Goldinov & McCauley Blog

Pre-Planning Your Funeral Can Remove the Burden from Your Loved Ones

admin — Mon, 05 Mar 2012 15:36:04 +0000

A funeral comes at a time when the death of a loved one is recent and close, and many people are still in shock and in some cases struggling with the reality of loss. Funerals help grieving loved ones come to terms with death and say their final goodbyes… but for the person planning the funeral the experience can sometimes be a frustrating, painful, and expensive experience. Planning ahead for your own funeral—discussing it with your loved ones and even including your wishes in your estate plan—can remove this burden from their shoulders when the time comes.

Although pre-planning a funeral is essential, pre-paying for a funeral can actually be detrimental. According to The Funeral Consumers Alliance there are just too many things that can go wrong, “[prepaying for] funerals may not cover every item of service you and your family expect, and there’s often no guarantee the money you pay today will keep up with inflation to pay the cost of the service you’ve picked out.” In addition, “many state laws don’t offer much protection for your prepaid funeral money.” If you change your mind or move out of the area there’s no assurance that you’ll get your money refunded. That being said, although pre-paying may be a no-no, setting aside funds for a funeral—in an account, CDs, or a specially designated insurance policy—is always a good idea.

In just about every will or trust you will find something about the estate “paying the deceased’s final expenses,” otherwise known as funeral and/or memorial costs. As a small portion of what can sometimes be a very large and intricate document, this “final expense” clause can seem unimportant—but our firm knows better.

Talking about your wishes for “final disposition of your remains” is something that should always be discussed with your estate planning attorney. Whether you choose to
pre-plan your funeral or not, having some basic instructions in your will or health care directive for your preferences regarding burial, cremation, organ donation and so on will be a huge help to your loved ones during a difficult and emotional time.

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Ilene L. McCauley and Frederick H. Goldinov are licensed to practice law in the State of Arizona. The law firm of Goldinov & McCauley, PLC provides legal services for clients in the State of Arizona. The information provided on this website and our blog is general and educational in nature and should not be construed as legal or tax advice, nor does the use of the website create an attorney/client relationship. Laws of specific states or laws relevant to a particular situation may affect the applicability, accuracy or completeness of this information which cannot take the place of one-on-one personal legal consultation and advice. Federal and state laws and regulations are complex and subject to change. No legal representation is created, and we make no warranties with regard to the information or results obtained by its use. Neither the authors nor anyone forwarding or reproducing this work shall have any liability or responsibility to any person or entity with respect to any loss or damage caused, or alleged to be caused, directly or indirectly, by the information contained in this website or blog.

What To Do After A Death In The Family

admin — Fri, 02 Mar 2012 15:34:53 +0000

Anyone who has lost a close friend or family member knows that what a difficult, painful, and overwhelming time it can be. We are often asked to help our clients through probate process when a loved one dies, but probate isn’t the only thing you’ll have to think about; in fact, it may not even be the first thing you should think about. We know that nothing can make this process easy, but we hope this brief guide can help make the process of dealing with the death of a loved one somewhat less overwhelming.

1. The first thing you’ll want to do is call close friends and family. They will share in your grief, and they can also share the responsibility of notifying others.

2. Contact a funeral director. This person can help walk you through the process of planning a memorial, making burial arrangements, and even writing an obituary. This can often be the most overwhelming task, not because it is particularly difficult, but because it has to be done so quickly; sometimes before the reality of death has had a chance to sink in with the survivors.

3. Find out if your loved one had a will. Contact their attorney (if they had one) and make sure you have the original for the probate court. If you aren’t sure how to file with will with the probate court you can contact an attorney, or check the website of the local probate office for the deceased.

4. Order multiple copies of the death certificate. You will need these for the insurance company, as well as for some of the steps below.

5. Collect the mail and contact all utility companies, credit card companies, debt collectors, etc.; call to notify them of the death and stop services.

6. Go through the deceased’s files and paperwork. This can be tedious, time-consuming, and confusing, depending on how organized your loved one was. This is important information you (or the executor or trustee) will need to file final tax returns and pass on to the probate court, so don’t be afraid to ask for help when you need it.

Dealing with the death of a loved one is one of the most difficult and overwhelming things you may ever have to do. If you are having a particularly hard time with the grieving process don’t be afraid to ask others to help with the more difficult items, or to hand the list over entirely to someone else if you feel unable to cope. This is when your own probate or estate planning attorney (or the deceased’s attorney, if they had one) can be especially helpful.

Although it sometimes feels as if time should stand still when someone we love passes away, life does go on, for better or worse. But the world is full of caring and knowledgeable people to help you through the process… if you only know where to look.

