Springing into power? Deciding the Right POA in New York
Written by Melissa Aristizabal We sprang forward into spring on March 8th but have been diligently cooped up #stayhome dreaming of brighter days to come. Planning for the future (well, further out than this public health crisis, of course) often includes having a plan in place so that another person — someone you trust – may legally act on your behalf. This is especially important if you’re unable to do so. This grant of legal rights is known as a Power of Attorney (POA). A POA is a legal document that, under New York law, allows you, the ”Principal,” to appoint an another individual as your “Agent” to act and make legal decisions on your behalf. The authority granted to the Agent can cover multiple areas or can be narrowed to one such as real estate transactions. You, the Principal decides this agency scope. So when can the Agent begin acting on your behalf? Either immediately or on the happening of a specific event or date. Simple enough, right? Not so fast. This determination can have drastic consequences. Durable Power of Attorney. A durable POA is one that grants rights immediately to the agent which will survive even if the principal becomes incapacitated—meaning when you no longer have the ability to physically or mentally make legal, financial, or personal decisions for yourself. A Durable POA will last until the principal revokes it or passes away. If the principal decides to revoke a durable POA, the principal must notify any third parties in writing that the agent cannot act on their behalf. So what’s the main issue here? This type of POA is indefinite. Springing Power of Attorney. On the other hand, a springing POA comes into play when a specific event or a specific date occurs. To create a springing POA, an event or a date must be spelled out in the POA at the time of signing. An issue that arises here is that, if the event never occurs or the Principal loses capacity before the specific date, then the POA is of no use and the Agent cannot act on behalf of the Principal. The Agent cannot act on behalf of the Principal and the Principal does not have the capacity to enter into a new durable POA unless and until the event or date occurs. However, this does not ring true for springing POA’s where the event is in fact a determination of incapacity – then the POA becomes a durable POA. Worried about abuse of power? New York state law allows you to appoint a watchdog to keep tabs on your Agent. Your monitor can – under Section 5-1509 of the General Obligations Code – request receipts and records of all transactions made by the Agent and on your behalf. The monitor can also request a copy of the POA. This helps to ensure that the Agent is acting with your best interests and within the power given under the POA. Now, It\’s Up to you. As the Principal, it is ultimately your decision on the type and scope of your POA . Thinking about obtaining a POA? Good. Just be sure to contact your New York estate planning attorney to help you work out the specifics.
COVID-19: What We’re Doing Is What We’ve Been Doing
From its inception, The Law Offices of Max Elliott has used technology to provide safe, efficient, secure, and cost-effective services to our clients. Over the years, our systems and processes, which were new to the legal industry, have been slowly adopted by other firms. And we’ve continued to evolve and grow into providing even more convenient and secure services for our clients. We were the first solo firm in Illinois to use a secure, encrypted client portal, which is now critical in light of COVID-19. Using our portal, we collaborate with clients about their legal matters safely and securely. Clients can upload or download the instruments and information they need without leaving home. Potential clients can complete intake online or over the phone. We were one of the first small firms in Illinois to accept credit or debit card payments. From the beginning, clients could forgo using postage or coming to our office to drop off payments. Appreciating the busy lives of clients, we routinely teleconference with clients and provide “house calls” for signing conferences. Recognizing the benefits of technology and productivity, our team members are accustomed to telecommuting. Valuing our workers, even as a small firm, we already have a paid sick leave policy, among other benefits. So, our firmwide processes, which are critical to keeping clients safe during the COVID-19 public health crisis, are processes that we’ve been using for years. We’re not changing much about how we work because we were already providing safe and secure client services. And we thank our clients and vendors for helping us provide a safe and secure law practice for all the individuals and families who comprise our firm\’s universe.
