The Benefits of Including an LLC as Part of Your Estate Plan

Limited Liability Companies (LLCs) are an important tool for small business owners, but they can also be useful in estate planning. An LLC can help you pass assets to your children while avoiding gift and estate taxes. 

An LLC is somewhere between a partnership and a corporation. Like a corporation, LLC owners are protected from liability. But like a partnership, the owners report income and losses from the company on their personal tax returns. LLCs also have fewer fees and filing requirements than corporations, as well as fewer rules about how the company is organized and managed.

If you have a large estate, an LLC can be used to pass assets to children without being subject to gift and estate taxes. In 2021, the estate tax exemption is $11.7 million for individuals and $23.4 million for couples. That means that any estate over the exemption amount will have to pay federal estate taxes at a 40 percent tax rate. The lifetime gift tax exclusion – the amount someone can give away without incurring a tax – is also $11.7 million. While a parent can give their children $15,000 each per year (in 2021) without the gifts counting against the lifetime limit, any amount gifted over that eats into the lifetime limit. These limits are set to drop back down to the previous exemption amount of $5.49 million (adjusted for inflation) in 2026.

The way the family LLC works is that the parents and children create the LLC and transfer assets into it. Each state has its own rules on how LLCs are established. LLCs can hold cash, real property, and personal property. Once the assets are in the LLC, the assets are translated into units of value. Family LLCs are set up with the parents as the managing members and the children as the non-manager members. This means the parents have control over the assets while the children have restrictions on what they can do with their membership interests. 

The tax advantages come when the parents transfer assets in the LLC to their children. Because the children are non-managing members of the LLC, any assets transferred to them receive a valuation discount of up to 40 percent of the market value. For example, a parent can transfer an asset worth $10,000 to a child, but because of the 40 percent valuation discount, the asset would only be taxed at $6,000 when transferred. This allows parents to transfer more assets to their children without hitting the gift tax exclusion limit while at the same time reducing the value of the parents’ estate. 

LLCs also have other advantages including protecting assets from creditors, streamlining management of family assets, and providing flexible control over the management of the assets. The disadvantage of an LLC is that it is more costly and involves more rules and regulations than traditional estate planning instruments. Because LLCs are complicated, you should consult with your attorney before setting one up.  

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Decisions to Make for Your Power of Attorney

A power of attorney may seem like a simple document, but there are several important decisions that need to be made when creating one. From whom to appoint to what powers to grant, care and consideration should be put into each choice.

A power of attorney is one of the most important estate planning documents you can have. It allows a person you appoint -- your "attorney-in-fact" or agent -- to act in your place for financial or other purposes when and if you ever become incapacitated or if you can't act on your own behalf. It can permit the agent to pay your bills, make investment decisions, take planning steps, and take care of your family when you can't do so yourself.  In theory, all the power of attorney should need to say is the following:

I, Joe Blow, hereby appoint Janet Planet to step in for me in the event of my incapacity to handle my financial and legal matters.

But in fact most powers of attorney run to several pages and involve a number of important decisions. Here are some of the decisions you will need to make on your power of attorney:

• Whom to appoint. Of course, you need to appoint someone you trust to have your best interests in mind. The person also needs to be organized and responsible and have the time available (or be able to make the time available) to carry out the functions of paying bills, guiding investments and handling any legal matters that may arise. Generally, people appoint family members to this role, but sometimes none of their relatives are appropriate, in which case they may appoint a friend or even an accountant, attorney or clergy person. If there's no one to appoint, despite the benefits of the power of attorney, you may need to resort to a court-appointed conservator in the event of incapacity.

• How many agents to appoint. You may appoint one or more agents on your power of attorney. Having multiple agents allows more than one person to share the responsibility and permits them to divvy up tasks. If you appoint more than one, make sure that the document permits each agent to act on his or her own. Requiring them to act together provides checks and balances, but it could become very cumbersome if all of your agents have to sign every check or other document. Also, if you appoint more than one agent, make sure they get along and communicate. If not, misunderstandings can arise. It is generally better not to name more than two agents, but parents of three children may not want one to be left out. Some attorneys prepare two separate powers of attorney naming different agents rather than two agents on the same document. The problem with this is that anyone dealing with either agent may not know that the other document exists and it may discourage communication between the agents.

