Where do you express your wishes regarding organ donation?

Did you know that every 10 minutes, another name is added to the national organ transplant waiting list? Right this moment, 123,000 men, women and children need a transplant, but 21 people will die each day because no transplant was available. In 2013, there were 14,257 organ donors resulting in 28,953 organ transplants, which means far too few people are taking the need for organ donation seriously.

With advances in medical science, it’s now possible, to donate organs, tissue (including skin, bone, corneas, heart valves, blood vessels and tendons), bone marrow, or your entire body for purposes of transplant, education or medical research. You can choose whether you wish to donate for transplant only, or for research, therapy, education or any one or more of these purposes.

Organ donation is one of the decisions that should be reflected in advance directives such as your Health Care Power of Attorney. But putting organ donation wishes in your will is not the best idea as the will is often not found nor read until several days after the passing, and organ donations must be made immediately after death.

Here in Arizona, you can designate that you would like to be a DONOR♥ on your driver’s license or identification card. Your name will be added to the 2,511,798 other donors already listed on the DonateLife AZ Registry. You can find more information on this on the Donor Network of Arizona website.

You may also go to the OrganDonor.gov website to list your name and your wishes. This website can also provide you with additional information on becoming a donor, about donation and transplantation , plus other materials and resources.

Finally, if you feel strongly about becoming an organ donor, make sure your family and friends know your wishes on this subject, because there may not be time to hunt up paperwork when it really counts.

How to Gain Access to Digital Accounts When a Loved One Dies

Think about how many times per day you are asked for your login and password information on your computer or hand-held device — to your bank, your investments, social media, email and more. Now imagine that something happens to you and the responsibility for your online accounts suddenly devolves to your spouse or children. Do they know your logins and passwords? Now ask yourself if you need to include digital assets and digital asset protection into your trust?

Digital Asset Protection Trusts allow you to place digital rights and property information into a trust for the beneficiaries to use. Digital rights include email, text messages, online storage, websites, financial accounts, music/publishing rights, social networking accounts and much more. Like all trusts, the trustee can manage all the digital licenses on behalf of the beneficiaries.

Unclear Laws
Unfortunately, the laws on digital are unclear at best. Very few states have even begun to deal with this issue. While many online services have their own policies for how to deal with a user’s death or incapacity, users may not approve of the procedure. Prudent planning now will help ensure your wishes are carried out regardless of the lack of clarity in the law.

Identity Theft
If you think it doesn’t matter what happens to your accounts once you pass on, then you are wrong. Among other things, digital assets can be extremely useful for online identity theft. If you neglect to give your heirs access, then it is entirely possible a hacker could deplete an inheritance before your heirs can act. While there are procedures to protect a deceases identity, they all require having access to the online accounts.

Note: Facebook has just announced it will let users designate a legacy contact – a friend or family member who can continue to post after the user’s death. Legacy users will have limited access, download archived photos and posts shared, but not access private messages. Or Facebook users can tell the company their want their accounts permanently deleted after they die.

Monetary and Emotional Value
While most online accounts don’t have a monetary value, many have emotional value to the heirs. Some families may want to access accounts and download pictures saved in Facebook or Pintrest, for example. However, some accounts, like that of the famed author Leonard Bernstein . He died and created a password so strong, that the draft of his memoir, Blue Ink, remains inaccessible to this day.

Perform Your Own Digital Audit
You need to develop an inventory of your digital assets and that can be a bit of a challenge with as much as we do online these days. Please click on the link below if you would like to download a Digital Audit to help you think through all the digital assets you may want to pass on to your heirs.

Download Digital Audit

Adding Digital Assets to your Estate Plan
Because Digital Asset Protection Trusts are such a new field, you may require an attorney’s assistance to help structure your digital assets into your will or trust. A separate document may be necessary, or the information can be woven into existing documents. At that time, you can indicate which documents or assets should be deleted versus the ones you want passed on to your heirs.

Do I have to file a tax return for my trust?

Clients frequently ask me if they have to file a tax return for a trust they have created. The answer is no if it is a REVOCABLE Living Trust.

Income Tax Treatment of Revocable Trusts
A revocable trust is typically formed by husband and wife. Both are considered the initial trustees who manage the assets in the trust. The trust is usually revocable (i.e. can be changed or revoked) during the trustees lifetimes. It is not considered a taxable entity when it is formed. It is strictly a means of holding title for the beneficiaries of the trust  who are at first the beneficiaries of the trust as well. Therefore because there is no separate tax entity, the assets of the trust and the related income are disregarded for tax purposes so long as the grantor(s) are alive. Any income, gains or losses are reported on the individual return. For example, all mortgage interest and property taxes are still reported on Schedule A, interest income and dividends on Schedule B and so on.

