Supreme Court Decision Has no Changes for Civil Union Couples

Sep 16, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning

The recent United States Supreme Court decision in the case of United States v. Windsor effectively ends marriage discrimination on the federal level. It equals the playing field between legally married same sex couples and their traditional counterparts. This decision fully recognizes same sex marriages in the states where they are currently legal. It does not change existing state laws in the states where same sex couples are not legal, or in states where only civil unions are recognized.

This decision will change benefits, rights and responsibilities in over one thousand different areas. Some benefits will be universal, the vast majority will only take effect in states where same sex marriages are legal. Given the large number of programs involved, a wait and see approach is the only viable option now.  Due to the uncertainty over the full impact of the Supreme Court decision, many are advising a wait and see approach to see how the programs involved are effected.

Currently, the State of New Jersey does not allow same sex marriage or honor the status of same sex couples who legally married in other states. There are rumblings of change on several fronts. Lawmakers are potentially reintroducing laws to allow same sex marriage, similar to those previously vetoed by Gov. Chris Christie. Other lawmakers are looking at the option of a ballot measure to achieve the same result.

 

If you have previously established an estate plan to conform to what was existing federal law, you will be best served to let the dust settle. If you have no plan currently, make a plan that will work in today’s landscape. The ink is barely dry on the court’s decision and agencies are going to be under pressure to adapt. Given the volatility of the issue remaining in some circles and the absolute number of issues that must be resolved, this may not be a rapid process.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

A Life Changing Event

Sep 04, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning

The death of a spouse is one of the most life altering events you will experience. The sense of loss and the upheaval in your day to day life is enough. Couple that with the process of unwinding the estate of your beloved spouse. It is little wonder that many experts recommend putting off any irreversible life decisions during the first year following the loss of a spouse.

Many decisions cannot wait. The immediate decisions are conducting and possibly having to arrange funeral services, along with the task of notifying friends and family of your loss. Once the most immediate duties have been completed, you must begin the process of contacting all the accounts that your spouse had business with at their passing. This includes the mundane, like the power and light company and your phone provider. Banks and brokerages, along with any pension and life insurance providers are surely on the list. The executor of the estate, if not you, should be contacted if they are not previously notified of the death. If you are the executor, contact your attorney and accountant

As the probate process reaches its conclusion, and often as it is ongoing, you will also need to update your own estate plan. Your executor, trustee, and primary beneficiary may no longer be available and your needs will have changed. You can make changes to your estate plan in most cases. As your life evolves into a new normal, you can amend your documents. You rightfully should be wary of new people expressing interests in your affairs. If you have current trusted advisers, they should be relied upon to assist you in this major transition.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Understanding the Durable Power of Attorney

Aug 26, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning

In estate planning, the durable power of attorney is extremely important for a number of reasons. It allows you to decide who will step up to the plate and carry out your financial decisions and affairs should you become incapacitated. Needless to say, when deciding who to appoint as a Power of Attorney, it’s a powerful role you’re filling and your decision is one that shouldn’t be made lightly. As estate planning attorneys, we always encourage our clients to give this decision a great deal of thought.

And if I Don’t Have a Durable Power of Attorney?

This is the question we’re always asked when we explain how important it is for estate planning purposes. The answer is simple: if you don’t have one in place, the court appoints a guardian or conservator to oversee the affairs. And guess what? The court may appoint the last person you’d ever expect. That alone is enough to convince clients that they should indeed be the one to make that decision today versus gambling on a judge making the wrong decision tomorrow.

Not only that, but if you become incapacitated and the process begins for the courts to decide, it’s going to cost both time and money – two things your family may not have a lot of if they’re trying to care for your needs.

Further, when you name your choice, that person can move forward with overseeing your estate; however, if a judge names someone, that person may require take every decision to the court prior to anything happening. That may prove dangerous in a number of ways and most certainly, inconvenient in most ways.

A Springing Power of Attorney

A springing power of attorney is one that has a clause that the named person won’t be able to act until or unless it becomes necessary. It differs in that it has that stipulation. Of course, no durable power of attorney is used until it’s necessary, but with the springing clause, there are definitive guidelines that determine or redefine “incapacitated”.   With a Springing POA, these guidelines will have to be met before a POA can be used and may include requiring your incapacity to be certified before doctors.  This can defeat the whole purpose.

Client Concerns

One of the biggest fears clients have is what happens if they appoint someone and then that person drops the ball or goes against everything they promised to uphold? The truth is, it’s always a tough call and yes, there exists the possibility of that scenario playing out. This person, known as your “attorney-in-fact”, will have a huge trust placed on their shoulders, but it also doesn’t take away your rights. It’s important, though, to choose carefully.