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How to Prevent Family Fighting Over Mom’s Will or Trust

admin — Wed, 29 Feb 2012 15:34:00 +0000

Most people believe that creating an estate plan is a private and personal business; something you do alone or with your spouse, between you and your attorney, with your children, grandchildren, or other beneficiaries kept on a strictly need-to-know basis. In an ideal world this would be true: parents and their adult children would always get along, and when those parents passed away their children would quietly and respectfully follow their wishes regarding the distribution of their estate.

Unfortunately, we don’t always live in an ideal world, and inheritance and estate planning can often cause tension between parents and children—sometimes before the parents have even reached retirement age! This does not have to be your family’s fate, however. Even if you suspect your children won’t like what you’ve put in your will or trust it may be possible to keep the peace and prevent family fights from breaking out—both in the here and now, and after your death.

Some people choose to simply keep their wishes secreted away in a safety deposit box when they know their family members will disapprove of the contents, and then let everyone fight it out on their own after the grantor has passed away; but this only puts off the bad feelings and can often cause lasting rifts among siblings at a time when they most need the love and support of family. Furthermore, this strategy of secrecy doesn’t address what happens if you become incapacitated and need one of your trustees or agents (in all likelihood one of your children) to take over your affairs.

A better option than secrecy is to invite your children to join you in a meeting with your estate planning attorney. This gives you an opportunity to share your plans in the presence of a knowledgeable professional who is on your side; it also gives your children the chance to ask questions and get clear and immediate answers. More often than not tension about mom and dad’s estate plan stems from a lack of understanding, or a worry that mom or dad have been taken advantage of. Having a family meeting with your attorney can be reassuring, educational, and put everyone one the same page moving into the future.

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How Long Has It Been Since You’ve Updated Your Estate Plan?

admin — Mon, 27 Feb 2012 15:33:02 +0000

Many people think that there’s no need to update your estate plan documents if none of your beneficiaries or fiduciaries have changed, but that’s exactly the kind of thinking that can lead to disaster. Estate planning documents are based not only on your own wishes, but also on federal and state tax laws. When an estate planning attorney drafts your documents we take into account a number of different factors, which means that you get the best possible result and an estate plan that should work like a well-oiled machine when the time comes; but it also means that your estate plan needs periodic review, just as your car needs an occasional tune-up.

Over the past few years income tax, estate tax, gift tax and IRA rules and regulations have gone through some sweeping changes. These changing tax laws—and your own changing financial situation—could mean that language originally meant to apportion assets in the most efficient manner could now result in leaving your surviving spouse, children, or loved ones without any assets at all.

The only way to ensure that this is not the case with your estate plan is to have your documents reviewed every few years. Fortunately, depending on the extent of the update, the cost of a simple review and update is much less than the initial cost of creation. But the longer you wait between reviews the more likely it is that the changes needed to bring your plan up to date will be extensive—and thus more expensive.

Don’t let too much time pass between reviews of your plan. The cost of a review is minimal; but the cost to your family if you neglect your plan could be astronomical. Call our office today to schedule your “tune-up” meeting.

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How To Have Fun Planning Your Estate!

admin — Fri, 24 Feb 2012 15:31:59 +0000

Creating a will or trust, healthcare documents, powers of attorney, etc., can sometimes seem overwhelmingly sad and serious. Well, the act of protecting your loved ones is very serious, but it doesn’t have to be sad. In fact, planning your estate can even be enjoyable! Here are 5 ways you can enjoy planning your estate:

1. Let the process of choosing and informing your fiduciaries (the people you will trust to be your executor, your guardians, your agents) forge stronger bonds with the people you love and trust the most. It can be the perfect excuse to spend more time with the friends and family you will be naming in your documents.

2. Make it a time to go crazy with your dreams for the future: Your own retirement, goals for your children, and plans for your grandchildren. Have fun imagining the wonderful old-age you want—and then make it happen.

3. Take the opportunity to learn more about your past—and record that past for your children and grandchildren. Talk to your parents and grandparents about their history and experience; then write it down—along with your own memoirs—and include it with your EP docs for your children to find.

4. As long as you’re gathering important financial information and documents, keep the momentum going and use the time to organize your important files and information. Not only will this help you with your planning, it will make life easier for you every time tax season rolls around, and it will save your family and executor a lot of headache and heartache as well.

5. The biggest reason to enjoy planning your estate is the simplest—it has to be done and it’s the right thing to do. When your estate plan is signed and complete it will be a weight off your shoulders because you will know you have done what is necessary to protect yourself, your family, and the people you love.

