When to Call the Lawyer: Before You Say "I Do"

While those who are ready to say “I do” undoubtedly dream of a long and happy marriage, surveys show that 50% of people who say “I do” later say “I shouldn’t have.”  Which is why the one document that all married couples should have, aside from a marriage license, is a prenuptial agreement.

Prenuptial agreements have long been derided as the ultimate unromantic gesture, the proverbial “kiss of death” to a marriage before it’s even begun.  But prenups are not only a necessity in this day and age, where nearly half of marriages end in divorce, but an opportunity to make an incredible overture of love to a future spouse. 

For in a properly negotiated prenup, each party says to the other, “Even if our best intentions for the future never come to be and our marriage becomes untenable, we will still treat each other fairly, no matter what.”

What Is a Prenup?

A prenup is a contract signed before the marriage in which each party discloses their assets and agrees how these assets, and all assets acquired during the marriage, will be distributed in the event of divorce or death – yes, death.  One important feature of prenuptial agreements that many people overlook is that they are not limited to the division of assets upon divorce; they also spell out how assets should be distributed upon the death of one spouse.

Specifically, with respect to the prospect of divorce, a prenup details which assets will be deemed to be the separate property of each party and which assets will be deemed to be marital property subject to division.  It sets forth a specific scheme for distributing marital assets and will set forth the terms for the payment of debts acquired during the marriage.  It may direct the sale of jointly held property, or provide that property shall be held jointly for a certain period of time.  A prenup also determines whether either spouse will receive spousal support, or possibly a lump sum payment in exchange for spousal support.

With respect to the prospect of the death of a spouse, a prenup sets a “floor” for the inheritance rights of each spouse.  Under New York law, a spouse is entitled to at least 1/3 of their deceased spouse’s estate.  However, spouses may waive this right in the prenup, or they may add to it.  For example, the prenup could require each spouse to leave ½ of their estates to the other, or to leave their entire estate to the other, but in trust, with their children to inherit the remainder upon the death of the surviving spouse.  Thus, a prenup sets a “floor” for inheritance rights in that it sets forth the minimum that each spouse must bequeath to the other – spouses are always free to execute last wills and testaments which leave a greater amount to their spouse.

What cannot be included in a prenup?  Determinations relating to child custody and child support.  As a matter of public policy, these are issues that must be finally decided by the court at the time of the divorce.

Why You Need a Prenup

So why is it important for couples to have a prenup?  For lots of reasons.

1.                  Managing expectations.  Do you and your spouse-to-be intend to comingle your assets after you marry?  Do you intend to acquire assets jointly?  Will either of you stop working when you have children?  What do you think is a fair division of assets in the event of divorce?  Do you expect that, upon a divorce, you would pay or receive spousal support?  What do you think is a fair division of assets upon death?

These are all important questions that every couple should discuss before they get married so that they can enter the marriage with a clear understanding of their rights vis-à-vis each other, and their collective expectations vis-à-vis their assets.  This clarity provides both parties with security – if the marriage ever becomes unsustainable, each spouse knows in advance what they could expect from a divorce, and they can make an educated decision about how to proceed.  Moreover, each spouse knows what he or she will be entitled to upon the death of the other, and can plan ahead for their own financial futures knowing what they will or will not inherit.

2.                  Avoid protracted litigation.  Divorcing couples who have forgone a prenuptial agreement often find themselves negotiating their finances with a spouse they no longer like, and who no longer likes them.  This can make agreeing upon the division of assets and the payment of spousal support incredibly difficult, if not impossible.  If a couple cannot agree on these issues, then the court will hold a trial and make a determination.  But the process of negotiating a settlement or even getting to trial often takes several years and hundreds of thousands of dollars.  It is not uncommon for particularly hostile spouses to spend more money on attorneys’ fees than they ultimately recoup after trial.

In contrast, even the most litigious of spouses are limited to what they can do in court if there is a valid prenuptial agreement in place – the terms of the agreement, no matter how old and no matter how circumstances may have changed, will be enforced and the court will be involved only in the matter of child custody and child support.

3.                  Protecting your rights and interests.  Spouses have lots of rights to each other’s assets under the law, and a prenup can help to maximize these rights.  For example, instead of being entitled to 1/3 of your spouse’s estate, as discussed above, you can negotiate a larger portion.  A prenup can also protect the interests that are important to you.  For example, if there are items of personal property acquired jointly but that have special sentimental value to you, you can negotiate in the prenup that those items will be yours in the event of divorce or death.  Or, for example, if you and your spouse-to-be adopted a dog together before the marriage, the prenup could even determine who would get custody of the dog.  