Of course, once the grantors die, then tax consequences may kick in. At that point, the trust generally becomes irrevocable, at least as to the person who died. The irrevocable trust must receive a tax identification number and needs to file its own tax returns.

Income Tax Treatment of Irrevocable Trusts 
Unlike a revocable trust, an irrevocable trust is treated as an entity that is legally independent of its grantor for tax purposes. Accordingly, trust income is taxable, and the trustee must file a tax return on behalf of the trust. If income is distributed to trust beneficiaries or if a charitable deduction is claimed, additional tax documentation is required.The trustee of an irrevocable trust must complete and file Form 1041 to report trust income, as long as the trust earned more than $600 during the tax year. Irrevocable trusts are taxed on income in much the same way as individuals. Under present rules, the tax on the trust income can be very high if the income passes certain thresholds and is not distributed to the beneficiaries.

What about the Beneficiaries? 
A beneficiary of a revocable trust does not have to pay income taxes on his distributions from the trust since the trust grantor has already paid these taxes. Distributions to beneficiaries of an irrevocable trust, however, are taxable to beneficiaries at ordinary income tax ratesSince the individual income tax rate is lower than the trust income tax rate, trusts normally distribute their income to their beneficiaries if they are individuals. If the trust distributes any of its income to beneficiaries, the trustee must prepare Schedule K-1 for each beneficiary who has received a distribution. The trust must also file Schedule K-1 with the IRS if it made any distributions to beneficiaries during the tax year. A beneficiary doesn’t have to submit Schedule K-1 with Form 1040 but will need it to calculate his own tax liability.

If you have questions regarding your trust and taxes, please feel free to give me a call.

 

Are joint accounts a good idea in estate planning?

Are joint accounts a good idea when you are creating your estate plan? The answer is yes and no.

Spouses often add each other to accounts to avoid probate and transfer money to their loved one. In addition, older people often add children or trusted friends to accounts for the convenience of paying bills, especially if the older person is starting to have difficulty managing money.

Unfortunately, this process can backfire. For example, a person creates a will, assuming the assets will pass according to the wishes dictated by the will, unfortunately, if the assets are held in joint accounts, the will is meaningless. The title of accounts will control everything when an account holder dies. This is a very common issue and can create unnecessary friction between survivors. This is particularly awkward if a parent has added one child to the account for ease of bill paying. Perhaps that child has also been the caregiver to the parent for many years. However, what if the parent actually intended the account to be split among all the children? There are plenty of lawsuits based on situations like this, especially if the child who was the caregiver believes he or she is entitled to all the assets for all their hard work over the years.

Other disadvantages
• Once the money is deposited in a joint account, all parties have equal access, so any of the can withdraw, spend or transfer money without the consent of the other person. Image what could happen in an unhappy divorce!
• Creditors of any of the parties on a joint account have access to the assets in the account. A creditor may be able to garnish the assets, again without the consent of the other party.
• A joint account can affect a person’s eligibility for Medicaid. For instance, an elderly parent may add a child to their account to make the funds easier to transfer upon death. Unfortunately, the entire account is considered countable for purposes of eligibility.

What about TOD and POD?
Bank and brokerage accounts with beneficiary designations built in are sometimes called payable-on-death (POD) or transfer-on-death (TOD) accounts. With a POD or TOD account, there is no transfer of ownership during lifetime, with the transfer to the named beneficiary occurring at the death of the account owner. The process in providing names for TOD an POD accounts is often rushed or if not handled immediately – overlooked. how the account is titled can mean a big difference with how the account is treated during the estate administration process. Even if the accounts have all children named as beneficiaries, there can still be problems. For example, providing for all the children equally may not be fair or if unequal, may cause hurt feelings and resentment. Also, if there is a will or trust that provides for bequests to others or to charity, there may be no money to pay for them because it all goes directly to the beneficiaries.

What is the Better Way?
A better way to protect assets and avoid the pitfalls of joint accounts or beneficiary designations is to use durable powers of attorney and living trusts. The cost of creating an estate plan is easily offset by reducing the risk of your heirs going to battle over your assets.

puppy and kitten

Are Your Furry Friends Protected?

puppy and kittenIf you’ve ever owned a pet, you know the hole they leave in your life when they pass on. These furry friends are as much a part of the family as your spouse and kids. Thankfully, there are ways to help plan for your pets upkeep and care, should you pass on before them. This is particularly reassuring for single adults who don’t have family or friends who can step in to care for the animals.

