Conservative Christian Law

Month: January, 2020

What Happens When You Die?

This is a subject matter that nobody really wants to talk about; in fact I have had clients literally refuse to discuss this subject matter because they thought that if they talked about it, it would happen quickly.  The subject matter is death and, I am sorry to be the bearer of bad news, but unless Jesus returns soon (which I hope he does), this is the reality for all of us.  You can delay it for a long time with a healthy lifestyle and good choices, but the truth of the matter is that at some point God calls us to leave this earth.

 

Now, I am not going to spend a lot of time focusing on the theology aspect of this subject matter, although I will hope that you have accepted the Grace of God given through the blood of Jesus Christ for all of us.  Instead, I will focus on the legal aspect and what normally occurs when a person dies.  When I am listing these points, they are steps that I have personally observed as an attorney who has administered multiple estates and trust estates, so I am speaking from experience, but some of these points will vary with each situation.  Here are some things to think about and prepare for:

 

  1. Your funeral, (If you want one). Sadly, most of us have probably attended a funeral at some point in our lives.  A funeral is a time where your loved ones can find healing and closure at the time of your death, but it is not required.  However, I strongly recommend that you take some time to pre-plan your funeral to ensure that your loved ones know exactly how the event will occur.  I have been a witness to many family fights that happened due to how a person was dressed in their casket, what pictures are hung at the service, who are the pallbearers, etc.  It is an emotionally charged time, thus it is easy for families to become very volatile during the first days after your death.  I HIGHLY recommend that you take some time to sit down with a funeral home director and make sure that all of the details of your funeral are specifically indicated, as it will literally prevent your loved ones from potentially fighting during this difficult time.  I also recommend that you prepay your funeral, as it can literally save your loved ones thousands of dollars for this expense when you die.  There are many investment options available that are similar to a life-insurance style policy that will pay for your funeral expenses when you die.  However, keep in mind that you DO NOT need to have a funeral service if you do not want one.  As I always tell people, funeral services are for the living and not for the deceased.  It is a time for your loved ones to say their final goodbye and come together to celebrate the events of your life.  However, if you do not wish to have a funeral service, it is important to clearly indicate this decision during your lifetime.

 

  1. Your cremation or burial. Obviously when you die there must be a decision made regarding the disposition of your remains.  It is extremely helpful for your loved ones if you leave an indication regarding your final wishes in this area, as the funeral home can hold on to your remains until they have a unanimous decision from your family regarding whether your remains will be buried or cremated.   I always advise my clients to indicate their wishes regarding burial or cremation in their Healthcare Power of Attorney, as it will be honored at the time of your death.

 

  1. Your bills have to be paid. This is a very important fact that must be planned for.  When you die, your assets are still here, including the debts that might go along with them.  Now, there are some exceptions to this fact, such as student loans, which can be forgiven at your death.  However, many of your debts will still need to be paid even after you have died.  This is the one question I receive the most often from the acting Executors or Trustees of an estate when they first start the administration.  The first responsibility of your acting Executor/Trustee is that they must resolve your debts out of the remainder of your estate, if there is anything left.  If those debts are not paid, the creditors could file a claim against your estate or begin a foreclosure process to ensure that they are compensated for the debt that you created during your lifetime.  There are some circumstances where the debt might be so small that the creditor will forgive the debt, but you cannot expect that to always happen and you should not want to burden your loved ones with financial struggles when you are gone.  This is also why it is so crucial to establish an estate plan whereby you can indicate who is appointed as the Executor or Trustee of your assets when you are gone and can then resolve the issue of your final debts.

 

  1. Your estate will be administered. If you have read any of my previous articles, and I hope that you have, you will know that after you have died, your assets will either be subject to the probate laws of your state or will be administered through your Revocable Living Trust.  Hopefully you have read my previous articles about how to avoid the probate process and have your assets administered according to your trust agreement.  Either way, your assets will be distributed to the people that you want them to go to or it will be determined by the probate laws of your state.