Why You Need a Lawyer to Draft Your Prenup

When it comes to prenups, DIY is not an option.  Prenuptial agreements are complex documents that involve the interplay of several areas of law: matrimonial, contracts, trusts and estates, real estate, to name just a few.  You need a lawyer who is experienced in drafting these documents so that you can be sure that they are done correctly and will work the way they are intended to.  The only thing worse than not having a prenup is having a prenup has not been competently drafted.

Furthermore, a prenup is a powerful document, and the court will not enforce it unless it is convinced that both parties fully understood the terms at the time they signed it.  If the prenup was drafted by a lawyer, and if both parties were represented by independent legal counsel who advised them as to the terms thereof, then the prenup is more likely to withstand judicial scrutiny.  Steven Spielberg’s divorce is a excellent example of why you need a lawyer to draft your prenup: when the director proposed to his first wife, they infamously scrawled their prenup on a bar napkin.  Years later when they sought a divorce, the judge refused to enforce the napkin agreement and awarded the wife $100 million.

 What You Can Do If You Married Without a Prenup

Get a postnup!  Postnuptial agreements are becoming more and more common as couples come to realize the importance and utility of prenups.  Postnups make the same provisions as prenups, but are signed after the marriage.  Postnups are particularly useful for couples who may be on shaky ground but are not yet ready to throw in the towel – it can provide a sense of security in that they know what their divorce would look like in the event that they truly cannot make their marriage work.

While the conversation about prenups can be difficult for many couples, it is a necessity.  But, after you have that conversation – or even before! – make sure that you call the lawyer.

Keeping Your Ex Out of Sight, Out of Mind and Out of Your Estate: Estate Planning After Divorce

When a couple divorces, a court will dictate how they unwind their relationship and their finances, but the ex-spouses must take the initiative to reconstruct their estate plans.

It is very common for married couples to sign “I love you” wills, in which each spouse leaves everything to the other.  However, even in the most amicable of divorces, ex-spouses typically do not intend for the other to inherit all – or any! – of their property.  Under New York law, unless the will provides otherwise, a divorce will nullify any testamentary provision for the benefit of an ex-spouse, including the nomination of the ex-spouse as an executor or other fiduciary therein.  Relatedly, the law also revokes any beneficiary designations on securities, life insurance policies or retirement plans in favor of the ex-spouse. 

However, while the divorce will cut off the ex-spouse’s right to a share of the estate, it will not cut off any rights the ex-spouse’s family members may have.  For example, assume that, at some point during their 72 day marriage, Kim Kardashian and Kris Humphries executed “I love you” wills that also made provisions for members of each other’s families – specifically, Kris’s will appointed Kourtney and Khloe as co-executors and established college funds for Kendall and Kylie.  When the divorce was finalized, Kris (understandably) never wanted to speak to another lawyer again and did not contact his trusts and estates attorney to update his estate plan.  Upon his death, although the divorce revoked Kris’s bequest of his entire estate to Kim, the bequests to Kendall and Kylie and his appointment of Kourtney and Khloe as co-executors remain effective.

Furthermore, the New York statute that cuts off an ex-spouse’s right to inherit is only applicable when the divorce has been finalized – not while it is pending.  As such, if Kris had died during the pendency of his two year long divorce proceedings, Kim would have been entitled to inherit his entire estate pursuant to Kris’s “I love you” will.  While his family may have had an argument that Kim should be disqualified on the grounds of “abandonment,” they would have to commence a disqualification proceeding and prove that Kim left the marital abode without Kris’s consent and with no intent to return.  Given the nature of their divorce, it may be difficult to prove that Kim left without Kris’s consent – she probably did so at his request!

Consequently, it is advisable that spouses revisit their estate plan as soon as divorce proceedings begin, if not sooner.  It should be noted, however, that one cannot disinherit one’s spouse entirely without the spouse’s consent prior to the divorce being finalized.  New York provides spouses with an “elective share” of 1/3 of the deceased spouse’s entire estate (not just probate assets; property passing by operation of law or by beneficiary designation is included as well).  This means that if Spouse A attempts to disinherit Spouse B, Spouse B can still assert her right to an elective share and receive 1/3 of Spouse A’s estate.  If Spouse A revokes her “I love you” will and does not sign a new will, then her estate will be distributed pursuant to New York’s intestacy law and Spouse B will be entitled to more than the elective share – she will effectively receive more than ½ of Spouse A’s estate.