It may seem obvious, but pets cannot really own property, so you cannot leave property to your pet. However, you can makes plans to ensure that your pet is taken care of after you die. You probably have two objectives in making such plans:

  • make sure that your pet goes to a caring person or organization, and
  • provide for the caretaker the resources to take good care of the pet.

You can use a clause your will to leave your pet —  and money to care for your pet — to someone you trust to care of the pet or

You can create a Pet Trust. This is is obviously more expensive, but it is a stronger way to address this issue. WIth a pet trust you can leave your pet, money for care AND the legal obligation to care for your pet – something that is missing with just a clause in your will.

Some states actually allow for formal trusts for pets. Arizona is one of those states. The statute allows for the creation of a trust for a designated domestic or pet animal and must be performed in 21 years or less. The trust terminates when no living animal is covered by the trust. The remaining funds in the trust must be distributed as directed by the trust.

More often than not, estate planning for pets can be as simple as identifying the family member or friend who will care for the pet, as well as leaving a sum of money to the caregiver for the animal’s upkeep and welfare — and making sure the information is contained in your will or trust. However, for a surviving spouse with no family or few friends, a trust can be the tool that will give them peace of mind if they go first.

It is comforting to know that pets can be cared for in the event of your death, and you’ll know they are in good hands because you plan for it!

Trust Fund Loophole?

What Is President Obama talking About?

President Obama is going to give his State of the Union address on Tuesday January 19, 2015. He has announced several initiatives including  free community college and paid leave. He knows that the number 1 question is where is that money going to come from? Well most of it  — $210 billion — is proposed to come from a capital-gains tax hike and a change in the way the tax code treats the appreciated value of inherited assets. Under the proposal, inherited assets would be taxed according to their value when they were purchased. That means the capital gains on those assets during a person’s lifetime, now shielded from taxation, would be subject to tax at the time of the bequest.

Who is that going to affect?

Well not you and me. The proposal, which does not apply to charitable gifts, would fall almost entirely on the top 1 percent of taxpayers. It would apply to capital gains of $200,000 or more per couple, with an additional $500,000 exemption for personal residences. Well that is quite a big number. The changes on trust funds and capital gains, along with the fee on financial firms, would generate about $320 billion over 10 years, which would more than pay for benefits Obama wants to provide for the middle class, the official said.(Reuters) But in all likelihood these proposals won’t make it past the Republican-run Congress, who directly oppose any tax increase on the wealthy. 

What is the Trust Loophole?

In usual circumstances if you buy a capital good, for example stock shares, and then sell the more than a year later, you will pay capital gains tax on any profit you make. Most middle-income taxpayers pay the 15% rate. For example, if you buy stock for $10,000 and it grows to $20,000, if you sell it you pay capital gains tax on the $10,000 of gain. If you are in the 15% bracket, you owe federal tax of $1,500 plus your state tax.As the amount goes up so does the tax rate. Sometimes as high as 39%

BUT, the rules are a little different when it comes to passing money to your beneficiaries of your trust. With some good tax and trust planning, it is possible to  legally shelter significant portions of their estates from capitol gains taxes. For those who oppose the estate tax and call it the “death tax” and have fought for repeal, saying it is a form of double taxation, this is probably a good thing.

So what is the loophole? If you plan your estate properly though the use of different trusts, you can transfer assets to your beneficiaries at the value when that transfer occurs, not at your cost in buying the asset. What does that mean? There is no capital gains tax. In estate tax speak it is called a “step-up in basis.” So to continue the example, if you transfer the $20,000 from the sale into a a special type of trust during your lifetime or at your death, there is no estate tax and the beneficiaries of the trusts will receive the stock at a value of $20,000. This means that your beneficiaries will only potentially pay tax when they sell on the increase from when they get the property, not for what the parent paid. Closing that loophole will mean “every American, even the wealthiest ones, actually pay taxes on the gains,” the officials said, adding that 99 percent of the impact of this action would affect only the top 1 percent of taxpayers.

Under the current Tax Code, administration officials say, someone who inherits $50 million in stock — in a portfolio that was originally worth $10 million — doesn’t have to pay income tax on the $40 million capital gain. Because of that rule, “hundreds of billions” of dollars of capital gains go untaxed, administration officials say. While philosphies can differ about whether there should be an estate tax or not.