 

  1. Your Last Will and Testament must be filed with the Circuit Clerk. Assuming that you have prepared some type of Last Will and Testament, upon your death it is normally required by law for your named Executor to file your Will with the Circuit Clerk’s office of the County that you were a resident of at the time of your passing.  Many states actually can charge the Executor with a felony charge if they do not file the Will within the required statutory time frame.  This is required to prevent the Executor from commencing any type of fraudulent activities with your estate or failing to pay your final expenses.

 

These are some of the basic starting points of what occurs when a person dies.  There are many additional steps that can occur, especially if you have not taken the time to resolve these issues during your lifetime.  Just like birth, dying is a natural life process that we must all face.  The question that remains is are you going to make the mature and responsible decisions to ensure that these issues are handled in a responsible manner and that your loved ones will not face unnecessary burdens upon your passing, or are you comfortable with leaving chaos that will be resolved after some unnecessary stress and financial burdens?  I hope you make the right choice and take care of those you love.

 

 

 

 

You Can’t Have Your Cake and Eat It Too.

Many (many) years ago when I was in my junior year of high school I took an economics class and was presented with one of the most intelligent and important questions of my entire academic career.  It was an essay question, but it only contained one line, which read as follows:

 

“Explain the phrase there is no such thing as a free lunch.”

 

I remember looking at the question and thinking that there must be a catch or that it was some type of trick question, as it seemed too simple to be true.  Sadly, I chose not to answer that particular question, opting to answer a more lengthy fact scenario question.  I now look back on that decision with some regret.  When we reviewed the question, I realized that it was a question that literally could explain most of the problems that we face as a society and as a nation today.

 

It is a rather simple concept and sadly one that most members of the Democratic Party cannot seem to grasp.  Nothing is free.  I don’t care what promises are made by politicians of “free” education, healthcare, cell phones, etc.  Nothing is free.  You want to receive a “free” education and diploma, who pays the teacher for his or her time in the classroom?  Who pays for the computers, the textbooks, the paper, the desks, etc.?  If you receive a “free” cellphone, who pays for the materials needed to make the phone?  Who pays the employees who helped put the phone together?  If you go to the doctor’s office to receive your “free” healthcare, who is paying for the nurses, the physician’s assistants, and the doctors?  Someone has to pay for the time, materials, and help that are offered; i.e. there is no such thing as a “free lunch.”

 

Which leads me to my subject matter today; I receive regular phone calls from people asking the same question, “If I prepare an estate plan, will it protect my assets from nursing home expenses?”  In other words, how do I get free nursing home care in my final days on this Earth?  I always provide the following answer: “Maybe.”  Here is why:

 

  1. Who do you want to own your assets? The issue of whether or not your assets will go to pay for your nursing home expenses primarily focuses on who is the owner of the assets in question.  If it is your bank account and/or your real estate, you should expect that it will be subject to the possibility of being used to pay for your nursing home care.  There are exemptions allowed, such as a homestead exemption, which can protect some or all of the value of your residence, but if you want the best possible protection for your assets, you cannot be the owner of the property.  Not only that, but in most instances, you must also not be the owner of the property for a minimum of 5 years before you can apply for assistance.  One of the exceptions to this situation is for Veterans who apply for assistance from the VA.  In those situations, there is no look-back period, but the financial assistance that is provided from the VA is rarely ever enough to pay for the entire nursing home expense.  So, here is the most important question that you must answer:  Who do you want to own your assets?  Are you ready to transfer control of them to someone else and can you trust that person?

 

  1. Who or what can you transfer your assets to? If you choose to transfer your assets, who will they go to?  Does it have to be a person or are there other options?  You can transfer your assets to another person, but you must realize that when you do so, it is no longer yours.  That is a serious condition to consider.   I have met with many people who advised that they either chose to convey their property to another relative or their attorney advised them to do so.  In my opinion, this is an extremely bad idea.  As mentioned above, when you convey your property to someone else, it is no longer yours and you no longer have control over it.  When you transfer your property to another person you also expose that asset to their liabilities.  Are you positive that the person that you transferred the property to will not file bankruptcy?  Are you sure that they won’t file for a divorce?  These are serious legal ramifications that you must consider before making this decision.

