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TRUSTS & WILLS
PROBATE & ESTATES
TRUSTS & WILLS
PROBATE & ESTATES
While many of us may think actual physical abuse is rare and that elder abuse is limited to actual assaults, the truth is that neglecting or financially exploiting the elderly are some of the fastest growing crimes in the State of Utah.
Statistics provided by Utah Division of Aging and Adult Services shows that up to $1 million a day is stolen from senior citizens in Utah. This problem is growing and not getting better. The amounts stolen from the elderly has increased 50% in just a two year period. Law enforcement indicates that this growing problem is a result of a generation who want to do anything to help their children and grandchildren and a growing amount of grandchildren and younger people unable to support themselves or find permanent employment.
More and more often, children and grandchildren are living with elderly parents or grandparents creating more opportunities giving rise to financial exploitation. Aging and Adult Services reports that 57% of seniors have money stolen by family members. Broken down, the findings show thefts are 40% by children, 13% by grandchildren and 4% by other relatives.
Top 3 Ways Seniors are exploited:
1. Deeding their home to a relative. This is problematic because the senior may get kicked out of the house because they no longer control it. The home may get repossessed if the recipient mortgages the property or has lawsuits or creditors.
2. Setting up relatives to “sign” on financial accounts. Utah law states that someone added as a signer on a bank account becomes a joint owner in most situations. This means the account belongs to the relative as much as the senior. This gives full access to the “helper” to spend money from the account and blurs the lines of what the senior is paying for and what the helper is paying for. Law enforcement reports a recent case of a child purchasing a $95,000 motorcycle for his 92 year old mother.
3. Beware of financial power of attorney. These documents can give unlimited power to a helper including power to sell the house or change the deed, car and banking accounts. This creates temptations for people with financial problems.
Solutions are creating documents for seniors in advance of declining mental or physical health with safeguards and monitors from other family members. Utah’s Adult Protective Services is the state agency charged with investigating abuse of the elderly. APS investigated 6,105 allegations of elder abuse in 2014 according to a recent Clipper article by Becky Ginos. Ninety percent of the abuse involved family members and goes unreported.
Utah Elder Abuse statutes contains mandatory reporting requirements. Meaning that if anyone even suspects abuse or financial improprieties between a senior of 65 years of age or older and another person, the suspicions must be reported. All reports are confidential and can eliminate concerns for legitimate situations. It is better to be safe than sorry, is the spirit of the statute. It is going to take a concerted effort of church leaders, family members, law enforcement, senior service providers, financial institution employees, medical community and the legal profession to step up and report and investigate situations that raise eyebrows in order to stop this horrible trend.
All suspicions of abuse, neglect or exploitation of vulnerable adults can be made to Adult Protective Services by calling 1-800- 371-7897 statewide and made easier now with online reporting. Visit http://www.daas.utah.gov. For prevention and legal planning please see an elder law attorney in your area for assistance with powers of attorney, trusts to hold property, wills or health care directives.
Many homeowners, trying to outsmart the system and avoid probate, have been known to execute a deed to their loved ones that is kept hidden, only to be produced at death.
Since probate can be expensive and time consuming, many property owners have been advised to draft a deed to their children. Instead of recording the deed immediately, the deed is held until death and often left in a “dresser drawer,” so a family member or representative can find it and record it later.
While this trick seems clever, and while it may not be technically necessary to record a deed to make it valid, a silent deed or pocket deed may not be valid if it has not been delivered to the new owner.
Elder law attorney Robert Anderson, as reported by Wealth Management, lays out the dangers of silent deeds and why there are better options to avoid probate.
The first problem is that there is a chance the deed may be lost or destroyed. In this case the property would go to probate and the decedent may have no say in who receives the property.
Medicaid may create a different problem. If an elderly person who has executed a silent deed applies for Medicaid and fails to report ownership in the home, this omission may serve as the basis for a medicaid fraud claim if the deed was not delivered to the recipient prior to death and reported on the Medicaid application properly.
The bigger issue these days is the loss of the step-up cost basis for the property that would otherwise have likely eliminated capital gains taxes on the post-death sale of the property if the transfer is deemed to be a completed gift.
Ultimately, the old adage applies “if the trick is too good to be true, it probably is”. There are many other very affordable estate planning options that will avoid probate and allow favorable basis treatment, such as revocable trusts and life estate deeds.
Silent deeds are rarely productive in the end. Before setting about on a plan for you and your loved ones, seek legal advice from a qualified elder or estate planning attorney.
ONE EASY FINANCIAL FITNESS RESOLUTION THAT YOU NEED TO MAKE!