That sure is a lot of money for a very few number of people.

Gregory C. Poulos, J.D., M.B.A..
Poulos Law Firm, P.L.L.C.
11120 N. Tatum Blvd, Suite 101
Phoenix, Arizona 85028
Phone 623-252-0292
www.pouloslawfirm.com

Creating a Complete Estate Plan

We all know you need an estate plan, but 50% of people do not get around to taking the steps to create one. To help you get started here are a few checklist items that will help you get a complete plan in place.
1. Create a will.
In a will, you provide instructions about who you want to inherit your property. You can also name a guardian to care for your young children should something happen to you and the other parent. If you die without a will, your property will pass to your survivors based on your state’s laws of intestacy. Contrary to popular belief, in most states, that means that your spouse and your children will split your legacy. If you are single, your assets will go to blood relatives even if you would have preferred a friend to inherit them.
2. Consider a trust.
If you hold your property in a living trust, your survivors won’t have to go through probate court, a time-consuming and expensive process. A trust is a private document that also allows you to direct how your property should be managed in the event of your mental incapacity or disability. Even if you create a trust, you still need a will to name guardians for your children and to make sure property not in the trust gets into it.
3. Protect your children.
You should also consider protecting your children, minor or otherwise by creating a trust for their benefit in your will or in your trust. That way, you name a trustee to follow your instructions on how to manage and distribute assets to your children in a way that is in their benefit and protects them from creditors and financial predators. The trustee can be a relative, friend, or professional such as a banker or lawyer. If you fail to establish a trust in your will for your minor children, a court will name a guardian to oversee the property they inherit.You should name an adult to manage any money and property your minor children may inherit from you.
4. Review your beneficiaries.
If any of your property is titled in joint names or payable on death, that property will not go through probate or be in your trust. That property will go right through to the beneficiaries. Sometimes this can lead to unintended and unpleasant consequences. It is important to review those beneficiaries to make sure they are current and really reflect your wishes.
5. Make health care directives.
Health care directives include a Living Will (instructions if you are in a vegetative state); a Health Care Power of Attorney (gives someone the power to make treatment decisions if you cannot) and a HIPAA authorization to allow the person you choose to make decisions the authority to see your medical records.
6. Make a financial power of attorney.
With a durable power of attorney for finances,you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn’t have to be an attorney). States differ dramatically on the legal recognition afforded powers of attorney forms.
7. Consider life insurance.
If you have young children or own a house, or you may owe significant debts or estate tax when you die, life insurance may be a good idea.
8. Understand estate taxes.
Most estates — more than 99.7% — won’t owe federal estate taxes. For deaths in 2014, the individual exemption is $5.34 million. Also, married couples can transfer up to twice the exempt amount tax-free, and all assets left to a spouse (as long as the spouse is a U.S. citizen) or tax-exempt charity are exempt from the tax.For most people this is clearly not a consideration at this time.
9. Cover funeral expenses.
Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses.
10. Make final arrangements.
Make your wishes known regarding organ and body donation and disposition of your body — burial or cremation.
11. Protect your business.
If you’re the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buyout agreement.
12. Store your documents.
The people you name to take care of your property, whether an attorney in fact, your executor or trustee will need to know about your property and where to access your documents. To avoid making that person spend unnecessary time and effort trying to figure out what to do, consider keeping a folder or notebook with your important documents, a list of your assets and the names and telephone numbers of your professional advisors. Don’t forget to keep a list of your on line accounts and passwords as well. Get a home safe or firebox for these documents and make sure someone else knows where the key or combination is.
13. Leave a letter
Consider leaving your survivors a letter to tell them about your life, your values and thoughts that you would want shared upon your death. This is not a legal document, but a way to express your thoughts and hopes when you are no longer able to do so.
14. Review your Plan
And finally, review your estate plan at least every five years. Make sure all of your documents still reflect your desires, and that your beneficiaries and financial and health care proxies are still willing and able to serve. In addition, you should revisit your estate plan if Congress revises the estate-tax law or whenever there is a major change in your life, such as a birth, death, marriage, or divorce.
14. Don’t do it yourself.
You pay people to prepare your tax returns, paint your house or color their hair, but cannot bring yourself to pay a lawyer to prepare an estate plan for your family. You do not want to spend thousands of dollars on something that you think they can do yourself with will-writing software that sells for less than $100. Well Consumer Reports tested three will-writing products in 2011 with the help of a law professor specializing in estates and trusts. Consumer Reports concluded that all three were inadequate unless a very simple plan was required, such as one that leaves everything to a spouse, with no other provisions. For anything else, you really should use a lawyer. Find one by getting referrals to  lawyers with expertise in estate planning from your accountant or financial planner. Call a few and ask how much they will charge, if anything, to meet with you for an hour and discuss your estate planning needs. After your consultation, some attorneys will quote a flat fee for an estate plan; others bill by the hour and will estimate how much time it will take to draft the legal documents you need.