Give Me Your Family and Your Money
Estate planning attorneys help clients manage the 2 most important aspects of our clients’ lives: their families and their money. This means we must know as much as possible about our clients, more than almost anyone. A friend recently chuckled when I told them that if they want to be my estate planning client, then they need to talk to me as they would their doctor and then tell me what their doctor reported; talk to me like they would their tax accountant and then give me copies of their tax returns; talk to me like they would their financial planner and then give me copies of all of their financial records; talk to be about their children, siblings, partners, and parents and then tell me what they don’t want them to know; and, finally, give me the complete contact information for each one of the persons we just discussed so that I can verify, within the bounds of attorney-client privilege, HIPAA, and other fiduciary rules, the information provided with each person. And THAT is why to consider preparing a Last Will and Testament or a Trust as a DIY task is NOT funny … Unless you’re a doctor who can diagnose their own maladies, an estate planning attorney who is also a tax accountant, and a Certified Financial Planner with licenses to buy all the financial products available to amass wealth, AND you have no loved ones or potential beneficiaries. And THAT is why having a credible, experienced estate planning attorney is important for 99.9% of adults… One of our instruments is called a Trust for a reason. No joke.
Probate Horrors: Not All Fiction, Unfortunately
Probate is the court process generally required when a person with assets dies without a Last Will and Testament or some other testamentary mechanism in place that designates who should receive those assets. In Illinois, probate is lengthy – at least 14 months; costly – initial processing fees start at $850 and the average retainer is $2500; and assets are frozen for at least 6 months – so heirs cannot obtain their inheritance. So, in Illinois, unless there’s a possibility that an estate will face a protracted and costlier lawsuit, probate should be avoided. But sometimes, as much as we try, folks just don’t listen: The Other Heir Abe died without a Will, leaving his surviving spouse, Christine, and Brandy, the 3 year-old child borne of their marriage, as heirs. At the time of his death, Abe owned a small business, a home, and about $300,000 in a bank account. Christine was informed that because the bank account was the only asset with a designated beneficiary, the estate would require probate. Unbeknownst to Christine, Abe had another child, Donald, who he’d been supporting even before his marriage to Christine. Donald’s mother promised Abe that she would not confront Christine because the payments she received from Abe were 4 times as much as what she’d receive in child support. At the time of Abe’s death, Donald was 6 years of age. But then Abe died and so did all payments to Donald’s. At Abe’s death, his estate balance sheet and the probate distribution would resemble this: Estate AssetsHome, $250,000Business, $500,000Bank account, $300,000 (but this belonged to Christine)Total non-designated assets: $750,000 LiabilitiesBusiness creditors $250,000Tax Liabilities, $50,000Estate administration fees, $10,000Total Liabilities: $310,000 Distributions to HeirsChristine, 50%, $205,000Brandy, 25%, 102,500Donald, 25%, $102,500 Abe had always been concerned about Donald’s mother’s spending habits; so Abe paid many items, medical bills, clothing, and daycare directly on behalf of Donald. Now, because Donald was a minor and Abe did not plan for him in a Trust, Donald’s mother, the spendthrift, would likely be appointed Guardian of Donald’s estate with direct access to $102,500. Estate planning could have provided benefit for Donald, even without Christine and Brandy ever knowing. But… Abe didn’t plan. That DNA kit/Ancestry App Suppose that Donald was an adult and had just received results from a genealogical investigation, which illustrated that he and Abe were 99.9% son and father. He decides to search for Abe and learns that Abe just died. Christine refuses to meet with him; so Donald shows up in court… Hence, the reason why probate courts also have bailiffs. What if Donald was also a spendthrift or worse? Could he inherit?
Was I Just Disinherited?