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Benefit Your Loved Ones by Bringing Life to Your Estate Plan

admin — Wed, 22 Feb 2012 15:31:10 +0000

We often tell our clients that there is far more to a legacy than money. A will and a trust are essential documents to have—but there’s more to protecting your loved ones than just those documents. With these important documents (plus the lesser-known but just as important ancillary documents) you’ve provided for your loved ones financially, but what about emotionally? What happens during those difficult months when your dependents must learn to live without you? You’ve worked hard to build a full, comfortable and happy life for your loved ones; preserving (as much as possible) the comfort and stability of that life is at least as important as preserving your financial estate.

One of the best ways to do this is with a memorandum of intent. A memorandum of intent is a letter that you write to the guardians of your children, or to the caretaker of your special needs relative or elderly parent. A memorandum of intent is a document that details the crucial minutia of your daily life. In it you can express the things that might be considered too small, or the things that change too frequently, to include in your trust—but are essential to the daily fabric of your life. This includes details such as:

* An overview of daily schedule and activities

* Names and phone numbers of friends

* Your family’s religious beliefs (if applicable)

* Unique holidays and traditions celebrated by your family

* Name and phone number for primary physician (or other health-care providers)

* Favorite foods, comfort objects, books, etc.

* And much more.

These things may all seem small right now, but it is these comfortable people, places and activities that will help your family through a difficult transition should tragedy strike. You can’t be sure that you will always be there to provide comfort and care for your loved ones, but you can ensure you do your best for them now, to ease their suffering during difficult times later.

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Dementia and Alzheimer’s: Is It Too Late For Mom Or Dad To Execute Legal Documents?

admin — Mon, 20 Feb 2012 15:30:25 +0000

The question of competence has become a very big issue in the estate planning/elder law world over the past few years. As the population ages, and awareness of Alzheimer’s and dementia diagnoses grow, more and more adult children are questioning the ability of their elderly parents to make legal and financial decisions. Some children are unhappy with the choices their parents make; but most are simply concerned, and want to ensure their parents are not working in confusion against their own best interests, or being taken advantage of by others.

Estate planning attorneys must assess the competency of every client before they sign any documentation, and most attorneys can confidently make this assessment based on observation, experience, and instinct during the course of interaction; but every once in a while a situation arises that is not so clear, or a family member will express concern about the principal’s ability to understand and sign legal documents.

If you are worried about the competency of your loved one here are a few things to consider:

* Does he have the ability to articulate the reasoning behind a decision?

* Is his state of mind fairly stable, or do his moods and opinions change frequently and without cause?

* Does he appreciate the consequences of any given decision?

* Does he understand when a decision is irreversible?

* Does he recognize the substantive fairness of a transaction?

* Is his current decision-making consistent with his previous lifetime commitments?

In order to determine whether or not a person is competent to sign a will or trust, however, an assessment should be much more focused:

* Does the principal have a clear knowledge of his assets?

* Does he have a full knowledge of the persons to whom the estate is being left?

* Is he able to reasonably formulate and express a plan for the disposition of the estate?

The unfortunate truth about elderly illness is that competency in a person afflicted with the beginnings of Alzheimer’s or dementia can often change from day to day or even hour to hour. If there will be any question at all about the competency of the principal the safest thing to do is to express your concerns to your attorney, and have mental examination performed by a doctor. Of course the very best way to ensure mental competence is to create your estate plan early, before age or dementia becomes a factor.

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Divorced Couples Can Still Benefit from Joint Estate Planning

admin — Fri, 17 Feb 2012 15:29:26 +0000

Creating an estate plan to protect your minor children is one of the most difficult—and most important—things you will ever do; this is especially true if you and your child’s other parent are separated or divorced. Relationships don’t always end amicably, but if you do have children it is definitely worthwhile to put aside your differences with your ex long enough to discuss estate planning for the sake of your kids.

There are three major things to consider when estate planning during or after a divorce:

1. Guardianship: According to the law, if you pass away guardianship passes to your child’s other biological parent; this is the case even if you had full custody (unless it is determined that the surviving parent is unfit). This is something to keep in mind when you are nominating guardians. If you and your ex can sit down and discuss guardians together and agree on a few alternates it will make everyone (including your child) feel more secure about the future.

2. Financial Inheritance: Although many divorced couples may feel comfortable with their ex as guardian, most are dead set against their ex having any control over their finances. How then can you leave your estate for the benefit of your child without leaving it in the hands of your ex? The solution is to put your child’s inheritance in trust until they come of age, with a person you know and trust acting as trustee. Your trustee will have the responsibility to keep and maintain the trust, giving distributions to the guardian for the benefit of your child. Keep in mind that your trustee and guardian will have to work together quite often, if you and your ex can agree on someone with whom you both are comfortable it will make the process much easier on your trustee, your ex, and your child.