By Robyn Walton
ANSWER: A very easy financial fitness goal for the new year is to Check Your Beneficiary Designations on all of your financial accounts.
Most of us only think of naming beneficiaries when we set up a new bank account or when we start a new job. It is easy to accidentally skip the designation process and think "I’ll figure it out later".
Unfortunately, if you have no beneficiary designation listed on your bank account, life insurance, investment or retirement plan, that account is likely to have to be probated when you die. Probate is a court process which determines who is entitled to control the asset and who receives the asset.
Retirement Accounts: If you are married, it is important for income tax reasons to list your spouse as your beneficiary first. On your death this means that your spouse will be able to "rollover" your retirement funds into their own account without it being taxed as a distribution (subject to required minimum distribution rules). Even if you wanted to name someone other than your spouse as a beneficiary federal law requires your spouse as a beneficiary, federal law requires your spouse to consent in writing to naming another person. You should always name a contingent or secondary beneficiary in the event your first beneficiary dies.
Bank Accounts, Life Insurance or Investment Accounts: You should be able to name primary (first) and contingent (second) beneficiaries on all of these types of accounts. This is where beneficiary designations can get tricky. If you want your account to be distributed next to your children in a certain proportion, you need to carefully list the shares and include terminology about what happens to a share if a child has predeceased you.
However, be very careful. A minor or disabled child should not be listed as a direct beneficiary on any of these types of accounts. Such a distribution may require the appointment of a court ordered Guardian or may disqualify a disabled child from government benefits (Social Security Disability and Medicaid).
The Effect of Divorce: Unbeknownst to many, a divorce does not automatically void your previous beneficiary designations according to Federal Laws. A recent case illustrated this problem: Mike Jones, divorced for 15 years, unexpectedly recently passed away in his 50's. Mike never changed the beneficiary on his group term life or 401k at work after his divorce. Mike believed this money would go to his children but the accounts were paid to the former wife named on the beneficiary form, notwithstanding a state law to the contrary. Mike’s kids will have to sue their mother to get the funds.
Naming beneficiaries is an important part of a detailed estate plan and should be determined based upon whether you have a will or a trust and the particular needs of your family’s situation.
Please seek qualified advice from an elder law attorney before making changes to your beneficiary designations.
By Robyn Rowe Walton
Since Marlon Brando died in 2004, his estate has been involved in more than 24 lawsuits concerning his will and who is entitled to his fortune. Many of the disputes regarding Brando’s Last Will were finally resolved in 2013. John Lennon’s 220 million £ estate has been in litigation for 16 years leaving a meager amount left over for his son Julian. Ray Charles’ children have been in dispute for more than 11 years since his death in 2004. And of course don’t forget Howard Hughes whose estate was finally liquidated in 2010, thirty four years after his death!
Most of us won’t have the million dollar estates to worry about like these celebrities, but nevertheless there are necessary steps to help our loved ones avoid court battles before and after our deaths. Here are 5 easy, inexpensive, and preventative legal documents every senior should consider to be legally healthy!
Health Care Power of Attorney: In the event you are unable to communicate due to an accident, a stroke, permanent disability or a long term illness, you need to have signed a document appointing someone to be your health care representative. This document should include a privacy (HIPAA) release so that physicians and hospitals can speak freely to your agent about your condition and medical records.
Right to Die or Living Will: If you feel strongly about NOT being kept alive by life support if you should become terminally ill and/or vegetative, then you must execute a document indicating your wishes in writing. Simply stating your wishes to your loved ones is usually not enough in order for doctors and hospitals to rely upon. This document should include your wishes concerning artificial feeding tubes as opposed to simple pain and comfort measures.
Durable Financial Power of Attorney: If you should become disabled, have a sudden accident or even plan on going out of town for an extended period, you need to name an individual who has your permission to sign your name, speak on your behalf, open your mail, pay your bills or deal with your insurance. Your attorney can advise you whether a springing power of attorney or immediate power of attorney is best for your situation.
Living or Family Trust: A living trust can eliminate the need for probate (a court process to validate a will after you die). Setting up a trust usually costs less than half of the cost of the average uncontested probate. If you set up a trust, you should transfer your assets into your trust either directly or through beneficiary designations to avoid probate. Most common trusts allow you complete control and ownership over your assets and do not require special tax filings or disrupt your mortgage requirements.
Property Agreements: In second marriages, it is a good idea to outline what happens to property that was owned separately before the marriage. Many couples want to preserve assets from their previous marriage for their children, while perhaps creating the right to live in a home for the new spouse. Property agreements need to be coordinated with existing wills or trusts to insure there are not conflicts in the documents.