 

  1. Should you create an Irrevocable Trust? In my opinion, the better option for conveying your property to another party is to create an Irrevocable Trust and convey your property to that Irrevocable Trust. Now be careful here, as there are some attorneys and financial advisors out there who I believe are misleading their clients and creating illegal or fraudulent “Irrevocable Trusts.”  When you create an Irrevocable Trust, you CANNOT be the named Trustee; someone else must be named in that role.  You also have to create a separate Tax ID number for the trust and you must complete a separate income tax return for the trust each year.  If someone creates an “Irrevocable Trust” that still uses your social security number and you are still the Trustee, you were provided with poor legal or financial advice and your trust agreement is not what was promised to you.  So, much like my last point, make sure that you choose someone that you have the utmost confidence in to act as the Trustee, as you are no longer in control.  Unlike the last point of transferring your property to another person, this option is safer, as you still retain some limited power over the Irrevocable Trust as the Settlor/Grantor of the trust.  Also, the primary goal of the trust is to hold the assets of the trust for the benefit of the Settlor/Grantor of the trust.   Finally, as with the previous point, when you convey your assets to the Irrevocable Trust, you must still wait for the look-back time period to pass before you apply for the nursing home assistance.  However, if this is your goal, it is clearly the better option of the two transfer choices.

 

  1. Who pays for your end of life care? Here is where most people apparently don’t appreciate my advice, but if they care about our nation and our future they should.  Somebody has to pay for the care that you receive in your final days on this Earth.  There is no such thing as a free lunch.  I appreciate that we work hard (hopefully) for all that God entrusts to us during our time on this Earth and I also appreciate the desire to provide for future generations, but as I advise my clients, the primary focus should be to take care of yourself.  Do you really want to go cheap for your care in your final days on this Earth?  Are your children so poorly raised that they can’t wait for you to die so that they can “cash in?”  If you spend the last penny that you have at the exact same time that you take your last breath, then well done!  Our country is approximately 21 trillion dollars in debt, it continues to get worse on a daily basis, and it is leading to the death of our Republic.  Regardless of what most liberals will admit, the largest part of our spending is on entitlement programs.  People are too interested in getting their “free lunch” and not focusing on being financially responsible.  Make no mistake, when you hear that something is “government” funded, it is not, it is taxpayer funded.  Our government is broke and there is no end in sight.  We have hit rock bottom and have decided to get the jackhammer to keep going.  Do you want to contribute to that?  Should other people pay for your care in your final days when you have the ability to do so yourself?  Is that good stewardship of the resources that God provided to you?

 

  1. Then how should you take care of the nursing home issue? So, this leads us back to the pending issue of protecting your assets, not acting in an illegal/fraudulent way, and paying for your potential nursing home expenses.  The answer is really quite simple: set money aside when you can, as often as you can, and have it reserved for your future nursing home care.  You can do this by establishing a long-term care insurance policy, which I highly recommend, but it has some problems that you should be aware of.  The first is that long-term care insurance can be very expensive and you might not be approved for it, depending upon your age and health issues.  Second, if you created the long-term care insurance policy and need to take money out of it for expenses that are not healthcare related, you will likely be penalized for the withdrawal or not be allowed to take the money out.  Finally, if you place a large sum of money into the long-term care insurance policy and do not end up in a nursing home, it is possible that neither you, nor your family will receive that money back as a death benefit when you pass away.  It is important to review the terms and the restrictions that your long-term care insurance policy has before investing in this method, but I do recommend this possibility.  However, if you want to protect your assets from potential nursing home expenses and you want to avoid the potential pitfalls of the long-term care insurance policy that I just mentioned, I recommend that you speak with a credible financial planner about the possibility of establishing an investment account where you can regularly invest funds that are specifically intended for your potential nursing home expenses.  Unlike the long-term care insurance policy, the account will most likely not have a penalty for a distribution that is taken for needs that you have that are not healthcare related, and the policy should have a death benefit that you can pass on to your future heirs.