Other clients say there’s no one in their lives whom they trust with that kind of responsibility. In those instances, you may wish to allow the court to name someone. As mentioned, those court appointed overseers may have to get permission from the court in every decision they make. That might be a better option for you.

Remember, your first best move is finding an attorney who specializes in financial planning, estate planning and will preparation. From there, you can move forward knowing you’re receiving solid legal advice.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Importance of a Pour Over Will

Jul 25, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Wills & Trusts

If you have already created a revocable living trust, you will still need to have a will. The vast majority of your estate should be in the control of your trust, but there will almost always be some assets that will lie outside the trust. The pour over will transfers your remaining assets to your trust at your death.

When you are using a pour over will, the executor of the estate has one simple job. The executor gathers the assets and transfers them to the revocable living trust. This occurs after the will has been probated. Because the will is optimally addressing a limited amount of assets, the probate process can be completed with relative quickness.

Once assets are transferred to the trust, all distributions will be made by a successor trustee. They are not governed by the probate court. The distribution standards are outlined in the trust agreement. If all of the beneficiaries are able to receive their shares of the trust shortly after the death, the trust will be dissolved then. If any assets are to remain in the control of the trust, it will continue. An example would be in the case of a minor child who will receive their final distribution at age 21. Once that final asset has been transferred, the trust is no longer needed and  can be terminated.

You may think that a will is not needed when most of your assets are already spoken for in your trust. You will still need a will to address any guardianship or custody issues. A will can address items outside the trust that may be of a far greater sentimental value than a monetary one. Lastly, it will complete your estate planning.

 

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Retain Your Reserve Fund

Jul 05, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Retirement Planning, Social Security

Your Social Security check stops when you die. Your financial institution legally must return any payments that are received after you die. Is your family going to be able to weather this major disruption to the household income? Hopefully you are not counting on VA benefits or your federal annuity to close the gap in cash flow; they will stop at the same time. Any other pensions or annuities may also stop depending on the benefactors’ individual policies.

You may still want to hold on to some type of a reserve fund, even in retirement. The well-worn benchmark is to have six months expenses available for emergencies. This may not be realistic for everyone, but it is a good starting point.

Your survivors should contact the appropriate agencies and companies as soon as reasonably possible after you die. This accomplishes several things. First, it will limit potential over payments they may get  which will have to be returned.

Secondly, a surviving spouse may have been receiving a substantially smaller amount from Social Security than the deceased spouse.  This spouse may be entitled to receive more, however, there will be a new eligibility processing which can take time.  By contacting Social Security sooner, unnecessary cashflow delays will be avoided.

 As many are aware, the government is not alone in stopping a payment quickly and restarting any benefits, if available, in a more deliberate manner. Life insurance companies are among the more rapid responders, however they may only process payments on a few days each month. The probate process can also delay final transfer of your estate. Make sure your cookie jar isn’t empty.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Caring for Your Minor Children

Jun 24, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Guardianship, Parents with Young Children

If you have minor children, consideration must be made for their care in any prudent estate plan. If you are survived by the child’s other parent, this parent will normally take custody upon your death. If they have predeceased you, or extenuating circumstances exist, another guardian should be listed in their place.

When you are selecting an appropriate guardian, your personal preferences are important. From your standpoint, you may ask if the guardian is going to raise your child with values that will closely parallel your own. If you are laissez faire in your religious practice, it may be a shock for the children to be thrust into a substantially more devout home. This will be compounded by the fact they have recently lost a parent. Value judgments about the educational and extra-curricular activities should also mirror your own.

Financially, can the guardian afford to care for your children? Will there be enough room in the new home for the children to have an appropriate amount of space to call their own? If your prospective guardian has children of their own, do the children get along well enough to live in the same home?

If you are satisfied with the types of answers you have found, it is time for the most important question to be asked. You need to let your potential guardian and any alternates you may choose know of your wishes. They are under no legal obligation to accept this tremendous responsibility and may decline the appointment. You need to know well in advance so alternate plans may be fashioned. Once suitable guardians are determined, consult your estate planner to make sure your plans are properly stated.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Protecting Children From a First Marriage

Jun 24, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Wills & Trusts

Many decisions in estate planning require balancing competing interests. You want to provide something for everyone. You choose to provide for your surviving spouse for the remainder of their life. You want to ensure that when your surviving spouse passes away your assets pass to your children.  A Qualified Terminal Interest Property trust allows you this control. Your surviving spouse benefits from the income of the trust or the use of the property during their lifetime. Upon your spouse’s eventual passing, the assets of the QTIP trust will transfer to beneficiaries of your choice.