Set an appointment with your Elder & Estate Planning lawyer today to discuss whether your estate planning documents are current, complete and correctly state your wishes.
BY ROBYN WALTON
One incredibly important conversation you need to have with your family is: Where do you want to live and who do you want to care for you if you can no longer do all of the basic self-care tasks on your own?
Failing to make a plan about your specific wishes concerning your living arrangements – before becoming disabled – can be devastating to your family.
Let me share two hypothetical examples:
Jim’s son Kevin moved in with Jim after his wife died. Kevin’s family helped Jim with yard work, meals preparation, cleaning and laundry. As Jim’s health declined, Kevin’s family also had to help with Jim’s medications, dressing, bathing, shopping, and all of his driving.
Jim told Kevin he wanted him to get the house after his death or at least have the option to buy it at a lower price. But nothing was ever written down.
After Jim’s death, his trust required the assets to be distributed equally to all of Jim’s kids and no mention was ever made for Kevin to receive the house or buy it at a discount.
Paul has been widowed for many years and no longer felt able to live on his own. He asked his youngest daughter, Kathy, and her husband to move in with him.
Paul signed his house over to Kathy with a Quit Claim Deed and put Kathy on his checking account so she could pay the bills.
Even though Paul left a will stating he wanted his estate to be divided equally amongst his kids Kathy got the house and rationalized that the house was compensation for taking care of her father.
What’s the solution to what ended up becoming big problems?
• Take the time now, while you are healthy and have a clear mind, to discuss your plan candidly with your loved ones, and how your financial situation may affect that plan.
• Draft written documents with a qualified Elder Law Attorney to memorialize your plan either in a “Caregiver Agreement” or by making changes to your existing will or trust.
• Sign a Durable Power of Attorney and Medical Directive that authorize a trusted loved one to make decisions hire/pay caregivers.
Don’t leave important decisions to chance like Jim and Paul. Have the tough conversations now about these hard decisions while you are still mentally and physically able to deal with these issues.
To locate a qualified elder law attorney visit naela.org.
By Robyn Rowe Walton
Attorney at Law
Many of us believe that what our Last Will & Testament or “Verbal Instructions” to our family controls what happens to our “stuff” (property and assets) when we die. Unfortunately, when it comes to real estate what your Deed says is what matters! Most people believe they don’t have a deed until their home is paid off, but the truth is that you likely received a deed after purchasing your home. Now is a great time to get your deed out and find out if you have made this mistake:
THE TRUE COST OF PUTTING YOUR CHILD ON YOUR DEED CAN BE DEVASTATING.
PROBLEM: When you add another person to your deed they legally become a co-owner under Utah law; meaning that you have effectively “gifted” that person a portion of that asset; such a transfer often violates terms of your mortgage or can prevent you from being able to obtain a reverse mortgage later in life (if the person is not over 65 or does not live with you).
If you put one of your adult kids on your deed and they later have a legal problem such as credit card debt, bankruptcy, tax lien, divorce, business debts or an accident not covered completely by insurance, the “share” of the property that you gifted to your child can be at risk for foreclosure by the child’s creditor.
The more serious problem is that when you die the person you have named on your deed will receive the entire property if you have named them as a joint tenant. A joint tenant typically has no legal obligation to share jointly held property with the family of a deceased tenant and the will of the deceased owner often has no effect. This disparity between the will and the deed often creates contention and difficulties of “sharing” and fairness with many families.
Another costly problem of adding a child to your deed is capital gains taxes due to appreciation. If your property is sold after your death, the co-owner will likely have to pay substantial capital gains taxes to the IRS if your property has increased in value since purchase. Capital gains tax can amount to 22% or more (considering Federal and State income tax rates) of the appreciation in your home when it is sold if the co-owner is not eligible for the residential capital gains tax exclusion.
SOLUTION: IRS Code Section 1014 allows your home to receive a new tax basis equal to the fair market value of the property at your death. Therefore, if you own your home at death and your home is sold for the date of death value there is no capital gains tax to your loved ones. To obtain this “step up basis” you must leave your home through a trust that you own or through your estate. If you pass your home through your will or intestacy (no will) your family will incur probate costs (on average $2,000 minimum). However, if you place your home in a simple trust that you own until death, that then distributes at your death to your children, your children may take advantage of the “step up basis” and sell your home “tax free” and without probate costs when you are gone.