 

So there it is the answer to possibly one of the most important question you might ask.  Some might disagree with my thoughts and I am happy to know why, but with all of my years of estate planning and administration, I firmly believe that these concepts are the best options on how to proceed.  As always, I recommend that you speak with a competent estate planning attorney on these matters, as each situation is different.  But if you choose wisely, the end result could be the protection of the assets that God has entrusted you with, the protection of your loved ones, and an honorable means of supporting your end of life care without placing unnecessary additional burdens on our nation.

Happy New Year! What Are You Waiting For?

Happy New Year and happy new decade!  So, you have probably heard this all before, but how are your New Year’s resolutions coming along?  If you are like most people, and the statistics support this, you have sadly probably already broken your resolutions and we are only into the second week of the New Year!  Personally, I don’t put much into resolutions, not to discourage anyone, but I always try to focus on setting a direction in my life and being consistent.  Each day is a new opportunity to focus your efforts and thoughts in a positive direction and make sensible decisions.

 

However, since we are in the New Year, the one question that I always seem to get in the first couple of months is, “When should I take care of my estate plan?”  My answer to this question is somewhat facetious, but it is also serious and it is: “Your estate will be fine, as long as you take care of everything the day before you die.”

 

Now, I am not trying to make light of a very serious question, but it is the truth.  We are all only on this earth for a limited time and only God knows when he will call us home.  During the time that we are on this Earth, we acquire “stuff” and it is our responsibility to make sure that all of that “stuff” goes to the right people or places when we are gone.  In the book of Psalms, Chapter 24, verse 1, the Scriptures state that “The Earth is the Lord’s, AND EVERYTHING IN IT, the World, and all who live in it.  What that means to all of us is that we don’t actually own all of the “stuff” that we have, including ourselves, it all belongs to God; we are just stewards of it.

 

I often pose a trick question to all of my clients and students when it comes to estate planning, which is: “What type of vehicle do you not see at a funeral home or a cemetery?”  Need some time to think on that one?  The answer is: a moving truck.  Again, facetious, but true as there is some significant truth to the old saying: you can’t take it with you.  I have heard of some strange situations where people have purchased a large mausoleum  or they have tried placing large amounts of personal property in their caskets with them, but the reality is, they are not taking it with them.  Our “stuff” stays here and we leave this Earth at some point.  It will be distributed, whether you like it or not and it will be distributed either by your own plans or by someone else, it is up to you to decide.

 

So, my main point of this article and the most important question for you in the New Year is: What are you waiting for?  If you want a resolution that everyone should complete, this is the one.  You have the ability to take care of your “stuff” and, more importantly, leaving a lasting legacy that will provide for your loved ones and ultimately for God’s Kingdom.  After all, shouldn’t this be our main focus in this world?

Live or Let Probate, Part 3

Well, if you have stayed with me this long, and I hope that you have, then you will know that this is the final article regarding the best way to avoid the probate process for your estate.  Up to this point we have covered the pros and cons of the probate process, the writing of a Last Will and Testament, and the process of listing a beneficiary on your assets.  Now we turn to one of the most important steps of the estate planning process, especially as it relates to the avoidance of the probate process, which is the creation of a Revocable Living Trust.

Now, what exactly is a Trust?  Isn’t it only a legal process that “rich” people partake in?  Are they a new legal process?  Is it worth it for me to create a trust?  The answers to all of these gripping questions will be answered below:

  1. In the simplest form, a Revocable Living Trust is just a contract. You might ask yourself, “well, who is making the contract?”  The answer is also quite simple: in most circumstances, you are making the contract with yourself, but the terms of this contract with yourself have to be very clearly indicated in the actual trust agreement.  Here are the main points to consider:

Parties to the Contract– In a standard Revocable Living Trust, you will indicate that you are the   Grantor/Settlor on one side of the contract and you are also the Trustee on the other side.  The      Grantor/Settlor is the individual who creates the trust agreement and is responsible for          transferring all of the assets into the trust name or names the trust as a beneficiary.  The Trustee     is then responsible for receiving the property and administering it in such a way as to protect                 and benefit the Grantor/Settlor.  This is a fairly simple expectation in a standard Revocable         Living Trust as you will be both parties and one can hopefully assume that you would act in such       a way as Trustee that would benefit yourself as Grantor/Settlor.  Obviously, if you are married,          the terms would be slightly altered to name you and your spouse as Co-Grantors/Co-Settlors         and as Co-Trustees.