• Alternates. In addition or instead of naming multiple attorneys-in-fact, you can name one or more alternates in case the first person or people you appoint cannot serve. For instance, you may name your spouse as your agent and your children as alternates. If you do name alternates, make sure the document is very clear about when the alternate takes over and what evidence he or she will need to present when using the power of attorney. Otherwise, a bank or other financial institutions might deny access to an account if it's not certain that the alternate has indeed taken over. For this reason, it may be better to appoint multiple agents rather than one and then an alternate. This avoids any question of proof when the second agent steps in.

• "Springing" or "durable." The idea behind a power of attorney is that it will be used only when the person who creates it (the "principal" in legal speak) becomes incapacitated. Interestingly, traditionally powers of attorney expired when the principal became incompetent, the theory being that the attorney-in-fact stands in the principal's shoes and can only do what the principal can do; if the principal is incompetent, then so is the agent. Every state has passed laws providing for "durable" powers of attorney that survive the incapacity of the principal. But when should it take effect? A "springing" power of attorney only takes affect when the principal becomes incapacitated. The problem is that springing powers of attorney create a hurdle for the agent to get over to use the document. When presented with a springing power of attorney, a financial institution will require proof that the incapacity has occurred, often in the form of a letter from a doctor. Obtaining that letter will be one more task the attorney-in-fact will have to carry out, often when already overwhelmed dealing with a parent's illness while still trying to stay employed and care for children. It can also mean a delay in access to funds needed to pay for care or to maintain a home. In most cases, if you trust someone enough to name him or her as your agent, you also trust him or her not to use the document until the appropriate time. And if this trust is misplaced, then you can always revoke the appointment. A final argument for executing a durable, rather than a springing, power of attorney is that it may be needed when the principal is competent, but unavailable. For instance, a financial or legal matter may come up while the principal is vacationing in Europe. It could be important that the attorney-in-fact can step in and act while the principal is out of the country.

• Gifting. Powers of attorney usually go on for several pages listing the various powers the attorney-in-fact may carry out. This is because financial institutions and tax authorities often look for and demand specific authorization for the tasks the agent is seeking to perform. One of the most important powers is the power to gift. While strictly speaking allowing your agent to make gifts may not always be in your best interest -- it is usually better to have more money than less -- it may well be what you would want to do if you were competent to act on your own. You may want to support children and grandchildren or to take steps to reduce taxes or qualify for public benefits. Often, power of attorney forms limit these gifts to the annual gift tax exclusion -- currently, $15,000 per individual per year. However, since you have to give away an estimated $11.7 million (in 2021) to be subject to any gift taxes, limiting the gifting powers in the power of attorney to the annual exclusion may not be necessary.

• Trust powers. Similar to the power to make gifts, it can be important to authorize the attorney-in-fact to make, amend, and fund trusts on behalf of the principal. Power of attorney forms often permit the funding of preexisting trusts but not their modification or the creation of new trusts. These powers can be extremely important in the context of long-term care planning, asset protection planning or special needs planning for spouses, children, and grandchildren.

• Copies and storage. Once the agents and wording of the power of attorney have been determined, how many originals should you have and where should they go? Most powers of attorney include language saying that a copy should be treated like an original, but this is not always honored by third parties. In addition, an original may be inaccessible for some periods of time. For instance, in transactions involving real estate, an original power of attorney must be recorded with the deed. The power of attorney will be returned, but perhaps not for several months. One option is to execute three original powers of attorney -- the attorney can keep one and you can take two. You have the option to keep the originals yourself or give them to your agents. Usually, people keep the originals and tell their agents where the documents are located in case they are needed. 

One other important consideration is to see if any of the financial institutions with which you have accounts have their own power of attorney forms. If so, make sure you execute their forms as well as a general durable power of attorney because banks and investment houses have been known to reject powers of attorney that are not their own for spurious reasons.

Executing a power of attorney is not as simple as it first seems. It is important to have a qualified elder law or estate planning attorney help you. 