Last month Sara Jensen took her husband to the hospital for a check-up and evaluation for advancing stages of Alzheimers. The hospital staff would not allow Sara to accompany Jack to the evaluation room and she was not allowed to speak to the doctor about Jack’s treatment plans. Why? Jack had not signed a Privacy Release and his Alzheimers, although not advanced, was apparent enough that medical staff did not think Jack had the legal capacity to sign the release. Sara was told that in order to participate in Jack’s medical care and treatment plan and continue as his primary care giver, she would have to go to court and obtain guardianship. Guardianship would allow Sara to make medical decisions, participate in medical treatment planning for Jack, and have access to Jack’s medical records to find out what the doctors have told Jack about his condition.
HIPAA is the acronym for the Health Insurance Portability and Accountability Act of 1996, 42 USC 1320d. The much touted privacy rules of HIPAA took effect on April 14, 2003, and emphasized the “minimum necessary” guidance of HIPAA. The regulations stress that providers must undertake “reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure or request.” HIPAA established the following penalties: For each disclosure violation there is a $100 fine. If the violation is knowing, criminal penalties are $50,000 and up to one (1) year in prison. If information is provided or obtained under false pretenses there is a $100,000 fine and up to five (5) years in prison. If the wrongful sale, transfer or use of the information is for commercial advantage there is a $250,000 fine and up to ten (10) years in prison. It is not surprising that Jack and Sara’s medical staff and other healthcare professionals, hospitals, pharmacies, and insurance companies are scrambling to comply with the rules to avoid being fined or jailed if they inadvertently release healthcare information to an unauthorized person.
Jack and Sara’s problem could have been immediately avoided had they previously executed simple but powerful Health Care Powers of Attorney with standard medical record releases containing HIPAA language required by the regulations. Most medical powers of attorney cost less than $100 per person and authorize someone to be your health care agent. Be careful that you understand whether your medical power of attorney (POA) is a “springing” POA that takes effect only upon your incapacity as determined by one and often two physicians. HIPAA regulations have created a Catch-22: A person cannot become your agent until incapacity has been established and yet a person does not have access to your medical records required for an incapacity finding by a physician.
If your medical power of attorney is an “immediate” POA then you have inadvertently put your agent in charge of your medical decisions and treatment plan before you become incapacitated and you may have created a conflict if YOU want to make your own healthcare decisions as long as you are able to communicate. The right solution for you is a carefully drafted Health Care Power of Attorney with “springing” medical decision-making but interwoven with “immediate” HIPAA releases to your agent of choice.
You and your attorney should discuss these options and evaluate what is right for you in order to be certain that your power of attorney does what it is supposed to do. Standard financial or durable powers of attorney from any general store or shop usually do not contain satisfactory language to operate properly under these new regulations and often do not discuss alternate agents in case you and your spouse are disabled or injured at the same time. Everyone should have a separate Durable Power of Attorney for finances to enable a loved one to sign your name in financial matters, checks or insurance claims.
Robyn Rowe Walton, of Rowe & Walton PC is an Elder Law Attorney, member of the Utah State Bar, and member of the National Academy of Elder Law Attorneys. Robyn earned her law degree from Gonzaga University Magna Cum Laude; Post Graduate Alternative Dispute Resolution Certification and Bachelor of Science Degree from the University of Utah. Robyn worked as a paralegal to retired trust and estate planning attorney Del B. Rowe from 1985 to 1995. Robyn lectures on the basics of estate planning, wills, trusts, joint tenancies and more. Her office is located at 915 South Main Street in Bountiful, Utah and she can be reached at 298-0460 or toll-free 1-800-748-4144. Rowe & Walton PC offers free telephone or office consultations in matters concerning estates, trusts, probates and wills. General questions can be posted to firstname.lastname@example.org Please ask about our FREE brown bag seminars for your group or business.
 45 CFR 164.502(b) & 514(d)
 Drafting Health Care Powers of Attorney to Comply with the New HIPAA Regulations
by Thomas J. Murphy, Esq. NAELA News August 2003, Volume 15, Issue 4
Many newly divorced or widowed adamantly state that they will never marry again. However, the number of elderly marriages has increased dramatically in recent years. The National Healthy Marriage Resource Center reports that improved health later in life allows older adults greater socialization and mobility, who also value their freedom and independence. Living in their own home fosters the desire for remarriage amongst the elderly. Changes in Social Security Laws and other retirement programs no longer penalize the widowed for remarriage later in life.
Research shows that a healthy marriage in later life contributes to a higher quality of life for older people which can reduce loneliness and depression. Married people have the double benefit of better health overall and a spouse to act as primary care giver in times of poor health. An estimated half million people over 65 in the U.S. remarry each year. Of seniors who had lost a spouse, those who remarry display higher levels of life satisfaction after 2 years than those who lost a spouse and did not remarry.