Therefore, one who is contemplating divorce or who is in the midst of a divorce should update their estate plan with the elective share in mind.  One strategy would be for Spouse A to bequeath to Spouse B property that is approximately equal in value to 1/3 of Spouse A’s total estate, but comprised of assets that are less attractive than other assets Spouse A owns (for example, property that is not appreciable).  Spouse A should keep in mind that, if Spouse A and Spouse B own their home jointly as tenants by the entireties, Spouse A’s interest in the house will be credited to Spouse B for purposes of determining Spouse B’s elective share.  Another strategy would be for Spouse A to take out a term life insurance policy equal to 1/3 of Spouse A’s estate and name Spouse B the beneficiary.  If Spouse A predeceases Spouse B during the pendency of their divorce, then Spouse B’s elective share would be satisfied by the insurance proceeds, rather than Spouse A’s other assets.  Spouse A should be careful to cancel the policy as soon as the divorce is finalized, however.

Once the divorce is finalized, Spouse A still cannot forget Spouse B entirely when updating her estate plan.  First, to the extent that Spouse A is obligated to make provisions for Spouse B in her will, either as a result of the terms of a prenuptial or postnuptial agreement or court order, she must do so.  Second, to the extent that Spouse A and Spouse B have children in common, Spouse A must think through the various contingencies that could still give Spouse B rights in and to her estate.

For example, assume that, at the time of her death, Whitney Houston’s daughter, Bobbi Kristina, was a minor and that Whitney’s will provided for her entire estate to be distributed to Bobbi Kristina outright.  Whitney’s ex-husband, Bobby Brown, as Bobbi Kristina’s legal guardian, would be entitled to receive Whitney’s entire estate on behalf of Bobbi Kristina (albeit only as a custodian; he would be required to distribute it to Bobbi Kristina when she turned 18).  Upon Bobbi Kristina’s untimely death a couple of years later, unless she had executed a will (which most 22-year-olds do not), Bobbi Kristina’s sole heir would be Bobby – and he would thus effectively inherit Whitney’s estate. 

(A similar result would occur if Whitney had died without a will, except that, in that scenario, Bobby (as Bobbi Kristina’s legal guardian) would have priority to letters of administration in Whitney’s estate as well – meaning that her ex-husband would be in charge of her multi-million dollar estate.)

To ensure that one’s ex is not allowed to participate in one’s estate (either as a fiduciary or, ultimately, a beneficiary), one should consider incorporating trusts for the benefit of any children one shares with an ex.  Using the Whitney Houston scenario as a further example, in this way, Whitney could nominate a trustee to hold the property for Bobbi Kristina and could provide that, in the event that Bobbi Kristina died unmarried and without descendants, the property left in her trust would be distributed to … anyone but Bobby.

Divorce is a common phenomenon – 50% of American marriages will ultimately end in divorce – and upends everything in the spouses’ lives, including their estate plan.  As a result, people who are thinking about divorcing, are in the midst of a divorce, or are finding themselves on the other side of their divorce should be sure to consult their trusts and estates attorney to ensure that their estate plan still does what it’s supposed to do.

First, Do No Harm. Second, Do Your Estate Planning: Estate Planning for Doctors

Doctors have many of the same estate planning concerns as non-doctors – maximizing federal and state estate tax exemptions, directing the proper distribution of assets and the proper mode of distribution (e.g. in trust or outright), nominating guardians for minor children and selecting executors to administer the estate according to the plan.  However, many doctors have additional concerns relating to their assets and estates, including asset protection and transitioning or unwinding a medical practice.

Asset Protection

Like many professionals, doctors run the risk of being sued for malpractice and related claims.  Recent polling indicates that 55% of doctors are sued at some point during their careers, and one-half of those are sued more than once.  Specialists are more likely to be sued than primary care physicians, with surgeons (85%) and OB/GYNs (85%) being the specialists sued most frequently, and psychiatrists (29%) and dermatologists (28%) being the specialists sued least frequently. 

Liability insurance is a doctor’s first line of defense against malpractice claims.  However, while liability insurance can mitigate a doctor’s personal liability, it does not guarantee that the doctor’s personal assets will be safeguarded from a money judgment or that a litigious patient will not go after the doctor personally.  Therefore, it is important for doctors to engage in some kind of asset protection planning, and it is vital that they do so before a malpractice claim arises; indeed, fraudulent conveyance laws will nullify most asset protection strategies implemented after the alleged malpractice occurred. 

When considering various asset protection options, doctors must be cognizant of how asset protection can impact their estate plan.

Investment in Exempt Assets

A strategy that is effective for both asset protection and estate planning is investment in exempt assets.  In New York, ERISA-qualified retirement plans (such as 401(k)s, pension and profit-sharing plans, life insurance plans and HSAs) and non-ERISA qualified retirement plans (such as IRAs, employer-only plans and government or church plans) are completely exempt from creditors’ claims as long as they are funded before a claim arises.  Doctors interested in asset protection may fund such plans with the maximum amount possible and these funds will be protected from creditors (unless, or course, the doctor takes a withdrawal).  Furthermore, as long as the beneficiary designations on the plans are properly completed, upon the doctor’s death the assets will pass to her heirs outside of her probate estate and will never be available to satisfy creditors’ claims.

