Advertise on podcast: Wood + Lamping - Estate Planning / Elder Law

What Are Estate Taxes?   I.                    What is the Death Tax? ·         There has been a lot of talk this week about the Trump Tax Bill, what is in it, what’s included, and in my practice this always conjures up talk about the death tax or the estate tax. ·         The estate tax is a tax assessed on the total value of your assets which transfer at death to heirs or beneficiaries. ·         As of 2025, the estate tax only applies for estates worth more than $13.99 million per individual, or $27.98 million for married couples who elect portability upon the death of the first spouse’s death. ·         You can leave an unlimited amount of assets at death to your spouse without incurring estate taxes. However, this means that the estate tax exemption is wasted upon the death of the first spouse. Portability permits the transfer of this unused estate tax exemption to the surviving spouse creating a $27.98 million estate tax exemption for the surviving spouse in 2025. ·         If you have an estate that exceeds this threshold, the excess is taxed at rates up to 40%. ·         If you have an estate worth $15 million, only $1.01 million above the exemption is taxable. ·         However, this high exemption is currently temporary. Unless Congress acts, it’s set to sunset to approximately $7 million per person starting in 2026, subjecting more estates to the estate tax. ·         Under the Biden Administration, there was discussion of reducing the estate tax exemption to $3.5 million. Under the new Trump Tax Bill proposal, there is discussion in making the exemption $15 million per individual in 2026 and making the exemption permanent. ·         Therefore, we are in this waiting period on how new estate tax legislation will affect estate planning going forward.   II.                 State Estate Taxes and Inheritance Taxes ·         There are some states which impose their own estate taxes and inheritance taxes. ·         Unlike estate taxes, which is paid by the estate, inheritance taxes are paid by the persons inheriting the assets. ·         Kentucky inheritance tax can reach as high as 16%, however, close family members, such as spouse, children, grandchildren, siblings, are exempt from the inheritance tax. ·         It is important to watch out for inheritance taxes if your state has an inheritance tax which applies.   III.              How Do You Limit Estate Taxes ·         There are ways to limit estate taxes when your estate may be subject to estate taxes. ·         Lifetime Gifting o   You can gift up to $19,000 per person annually without touching your lifetime exemption. o   You can gift $13.99 million in taxable gifts during your lifetime. However, every taxable gift you make, reduces your lifetime exemption from the estate tax, so you need to be careful. o   A couple could gift $38,000 to each child or grandchild every year ·         Irrevocable Trusts o   Transferring assets to an irrevocable trust can remove those assets from your taxable estates o   One such option is with an Irrevocable Life Insurance Trust §  This is a trust in which the death benefit that pays upon your death will be owned by the ILIT. §  This can provide a cash free benefit for your beneficiaries named in the trust. However, it can also be used to provide liquidity for anticipated federal estate taxes. §  I have represented many family farms in the past, and the issue in those situations are that the estate will be taxable, but there is very little liquid assets. The surviving family would not want to sell the farm just to pay the taxes. This is where an ILIT can be very beneficial. ·         Charitable Giving o   Donating to charities through your estate reduces your taxable estate and can offer income tax deductions. o   Charitable trusts to benefit both a charity and your heirs can be especially beneficial   IV.              How to Plan in 2025 ·         With the federal exemption set to be cut in half and no idea when Congress is going to act, 2025 is a critical year to act and engage in estate tax planning. ·         Portablity lets the surviving spouse inherit the deceased spouse’s unused estate tax exemption. ·         However, you must file an estate tax return to claim it. ·         Higher net worth families might lock in the current $13.99 million exemption before it shrinks with a Spousal Lifetime Access Trust ·         Don’t forget to review your plan annually – asset values can grow faster than you expect, pushing you over exemption limits.

Why is estate planning a necessity for everyone over 18, not just the wealthy, and learn how to safeguard your assets and ensure your wishes are honored. We explore the critical components of estate planning, including the last will and testament, trusts, power of attorney, and healthcare directives. Dan shares real-world examples to highlight common pitfalls, such as neglecting to update plans after major life changes, which can complicate probate and lead to legal challenges. Regular reviews of your estate plan every three to five years are key to keeping everything aligned with your current life situation. Dive deeper into the world of trusts, especially their role in Medicaid and tax planning. We discuss the importance of setting up and funding a trust well before applying for Medicaid, ideally five years in advance, to protect your assets. Dan also sheds light on the strategic use of irrevocable trusts for larger estates and the significance of "see-through" language to secure tax benefits for IRAs and 401(k)s beneficiaries. With these insights, you'll be well-equipped to navigate the complexities of estate planning and ensure your goals are met, making this a must-listen episode for anyone looking to secure their financial future.

