Klitzman Law Group, PLLC

SCOTUS Pick and Elder Law

President Trump's nominee to the Supreme Court could play an important role in shaping elder law in the U.S. He has written a book on one current controversial elder law issue.

When President Trump announced that he was nominating Neil Gorsuch to be the next justice of the Supreme Court, attention immediately turned to two subjects.

The first was Gorsuch's previous decisions as a federal appellate judge and how those decisions might point to what he would do as a justice at the nation's highest court. The second issue concerned his chances of being confirmed by the Senate, especially considering Democratic anger over the lack of a vote on President Obama's nominee for the open Supreme Court seat.

Gorsuch's opinion on elder law issues have received very little attention by comparison. However, he does have an opinion on an important and very controversial elder law issue.

This was reported by the Wills, Trusts & Estates Prof Blog in "Neil Gorsuch May Help "Death with Dignity" Legislation."

In 2006, Gorsuch published a book on physician assisted suicide. He is opposed to the idea and would outlaw it. He does, however, believe that a patient has the right to refuse life-sustaining treatment. He would just stop short of allowing a terminally ill person to choose to end his or her own life with the help of a doctor.

With more and more states adopting or considering adopting laws allowing physician assisted suicide, Gorsuch's opinion on the issue could be important, if he is confirmed as the next justice of the Supreme Court.

Will Fraudster Caught

A bizarre case in Arkansas highlights how money can give people the incentive to create fake wills and that they can be caught.

Matthew Seth Jacobs was on an oil rig when the Deepwater Horizon disaster struck. He was caught in an explosion and suffered extensive injuries. After filing a lawsuit, he eventually reached a multimillion dollar settlement with the company.

The story did not end there.

Jacobs used some of that money to purchase a home with the help of Arkansas real estate agent Donna Herring. Herring had plans for the rest of money. She pushed her teenage stepdaughter on Jacobs and eventually the two became engaged.  However, the extent of their actual relationship is unknown.

Jacobs was later driving to the home of a different girlfriend, when he was in an accident. He did not recover from his injuries. Herring then produced a will that left all of Jacobs' assets to her stepdaughter, even though she never actually married Jacobs.

At first the scheme worked, but new evidence was later found that showed Herring may have fraudulently created the will. She now faces multiple charges.

Arkansas Business has more on this case in "Fake Will Scheme Puts Camden Real Estate Agent in Hot Water."

This case illustrates the lengths that some people will go to when large sums of money are involved. It is particularly tragic in this case, since the victim had previously been the victim of a horrific tragedy and the fraudster involved her teenage stepdaughter.

Probate over Atlanta Woman's Estate Stalled

ds

A high-profile case involving the estate of a wealthy Atlanta businesswoman is currently stalled, as other legal battles play out around it.

Diane McIver was a well-known and wealthy businesswoman from Atlanta. In the fall of 2016, she was sitting in the front passenger seat of a vehicle being driven by her friend. What happened next is disputed and has been the subject of considerable media speculation in Georgia.

Her husband Claude McIver was sitting in the vehicle directly behind her. He claims that he had a gun in his lap, because they were driving in a bad neighborhood. According to him, the car hit a bump in the road, which startled him and caused him to accidentally discharge the weapon killing his wife. The driver of the vehicle says the car was stopped, when she heard the gun go off.

Claude McIver has been charged with involuntary manslaughter.

If that was not enough to make administering the estate difficult, one of Diane McIver's companies is suing her estate. The company claims that it loaned $1 million to one of her other companies that she personally guaranteed.

This story is reported by Private Wealth in "Estate in Limbo after Atlanta Man Is Charged with Killing His Rich Wife."

The exact details of Diane McIver's will are not known.

Ordinarily, her husband would be entitled to some portion of her estate. However, people who kill someone are not typically allowed to inherit from their victims. That would mean that another heir would need to be found.

Of course, depending on the results of the lawsuit filed against the estate by the company, there might be nothing left for anyone to inherit. This is especially true, if more debts are found to exist.

Regardless, this case will give the media in Georgia something to talk about for a long time.

Have You Really Talked to Your Children About Your Finances?

For most estate plans to go well, it is important that parents talk to their adult children about the family finances. While many parents claim that they do, the children say that they do not.

Estate plans often have many complicated pieces,  since they reflect the complicated nature of people's finances. Those who are not financial experts, often have problems dealing with the complexity of handling an estate, if they have not been told beforehand what they will be dealing with and how to handle it.