You must be married to set up a QTIP trust and it is often part of a more complex estate plan. Proper planning will be required to ensure that any assets passing outside the QTIP Trust, will further be consistent and not detract from your estate planning goals. The residual beneficiaries of the trust may need assets immediately, so those assets would be outside the trust and you may decide to also benefit your spouse beyond just the trust assets.

Once you have decided to establish a QTIP trust, you are protecting all beneficiaries to some extent. Your spouse can use the assets of the trust and no one can take away this use. When your spouse passes away, the remaining beneficiaries are guaranteed to get what you have designated to them.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Estate Planning for the Young

May 20, 2013  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning, Wills & Trusts

You may not think that estate planning has a place on a college campus outside of the university law school or the MBA program. You may wish to rethink that proposition. The vast majority of college students are adults and the remainder are on the cusp of adulthood. Keep in mind, not all estate planning is about protecting vast estates.

Realistically, your concerns in college will relate to getting into the classes you want at the least disruptive times. As a young, invincible college student, you have most likely given zero thought about what will happen if you are in an accident. You may not be able to state your wishes for care and because you are an adult your parents can no longer make the decision. This is why you need an advance health care directive appointing someone to make health decisions for you.

Another aspect of an advance health care directive is the living will. Simply put, this part of the document clearly states your wishes with regard to what life saving procedures you would want. It can also address the issue of organ donation if it has not been previously noted on your driver’s license.

The last thing you are thinking of as a young adult is your will. You may not need to worry about minimizing estates taxes, given that you more than likely would have a small estate.  In the event that you do pass away, your parents are already suffering from the most unspeakable tragedy- and, add to that the issue of dealing with the mess you left behind because you didn’t leave a Will.  You may not have very much right now, but anything you own, like your car, savings bonds from Aunt Edith, etc. must be left through a Will.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Why Is Your Estate Planning Attorney So Important?

May 09, 2012  /  By: Roger Levine, Estate Planning Attorney  /  Category: Estate Planning

In today’s digital age, legal forms can be found in the click of a few buttons and downloaded for a relatively small fee. As a result, people often think that there is no real need to retain the services of an attorney for many legal matters. While this may be true in some cases, when it comes to estate planning, nothing could be farther from the truth. Here’s why:

Estate planning is complicated. Often numerous goals must be considered at the same time when creating an estate plan.

State laws vary. Wills, trusts and estates are governed by state law, meaning that the law in one state may not be the same as in another. Generic forms may not account for the changes in state laws.  Also, decisions affecting family  members are best discussed with a qualified estate planning attorney who is skilled in tax law, trust law, probate law, as well as dealing with family members.

Laws change. Laws of all kinds are subject to change. Laws relating to wills, trusts and estates change often, making generic forms outdated in many cases.

Estate planning requires an understanding of not just the law, but state and federal taxes as well.

An error in your Last Will and Testament could cause your estate to be distributed under state intestate succession laws which could bear no resemblance to your actual wishes.

Trusts are not “one size fits all”. Although you may be able to get a general idea of how a trust works without the help of an estate planning attorney, deciding which one is right for your needs is not that easy.

There is no second chance in estate planning. By the very nature of the purpose of an estate plan, by the time it is discovered that a mistake was made you may no longer be here to correct the mistake.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.

Will I Qualify for Medicare or Medicaid?

May 07, 2012  /  By: Roger Levine, Estate Planning Attorney  /  Category: Uncategorized

If you are rapidly reaching retirement age and are concerned that you will not be able to keep your current healthcare coverage, you may be wondering whether either the Medicare or Medicaid program can help. Chances are that one or the other will certainly help with your healthcare costs; however, neither program is prefect.

Qualifying for Medicare is easy. Anyone over the age of 65, as well as some people under 65 with a disability, are automatically eligible for Medicare. Your income and assets are not factored in to a Medicare application. In addition, since the Medicare program is both funded and administered by the federal government, the benefits of the program are the same for everyone without respect to your state of residence. Medicare does, however, require that you pay a monthly premium and the coverage is generally less than the Medicaid program coverage.

Qualifying for Medicaid, on the other hand, depends in large part on your household income and assets. In addition, because Medicaid is both federally and state funded, but state administered, the limits as well as the benefits will be slightly different from one state to another. On the plus side, there are no monthly premiums to pay and the scope of the coverage is generally broader. If you feel that the Medicaid program is what you need, but you have income and/or assets that may prevent you from being accepted, consult with your estate planning attorney. There may be estate planning tools that can help structure your estate in a way that will allow you to qualify.

Levine & Furman, LLC is a member of the American Academy of Estate Planning Attorneys.