I.    Have you ever wondered what happens to your assets and property after you pass away? ·         After you pass away all the property that you own and the debts that you have must be administered through a public court process called probate. ·         The word probate actually comes from the Latin word, as us lawyers always have to use Latin phrases, “to prove.” ·         You see, for the title to your property (whether that is real estate, your car, your bank accounts, etc.) to change to your heirs and family, a probate process must occur.     II.                 What is probate? ·         As I mentioned, before title to property can change to your family, that property must be administered through a process called probate. ·         Probate is a public court proceeding in which all of your assets, property, and debts are listed in public court documents. ·         There are a number of public court pleadings (i.e., inventory of assets, accounting, etc) which are filed with the court, as well as a number of court hearings that occur. ·         At the end of the court proceeding, the assets which remain are distributed to your family members either according to the will or according to state law, after all valid debts have been paid. ·         Example: o   Imagine for a minute Jane, who passed away with a house and bank accounts. In order for Jane’s children to receive the house and bank accounts, Jane’s children had to go through probate before those assets could be transferred. ·          Many people think that if you have a will you do not go through probate. However, that is not true. Whether you have a will or not, your property will need to be administered through the probate court process.      III.              Why does probate exist? ·          Probate Court to ensure debts are paid and assets are distributed either according to law or according to a person’s last will and testament. Probate court is there to make sure that if a person leaves a last will and testament, that the will is determined to be valid according to law. Remember the word probate I mentioned early is Latin for the phrase “to prove.” Well, the will needs to be proven to be legally valid. ·         Probate court is also there to settle any disputes and disagreements among the heirs or beneficiaries     IV.              “I hear probate is bad?” ·         Probate is time-consuming. This means that there will be delays for asset distribution to heirs or beneficiaries of the estate. ·         The average probate case can last anywhere from 6 months (more likely a year) to two years or more. ·         Even if you have a will, the will must be admitted to probate. ·         The executor that you name in your will has no power until the will is admitted to probate and the executor is given authority by the court to act on behalf of the estate. ·         Probate is also costly. Court costs, attorney fees, and executor fees can add up quickly ($15,000 or more even for simple estates is not unheard of). ·         Probate is also a public process. Every asset you own and debt that you have will be listed on a public court document than anyone can look up regarding your probate estate.     V.                Should you avoid probate? ·         Having practiced as an attorney since 2011, I have seen both simple estates and complex estates go through the probate court process. In nearly every case, my clients have said: o   This took a long time o   This process was extremely expensive o   I wish mom or dad knew how to avoid this ·         In general, I have found that families which plan to avoid probate enjoy a simpler estate settlement process than those who go through probate     VI.              Ways to avoid probate ·         Joint Ownership o   Any assets held jointly with right of survivorship will not go through probate. o   Instead those assets will immediately go to the surviving joint-owner o   Think, real estate owned by a married couple with right of survivorship. The surviving joint owner takes full ownership outside of probate. o   The same can be true for jointly held bank accounts ·         Beneficiary Designations o   Designating beneficiaries on your investment accounts, retirement accounts and life insurance can ensure that those assets do not go through probate as well. o   Those assets pass to the named beneficiary outside of probate. ·          Living Trusts o   Living trusts are a way to avoid probate as well. o   I would say that most of my clients prefer to establish a living trust. o   A living trust is a legal document and entity in which a person (called a grantor or settlor) establishes a legal entity known as trust and transfers their property to be managed by another person (called a trustee) until a predetermined event, usually the death of the grantor or settlor. o   Upon death, because the property was managed by the trustee, the property is transferred to the beneficiaries, not through probate, but according to the terms of the trust. o   Also, in most circumstances, the grantor or settlor is also the initial trustee. Therefore, day to day, nothing really changes. You continue to access and manage your property as you always have. o   The only difference is that upon your death, a successor trustee, usually a spouse or an adult child, will step in and distribute the property to the beneficiaries named in the trust agreement. o   Trusts can also distribute property in ways that a will and probate cannot: §  A trust can delay distribution to children and family members  §  Let’s say you have concern regarding an adult child’s spending or other issues. You can delay the distribution to that child over time as a way to protect their inheritance. §  Or, let’s say that you have minor children – a trust can ensure that the successor trustee manages the trust property. If the property was distributed to minor children outright through probate court, your surviving family would have to go to probate court and establish a guardianship over that minor child or children until that child reaches the age of 18.

