ESTATE PLANNING BLOG

Date: 2/19/2017 6:46 PM EST

Three Health Care Documents You Need to Include in Your Estate Plan
Decisions about your health care are some of the most important you will ever make.

Don’t put off making plans until you are unable to assert your wishes. Including health care documents in your estate plan can ensure your decisions are always your choice, even if you cannot speak for yourself.

Health care documents that clearly state your wishes should be included in your comprehensive estate plan. Here are three documents you need to include in your estate plan to ensure your wishes are respected:

Health Care Directive
This document allows you to name a health care agent. This will be the individual who you grant the authority to make certain decisions on your behalf. A health care agent may also be called a health care surrogate or a personal representative.

In your directive, you can include specific instructions on the health care measures you desire if you are unable to make decisions for yourself. These are life and death decisions; make sure your agent is someone you trust.  Work closely with an estate-planning lawyer to ensure your directive provides clear guidelines for your agent to follow.

HIPAA Authorization
Your health care agent or personal representative will need access to your medical records in order to make educated decisions about your care. To do this, your agent will need a HIPAA authorization. This will ensure he or she has access to your medical records from HIPAA-covered health care providers.

Living Will Declaration
A living will provides specific guidelines for your end of life care. While your health care directive can include provisions for your agent to make certain decisions about your ongoing health care,a living will tells your agent how you would like those decisions made, such as if and when you want life support to be removed, whether you would want hydration and nutrition and what kind of care choices should be made for you, if you cannot make them for yourself. These types of absolute decisions about your life should be included in a living will for extra protection and assurance your desires will be known and honored.

These documents, if carefully crafted, will help you express and enforce your healthcare wishes, even if you cannot speak for yourself. If you want to ensure your preferences for your ongoing and end of life care are respected, contact us to discuss your options today.

Personal Family Lawyer® can help you articulate and legally protect your healthcare wishes and preferences. As your Personal Family Lawyer®, we can guide you to create and complete these very important health care documents so you can have the peace of mind of knowing your family will make the right choices for you, when you cannot.


This article is a service of Robert J. Maher, Personal Family Lawyer®. We don’t just draft documents, we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That's why we offer a Family Wealth Planning Session,™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this session at no charge. 

Posted by Robert J Maher | Post a Comment

Date: 2/12/2017 8:28 PM EST

Estate Taxes in Trump’s America

Donald Trump has proposed a radical tax reform agenda for his presidency. Part of this reform is his intention to repeal the estate tax. For some people, this will be a considerable change with significant repercussions. But, because more changes to the tax code are anticipated, high-net-worth families should consider what this change could mean for their estate plans.

The estate tax (aka the death tax) is a federal tax on the transfer of property in the estate of someone who has passed. Upon death, your estate’s taxable value is assessed and then taxed. There are many rules on when and how the estate tax can be taken, but Trump plans to repeal the estate tax altogether.

Comparatively, the estate tax is not a huge revenue producer for the IRS, and many believe the estate tax is baseless, while other forms of property transfers between family members are untaxed, such as property divisions as the result of divorce.

While many applaud the suggested repeal, it’s important to remember that lost revenue will be certainly be gained elsewhere. Though the estate tax may be abolished, Trump still plans on initiating a capital gains tax on any assets left to heirs over the $10 million threshold.

Some argue that the estate tax only affects the very wealthy. Indeed, the 2017 federal estate tax exemption is $5.49 million. Estates valued below that threshold will not be taxed. For families with significant wealth, steps should be taken to plan for a potential estate tax, even if the estate tax is repealed because it’s likely to return in the future, even if it is repealed now.

Basing estate plans on proposed tax reform is unwise. However, considering proposed tax changes as well as the changing political climate while planning your estate will help you make educated decisions. Regardless of the size of your estate, now is a great time to sit down and discuss your estate planning options with a Personal Family Lawyer®.

Proper planning for your estate means staying abreast of changing tax regulations and ensuring your estate plan minimizes its tax burden and protects the assets you will leave behind. Because tax regulations are not set in stone and change quite frequently, it’s important to work with a Personal Family Lawyer® to prepare for all eventualities.

And, of course, estate planning is about so much more than just saving taxes, and even about so much more than just your financial estate. As your Personal Family Lawyer®, we see estate planning as about helping you make the very best personal, financial and legal decisions for your wealth, health and happiness throughout your lifetime and then being there for your loved one’s to minimize conflict, when you cannot be.
 