As an estate planning and estate administration attorney firm, we routinely get questions when an individual’s loved one has died and they believe they are owed an inheritance. Perhaps they heard their loved one mention a Last Will and Testament or a Revocable Trust or, worse, a loved one died and because the individual is the only reviving heir, they are confused when they can’t obtain a second mortgage. Leaving the latter situation for another time, below are a few common questions we are often asked. Q: How will I know if I\’m a beneficiary of my mother’s Will or Trust?A: The Executor or Trustee must contact you; it’s the law. Q: My grandmother died a year ago and had a Trust. My uncle, the Trustee, won’t tell me anything. Is there anything I can do?A: Your grandmother may have left everything to her children (your uncle and parent) equally and not per stirpes, in which case, you may not be entitled to know anything. However, if your parent, who was your grandmother’s child, predeceased your grandmother, you could seek to probate your grandmother’s estate. Q: My father died and his Trust left everything to my stepmother, and upon her death, me and my siblings will inherit. Can’t we get anything now?A: If the terms of the trust are validly provided as you stated, you can’t receive anything now. You may receive inheritance from life insurance or bank accounts whereby your were the designated beneficiary but that’s all. A marital Trust, which is what this may be, generally provides all income and complete discretionary distributions of all principal to the surviving spouse. In other words, your stepmother can spend up or sell all trust assets, leaving you and your siblings with nothing. Be nice to your stepmom. Q: My sibling mentioned her Trust before dying a month ago and we can\’t find it among her papers. What she me and our other brother do?A: If she had a lawyer, contact the lawyer. If she was a regular client at a bank, maybe she has a safe deposit box, which will require a Small Estate Affidavit to open; but it could be in there. If you can’t find anything in 90 days, click here to learn about probate. Feel free to contact us if you\’ve got a question.
The Most Important Estate Plan
As they always do, memories of the winter holiday season are quickly fading, as my email is flooded with messages about keeping resolutions, new lawyer marketing tactics, and the latest “ABCDEF… Trust” to tell clients about. (Estate Planning attorneys love our acronyms!) But there’s one memory I am determined to keep. During the “holidaze,” I catch-up with my reading for pleasure and one of the catch-up books I read was the mesmerizing, bittersweet, poignant, non-fiction narrative, “The Warmth of Other Suns” by Isabel Wilkerson. The reading resonated deeply as it retold stories about African Americans traversing from Jim Crow South to the subtle but damning discrimination of the North and West. Particularly, being just 1 generation removed from the Great Migration’s heroes and heroines who found themselves settling in Chicago, I was, like many readers, warmed when I could say my Aunt lived on the same street as Ida Mae. Reading Ms. Wilkerson’s work took me simultaneously far from and close to my practice. (And I was supposed to be on vacation!) Almost inhaling every page, grateful for not having to respond to emails, I hung my head in sympathy for George who, but for misdirected anger and lack of self-discipline, would have achieved so much more. I knew a George. And I nodded, indeed, as I travelled through the book with Dr. Foster, who ventured from the community spreading the fact that “yes, we can” to communities that dare us to try. Indeed, he understood that we, African American professionals, must not turn our backs but must reach forward to serve our community regardless of the economic gap that exists between us and our community family. Indeed, we must reach back and forward with deliberate and sometimes, an unnerving strive for perfection, even though individuals in our own community may not believe we are as skillful as those of other cultures. We hold our heads high, reaching back and marching forward because, in fact, we may be more skilled and knowledgeable because we had to (and often, still do) work twice as hard, under twice the constraints, to pay twice the costs, to receive half the pay, and when you work that hard, you learn a lot more than the average above-average student. And at the end of the holiday break, I returned to my email flood, packages of supplies, impossible calendar, and a myriad of phone messages but with a renewed and refreshed understanding about my law practice. Indeed, a legally sound financial foundation and distribution scheme is important; and equally important is the “this is how we got here and why and how some of us didn’t and why we must also never forget their journey” legacy. Much in estate planning and wealth-building is written about the elimination of family wealth by the third generation. But, just because something happened in the past, doesn’t mean it must occur again. More importantly, estate planning isn\’t just about helping gazillionaires save on taxes. Consider that children and, therefore, families often benefit from the musculature that is strengthened when elders share the trials and tribulations and exemplify the fortitude that propels the family forward. They learn lessons of perseverance, delayed gratification, and respect for self and others; they grow to enjoy working for work itself and not just for the compensation; and they become community leaders and “unsung heroes” because of this almost impervious integrity breathed into them by their parents and grandparents. They learn compassion and empathy. I often smile as our estate planning world buzzes so about how to assist families who no longer need estate tax planning as a component of their estate plans. What to do? What to do? As an African American, female, estate planning attorney, I’ve known what to do for a while: help people legally forward on their most important legacy – the family journey, the who, the how, and the why of “the dream.”