You can go online and craft a Will for $100 or less – sometimes a lot less. AARP writes on this subject all the time. But they make it clear that online Wills are only for the most basic circumstances. So, if you have a small estate and want to leave everything to your spouse and then to your kids, an online Will works – IF you fill it out and execute it correctly. But, what kinds of issues make online Wills risky? A. Minor children B. Second marriages C. Medium size estates and larger D. Disability – of the testator or the beneficiary E. Real estate in more than one state F. Children with “issues” such as poor money skills, bad spouses, poor judgment, drug and alcohol abuse, big debt, bad health G. Significant “non-probate” assets H. Planning for one’s own disability I. “Legacy” assets, including family cottage J. Family business. Beneficiary Designations. Executing a Will is only one part of an estate plan. You also need to consider: A. Power of Attorney B. Living Will C. Power of Attorney for Health Care D. Beneficiary designations. I have never met a client who didn’t believe his/her estate was simple – most were mistaken. 

How Specific Should Your Will Be? I.        Most Wills are general in nature. The same is true of Trusts. Many clients are surprised by this. They expect a Will to list certain assets to go to certain people – at least the big things.   II.        There are two kinds of gifts:   a.    Specific bequests   b.    Residual bequests.   III.        Specific bequests come in two types:   a.    The bequest of specific assets such as a house, stock, jewelry, car, household goods, etc. For example, “I give all my jewelry to my daughter, Kay Smith.”   b.    The bequest of a specific amount of money such as giving $50,000 to my son or giving $10,000 each to my grandchildren.   IV.        Residual bequests address what is left after the cost of administration and after specific bequests. For example,   “I give the rest and residue of my estate in equal shares to my children,”   or   “I give 20% of my residual estate to the University of Cincinnati, 40% to my son Brent, and 40% to my son Eric.” Of course, it must add up to 100%   V.        Most Wills have both specific bequests and residual bequests. Most Wills say:   a.    Pay the administrative expenses.   b.    Pay my bills.   c.    Pay my taxes.   d.    Give my household goods and personal effects to my children to be determined by my executor. e.    Give what is left equally to my children in equal shares.   VI.        It is not uncommon to add one or two specific bequests:   a.    I give $5,000 to each of my grandchildren.   b.    I give my jewelry to my two daughters.   c.    I give $100,000 to Cincinnati Children’s Hospital.   It is important to specify what happens if a beneficiary dies before you do. What happens to that gift – does it go to their spouse or children, or does it lapse (get cancelled)?   Also, remember is that specific bequests come before residual bequests. So, if the specific bequests use up all the assets in the estate, nothing goes to the residual beneficiaries.   VII.                Many clients think we should list assets in the Will or Trust. But, there are a few reasons that we do not:   a.    If my Will gives 100 shares of P&G to my son and I don’t own that stock when I die, what happens? In Ohio, that gift is cancelled.   b.    It is a mistake to assume that an asset means the same to a beneficiary as it does to us. If a beneficiary really wants something specific from the estate, he/she can buy it from the executor. Don’t “saddle” your values or your sentiments on your beneficiaries.   c.    Itemizing assets may trigger an appraisal and effect estate taxes.   d.    We don’t want to amend your Will every time your assets change.   VII.  Some experts suggest that itemizing assets in your Will reduces family conflict. I don’t agree. If families want to fight, they are going to fight. The terms of the Will can affect this, but not by itemizing assets.   Alternative: Make a “private” list to give to the Executor. This is easy to change. The Will should give the Executor broad power and discretion. Pick the right Executor and trust them to work it out. Don’t tie the hands of your Executor or beneficiary.