This article is a service of the Law Office of Robert J. Maher, PC, Personal Family Lawyer®. We don’t just draft documents, we ensure you make informed and empowered decisions about life and death, for yourself and the people you love.  That's why we now offer a Family Wealth Planning Session™ during which you will get more financially organized than you’ve ever been before, and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this session at no charge. 

Posted by Robert J Maher | Post a Comment

Date: 6/9/2016 12:53 PM EDT

Estate Planning is about considering and addressing the contingencies that arise as the result of a person’s death or incapacity. Of the majority of people I meet who have children, the overwhelming majority are concerned with the care of their children under such dire circumstances.  That is because the vast majority of parents want what is best for their children and wish to create a situation where the tragic loss of a parent creates as little disruption in the lives of the child as possible.   This is especially true of the single parent who must balance a myriad of concerns and issues when considering the needs of their children.  Fortunately, there are methods for dealing with these concerns. They are through the use of a Guardianship Clause in a Will, the Standby Guardianship and the Designation of Person in Parental Relation.
In a Guardianship Clause of a Will, a parent names a guardian and an alternative to raise his or her child or children in case of the parent’s death.   The benefit of this is immense.  Naming a guardian is a major step in assuring that a child  is raised by a close and trusted friend or family member whom the parent believes  will best raise your child or children   Naming a guardian also has the effect of limiting conflict over that very question because guardianship clauses are given great weight by courts in guardianship proceedings.
Parents can also add an additional layer of protection for their children by creating a Standby Guardianship document.  This type of guardianship document is useful if a parent will be away on travel and becomes stranded because of war or natural disaster, or if the parent becomes incapacitated or even dies. The Standby Guardianship gives the named guardian the right to act as a child’s “parent” in the absence or incapacitation of the legal parent or guardian. It does not take away the rights of a parent, rather it provides the standby guardian the same rights as the parent.
The Standby Guardianship offers the parent flexibility because it enables a parent to establish a termination date, and can be done through writing if certain formalities are observed.   The parent’s intention to name the stand by guardian in the event of the incapacitation or death of the parent is required.  The child or children should be named, as well as the parent, the guardian and an alternative.  The temporary guardianship generally lasts for sixty days before permission of a court is required to continue the guardianship or at the death of the parent.
Finally, if a parent will be out of the country or away on an extended trip, he or she might utilize a “Designation of Person in Parental Relation” as a method of ensuring that a competent adult has the authority to make decisions related to a child’s school or health while the parent is away. The use of HIPPA authorization in conjunction with the Designation may be considered for most effective use.
The use of guardianship documents and clauses can be used in conjunction with other estate planning documents to provide for as many contingencies as possible. They are effective and can be drafted with the help of your attorney.

Posted by Robert J Maher | Post a Comment

Date: 5/31/2016 12:40 PM EDT

There have been a number of high profile deaths this year that illustrate the importance of having an estate plan. David Bowie and Prince both left behind large estates that will be distributed very differently. Bowie’s Estate will pass pretty much in the manner he wanted, while early indications suggest that the resolution of Prince’s estate may result in conflict.
There is an inherent difficulty in comparing the estates of these two performers because their circumstances, like the general public, were different from each other.  David Bowie was a little older and suffered from terminal cancer for quite some time. Prince had health issues, but he was younger and from what we know, did not suffer from a terminal illness. Prince may have felt that he had “time.”  The reality is we do not know how much time we have.  As a result, the manner in which their respective estates are to be distributed are quite different and illustrate some crucial points in estate planning that can apply to all of us. 

The truth is that we all have a plan when we die.  We either die with a will, or intestate (without a will).  When we have a valid will, the named executor is appointed and the will determines how the estate will be distributed i.e. who inherits our assets. When we die intestate, an Administrator is appointed by the court and the Administrator follows the rules for intestacy for the state in which the deceased lived.  David Bowie died with a will and we have heard very little about the related proceedings. The Surrogates Court of Minneapolis, on the other hand, recently appointed a bank to be the Administrator of Prince’s estate, and the bank as Administrator will rely upon the state of Minnesota’s laws relating to intestacy to resolve issues related to the Estate and ultimately distribute its assets. 

The question of whether Prince wanted his estate divided amongst his siblings is an open question. Nevertheless, the task of the Administrator in dealing with the myriad of issues related to his personal and business life will require a lot more time an additional expense than if he had planned ahead. Not to mention substantially delay the distribution of his estate. It’s unlikely to be a smooth or neat process.