Marriage the second time around is not without its problems. Author Terri P. Smith’s book “When Your Parent Remarries Late in Life” discusses conflicts that arise over sharing time between step-families, family rituals, prized possessions, inheritances, living arrangements, care giving and illness, and even holidays and vacations. Not only do later in life newlyweds need to navigate their own relationship issues, but each new partner often brings to the marriage existing family structures and learned dynamics, including friends, neighbors, religious systems, and money issues.
The minute you say “I Do” in the State of Utah, both parties acquire a set of legal rights and obligations that neither often even knows about, let alone discuss. Many questions can arise after the honeymoon: Whose house will we live in, how will we divide the living expenses, what happens if one or both of us has to go to a rest home or dies? What rights do adult children or other family members have if someone gets sick or dies? All raise delicate questions few couples resolve before they tie the knot.
In 1994 the Utah legislature adopted the Uniform Premarital Agreement Act recognizing the validity of properly executed prenuptial agreements (Utah Code Title 30 Chapter 8). Since that time many have learned the importance of defining a couple’s property and money rights before they marry. Prenuptial agreements no longer carry the stigma and negative connotations that couples don’t trust each other. Today a typical prenuptial agreement should address how household income and the parties’ separate properties will be handled during the marriage with a view towards disability or death rather than an emphasis on possible divorce.
Since existing estate planning documents can be altered by Utah laws once you remarry, a complete estate analysis should be completed with you and your prospective spouse to be sure there aren't any unexpected results. For example, a will executed prior to a subsequent marriage can be altered or voided by state law. Every new couple should have current medical and durable powers of attorney so it is clear who makes medical decisions and opens mail, etc., should one become ill.
Every couple marrying again should look into setting up a premarital agreement several months before the wedding. A basic prenup is affordable and give you the security to know your assets will pass to your desired heirs.
For more information on how a premarital agreement or complete estate analysis can benefit your family, please contact your local elder law attorney.
Robyn Rowe Walton of Rowe & Walton PC
practices law in Bountiful. She can be reached
at 801-298-0640 and is a member of the
National Academy of Elder Law Attorneys,
the Utah State Bar, Estate planning & Tax Section
Davis County Bar and Women Lawyers of Utah.
TRUSTS VS. WILLS
Which is Right for You?
Question #1: Should you have a trust or a will and what’s the difference?
Answer #1: A Will is a document that is signed in compliance with certain state law formalities which disposes of your real and personal property. A will takes effect after your death and must go through a court validation process called probate.
A trust is legal entity created by a grantor for the benefit of designated beneficiaries. A trust takes effect the moment it is signed and does not require probate to be active.
Usually, a trust offers the best overall benefits: a trust costs less in the long run than a will because the will must go to probate; a trust is a private contract where a will is filed as a matter of public record; a trust allows immediate access for loved ones on death or incapacitation where a will and probate proceedings usually takes on average 6 months to 2 years to complete.
Question #2: Why not just put my children’s names on my house, investments or banking accounts?
Answer #2: First, minor children cannot legally own real or personal property, so if your kids are minors they shouldn’t even be named as beneficiaries on your life insurance or retirement accounts or it may be necessary to file for the court to intervene for your children to access such assets.
Second, if your kids are sued, file bankruptcy, have an IRS tax lien or unpaid child support obligation, their creditors can attach your assets.
Finally, there are serious income tax consequences if you’ve added your children’s names to your home or appreciated properties that can impact both your income taxes and their’s when these assets are later sold.
Question #3: Can’t I just sign a “power of attorney” over to my spouse or my children so they can transfer my assets on my death or incapacitation.
Answer #3: No. A power of attorney “dies” when you die having no effect whatsoever after your death. A power of attorney, must be carefully drafted or it may not authorize your agent the power to transfer or sell real estate. Regardless, a power of attorney only authorizes your agent to use your “stuff” for your care and not necessarily to give it to others.
Question #4: Can’t I just put my children’s names as beneficiaries on my life insurance or retirement benefits?
Answer #4: It is possible to pass your life insurance or retirement benefits to adult children without probating your will. However, if your adult children die, become incapacitated or are receiving government benefits such as Medicaid or disability income this can jeopardize their benefits. Children under 18 cannot receive a share of a life insurance policy or retirement account outright. Someone (guardian, grandparents, aunts or uncles) must file for a conservatorship for each under age child; the money then goes into court-approved accounts which the court must annually review and authorize expenditures until the child is 18.
For a free estate analysis and consultation call 298-0640.
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