Unlock the secrets of estate planning and learn how to protect your family's future with insights from Simply Money and our special guest, expert Mark Reckman from Wood and Lamping. Discover the intricacies of Anthony Bourdain’s estate, where smart planning led to the creation of a trust for his daughter, effectively sidestepping the probate process. Yet, his choice of an estranged wife as trustee serves as a cautionary tale about the importance of selecting a reliable trustee. Listen as we dissect the complex world of assets, including the unexpected significance of frequent flyer miles, and how they can play a role in your estate plans. Join us as we explore estate planning as a profound gesture of love for those you hold dear. Through the lens of Paul Newman's personalized approach and the strategic application of the Wagner Rule, we highlight the necessity of bespoke planning that fits unique family dynamics. With Mark Reckman’s expert guidance, we emphasize the critical nature of having a well-crafted estate plan to secure the future of your loved ones. Elevate your understanding of managing trusts and learn valuable lessons from the “Death Styles of the Rich and Famous” that can be applied to your own life.

Unlock the secrets of estate planning beyond the basics and learn how to protect your healthcare wishes in our latest episode featuring Mark Reckman from Wood and Lamping. With Mark's expertise, we shatter common myths about living wills, durable powers of attorney, and healthcare directives, revealing how these documents are crucial for navigating the complexities of medical care during terminal illness. Discover the truth about living wills and the dedicated commitment of healthcare professionals to patient care, ensuring that your decisions are honored when you're unable to voice them yourself. We also tackle the vital constitutional right to die, emphasizing the consistency of these rights across the tri-state area. Navigating family dynamics in healthcare decisions can be challenging, but it doesn't have to be. Join us as we highlight the emotional and ethical intricacies families face without prior guidance about their loved one's healthcare preferences. Mark Reckman brings valuable insights into why discussing advanced healthcare directives is an act of love, alleviating the emotional burden from family members who might otherwise rely on assumptions about a patient's values. We stress the importance of appointing a reliable healthcare proxy, someone who can make impartial decisions when it matters most. Tune in to ensure that your healthcare wishes are respected and that your loved ones are spared from the agony of guesswork.

Estate planning expert Mark Reckman from Wood and Lamping joins us to share his remarkable insights from serving on a jury in a criminal drug case. Offering a rare peek into the jury room, Mark explains the crucial differences between grand and petit juries, while also shedding light on how the presence of jurors often nudges parties toward settlements. His personal experience underscores the diversity and dedication of those called to serve, emphasizing jury duty not just as a civic obligation but as a fundamental pillar supporting the rule of law in the United States. In the heart of Southwest Ohio, jury duty may initially seem daunting, yet it stands as a significant opportunity to engage with the justice system. We focus on how jury commissioners strive to make the process efficient and rewarding. Discover why this civic responsibility is not just about fulfilling a duty but about actively contributing to the legal foundation of our democracy. Through Mark Reckman's perspective, listeners are encouraged to embrace this summons as a chance to uphold justice and witness firsthand the intricate workings of our courts.

Unlock the secrets to a secure and prosperous retirement with insights straight from estate planning expert Mark Reckman of Wood and Lamping. Master the intricacies of Social Security claiming strategies, and learn how to make informed decisions that could significantly impact your financial future. With almost 75% of retirees opting to stop working before 65, we dissect the vital choice of when to claim Social Security benefits. Mark clears up common misconceptions, such as the false notion that early claims will automatically increase to full benefits at full retirement age, and addresses the often misunderstood concerns about the program's solvency. Together, we explore alternative strategies to help you make the most out of your Social Security benefits, emphasizing the advantages of delaying claims to increase your future payouts. Consider options like part-time work, applying for disability benefits, or adjusting your budget to rely temporarily on savings. With Mark's seasoned advice, you'll gain clarity on navigating these options to tailor a retirement plan that fits your unique financial situation. Don't miss this episode filled with invaluable guidance—your retirement could depend on it!