3. Remarriage: When you marry there is an inevitable mingling of finances, and this is no different for a second or third marriage. However, if you don’t make provisions for your children in your estate plan your assets will end up going entirely to your new spouse when you die, leaving your child(ren) out in the cold. This can be easily addressed in your estate plan (or your ex’s estate plan, if he or she is the one getting remarried) as long as you talk to your attorney and take action now, before it’s too late.

If you are going through or have gone through a divorce please call our office and let us help.

If you are going through, or have gone through a divorce, please call Ilene L. McCauley at 480.296.2036for help in navigating through these important and sensitive issues.

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Is It Always In Your Best Interest To Accept An Inheritance?

admin — Wed, 15 Feb 2012 15:28:30 +0000

Most estate plans are created to achieve control over your estate both while you are alive and again after your death. After your death the planning is generally designed to protect loved ones and to make certain that your assets pass to your loved ones exactly the way you want them too. In some estates, large and small, there may also be tax consequences to the death. Death taxes reach almost all estates because there are 5 kinds of death taxes:

* Estate Tax (Imposed by Federal Government on Larger Estates)

* Inheritance Tax (Imposed by State Government in Some States)

* Income Tax (Imposed by Federal and State Governments)

* Gift Tax (Imposed when we give gifts to our loved ones during lifetime)

* Generation Skipping Transfer Tax (The worst tax of all. It is like a double estate tax on certain estates.)

With all the recent changes to tax laws, and the additional changes which we know are coming, some plans which were drafted years ago have never been updated. Plans which have not been changed by their creators to take into account all of the changes in the tax world may not work as intended anymore—and your loved ones may end up looking for a way to protect themselves against the unintended consequences of these outdated estate plans. This subject is one which we have touched on before on our blog, but is worth mentioning again as we close in on 2013.

This article in the New York Times explains what it means if you disclaim (or turn down) an inheritance, and when you may want to employ this tactic. A Disclaimer is a legal “No thank you!” A loved one will disclaim an asset from an estate or trust by saying “No thank you. The assets may not help me at all.”

“Historically, lawyers have recommended disclaimers to repair estate planning oversights that bring negative tax consequences — as when families leave money to family members on public assistance. In such a case, the loved one could disclaim, so the inheritance would go to their own children instead, rather than facing the possibility of losing their public benefits.”

Although this is an interesting solution to be considered in some cases, there are no easy answers to the question of what to do when you are the beneficiary of an estate that has taken an unexpected turn. To obtain current and individualized information concerning your particular case, contact Ilene L. McCauley at 480.296.2036 or by email at Ilene@gandmlaw.net. She will be happy to assist you in sorting out the legal and personal ramifications of estate planning gone wrong.

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5 Basic Tips for Trustees

admin — Mon, 13 Feb 2012 15:27:19 +0000

Naming someone as trustee of your living trust is quite possibly one of the most difficult decisions you’ll ever make. The trustee is involved in just about every aspect of the administration of a trust; and although it is considered a great honor, it can also be a great responsibility.

Most people choose someone close to them to serve as trustee: a best friend, son or daughter, brother or sister. Choosing someone who knows you and your family to serve in this role can be beneficial in many ways, but if that person doesn’t have a financial or legal background the responsibilities can be overwhelming! It is important that the person you nominate as trustee knows not only what is expected of trustees in general, but also knows what you expect of them as a trustee. For this reason, you may want to consider giving your nominated trustee these 5 Basic Tips for Trustees—and don’t forget to add your own personal requests as grantor.

1. Make sure you read and understand the entire trust document. If you don’t have a legal background it is okay (preferable, in fact) to ask for help from an attorney.

2. Always remember that the beneficiaries of the trust are your first priority and responsibility. Once you are trustee you have what is called a “fiduciary duty” to always act in the best interests of the beneficiaries.

3. Make sure that the trust has its own separate checking account. If the trust is a living trust you as trustee will likely be the person who creates that separate account after the death of the grantor. Under no circumstances should a trustee mingle personal finances with trust finances.

4. Maintain regular contact with the beneficiaries; not just to provide them with regular accountings of trust activity or investments, but also so you yourself can remain aware of the lifestyle, needs, and feelings of all the beneficiaries.

5. Be sure you have a support team that will benefit the trust and the beneficiaries. Get investment advice from a financial professional; have a trusted attorney help with any legal questions you might have; hire a mediator to help if there are irreconcilable differences amongst the beneficiaries. The goal here is not to spend the trust funds frivolously, but to protect and preserve trust assets as the grantors would have wished for their beneficiaries.

Ilene has assisted many a trustee in maneuvering through their duties. She also offers training for current and future trustees several times each year. Ilene’s next Trustee Workshop is scheduled for September 14, 2012. If you would like to attend, or want to send your trustee to the training, please call Kathie at 480-296-2036, or you may register online by following the directions on the side bar.