For this reason, estate planning attorneys normally advise their clients to have an in-depth conversation with their children about their finances. If the children are going to be called upon to act as a power of attorney in the event of incapacity or to administer any portion of the estate, then they need to know what to do before they need to do it.

Forbes reports that those conversations may not be happening nearly enough in "The Last Taboo: Your Parents Still Won't Talk About Their Money With You."

A total of 70% of parents report that they have had detailed conversations with their children. However, only 50% of their children report that those conversations have actually taken place.

What this suggests is that while parents might be giving what they think are detailed explanations about their finances, the children still have questions that should be answered.

It is important not to assume that your children know what they are supposed to do from a brief overview. Invite them to ask questions and answer any that they have.

Reference: Forbes (Jan. 31, 2017) "The Last Taboo: Your Parents Still Won't Talk About Their Money With You."

Even Young People Need to Prepare for Death

It does not matter how young you are and how close you think you might be to death. If you are an adult, then you need to have financial plans for what happens after you pass away.

When you are young and healthy, it is not common to think a lot about your own death. You would be correct to assume that you will not die anytime soon. However, you would not be safe to do so.

Illnesses and accidents can strike anyone at any time. They do not spare the young and healthy. Because of this, you should plan for what happens after you pass away.

It does not have to be too difficult.

Recently MarketWatch offered some tips in "Prepare financially for your death, no matter how young you are," including:

• Get medical and financial powers of attorney. These documents will enable someone you designate to handle things and make important decisions, if you are incapacitated and unable to do so.
• Get a will. If your finances are not complicated, you might not need a complicated estate plan, but you should at least have a will.
• Get life insurance, if anyone is financially dependent on you so they will be taken care of, if you pass away.
• Put some money aside for a funeral, so your family does not have to pay for it.
• Keep your financial records organized so someone else can figure things out in an emergency. Let someone know where to find everything as well.
• As things change in your life and your finances get more complicated and bank accounts get larger, review and update your estate plan to reflect your current situation.

Gifting to Children Can Be Done Incorrectly

As much as you might want to help your children by giving them money they can use, it may be best to hold off and seek advice to make sure that you are doing so in the best way.

Most parents like doing nothing more than helping their children when they can and when the children deserve the help. Parents often understand that when their children are getting their careers and lives started, they might need some financial assistance to help them along the way.

Giving children a little money now, might go a long way to helping the child make a lot more money later. However, many parents are so eager to give to their children that they do not think through the best ways to make the gifts.

There are bad ways to give to children, as Kiplinger points out in "5 Ways NOT to Gift to Children ... and 5 Better Ideas."

The most important thing to understand is how giving a child something might affect them and you in the future. For example, if you give a child a large sum of money outright and the child gets divorced, it is possible that your child’s spouse and not your child could get part of the money in a divorce settlement.

Another common problem people run into, is naming a child as the joint owner of a piece of property. That can lead to big problems later, if the child has financial problems as creditors can go after the property.

The best thing to do is to be careful and talk to experts before giving money to a child.

Accountants and estate planning attorneys should be consulted to make sure that the tax and estate implications have all been thought through.

Reference: Kiplinger (January 2017) "5 Ways NOT to Gift to Children ... and 5 Better Ideas."

Suggested Key Words: Gifting, Estate Planning

Advice on Personal Items

Most of the estate disputes that get reported, involve large fortunes that are being fought over. In reality, most family estate fights involve much smaller things such as personal items.

You may not realize it, but many of the personal items you have around the house have a special meaning to your adult children. Some items might remind them of childhood memories. Some items might remind them of you. Other items they just might like for one reason or another.

While you are alive, these items are unlikely to cause any problems. However, after you pass away, they could very well cause problems for your estate.

If you have more than one child that wants a particular piece of personal property, there needs to be a way for them to decide who gets it, as Business Vancouver points out in "Wills: Leave'em laughing."

There are several different things you can do to make sure that your children do not argue over your possessions. If you want a child to have something in particular, then you can give it to them before you pass away or you can make specific designations in your estate plan.

Another method is to direct that your children use a reverse draft method. One child picks an item. Then the next child goes and so on. When every child has picked something, then the order of choosing is reversed and they all pick again.

A list could also be presented to each child of all the important items and they can rank them all by preference. The estate executor can then use those rankings to guide the distribution of personal items.