Seven Ways to Divide up Your “Stuff” Clients ask me all the time how much detail should go into their Wills.  They are usually referring to their “stuff” – their personal possession such  as furniture, art, household goods, car, etc. Well, the answer is that we  don’t usually itemize those things in your Will – except for those rare  pieces. This is for a whole lot of practical reasons and tax reasons. That  often is not enough for folks, so typically estate lawyers offer these  alternatives. The attorney puts a paragraph in the Will that says the  Executor will decide who gets what. Then, the Executor can use one of  these methods: 1. LIST LARGE GIFTS IN YOUR WILL. Be selective and keep  this to a minimum. There are practical problems with this one. 2. SELL EVERYTHING AND SPLIT THE MONEY. This is the  great equalizer but is a little harsh. 3. WRITE A MEMO TO YOUR EXECUTOR. This is by far the  most popular. It’s simple, effective and easy to change. 4. GIVE THINGS AWAY WHILE YOU ARE ALIVE. I love this  one because it can simplify your life and bring you joy. And it  comes naturally as you downsize. 5. HAVE A LOTTERY OR TAKE TURNS PICKING. This is also  effective, but it requires everyone to be together or it will take  forever. 6. BIDDING. You can bid with real money, but usually you bid  with chips or play money or points. But this requires everyone  to be together to work correctly. 7. COLOR-CODED STICKERS. You put stickers on the big  pieces so that your family and your executor know who gets  what. This is a little compulsive, and you have to live with  stickers on your stuff – but it works.

Roughly 6 million Americans suffer from one or more dementia symptoms. 10% of folks over 85 have dementia. This is expected to rise to 14 million people by 2050. Profile of Potential Target:. 1. Dementia symptoms 2. Easily influenced by others 3. Lives alone (isolated) 4. Lonely 5. Recent loss of family member Forms of Abuse: 1. Forging checks or forcing victim to sign checks2. Forcing victim to sign a deed, will, trust or POA3. Stealing property4. Promising lifelong care in exchange for money5. Using property without payment or permission6. Phone scams7. Mail scams8. Internet scams9. Self neglectIndicators of Abuse: 1. Changing mailing address on financial reports/statements 2. Large withdrawals 3. Unpaid bills 4. Substandard care 5. Perpetrator spends too much time with victim 6. Perpetrator shows too much interest in money matters 7. Missing belongings 8. Limiting visitation by family and friends 9. Investing in sketchy business ventures 10.Late life marriages Duty to Report: 1. Last year, Ohio passed a new law that creates a duty for lawyers, doctors, social workers and mental health professionals to report suspected abuse 2. Reports are investigated by Ohio Adult Protective Services (1-855-OHIO-APS) 3. Reports are kept anonymous

SEASON OF GIVING Each year about this time, we pause to talk about the upcoming Holiday season.  This season is about family and friends. It’s also about recognizing others and giving  thanks for what we have. And it is a time to think about folks who are less fortunate.  That brings us to today’s topic: GIFTING. Broadly, there are two types of Gifts:  1. Gifts to individuals (usually family); and 2. Gifts to charity. A. Gifts to Individuals 1. Gifts can consist of anything – cash, stocks, bonds, real estate, jewels,  cars, etc. Tax law treats all gifts the same way. 2. Gifts can be made during your life (intervivos) or at your death  (testamentary). Tax law treats both types the same way. 3. Lifetime federal gift tax allowance for 2024 is roughly $13.6 million dollars  per person ($27.2 million per couple). There is no longer a state gift tax in  Ohio (since 2013). 4. The annual exclusion amount for 2024 is $18,000 per recipient. Gifts  under that amount are not reportable to the IRS and do not reduce your  lifetime allowance. Next year, people are predicting that exclusion will go  up to $19,000 per person, per year.  5. Gifts are not taxable income to the recipient. 6. Gifts and cost basis (“cost basis” is the price you paid to buy the  investment): a) gifts made during life: the person receiving the gift assumes the cost  basis of the person making the gift. b) gifts made at death: The cost basis of the gifted asset is “stepped up” at  the date of death. B. Gifts to Charity.  Charitable gifting dropped in 2022 – for only the 4th time in 40 years. It dropped  by about 3.5%. Nationwide, gifts to charity were just under $500 billion in 2022 that  rebounded to $557 billion in 2023.  Gifts to charities pre-approved by the IRS can be deductible on your 1040 up to  60% of your AGI, but, in many cases, 20%, 30%, or 50% limits can apply. Gifts to  charities made at your death, are deductible on your estate tax return – without  limitation.  There are over 1.5 million “approved” charities. Most donations are made to  religious charities. Education and human services are a distant second and third place.  Fastest growing category is to Foundations.  When making a testamentary gift, consider using qualified funds. This avoids  both estate tax and income tax on that money.  Consider this idea to build charitable giving into your family’s “culture.” When the  kids/grandkids get a little older, put some portion of the money used to buy gifts into a  “pot.” Everybody contributes. Then, convene a family meeting and make a joint  decision to give it to a charity or list of charities. Not only does this “teach” charity to the  next generation, it will give much greater meaning to the Holiday Season. It also  reinforces family values. And, believe me, the kids in the family learn from this.

