keep you work and business assets separate, and also separate your personal assets from those of your spouse.

4.  Move your assets into legal vehicles that enjoy protection from lawsuits, such as trusts with named beneficiaries.

Our team can help you decide how to structure your business, what kind of asset protection plan to employ, and what kind of insurance will best protect both your business and your personal assets.  

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