Top 5 Smart Year-End Financial Actions

The end of the year isn’t just a time to celebrate the holidays. It is also a time to clean up last minute details and plan for the future. Here are five really smart year-end financial moves that you can make to help you begin the New Year right.

Review Your Insurance
Review your insurance coverage. If you’ve had any changes to your family status, make sure they are reflected in your coverage. In addition, it is not a bad idea to check and compare the cost of coverage with different companies. In a competitive marketplace, new products can provide you with greater coverage for less cost.

Contribute to Retirement Plans
If you haven’t contributed to your retirement plan, year-end is a good time to do it. The deadline is actually April 15, 2015, but you can get your money working for you sooner if you contribute now.

Evaluate your Investment Plans
Changes in the marketplace this year may have you wondering if you’ve made the right choice in your mix of investments. Year-end is a good time to evaluate if everything is working the way you want it to. And if you don’t have one, it might be time to let a seasoned financial advisor give you a hand with your planning.

Review Your Estate Plan
If you don’t have an estate plan, now is the time to make one. Don’t let another year go by without securing the future for your family. Be sure to put your powers of attorney – financial, durable and health – in place, as well creating a living will. And while you are at it, check all possible documents that might have a beneficiary listed — 401(k), retirement plans, life insurance plans, etc. Be sure you’ve designated the correct person as your beneficiary for each plan or program.

Donate
They say the joy is in the giving. This is the time of year to not only open your hearts to family, but to people and organizations in need in your community. There are more hungry people, more orphans, more animals waiting to be adopted, and more sick people than ever in this world. Take a moment to give to worthy cause — you’ll feel good about it and get a tax deduction as a bonus.

If you need a list of the non-profit organizations in Arizona to which you might contribute, you can visit the Arizona Gives Day website at http://www.arizonanonprofits.org/content/participating-nonprofits.

I wish you and your family a wonderful and joyful holiday season.

Greg Poulos

Family First Estate Plan

Estate planning for a blended family can be complicated

Family First Estate Plan
You probably know that 45-50% of first marriages end in divorce! But the news gets worse, 60 – 67% of second marriages and 70-73% of third marriages also end in divorce. What those statistics mean is that there are an awful lot of blended families out there. Blended families make estate planning a bit more challenging.

There are all sorts of questions to consider:
• Will all children be treated equally whether they are his or hers, from a previous or current marriage?
• Are there children with special needs that may require more assistance than the other kids?
• Are all your children able to responsibly manage their finances? If not, how can you protect them?
• If your previous divorce was amicable, do you want your former spouse to receive any of your assets?
• Do you want to leave some of your assets to other family members, organizations or charitable groups?
• Do you and your spouse want to leave a legacy that benefits all the children and protect that legacy from creditors and predators?

One of the main mistakes couples in blended families make is to designate each other as the primary beneficiary of all assets. Upon death, the estate goes to the spouse, potentially disinheriting the previous branch of the family, especially if there are no fond feelings between the past and present family. There is also a problem if the other spouse dies first and there is not contingent beneficiary named.

A blended family situation is an ideal time to make use of trusts and subtrusts to make sure that your legacy is treated the way you intended. Doing this the right way can avoid unintended beneficiaries and avoid acrimony in a couples’ heirs.

A trust is a written agreement designating a trustee who will be responsible for managing your assets. With a trust in place, when you die, your assets are transferred directly to your heirs without the lengthy probate process. You can have multiple trusts and sub-trusts in place to divide your assets among former and current family members.

Trusts can help to minimize taxes, avoid probate, control the ways assets are used after your death, and to make it easier to handle your heirs to handle your financial affairs should you become incapacitated.

There are many different types of trusts, the most common being revocable and irrevocable trusts. A revocable trust can be changed at any times, whereas an irrevocable trust can’t be modified except under very special circumstances.

