When it comes to estate planning, we each have our job and duties to complete a valuable estate plan.
• 1 — FACTS, CONCERNS AND TRUTH DETECTING. Anyone can prepare documents. It is the job of the attorney to learn as much about the family unit as he can. We must look through the niceties to determine just how the family relates to each other. We must look into future generations to determine if they can continue the business or if it should be sold. We must glean from conversations your values, your desires, and how each member of the family fit into the family puzzle. The more we learn, the more we can design a plan to protect you, your assets and your future generations.
• 2 — PLANNING AND DRAFTING. After we have a sense of your goals, it is our job to create an estate plan that will obtain those goals. We may suggest limited liability companies, partnerships or other estate planning vehicles that you have not considered. These entities will protect your assets and allow multiple ownership among siblings or in more than one generation.
• 3 — FUNDING AND THE FUTURE. First, the attorney should assist the client in allocating the assets between the husband’s trust and the wife’s trust. This is one of the most important aspects of a good estate plan. The attorney must understand the income tax consequences of placing an asset in one trust or the other. Equality of valuation is essential for the best income and estate tax minimization.
Funding of the trust is a very important part of the process. This is work, but the attorney needs to assist and monitor the process and verify that all assets have made their way into the trust. Why have a trust if you have to go through the probate process when you die. Many law firms drop the ball on this subject and give the client a letter on how to fund assets and close the file. They leave this funding process up to the client who may or may not complete the process properly.
• 1 — INFORMATION. It is the job of the client to first contact the attorney and then give the attorney all of facts needed to complete the estate plan. The client must trust the attorney and divulge all of his assets. He must also alert the attorney as to any family problems that need planning attention. The attorney can usually protect the asset and the child if he is made aware of the problem. If the son has a high potential for a divorce in the near future then the attorney should be made aware and plan around this problem. If the child has financial problems, then giving assets outright to him without a way to protect the assets is just giving your assets away to his creditors.
• 2 — MAINTENANCE. After the trust is completed and funded, it is the job of the client to keep the trust up to date. Life goes on, people get older, get divorced, make bad decisions and the provisions made today are wrong tomorrow. Your favorite charity may change or you may now be in a position to remember them. Talking about it will not get it done.
• 3 — PERSONAL PROTECTION. As part of the planning process, you should have executed health care power of attorneys, living wills and durable power of attorneys. These documents should be updated. In 2003, The Health Insurance Portability and Accountability Act (HIPAA) was implemented. This is the law that prevents banks and hospitals from divulging any information about you unless you have authorized in writing. If the powers that you currently have do not have this provision within the documents you may find that the institutions will not speak to the people you have otherwise authorized.
• 4 — UPDATING. The Trust code has been dramatically changed. The documents you now have may not contain the proper language to accomplish your wishes. You must update and stay current both as to the law and as to your personal circumstances. It is sad to see bad and unintended consequences because of the lack of updating and staying current. Take a moment to review.