It’s not easy – it’s not hard – it’s somewhere in between. It’s making choices/decisions. A.    Broad Duties of an Executor:   1.      Follow instructions in a Last Will and Testament.   2.      Hire professionals.   3.      Work with family.   4.      Pay taxes and bills.   5.      Distribute assets.    B.    Specific Duties of an Executor:   1.      Find the Will and Review its contents   a)      Locate and review the Will with a lawyer.   b)     Determine if probate is necessary.   c)      File the Will with Probate Court.   d)     Notify beneficiaries.   2.      Secure Assets:   a)      Insure valuables or property.   b)     Conduct an inventory and get an appraisal, if needed. c)      Determine if there are any non-probate assets included in the estate (such as trusts). This is property that can be transferred outside of the Probate Court. Example: life insurance, TOD/POD assets, retirement accounts, joint and survivor assets. 3.      Manage Finances:   a)      Cancel credit cards, bills and subscriptions.   b)     Freeze accounts and terminate contracts.   c)      Inform banks, brokers, landlord, tenants, doctors/health care professionals, post office, Social Security Administration and employer/employees of the testator’s passing. d)     Open estate account.   e)      Collect benefits or outstanding payments.   f)      Give notice to creditors and determine if claims are valid.   g)     Sell assets or property if necessary.   h)     Pay outstanding debts (including funeral costs).   4.      Close the Estate:   a)      File a final account with Probate Court and beneficiaries.   b)     Pay the attorney.   c)      Pay the executor.   5.      Disperse the Remaining Assets According to the Will: a)      Protect all assets until they are ready to distribute.    b)     Donate to organizations or charities if called for.   c)      Deliver gifts to individuals named in the Will.   d)     Divide remaining estate among beneficiaries as specified in the Will.

When Should You Update Your Estate Plan?   Once you have created an estate plan, it is important to keep it up to date. You will need to revisit your plan after certain key life events, including marriage, the birth of children, divorce or the death of a spouse, and a significant increase or decrease in assets. Here’s why.     Marriage.   Whether it is your first or a late marriage, you will need to update your estate plan after you get married. A spouse does not automatically become your heir once you get married. In Ohio, without a Will, your spouse would get one-third to one-half of your probate assets. The rest will go to other relatives. You need a Will to spell out how much you wish your spouse to get. Your estate plan will get more complicated if your marriage is not your first. You and your new spouse need to figure out where each of you wants your assets to go when you die. If you have children from a previous marriage, this can be a difficult discussion. There is no guarantee that you leave your assets to your new spouse, he or she will provide for your children after you are gone. There are a number of options to ensure your children are provided for, including creating a trust for your children, making your children beneficiaries of life insurance policies, or giving your children joint ownership of property. Even if you don’t have children, there may be family heirlooms or mementos that you want to keep in your family.     Minor Children.   Once you have children, it is important to name a guardian for your children in your Will. If you don’t name someone to act as guardian, the court will choose the guardian. Because the court doesn’t know your kids like you do, the person they choose may not be ideal. In addition to naming a guardian, you may also want to set up a trust for your children so that your assets are set aside for your children when they get older. Similarly, when your children reach adulthood, you will want to update your plan to reflect the changes. They will no longer need a guardian, and they may not need a trust. You may even want your children to act as executors or hold a power of attorney.   Divorce or Death of a Spouse.   If you get divorced or your spouse dies, you will need to revisit your entire estate plan. It is likely that your spouse is named in some capacity in your estate plan – for example, as beneficiary, executor, or power of attorney. If you have a trust, you will need to make sure your spouse is no longer a trustee or beneficiary of the trust. You will also need to change the beneficiary on your retirement plans and insurance policies.     Increase or Decrease in Assets.   One part of estate planning is estate tax planning. When your estate is small, you don’t usually have to worry about estate taxes because only estates over a certain amount, depending on current state and federal law, are subject to estate taxes. As your estate grows, you may want to create a plan that minimizes your estate taxes. If you have a plan that focuses on tax planning, but you experience a decrease in assets, you may want to change your plan to focus on other things. Other.   Other reasons to have your estate plan updated could include:   ·        You move to another state; ·        Federal or state estate tax laws have changed; ·        A guardian, executor, or trustee is no longer able to serve; ·        You wish to change your beneficiaries; ·        It has been more that five years since the plan has been reviewed by an attorney. Contact your elder law attorney to update your plan.