Contact us

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Social Security Shortfalls Are Predicted to Begin a Year Earlier Due to the Pandemic

The Social Security trustees are projecting that due to the economic downturn caused by the pandemic the Social Security trust fund will be depleted in 2033 -- one year earlier than the previous estimates. Once the fund is depleted, Social Security benefits will be reduced unless Congress acts in the interim. 

Social Security retirement benefits are financed primarily through dedicated payroll taxes paid by workers and their employers, with employees and employers splitting the tax equally. Employers pay 6.2 percent of an employee's income into the Social Security system, and the employee kicks in the same. Self-employed individuals pay the entire 12.4 percent Social Security payroll tax. This money is put into a trust fund that is used to pay retiree benefits. 

The trustees of the Social Security trust fund now predict that if Congress doesn’t take action, the fund’s balance will reach zero in 2033. The coronavirus pandemic has caused job losses, lowered wages and interest rates, and a drop in gross domestic product, which means payroll taxes declined. Sadly, an increase in deaths of older Americans due to Covid helped to keep Social Security from losing as much money as some had feared.  The impact of the pandemic over the longer term is still unclear, and the trustees said they are making no long-range assumptions “given the unprecedented level of uncertainty.”

Once the fund runs out of money, it does not mean that benefits stop altogether. Instead, retirees’ benefits would be cut. According to the trustees’ projections, the fund’s income from payroll taxes would be sufficient to pay retirees 76 percent of their total benefit (or 78 percent if the Disability Insurance fund is included).

The trustees recommend that Congress take immediate action to address the problem, but Social Security reform is not a top priority in Washington right now. Steps Congress could take to shore up Social Security include eliminating the cap on income subject to tax. Right now, workers pay Social Security tax only on the first $142,800 of income (in 2021). That amount can be increased, so that higher-earning workers pay more in taxes. The Social Security tax or the retirement age could also be increased.

Contact us

Elise Lampert, Esql

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Ombudsmen: Front-Line Advocates for Nursing Home Residents

Disagreements with a nursing home can arise regarding any number of topics, including the quality of food, troublesome roommates, lack of privacy, or services not meeting what was promised. Many disputes can be resolved by speaking with a nursing home staff member, supervisor, or moving up the chain of command. But if you can't resolve things within the nursing home, your next step should be to contact the local ombudsman assigned to the nursing home.

An ombudsman is an advocate for residents of nursing homes, board and care homes, and assisted living facilities who is trained to resolve problems. Under the federal Older Americans Act, every state is required to have an ombudsman program that addresses residents' complaints and advocates for improvements in the long-term care system. While ombudsmen do not have direct authority to require action by a facility, they have the responsibility to negotiate on a resident's behalf and to work with other state agencies for effective enforcement.

Every statewide program is usually composed of several regional or local ombudsman programs that operate within an Area Agency on Aging or other community organization. To find the ombudsman nearest you, contact the ombudsman office in your state, which can be found here.

In addition to resolving complaints, ombudsmen may provide information about how to select a nursing home and answer questions about long-term care facilities, help people find the services they need in the community instead of entering a nursing home, and provide education on residents' rights. Most state ombudsman programs publish annual reports about the problems and concerns they address. Many ombudsman programs have limited staff resources. For this reason, most local programs seek volunteers who can be trained to help visit residents, act as advocates, and monitor general facility conditions. To learn more about the ombudsman program, visit the National Long Term Care Ombudsman Resource Center at www.ltcombudsman.org.

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Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

Ins and Outs of Conservatorships 

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian," but called a "conservator" or another term in some states.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."

Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called "limited guardianship"). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian.

Incapacity

The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Process

In most states, anyone interested in the proposed ward's well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer.

At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.

A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.

The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If a person is found to be incapacitated and a suitable guardian cannot be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose. In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.

Reporting Requirements

Courts often give guardians broad authority to manage the ward's affairs. In addition to lacking the power to decide how money is spent or managed, where to live and what medical care he or she should receive, wards also may not have the right to vote, marry or divorce, or carry a driver's license. Guardians are expected to act in the best interests of the ward, but given the guardian's often broad authority, there is the potential for abuse. For this reason, courts hold guardians accountable for their actions to ensure that they don't take advantage of or neglect the ward.