A subtrust divides a trust into several parts and helps preserve assets for specific beneficiaries, like children from past and present marriages.

Because estate planning can be tricky with blended families, an attorney with years of experience in estate and legacy creation is essential to your planning. A good attorney can offer unique ideas you might not have thought of as well as plenty of assistance with the paperwork and legal documents necessary to setting up a trust(s), sub trusts or any other aspect of protecting and dividing your assets once you are gone.

I am gay … why do I need estate planning?

Thanks to the Supreme Court ruling on the Defense of Marriage Act, same-sex married couples living in marriage equality states will now be treated exactly like all other married couples and enjoy the same estate planning benefits as heterosexual marriages. For instance, the unlimited marital deduction allows one spouse to transfer all assets to the other spouse without being hit by the federal estate or gift taxes. In addition, last week, Arizona finally passed the bill allowing marriage rights to same sex couples

In short, now that same sex couples in Arizona have the same rights as other married couples, they can now also begin estate planning to protect their loved ones and that relationship into the future.

Steps to take:
• Review all of your accounts to confirm who your designated beneficiaries are.
• Create a will. Both partners should create wills and specifically state who will inherit each of their estates and who will be the personal representatives.
• Strongly consider creating a trust to protect both your loved one and any children of the union, whether natural or adopted.
• Be very clear on naming a guardian for your children.
• Understand that the Health Insurance Portability and Accountability Act does allow you to authorize medical providers to discuss your condition and prognosis with your partner.
• Be sure to assign health, durable and financial powers of attorney to someone you trust, whether it is your partner or someone else.
• Create a living will that lets your partner know your preferences about medical treatment and the issue of heroic life saving measures and prolonging life.
• Make specific provisions in your will be your funeral and what happens to your body. Sometimes, the family of a deceased same sex partner fails to recognize the union and will try to take control of the body and bar the partner from attending the funeral. Make provisions so that this won’t happen.
• If you have sizable estates consider advance tax estate planning.

Note. The Court’s holding did not address the impact of its decision on civil unions, domestic partnerships or similar state law concepts.

I’m single. Why do I need an estate plan?

This is a little bit of a trick question because your circumstances as a single person are important to know. How old are you? Do you have children? Do you have no assets or substantial assets? What is the status of your health? The answers to these questions are the ones that a married couple or partners also need to answer in order to develop their estate plan.

The short answer is that everyone needs an estate plan, although for a variety of reasons. Certainly single parents with young children need an estate plan in order to appoint someone to care for their minor children or to set up a trust for their benefit. What if something happens to you that leaves you incapacitated? Perhaps more than a couple, a single person needs an estate plan to appoint a family member or trusted friend to act on their behalf in the event of incapacity.

However, there are a couple of advantages singles enjoy that couples and families don’t.

Advantages
• The first big advantage is that the single person only has to please him or herself. Married couples often have different ideas on how assets should be divided and are required to make plenty of compromises along the way.
• A single person is less likely to have heirs that must be factored into the mix, and often the estate planning can focus on things like gifting. Gifting can be done by provided a yearly gift, setting up a trust that pays a yearly stipend, tuition or medical gifting and much more. Of course, this requires more complex planning than simply passing an estate along on to a spouse.

Of course, there are also some disadvantages for singles as they prepare their estate plans.

Disadvantages
• If you’re single and die without a will or a trust, your assets will go to your relatives even if you wanted them to go to a partner, friend, or charity. Your property will pass to your children, if you have any, and then to your parents. If you don’t have any children and your parents die before you do, your estate will go to your siblings or down the line to more distant kin. In a worst-case scenario, a long-time partner will get nothing while a cousin will inherit everything.
• Failure to plan can also cause problems while you’re still alive. Typically the surviving spouse is named as the power of attorney for a married couple, however, as a single person, you have to think more carefully when naming someone to take over the health and financial decisions for you. If you don’t appoint someone – who is going to do it? If you become incapacitated, a judge might give one of your relatives the right to make medical and financial decisions for you. If you have no living relatives, the court may appoint a stranger as your guardian or conservator.
• A single person is on their own when saving for retirement. Specifically, a single person has to accumulate more income that a traditional couple because they battle higher income taxes throughout their lifetime. In addition, a single person can only contribute once to their 401K, unlike singles where both partners can put in the maximum amount.
• Just because a person is single doesn’t mean they don’t have dependents of other family members they need or want to plan for (like nieces and nephews, friends or other family members).