The important thing is that you need to think about the potential problems in your estate plan and have a way for those problems to be resolved.

Reference: Business Vancouver (Jan. 31, 2017) "Wills: Leave'em laughing."

Suggested Key Words: Estate Planning

 

Signing an Inheritance Away. It Happens.

It is every parent's worst fear. A child will agree to give away their inheritance for far less than it is worth for quick money.

Recently, MarketWatch published an advice column with the following question as its title: "My drug-addicted friend signed away his $800,000 inheritance to his brother — now he’s clean, can he get it back?"

The title is an almost complete description of what happened. A reader wrote in with a story about his friend who inherited $800,000 from his father's will. The friend was addicted to drugs and agreed to sign his rights to the inheritance away to his own brother for only $10,000.

Now, that the friend is sober, the reader wonders whether there is any way to get the inheritance back.

The column writer suggests that the friend hire an attorney and sue the brother for fraud based on the premise that he knowingly took advantage of someone who was mentally incapacitated. That might work in some cases.

But not so fast.

There are some states and courts that are not quick to undo agreements that drug addicts voluntarily enter into, especially if it cannot be proven they were high at the time of making the agreement.

This is the type of scenario about which many parents have nightmares, when it comes to their addicted children. Leaving the child an inheritance outright can quickly be lost.

Fortunately, there are ways to avoid the problem altogether without disinheriting the drug-addicted child. A trust can be used to protect the inheritance with a trustee who is granted the discretion to only distribute money when the child is able to handle it.

Reference: MarketWatch (Jan. 24, 2017) "My drug-addicted friend signed away his $800,000 inheritance to his brother — now he’s clean, can he get it back?"

Suggested Key Words: Estate Planning, Trusts

Things that Caregivers Need to Do

If you are going to be a caregiver for an elderly family member, there are some important things that you need to do before you get started.

Being a caregiver for an elderly person is not easy. It takes a lot of time and can come with emotional and financial costs. That is even more likely for people who become caregivers for their elderly family members.

There are a few things that people can do before becoming a caregiver to make things easier.

Recently, Forbes discussed some helpful pointers for caregivers in "4 Critical Things To Do Before Becoming A Caregiver," including:

• Make sure you have all of the elderly person's legal, financial and medical documents. You need to know where the person has their bank accounts. You need to have powers of attorney. You need to know who the elderly person's doctors are.
• Make sure your own finances are in good order. You might want to take some time off of work at the beginning of your caregiving, so make sure that you understand the FMLA.
• Make a personal care agreement with the elderly person. This is a written statement about what the expectations are. While not a legal document, this will help give everyone peace of mind and make the transition easier.
• Have your own support team in place. Caregiving is not easy. Make sure that you have people who can support you when you need it. You should enlist the aid of friends, family and organizations for the elderly.

Reference: Forbes (Jan. 22, 2017) "4 Critical Things To Do Before Becoming A Caregiver."

Suggested Key Words: Elder Law

The Final Estate Tax Battle

Political watchers are eager to see if President Trump and the Democrats will go to war over the estate tax. Some have declared it the final battle in the estate tax wars. Those wars have a long history.

President Donald Trump promised to end the estate tax in his campaign for office. While it is not yet clear whether he will carry through on that promise, many observers in Washington D.C. are wondering if it could lead to the permanent end to the estate tax.

With so much else Democrats object to, observers are speculating whether Democrats will finally capitulate and agree to end the estate tax or whether they will continue the fight. The battle over the tax has been raging for a long time.

The Hill discusses all of this in "Trump vs. the Democrats: Is this the end of the 100 year war over the Estate Tax?"

One of the most remarkable things about the estate tax battle, is that the arguments have essentially remained unchanged for over 100 years.

The Republican arguments against the tax derive from those first advanced by early economists, including Adam Smith. Democratic arguments in favor of the tax are virtually the same as those advanced by Theodore Roosevelt in 1906. If there is to be another fight over the tax in this Presidency, the old arguments are likely to be used again.

Of course, this might not be the final battle in the war.

The estate tax briefly disappeared under President George W. Bush. If President Trump wins and gets rid of it, the tax could come back when Democrats next gain power.

Reference: The Hill (Jan. 12, 2017) "Trump vs. the Democrats: Is this the end of the 100 year war over the Estate Tax?"

Suggested Key Words: Estate Tax