The guardian of the property inventories the ward's property, invests the ward's funds so that they can be used for the ward's support, and files regular, detailed reports with the court. A guardian of the property also must obtain court approval for certain financial transactions. Guardians must file an annual account of how they have handled the ward's finances. In some states guardians must also give an annual report on the ward's status. Guardians must offer proof that they made adequate residential arrangements for the ward, that they provided sufficient health care and treatment services, and that they made available educational and training programs, as needed. Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.

Alternatives to Guardianship

Because guardianship involves a profound loss of freedom and dignity, state laws require that guardianship be imposed only when less restrictive alternatives have been tried and proven to be ineffective. Less restrictive alternatives that should be considered before pursuing guardianship include:

• Power of Attorney. A power of attorney is the grant of legal rights and powers by a person (the principal) to another (the agent or attorney-in-fact). The attorney-in-fact, in effect, stands in the shoes of the principal and acts for him or her on financial, business or other matters. In most cases, even when the power of attorney is immediately effective, the principal does not intend for it to be used unless and until he or she becomes incapacitated. 
• Representative or Protective Payee. This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, welfare or other state or federal benefits or entitlement program payments on behalf of an individual.
• Conservatorship. In some states this proceeding can be voluntary, where the person needing assistance with finances petitions the probate court to appoint a specific person (the conservator) to manage his or her financial affairs. The court must determine that the conservatee is unable to manage his or her own financial affairs, but nevertheless has the capacity to make the decision to have a conservator appointed to handle his or her affairs.
• Revocable trust. A revocable or "living" trust can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Contact your attorney to discuss ways to protect against a guardianship. To find an attorney near you, go here: https://www.elderlawanswers.com/elder-law-attorneys.

 

What Is a Fiduciary and What Are Its Obligations?

When you need someone else to care for money or property on your behalf, that person (or organization) is called a fiduciary.  A fiduciary is a person or entity entrusted with the power to act for someone else, and this power comes with the legal obligation to act for the benefit of that other person.

Many types of positions involve being a fiduciary, including that of broker, trustee, agent under a power of attorney, guardian, executor and representative payee. An individual becomes a fiduciary by entering into an agreement to do so or by being appointed by a court or by a legal document.

Being a fiduciary calls for the highest standard of care under the law. For example, a trustee must pay even more attention to the trust investments and disbursements than for his or her own accounts. No matter what their role is or how they are appointed, all fiduciaries owe four special duties to the people for whom they are managing money or resources. A fiduciary’s duties are:

• to act only in the interest of the person they are helping;

• to manage that person's money or property carefully;

• to keep that person's money and property separate from their own; and

• to keep good records and report them as required. Any agent appointed by a court or government agency, for example, must report regularly to that court or agency.

Remember, your fiduciary exists to protect you and your interests. If your fiduciary fails to perform any of those four duties or generally mismanages your money or affairs, you can take legal action. The fiduciary will probably be required to compensate you for any loss you suffered because of their mismanagement.

 Contact us

  

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

 

Medicare Would Cover Dental, Vision, and Hearing Under Senate Democrats' Spending Plan

The Senate Democrats' proposal for a $3.5 trillion spending plan includes expanding Medicare to provide dental, vision, and hearing benefits. The proposal is now being negotiated in Congress. 

Currently Medicare does not offer much in the way of dental, vision, and hearing benefits. Medicare Part A will cover certain emergency or necessary procedures that are received in the hospital. For example, if you are hospitalized after an accident and require jaw reconstruction, Medicare Part A will pay for the dental work required as part of that procedure. 

Medicare Part B offers very limited coverage of some vision and hearing services. For example, while Medicare Part B won’t cover routine eye exams, it does cover yearly glaucoma screenings for people at high risk and cataract surgery, among a few other limited exceptions. Part B will also cover some diagnostic hearing and balance exams if they are ordered by a doctor, but it will not cover routine hearing exams or hearing aids. There is no coverage at all for routine dental work.

Many people choose Medicare Advantage plans, which are run by private insurers, instead of traditional Medicare because it is possible to get some dental, vision, and hearing benefits in most plans. According to the Kaiser Family Foundation, 79 percent of people in Medicare Advantage plans have vision coverage, 74 percent have dental coverage, and 72 percent have hearing aid coverage. 