Both the advantages and disadvantages mean that single people need to plan very carefully how to pass along their estate. That’s why an experienced attorney can make sure your wishes are legally spelled out and carried out.

I have a special needs child. How will that affect my estate plan?

If a child with special needs is dependent on you for their care, what happens to that child when you die? Special needs kids often required different approaches to education, extra medical care, or extra assistance with the tasks of everyday living. Those needs won’t go away when you, their caregiver, passes on. That’s why you absolutely must pay close attention to your estate planning in order to protect those precious children.

Here are four things to consider when creating an estate plan that includes a child (or children) with special needs:

Fair Treatment
How should you divide your estate between your children? This is a particularly sensitive subject if a family has one child with special needs and other children who are able to care for themselves. It can be as simple as sitting down with the kids and explaining your estate plan and your calculations for the care of the child with special needs (if they are old enough, of course).

What is Enough?
How do you know how much financial support a special needs child will require? You will need to carefully calculate the about of finances necessary to support the child over his or her lifetime. Take into account worst case scenarios to your child will never be left without the financial wherewithal if something goes drastically wrong. Plan for medical emergencies, health decline, the possible need for assisted living as the child ages, and for the longest lifespan you can image.

Protect Your Child’s Benefits
Many children with special needs receive benefits from the government — things like Supplemental Security Income, Medicare, etc. You’ll need to make sure that the money you leave them won’t disqualify them from these programs (and that often means setting up a Special Needs Trust).

Ensure Your Estate Plan is Properly Managed
The last thing you need is for an unscrupulous family member, executor or trustee to divert funds away from your special needs child and his or her care. Nor do you want the executor to pass away and leave that child without support.

An attorney skilled in estate planning in a must in these situations, where precise planning is critical to making sure your special needs child is well cared for when you are gone.

Estate Planning and Vacation Homes

With its mild climate and warm winter sun, Arizona is a mecca for snowbirds who want to get away from the freezing temperatures, snow, cold rain and storms during the winter months. Many of these people end up purchasing a second or vacation home right here in the Valley of the Sun. As for Phoenix residents who live here year around, well, they want to get away from the blistering summer heat. Again, many of them purchase vacation homes in cooler areas of the state or in other states.

The question is how these home owners handle their vacation homes in their estate plan?

Here are some things to consider…
• Does the property need to remain in the family? Is it a legacy for generations to come?
• If your children don’t get along now, and you leave the property to them jointly, do you think they’ll get along any better co-owning property. The answer is probably no.
• Will your children view the second home as a burden rather than a gift? Will they be able to pay taxes? Insurance? Handle the maintenance and upkeep costs? Pay the mortgage?
• Would it be better to leave the property to one or two children, while recompensing the others with additional money?
• Would it be better to sell the property and invest the money for your loved ones?
• If something happens to you before you complete an estate plan, do your children know your wishes regarding the property?

A great use of a trust
A trust can be very useful when it comes to helping your heirs with a vacation home. It can name the beneficiaries and those who will have the use of the property, as well as naming the terms of use and even naming the dates and times when your heirs can use the property. The trust will also appoint a trustee(s) to make decisions about the home. This person will pay the bills, arrange for property management, property rental if the heirs aren’t using it all the time, and oversee the usage schedule.

Even more important, a trust can be used to create a fund that will pay for taxes, insurance, mortgage, upkeep and maintenance. It is important to take into account unusual expenses and future cost of living when creating a fund like this, so a professional estate planning attorney with years of experience can be very helpful. The fund should also include a fee for the trustee who is managing the property. A trust fund can relieve your heirs of the financial responsibility, leaving them free to just enjoy the vacation home.

Sell it
Whether or not the property passes to your heirs, there should be guidelines in place for the sale of the property. Let’s assume two children have inherited the property. What happens if the economy tanks, they both lose their jobs, and they need to sell the property to stay afloat? A good estate plan will take into account the unexpected and allow for the sale of the property with fair division among the heirs.

A second or vacation home can either be a joy or a burden to a family, so it is important that you plan now to make it as easy as possible for your heirs.

Estate Planning is Not Just for the Wealthy

More often than not, people hear the words “estate planning” and immediately presume that if they don’t have a lot of money they don’t have to think about it. You might call that the albatross-style of estate planning.

It is true that for most people, estate taxes and even probate are not a major consideration. Sadly though, nearly 60% of people don’t even have a will.