SIMPLY MONEY   September 2024   WHAT ARE THE CAPACITY STANDARDS FOR   SIGNING LEGAL DOCUMENTS?   ELDER LAW ATTORNEYS ARE OFTEN CALLED UPON TO DETERMINE IF A CLIENT HAS THE LEGAL CAPACITY TO SIGN CERTAIN DOCUMENTS. HOW DO THEY MAKE THAT CALL? WELL, THE TESTS ARE DIFFERENT FOR DIFFERENT THINGS. WHEN CONFRONTED BY THE PROSPECTS OF A GUARDIANSHIP, THE TEST IS IN THE STATUTE: CAN A PERSON MANAGE HIS/HER AFFAIRS OR THE AFFAIRS OF A DEPENDENT? THAT IS A VERY BROAD AND VAGUE TEST. THE COURT USUALLY LOOKS FOR CLUES THAT A PERSON IS AT RISK FOR PHYSICAL HARM OR FINANCIAL LOSS. THE COURT ALSO RELIES ON A PROFESSIONAL ASSESSMENT BY A DOCTOR OR MENTAL HEALTH PROFESSIONAL. THE LAW PRESUMES THAT WE ARE COMPETENT UNLESS PROVEN OTHERWISE BY CLEAR AND CONVINCING EVIDENCE. ONLY THE COURT CAN MAKE THAT LEGAL FINDING. BUT THE TEST IS DIFFERENT FOR SIGNING DOCUMENTS.   I.        SIGNING A WILL: CALLED TESTAMENTARY CAPACITY.   THIS TEST REQUIRES THE PERSON SIGNING TO BE FREE OF DELUSION AND TO: 1.    UNDERSTAND THE NATURE OF HIS/HER PROPERTY 2.    UNDERSTAND HIS/HER RELATIONSHIP TO THOSE WHO WOULD BE HIS NATURAL BENEFICIARIES 3.    LEAVE HIS PROPERTY IN A MANNER CONSISTENT WITH 1 AND 2 ABOVE 4.    BE ABSENT OF UNDUE INFLUENCE   II.   CAPACITY TO SIGN A CONTRACT   1.    COMPREHENSION OF WHAT IS “GOING ON” IN THE TRANSACTION 2.    REASONABLE TERMS IN THE AGREEMENT   3.    UNDERSTAND THE NATURE AND QUALITY OF THE CONSEQUENCES OF THE AGREEMENT 4.    ABSENCE OF UNDUE INFLUENCE   III.   CAPACITY TO SIGN A POA. THE SIGNOR MUST:   1.    KNOW AND TRUST THE AGENT   2.    UNDERSTAND THAT HE/SHE IS GIVING THE AGENT THE POWER TO ACT IN HIS/HER STEAD 3.    BE ABSENT OF UNDUE INFLUENCE         WHAT IS THE LAWYERS DUTY IN ALL THIS IS?:    1.    TO CARRY OUT THE CLIENT’S WISHES   2.    TO MAKE A REASONABLE INQUIRY INTO THE CLIENT’S CAPACITY        3.    TO MAKE A REASONABLE DETERMINATION ABOUT THE CLIENT’S CAPACITY 4.    TO DETERMINE THE ABSENCE OF UNDUE INFLUENCE.         EVERYONE IS PRESUMED TO HAVE CAPACITY.