It is important for those who have worked hard to stay in control of their assets for themselves and for the benefit of their families. Maintaining control of your assets and letting trusted agents take over at the right time is an important aspect of planning and asset protection. Putting a plan in place now can ensure that your assets will be given to whom you want, the way you want, when you want, and do so saving taxes and fees.
One of the first mistakes that many make is that they often lack an overarching estate plan that incorporates their financial accounts and life insurance policies. Many people also lack continuity in their planning. For example, it is common to open a bank account with right of survivorship with a spouse. Later, the same person will open an investment account and designate his or her children to be paid on death. Finally, the same person will purchase a life insurance policy and designate beneficiaries that are inconsistent with both their bank and investment accounts. Lack of consistency in your individual plan makes it harder to maintain control as you age. More importantly, having survivorship property and accounts, along with Pay on Death contracts and Beneficiary Designations that are not property reviewed will often undermine a well thought out Will or Trust. In other words, you Will or Trust doesn’t work to do what you actually planned because of how you own title to your property.
We often suggest trust planning to our clients to provide both control and asset protection. Trust planning allows you to maintain control of your property during your lifetime, share your wealth at your death, as well as allow a trusted fiduciary to manage your property in the event that you become disabled or incapacitated. A trust can also incorporate all of your financial planning. Importantly, it allows you to leave property to your spouse and children with asset protection for them.
The most common trust-based plan we recommend to clients is a modified sweetheart will, where the client leaves everything in trust for his or her spouse. This gives the ability for the spouse to obtain government assistance at the client’s death, as well as ensures that all property will eventually pass to the client’s children.
A living trust can be an even better way to give you maximum control of your property and give asset protection for your spouse and children. A living trust normally is a better planning vehicle for second marriages, families with poor dynamics, wealthy individuals, and families owning real estate in more than one state. In a will contest, where an unhappy family member has challenged the Will, the attorneys on both sides are paid from the proceeds of the estate; there is no cost or disincentive for a frustrated child to challenge a Will. In a trust, however, the attorney fees for the challenger cannot be paid from the trust proceeds and instead the challenger must pay out of pocket their own attorney fees. This alone avoids most challenges; but in order to avoid litigation, we draft a provision in our trusts stating that if anyone challenges the trust for any reason, they will be considered predeceased and no longer a beneficiary. That provision stops challengers cold.
Finally, an important way to maintain control during your lifetime is to put proper well drafted documents in place, such as a health care power of attorney, general durable power of attorney, living will (or declaration for natural death), as well as a medical release form that complies with the federal privacy act, also known as HIPPA. These documents allow a trusted agent (one you have chosen) to make important decisions for you without resorting to a court order for guardianship. Seniors need powers of attorney that are much stronger than the short form variety they may have had in place for 20 years or more. These stronger documents, along with appropriate Wills and Trusts, can give seniors the ability to get government assistance for long term care needs, and protect all their assets at the same time.
If you or your loved one needs assistance with maintaining control, or if you have questions about government assistance programs such as Medicaid or Veteran’s Benefits, consider W.G. Alexander & Associates – we offer a unique blend of asset protection, Elder Law and estate planning. You can also attend our free seminars, learn more through our website at www.wgalaw.com, or call us at (919) 256-7000. Also, every Tuesday morning at 9 am, you can listen to our radio show, “Asset Protection Today,” on Talk Radio 850 WPTK (AM) with Attorney Bill Alexander.