The one caveat to mention here is that some people will name another person as the Trustee   under their trust agreement.  There are several reasons to do this, such as trying to avoid               nursing home expenses, limiting liability issues, or for tax purposes.  However, as I have                 cautioned many of my clients, this is a very serious step to take, as you are losing the ability to          control the assets in the trust, as you will not be the Trustee.  Do you want your house to be sold                 and you are not the person to make this decision?  It is a foreseeable outcome when you name                 someone else as the Trustee.  However, as stated before, the Trustees main responsibility is     to take care of the Grantor/Settlor, so choose wisely as to whom you are possibly and literally         placing your “trust” in to take care of your assets.

  1. So, what assets should you place in your trust? Do you have to be wealthy to create a Revocable Living Trust?  The answer to these questions is related and, for the most part, revolves around your real estate.  Every state has a legal “benchmark” indicating what value a property must be at in order to be subject to the state probate laws.  Each state is different, thus why it is important to speak with an estate planning attorney to know what the exact amount is for what assets you might have that will be subject to the probate process upon your passing.  However, the good news is that when you transfer your property into the trust name, you no longer have to worry about the probate value.  Anything that is titled into the name of your trust will not be subject to the probate laws of your state upon your passing.  This is why most people create a Revocable Living Trust and the most important asset that they will convey to their trust is their home.  It is very likely that your home will be subject to the probate laws, thus when you transfer your home to the trust, via a deed, this is no longer a concern.  As mentioned above, when your home is owned by the trust, you are still in complete control of all aspects of your home as Trustee of your trust agreement and your real estate will not see the inside of the probate courtroom.  It is important to note that you can still buy and sell future real estate in your trust as the trustee, but you will always want to remember that your trust agreement is the legal owner of the real estate.

 

  1. It is also important to know that your trust can be named as an owner of your financial accounts or as a beneficiary of those accounts, just like a person. So, in addition to deeding your property into your trust, it is important to either transfer the ownership of your accounts to your trust, or name the trust as the beneficiary of the account.  I actually prefer naming the trust as a beneficiary, as it allows more flexibility during your lifetime and will still be conveyed to your trust, but either situation is favorable.  However, it is important to discuss this step with your attorney, financial planner, or accountant, as there are some very negative tax implications that can occur when you name your trust as the beneficiary of some of your tax deferred accounts, such as IRAs.  If you have life insurance, I always encourage that my clients name their trust as the beneficiary, as it is not taxable and it is an easy way to assure that there will be some liquid funds in your trust upon your passing.  Your trust will be administered when you die and there will likely be some expenses during the administration, such as funeral expenses, final medical bills, and real estate expenses, thus having these liquid assets available for the acting Trustee will be essential.

 

  1. In addition to your Revocable Living Trust, you will need to create a Pour-over Last Will and Testament. This is due to the fact that you likely have some property that cannot be conveyed to your trust either by a change of ownership or via beneficiary designation; this is your personal property.  Your personal property, such as clothes, furniture, jewelry, etc. does not have title work, thus cannot be conveyed to your trust.  This is why the Pour-over Will is essential.  In the Pour-over Will you will have the opportunity to indicate where you would like your personal property to go upon your death and you will include a pour-over provision that will indicate that if any of your real property was somehow overlooked and not conveyed to your trust, the real property will “pour-over” to your trust estate at the time of your death and be distributed according to the same provisions as your trust agreement.  However, the pour-over provision will only apply to property that does not exceed the probate benchmark in your state, thus why it is still essential to transfer your property to your trust during your lifetime, as mentioned above.

So, the moral of the story is that if you plan accordingly and use good stewardship with the assets that the Lord has entrusted to you, your estate should never be subject to the probate laws.  However, important planning and decisions must be made during your lifetime and YOU are the only person who can accomplish it.  We have now started a new year and a new decade, if you haven’t completed this important step, then why not?  It could be one of the most important decisions you have ever made.