There are potential substantial tax implications as well.  Both Bowie’s and Prince’s sstates exceed the current federal threshold for estate tax purposes. At least a portion of Bowie’s estate could potentially be passed to his wife through the use of marital deductions and other rules that permit married US citizen couples to shield their estates from taxes.  Prince’s estate - on the other hand – is likely to be diminished by federal estate taxes as high of 45% on the value of his estate exceeding 5.45 million dollars, the exclusion amount for 2016. 

These two examples are instructive for all of us even if we are not millionaires.  Having a plan in place removes uncertainty, lessens conflict and lowers the ultimate cost of managing our affairs when we are gone.  A Will combined with Health Care Advance directives and a financial power of attorney go a long way toward this goal.  If you are not willing to take the time required to put a plan in place, do it for those closest to you. You won’t regret it.
If you want to start thinking and planning about protecting your loved ones, take a look at our e-Guide on estate planning for families on our website (www.robertmaherlaw.com).


Posted by Robert J Maher | Post a Comment

Date: 5/2/2013 12:19 PM EDT

In a recent new York Times article, entitled "He Left a Fortune, to No One," highlights the dangers of failing to create even the most basic estate plan.  The subject of the story,  Roman Blum, died without any known heirs or relatives.  His estate valued at approximately forty million dollars,  may escheat, ore revert, to the State.  This is an extreme example.  However, it highlights the importance of having at least a basic estate plan in place.  Preparing a Will, a Living Will, a Health Care proxy and a short form Power of Attorney will go a long way.  Here's why:

1. A will can direct how assets are distributed. 
If you do not have a will, the State in which you are domiciled (your permanent home)  at the time of your death will determine how your assets are distributed.   For example, suppose you are married and have one child. If you die intestate (without a will) in New York, according to the New York State Estates, Powers and Trusts Law, your estate will be distributed as follows: fifty thousand dollars and one half of the estate passes to your spouse and the remainder to your child.  If you have small children, this could mean that your minor child has inherited a substantial amount of money.  A will affords you the opportunity to create a situation whereby a trusted adult, often a "trustee," "custodian" or "guardian," in legal terms, manages the assets for a child and distributes them to the child at a time specified by you, the parent. 

2. You can name a guardian for your minor child if you are a single parent.
You can name a guardian for your minor children in your will.  The death of a parent is a traumatic experience for a child. Naming the person that you wish to raise your children in the event that you die is one way to help your child deal with the loss of you, the parent.  Children fare much better when there is certainty and stability in their lives.  Naming a guardian may also lessen inter-familial conflict after  your death.  There is much less conflict when the wishes of the deceased are clear. 

3. Your end of life wishes are known to all.
By creating a Living Will your wishes are clear.  A living will is a document that describes in detail how you want to  be cared for when you are no longer able to make medical decisions for yourself. Living wills inform family members and healthcare professionals of your wishes regarding artificial measures used to keep you alive in a situation where there is little or know hope for recovery. 

4.  Medical Professionals and Family Members know who is responsible for making medical decisions for you when you are unable.
A Healthcare Proxy is the person named by you who makes  healthcare decisions for you when you are unable.  This person should know your wishes regarding medical treatment.  Your Living Will will reflect those wishes.

5. A Power of Attorney will enable your Agent to complete financial transactions for you if you are incapacitated. 
Giving a trusted friend or family member power of attorney protects you if you are incapacitated.  The New York Short form Power of Attorney  gives you Agent the authority to pay your bills, buy and sell property, and complete other financial transactions on your behalf.  In a situation where you are unable to pay your mortgage for instance, the power of attorney could be exceptionally useful. 



Posted by Robert J Maher | 1 Comment

Date: 1/25/2013 11:32 PM EST

I read an interesting article by fellow attorney Antonia J. Martinez in the New York State Bar Association's Trusts and Estates Law Section Fall/Winter 2012 Newsletter. When parents are planing their estates, they normally consider who will care for their minor children when they are deceased and do not consider who will care for a minor child in the event of their incapacity.  Enter the Standby Guardianship.

As the author explains, a Standby Guardianship is similar in nature to a power of attorney, which grants the appointee, or agent, the authority to manage the affairs of individuals who cannot manage their financial affairs.   In the case of a Standby Guardianship, a parent names a guardian to take care of a child while the parent is incapacitated.  The guardianship lasts for an initial period of  up to sixty days.  At that point, the guardian has to petition the court to be named permanently. The Standby Guardianship is especially helpful for single parents.  It gives a parent some say in who will care for a minor child in the event of his or her incapacity.