Love Knows No Discrimination… aka Marriage Equality Snakes Pt 3
In the springing steps of new love, newlyweddedness, and newborns, we become absorbed with, like my spouse likes to say, the “bubble and squeak” of it all. And as the bubbles grow fewer and the squeakiness turns to creakiness in the golden and platinum years, we start to plan our farewells and what that should look like in honor of our loving relationships. That planning is sometimes truncated by accelerated medical challenges but more often than not, the planning is executed without much challenge. Loved ones are able to celebrate the dearly departed in dignity and honor and friends and family join in the celebration and do what they can to console and uplift the grieving. That is, this is the farewell achievable for couples who resemble couples of 40 years ago. For LGBTQ couples, who are even lawfully married, post Obergefell, planning farewells is often not that easy. The heartbreaking story of Jack Zawadski and Bob Huskey illuminates this additional post-Obergefell challenge: Jack and Bob were a loving couple of more than half a century. Upon retirement, they moved from Colorado to Mississippi and were married in 2015, shortly after the Obergefell ruling. Before moving to Picayune, Mississippi, Bob was diagnosed with a cardiac condition that worsened to the point that, ultimately, during the last few years of his life, Jack became his caregiver. A year after marrying, the couple acknowledged that Bob’s death was imminent. He was eventually placed in a nursing home near the couple’s community in Picayune. So Jack could focus on his last days with Bob, John, Bob’s nephew and dear friend of the couple, took on the responsibility of searching for a funeral home that could provide services in Picayune. Services in their community meant Bob’s body would not have to be transferred far and the couple’s friends and family could focus on helping each other through the grieving period. Searching online, John found the Brewer Funeral Homes. He contacted the Funeral Home and entered into a verbal agreement with the owners, Ted and Henrietta Brewer, for their services. The parties agreed to price, logistics of signing the paperwork, transportation of the body, and disposition of remains. The Brewers told John that they just needed the nursing home to contact them when Bob died and everything would be properly handled. The funeral home’s paperwork required the signature of next of kin. Bob died and Jack signed the paperwork as surviving spouse. When the Brewers received the paperwork indicating Jack was next of kin as surviving spouse, that they would be servicing a gay couple, they absolutely refused to provide the agreed upon services. John eventually found services 90 miles away. However, Bob’s body had to be moved from the nursing home before that service was available, so another funeral home was required to be involved to “hold” the body. Furthermore, because everything was last minute and far away, friends from Picayune couldn’t attend the services. Needless to say, this is not what Jack and Bob had wanted. So Jack and John sued the funeral home, alleging Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Breach of Contract, and Negligent Misrepresentation. Unfortunately, Jack died in December of 2017 and a petition was filed to substitute John as a plaintiff. Then Masterpiece Cakeshop was decided… However, another case was decided a few days after Masterpiece Cakeshop that may have truncated its reach and another legislative attempt to undermine the rights of LGBTQ families was recently thwarted. So, more to come. For now, we hope that people realize that estate planning isn’t just about getting valid instruments in order, especially if your family doesn’t resemble the other 80% of American families. This is the third part of a series, Marriage Equality Snakes, examining jurisprudence that undermines the rights of LGBTQ couples to marry and have families. Part 1 ~ Part 2
Properly Caring for Great Grannies