Under the Democrats’ proposal, Medicare beneficiaries would be able to receive dental, vision, and health benefits through traditional Medicare, making it more competitive with Medicare Advantage. The exact details of the proposal are unknown, but in a 2019 bill that passed the House, Medicare beneficiaries would have paid 20 percent of the cost for basic dental coverage and routine eye and hearing exams. Democrats want to pass the spending bill through the reconciliation process, which requires all 50 Democrats to agree to the plan. Negotiations are currently underway to craft a bill that has the support of all the Democratic senators.

Contact us

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Britney Spears Case Puts Renewed Focus on Guardianships and Less Restrictive Alternatives

Britney Spears’s legal fight to wrest back control over her personal and financial affairs has flooded the issue of guardianship in Klieg lights. While a full guardianship may be necessary for many individuals who are incapable of managing their own affairs due to dementia or intellectual, developmental or mental health disabilities, the Spears case underlines the option of more limited alternatives.

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a "guardian" or a "conservator," depending on the state.

Guardianship is a legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward"). The guardian can be authorized to make legal, financial, and health care decisions for the ward. The National Center for State Courts says that about 1.3 million adults are living under guardianships or conservatorships with some $50 billion in assets.

The standard under which a person is deemed to require a guardian differs from state to state, and because guardianships are subject to state law, data on them is hard to collect and protections against abuse vary widely.  Netflix’s popular movie, I Care a Lot, spotlighted some weaknesses in the guardianship system that make it possible for an unscrupulous guardian to take control of an elderly person’s life and bleed their resources dry. 

The Spears Case: An Unusual Situation

Britney Spears has been under a court-ordered conservatorship that has controlled her career and finances since 2008. Her father, Jamie Spears, was appointed her temporary conservator when the pop singer was allegedly struggling with mental health issues and had been hospitalized, and a Los Angeles court later made the conservatorship permanent.

On July 14, a Los Angeles judge approved the resignation of Spears’s court-appointed lawyer and granted her request to hire her own lawyer. The 39-year-old singer told the judge that she wants to end the long-running conservatorship that put her father in charge of her estimated $60 million fortune and business affairs, and others in control of such personal decisions as whether she can marry and have a baby. "I'm here to get rid of my dad and charge him with conservatorship abuse," she said.

Whatever the merits of this controversial case, what makes Spears's situation so unusual is the fact that she does not appear to be incompetent, at least when it comes to her professional accomplishments. In the 13 years since the conservatorship was put in place, she has continued her career as a pop star, earning millions from a four-year concert residency act in Las Vegas and serving as a judge on the television reality show “The X Factor.”

Another anomaly is the fact that until now Spears was represented by a court-appointed attorney who, she argued, did not represent her wishes or interests. However, while the media has given wide coverage to Spears’s side of the dispute, we have heard almost nothing from the professionals handling her affairs, who are constrained from publicly disclosing confidential information.

It’s easy to see why conservatorship, which takes away a person’s right to make decisions about significant aspects of his own life, is considered among the most restrictive legal remedies in the American judicial system. For this reason, courts are legally required to seek alternatives that will safeguard the ward’s finances and wellbeing but with the fewest restrictions, in an effort to protect that person’s rights.

Protections Without Total Loss of Control

In the case of an elderly person who may no longer be able to handle some or all of her own affairs, there are various approaches that provide protection without stripping that person of control over all decisions, as in Spears’s case.

Many people in need of help can make responsible decisions in some areas of their lives but not others (such as making major financial decisions). Families might consider setting up what’s called a “limited guardianship.” Most states allow judges to appoint guardians with limited powers that are specifically tailored to the alleged incapacitated person's needs. For example, a court can appoint a guardian to oversee a person's housing and health care, but not to manage the person's bathing, eating, and socialization. Conservators can be appointed to handle the financial affairs of someone who is not good with money, without having any power to manage health care decision making—the options are almost infinite.