If you have any questions about Standby Guardianships or estate planning in general,  please feel to call or e-mail me:

Robert Maher
Law Office of Robert J. Maher, P.C.
52 Duane Street, 7th Floor
NewYork, NY 10007
212-939-7548
RMaherEsq@gmail.com



Posted by Robert J Maher | Post a Comment

Date: 1/23/2013 12:27 PM EST

The below article recently published in the New York Times shares a startling statistic: 57% adults in the United States do not have a will.  This means that their estates will be settled pursuant to the laws of their state related to intestacy, the situation where a person dies without a will.  The issues the author raises regarding the uncertainty that exists when a person dies without leaving behind a plan or even a list of passwords are very real. 


http://www.nytimes.com/2013/01/12/your-money/estate-planning/shell-tell-you-its-time-to-think-ahead.html?_r=0&adxnnl=1&ref=general&src=me&adxnnlx=1358960496-3zJaAUnPVK6EkO01Ue5esg

If you have any questions regarding the issues raised in the article or have any questions about preparing a will, health care proxy, living will or power of attorney,  please contact me at RMaheresq@gmail.com. for a  free estate planning consultation

Law Office of Robert J. Maher, P.C.
52 Duane Street, 7th Floor
New York, NY 10007

Posted by Robert J Maher | 1 Comment

Date: 3/11/2012 6:39 PM EDT

You can choose your spouse, another family member or a close friend to be the Executor of your estate. It is a generally helpful to choose a person who is willing and able to make financial decisions, and who is organized, trustworthy and efficient.  Although the amount of work required depends to a degree on the size and complexity of the estate, the role of executor can require a considerable amount of work.  Executors are entitled to collect fees for their work.  They can also be held liable if they mismanage the estate. So, it is important that the executor seek assistance in administering a decedent’s estate.  

What is the role of the executor?
The Executor (male) or Executrix (female) of a Will makes sure that the dictates of a Will are carried out and is responsible for the administration of a decedent’s Estate.  An Estate is the property owned by a decedent at death that passes to beneficiaries under a will.  It can include cash, jewelry, a house, a co-op and any other property owned by a decedent.   It does not include property owned jointly with another, like a home owned jointly by two spouses, or the proceeds of a life insurance policy.   

The Executor gathers the assets of the decedent and manages them while the estate is probated.  Probate means to file the original will with the court and to notify those required by law of the filing of the will.  The Executor then pays the decedent’s outstanding debts.  If there is a co-op apartment or other property, the Executor may have to sell the property.    The Executor is also responsible for filing the decedent’s final income tax return and a tax return for the estate.  After all of the decedent’s expenses are paid, the Executor distributes the remainder of the decedent’s assets in accordance with the decedent’s will.  Finally, the executor may be required to file an accounting with the court.  An accounting includes a description of all of the income and expenses of the estate and lists any distributions made to the beneficiaries by the Executor. 


Posted by Robert J Maher | Post a Comment

Date: 2/20/2012 9:41 PM EST

Many people I meet ask, “What will happen if I do not have a will?” In short, the answer is that if you die intestate, without a will, the Surrogates Court or its equivalent (if you live outside of New York State) will make the decisions about your property, your investments and if you have young children and your spouse is deceased, the care of your children. The Court will follow your state's laws related to intestacy in determining how your estate is distributed.

If you wish to direct how your assets will be distributed, you should have a will.  You can leave all of your assets and belongings to one or more specific individuals, charities, or family members.  The first step is naming an executor. Typically, married individuals name their spouses; however, if your spouse is incapacitated or unable, or if you are single or widowed, you can name another individual you trust as your executor. The executor's responsibilities include collecting and organizing your financial papers, gathering your assets, paying any outstanding bills, selling your home if necessary, and answering relatives' questions and making sure that your wishes are fulfilled.  

If you have any questions, please feel free to contact me:

Robert Maher
Law Office of Robert J. Maher, P.C.
52 Duane Street, 7th Floor
New York, NY 10007
212-939-7548


Posted by Robert J Maher | Post a Comment

Date: 11/7/2011 3:28 PM EST

The Wall Street Journal recently ran this interesting article regarding the importance of estate planning for people at different stages of life:

blogs.wsj.com/juggle/2011/10/18/get-an-estate-plan-now/?mod=wsj_share_linkedin&goback=%2Egde_1701677_member_77675248

Posted by Robert J Maher | Post a Comment

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