One of my most cherished childhood memories is of my great-grandmother sitting on her single, long braid, in her rocking chair, as I patted her hand. She would quietly rock in the sun room of my grandmother’s home, her soft brown eyes staring out the window. She never said a word, which was fine with me. I was told that at one point during her life’s journey, she just stopped talking. Since my baby sister had just been born, I appreciated the solace of quiet and not speaking. So Great Granny and I would just sit in silence together and let the sun warm our faces until… I walked into the sun room one day and she was not there. Gone. Forever. In heaven. Recalling that memory from an estate planning attorney’s perspective helps me realize how very fortunate our family was. Great Granny was only mentally incapacitated, and her incapacity did not present itself in aggressive or belligerent behavior. Equally important was the fact that our family had all the resources needed to care for Great Granny 24-7. Many families who regularly reach out to our office are not so fortunate: Since those years long ago, our country has experienced economic peaks and valleys and the State of Illinois has entered an economic abyss. Thus, if an older parent becomes incapacitated today, in Illinois, and the family has limited means, the parent and, indirectly, the family will likely confront difficult circumstances, at best, unless a plan consisting of comprehensive Advanced Directives, at the very least, is in place. Often, as parents age without a plan, children will download and prepare Powers of Attorney for healthcare or finance but these documents rarely provide the protections needed to establish the kind of care aging loved ones require, especially those who may be confronting incapacity. Additionally, the way mental incapacity presents may preclude loved ones from taking the most important initial step – obtaining a mental health assessment from a doctor. So, if anyone wonders why estate planning is so critical, think of it in the following ways. Comprehensive plans, established before sundowning, prevent loved ones from: (1) starting fatal home fires; (2) causing family poverty; and (3) causing themselves and the family unnecessary trauma of other sorts. In other words, proper planning protects parents, families, and grandchildren’s cherished memories.
It’s Quite a Taxing Season…for Trusts
Everybody probably knows by now that in December, the Tax Cuts and Jobs Act (\”Tax Act”) was signed into law. Significant changes were made to the tax code, benefiting almost all United States citizens for at least one year and at least 1% of United States citizens for at least 7 years. In addition to the significant changes affecting individuals, the Tax Act also resulted in significant changes with respect to trust income. Before the Tax Act was signed, trust income that did not exceed $12,400 was not taxed by the Federal government. Trust income that did exceed $12,400 was taxed at the highest marginal rate, which was 39.6% in 2017. Now, with the Tax Act, the threshold has disappeared, meaning that all trust income not distributed in the year in which it was accrued is taxed at the highest marginal rate, which is now 37%. But before we get our knickers twisted, let’s parse this out a bit: Does this tax apply to all trusts? Good question. Generally, revocable living trusts are named such because the Grantor or Settlor – the person creating the trust – can change the trust whenever they want or even revoke the whole thing. Since the Grantor has this right, the assets in the trust, including all income, are considered to belong to the Grantor. So, because the assets and income belong to the Grantor, the income is generally taxed via the Grantor’s income tax return, the 1040, not an estate tax return, i.e., a 1041. Example 1 John Ross retained the firm, Hamilton & Associates to establish a revocable living trust for John, leaving his wife, Betsy, everything he owns upon his death; if Betsy dies before John, the assets will go to his nephew. John owns a house in Pennsylvania, life insurance from Lloyd’s of London, and a 49% share in Betsy’s flag-making business (Betsy’s Flags), which generates about $1,000 a year in income. After the JR Revocable Living Trust is established, John’s home is transferred to the trust because he doesn’t want Betsy to go through probate and, for some reason, he also transferred his 49% interest in Betsy’s Flags to the trust. However, the JR Revocable Living Trust is revocable and all assets still belong to John as Grantor and Trustee, so the trust pays no income tax because John pays the taxes … to the King. Example 2 John unfortunately dies while in service to his country. Upon his death, the JR Revocable Living Trust becomes irrevocable; it can’t be changed. And Betsy decides to leave John’s 49% interest in Betsy’s Flags in the trust and resigns as Trustee, letting Hamilton & Associates act as Trustee. The business is booming because several rogues, who were well acquainted with John, decided to start a war with the King and ordered a ton of flags from Betsy as a symbol of unity. So she’s quite happy with her 51% and really doesn\’t have time to administer the trust. John’s trust is now a “non-Grantor” trust because the Grantor is dead and the trust owns the assets. So any income