Alternatives to Guardianship

Sometimes, guardianship isn't the answer at all. If a person can execute estate planning documents, she can also sign a durable power of attorney and a health care proxy, which allows someone to assist her with decisions without court involvement. "Supported decision making" is a growing alternative to guardianship in which trusted advisors like family, friends or professionals assist in making decisions, although the individual retains the ultimate right to make their own decisions.

Trying an alternative to guardianship can be important for several reasons. First, it prevents a court from ruling that someone is "incapacitated," which carries with it a stigma and can be hard to undo, as Britney Spears is finding. Second, it puts the person in the driver's seat. Third, it is much less expensive and time-consuming.

Another option is a revocable or "living" trust that can be set up to hold an older person's assets, with a relative, friend or financial institution serving as trustee. Alternatively, the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.

Experts say that Britney Spears faces a long, difficult path if she seeks to terminate her conservatorship. She would need to file a formal petition, which would require presenting evidence in hearings and depositions. She could face objections at every stage from attorneys representing her father and others involved in her care. (Spears has indicated her unwillingness to submit to a mental evaluation or test in her effort to end the conservatorship.)

If you have questions about what type of guardianship may be right for your family member, or if you are currently under guardianship and are looking to gain control of your affairs, talk to your elder law attorney today.

 

Contact us

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

Be Careful Not to Name Minors as Your Beneficiaries

Most people want to pass their assets to their children or grandchildren, but naming a minor as a beneficiary can have unintended consequences. It is important to make a plan that doesn’t involve leaving assets directly to a minor.  

There are two main problems with naming a minor as the beneficiary of your estate plan, life insurance policy, or retirement account. The first is that a large sum of money cannot be left directly to a minor. Instead, a court will likely have to appoint a conservator to hold and manage the money. The court proceedings will cost your estate, and the conservator may not be someone you want to oversee your children’s money. Depending on the state, the conservator may have to file annual accountings with the court, generating more costs and fees.

The other problem with naming a minor as a beneficiary is that the minor will be entitled to the funds from the conservator when he or she reaches age 18 or 21, depending on state law. There are no limitations on what the money can be used for, so while you may have wanted the money to go toward college or a down payment on a house, the child may have other ideas. 

The way to get around these problems is to create a trust and name the minor as beneficiary of the trust. A trust ensures that the funds are protected by the trustee until a time when it makes sense to distribute them. Trusts are also flexible in terms of how they are drafted. The trust can state any number of specifics on who receives property and when, including allowing you to distribute the funds at a specific age or based on a specific event, such as graduating from college. You can also spread out distributions over time to children and grandchildren. 

If you do create a trust, remember to name the trust as beneficiary of any life insurance or retirement plans. If you forget to take that step, the money will be distributed directly to the minor, negating the work of creating the trust. 

To create a trust, consult with your attorney.

Contact us

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

 

What Is a Directed Trust and What Are Its Benefits?

Directed trusts can be a useful estate planning tool, allowing you to place your family’s assets in a trust but benefit from the expertise of an advisor who knows more about the handling of certain trust functions than you may. 

The benefit of a directed trust is it allows you to retain control while appointing someone to handle any special assets or conditions that the trust might oversee.  In the case of a regular trust, the trustee is in charge of all aspects of the trust. With a directed trust, you can appoint someone other than the trustee to be in charge of elements like distributions or investments. This splits up the responsibilities: the trustee can focus on handling the administrative aspects of the trust while the appointed advisor directs the trustee on one part of the trust.

For example, an investment advisor could focus on the trust’s investments. If you have complicated investments, it might be a good role for a trusted financial advisor. In the case of a family business, you may want family members to have a say or want an objective non-family member to assess the family’s needs. A distribution advisor would be responsible for making distributions to the beneficiaries. This might be especially useful if you want a family member to be able to make decisions about a child with special needs. Or you might even want a committee of family members to decide how to make distributions in order to make distributions based on the needs of the beneficiaries. 

Both the trustee and the advisor are considered fiduciaries, which means they must act in the beneficiary’s best interest. While the trust document sets out the responsibilities of each party, if you are creating a directed trust, it is also a good idea to write a statement of intent that explains what you want the roles of the trustee and the advisor to be. 

Directed trusts are very complicated and require careful planning. If you are thinking about a directed trust, consult your attorney. 

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