However, even if you don’t have a lot of money or assets, there are other reasons for creating an estate plan. For instance, if you have assets (any assets) or minor children, you probably still need an estate plan, even if you don’t have to worry about estate taxes. While no one wants to dwell on their death, if you postpone planning until it is too late, you run the risk that your intended beneficiaries — those you love the most — may not receive what you would want them to receive whether due to extra administration costs, unnecessary taxes or squabbling among your heirs. Estate Planning affords the comfort that your loved ones can mourn your loss without being simultaneously burdened with unnecessary red tape and financial confusion

Typically, an estate plan includes several elements, including a will, assignment of power of attorney, and a living will or health-care proxy (medical power of attorney). For some people, a trust may also make sense.

Here is an explanation of some elements that can make up an estate plan:

Will — A will is a legal document that sets forth your wishes regarding distributing your property and the care of any minor children. If you pass away without a will, your assets will go into probate, where the courts will decide how they will be distributed according to the laws of your state. This may or may not be what you planned with your last wishes.

Health Care/Medical Power of Attorney — This is a document that allows a person of your choosing to make medical decisions on your behalf should you have an accident or become incompetent.

Durable Financial Power of Attorney — This is a document that allows a person of your choosing to make financial and legal decisions and financial transactions on your behalf. Unlike other powers of attorney, which are in effect only while you are of sound mind, a durable power of attorney will still be in effect even if you become incompetent

Trust (Irrevocable or unbreakable and revocable or breakable) — A trust is a great way to control your assets in many situations. If set up in the right way, a trust can be used to provide asset protection for you and your heirsfrom creditors and predators.

While it is possible to pass your estate to your heirs through joint accounts and without an estate plan, there are potential traps you may not even have considered. For example, what happens to those joint accounts if you fail to name a beneficiary or if you have failed to redo the paperwork if the beneficiary predeceases you. Your assets go into to probate, that’s what happens.

Another major issue you should consider for estate planning is taking care of you and your loved ones if you become incompetent or mentally disabled. A proper estate plan can help take care of those issues in an efficient and less costly manner by using such tools as a quality durable power of attorney and health care power of attorney and HIPPA authorizations. You may also require a living trust, which can help you and your heirs avoid the need for guardianship or conservatorship. Using these tools can keep your family affairs private and if needed will save you a lot of money, time and aggravation.

Greg Poulos is an estate planning attorney in Phoenix, Scottsdale and Paradise Valley, and has over 25 years of experience helping families protect their heirs and their assets. For more information, you can visit his website at www.pouloslawfirm.com or call 623-252-0292 for a complementary consulation.

Should my Health Savings Account (HSA) be part of my Trust?

If you have an HSA or MSA (medical savings account) there is a possibility that funds might be in the account when you die. How do you plan for the distributions of those funds? In terms of estate planning these accounts are like a hybrid.

While you are alive, the account functions like an ordinary bank account except that you can only make withdrawals for qualified medical expenses. Upon your death, however, the account is treated more like a retirement account.

If you have a living trust, your question should be how do you deal with this issue. First, be aware that you cannot name the trust as the owner of the account. What you can, and should do, is name one or more beneficiaries to receive the balance of the account when you die.

How you do that is a function of your intentions, your marital status and the size of your estate.

• If you’re married and your estate isn’t taxable, which now is true for almost everyone who has an HSA or MSA, then the beneficiary should be your spouse unless there is some other reason not to do this. If there is anything left in the account at the time of your death and your spouse, as the primary beneficiary, can chose to treat the account as his or her own HSA or MSA. This avoids having the balance of the account included in your taxable income on your final income tax return and allows your spouse to use the account for their own qualified medical expenses.

• If you’re married and your estate is taxable, then you should name your Revocable Living Trust as the primary beneficiary of your HSA or MSA. This will insure that your separate estate tax exemption can be used to fund the AB Trusts created under the terms of your trust for the benefit of your spouse. The fair market value of the account will be included in your final income tax return less any qualified medical expenses paid in the year after your death.

• If you’re in a second or later marriage, then you should consider naming your children or other beneficiaries as the primary beneficiaries of your HSA or MSA. This will insure that the account passes to your chosen beneficiaries. Keep in mind though that the value of the account that they received will be included in their taxable income (less any qualified medical expenses as above).

• If you’re single, then you have two options for your primary beneficiary: your Revocable Living Trust or individual beneficiaries. If any of the beneficiaries of your Revocable Living Trust are minors, then it makes sense to name your trust as the primary beneficiary. That insures that the account doesn’t become subject to a court-supervised guardianship on behalf of a minor.