generated by the 49% of Betsy’s Flags may be subject to the King’s income tax. Revocable Living Trust Tax 2017 2018 Income $1,000 $1,000 Federal Income Tax -0- -0- Irrevocable Trust Tax 2017 2018 Income $1,000 $1,000 Federal Income Tax -0- $ 370 Of course, one may distribute the income before the end of the year and deduct the payment from the trust’s tax return. However, scenarios exist where such distributions are neither desired nor advisable. Then what? Make sure your estate planning attorney, accountant, and financial advisor know and respect each other. Does this apply to all income? Another good question. One of the changes that the Tax Act also heralded in was a deduction for income earned by certain small businesses. Thus, the income generated by the 49% of Betsy’s Flags may actually be $296.00 instead of $370.00. What do you mean by certain small businesses? That’s a question for another article. So stay tuned…
The Supercalifragilisticexpialidocious Codicil
There we were sitting in Wills and Trusts and the prof used the phrase, “the power of the codicil.” I was struck. Why? No idea. To this day, I still love the phrase and still have no idea why. Similar to a child’s love of the phraseology of “supercalifragilisticexpialidocious.” Thus, in honor of the almighty Codicil and National Estate Planning Awareness Week, I thought it a good idea to unpack “the power of the codicil.” A Codicil (“kah-duh-sill”) is the mechanism used to change a Last Will and Testament. Consider the following scenario: A very long time ago, Molly, an independent and progressive young woman for her time, had a Last Will and Testament prepared. She was married and owned a couple of properties. Her Will left everything to her spouse and since she and her spouse had no children, Molly named her best friend, Florence,as a contingent beneficiary (or more precisely, legatee). Unfortunately, Molly and her spouse divorced and to celebrate her divorce, Molly decided to take a cruise from New York to England. Her best friend became ill and so had to stay home. During the oceanic voyage, the ship sank but Molly survived and Molly vowed to change her Will as soon as she returned home. [SIDEBAR – Had Molly died, the law would have prevented her ex-spouse from inheriting but instead of her best friend inheriting her fortune, it would have gone to her no-good nephew, Fred.] Molly’s Will was very precise and long for the day – more than 10 pages. Still, all she wanted to change were the legatees; she didn’t need a completely new Will. So… enter the Codicil. Molly’s attorney prepared 2 pages, explaining and stipulating the changes – Florence received everything and if Florence predeceased Molly, then her fortune went to the Jane Addams Hull House. Molly and 2 witnesses signed and dated the codicil and voila! All was right with the world. Her will was validly changed. Molly remarried decades ago but is now a contented widow in her twilight years with great-grandchildren. About 20 years ago one particularly geeky grandchild convinced Molly to invest in \”some contraption called \”the Google\”,” this other stock called \”Apple,\” and \”a silly online store called \”Amazon\” of all things.\” Molly\’s fortune exploded so she thought it would be a good time to change her estate plan. She intends to ensure her descendants are well-cared for and give to social justice and environmental causes. Her former lawyer has since retired, so she met with her grandchild’s lawyer and mentioned the power of the Codicil. The lawyer smiled and advised that, given her good fortune and fruitful life, an entirely new Will in addition to other planning mechanisms are in order. Molly understood and the asked if the lawyer accepted Bitcoin as payment. One may ask can a Codicil be considered a Will? For example, what if the Will was lost but the Codicil was located and, for some reason, restated everything in the Will. Because the Codicil must be prepared and signed with the same formalities as a valid Will, this Codicil would likely be considered just that – a valid Last Will and Testament. Another interesting question that occasionally pops up is what if a Testator just scratched out or added someone\’s name to the margin of the Will – what effect would those actions have on the Will? Would that deletion or addition be valid? No. Those actions are not valid unless done so contemporaneously during the signing of the Will. If done so afterward, without the formalities, the person who was scratched out will still inherit and the person added won\’t inherit a thing. After a Will has been signed, in Illinois, for those changes to be valid, one would have to execute a supercalifragilisticCodicil.