Trusts

While self-settled spendthrift trusts, of which the grantor is also a beneficiary, are generally ineffective to protect assets from creditors, there are some foreign (e.g. the Cook Islands) and domestic jurisdictions (e.g. Alaska, Delaware and South Dakota) that specifically grant creditor protection to such trusts.  There are some drawbacks to these trusts, however.  First, establishing and maintaining these trusts can be costly.  Because the trustee must be a resident of the jurisdiction, this may mean paying a steep annual trustee fee to a corporate trustee authorized to do business in the jurisdiction.  Second, these trusts are not guaranteed to be effective.  The enforceability of the creditor protections of these trusts is not entirely clear, particularly where the grantor does not actually live in the jurisdiction where the trust was established, and a creditor may still be able to access the trust funds.    

However, spendthrift trusts created by a third party for the benefit of the doctor are generally immune from the claims of creditors, and are excellent vehicles for inheritances from relatives – including the doctor’s spouse.  For example, if the doctor transferred the bulk of her assets to her spouse for asset protection purposes (this strategy is discussed in greater detail below), the spouse should sign a will that provides for such assets to be held in a spendthrift trust for the benefit of the doctor.  In that way, the doctor gets the benefit of the assets, but her creditors cannot reach them.  In contrast, if the spouse died without a will, or with a will that did not provide for the creation of a spendthrift trust, the doctor’s creditors would attach the assets as soon as the spouse died. 

The same holds true for inheritances from other relatives; for example, from a doctor’s parents.  If a doctor received an inheritance outright from her parents, this money would potentially be available to creditors, especially if the doctor received the inheritance after a malpractice claim had already arisen.  However, if her parents left this inheritance to her in a spendthrift trust, her creditors would not be able to access it (unless, of course, she received a distribution).  Accordingly, doctors should ensure that any inheritances they receive (particularly from a spouse) are held for their benefit in a spendthrift trust, as opposed to an outright distribution.

Transfer to Entity

Another common asset protection device that allows for congruent estate planning is to transfer assets to an entity, such as a limited partnership or a limited liability company.  Under this strategy, the doctor would invest in the entity and upon the doctor’s death, she would cease to be an owner of the entity, and her interest therein would be distributed to her spouse, children, etc.  In this way, the doctor retains ownership of a valuable asset for estate planning purposes, but her lack of control over the asset would thwart potential creditors. 

While a creditor could obtain through litigation a “charging order,” which would allow the creditor to step into the doctor’s shoes for purposes of ownership, the spouse or trust at the helm of the entity would still be making all decisions and could ensure that no distributions were actually made to the creditor.  Upon the doctor’s death, her interest would be extinguished and her creditor’s charging order would terminate as well.  Charging orders are generally unattractive remedies to creditors, and may deter the creditor or, possibly, lead to a settlement.

Tenancy By The Entireties

Twenty-five states, including New York, recognize tenancy by the entireties as a means of joint ownership of real property.  Tenancy by the entireties is available only to spouses and, rather than each being owners of a portion of the real property (as with other forms of joint tenancy), each spouse owns 100% of the property.  This means that neither spouse can transfer their interest in the property without the consent of the other and, upon the death of one spouse, the other automatically becomes the sole owner of the entire property.

Ownership of property as tenants by the entireties is effective asset protection planning because a creditor cannot take what the debtor cannot give – and a debtor who owns her home with her spouse as tenants by the entireties cannot give it to anyone.  A creditor could attach a lien to the debtor’s interest in the property, but this lien would only be effective if the property was ultimately sold, or if the debtor’s spouse predeceased the debtor (in which case the tenancy by the entireties would terminate and the debtor would own the property individually).

Ownership of property as tenants by the entireties is also effective estate planning because it ensures that the family home will pass to the surviving spouse automatically, bypassing the probate process altogether, and without being potentially subject to estate tax on the death of the first spouse.

Transfer to Spouse

Another common asset protection device is to transfer assets to a spouse.  It is effective because it can render a doctor judgment-proof – if she has no assets, her creditors have nothing to take.  However, this strategy may not be practical for several reasons.  First, if the doctor and the spouse later divorce, the doctor may lose the transferred assets permanently.  Second, if the spouse is later sued (either for his own malpractice or for some unrelated reason) or incurs significant personal debt, the assets could be lost to the spouse’s creditors.  Third, if the doctor’s spouse dies first, the assets would potentially return to the doctor, negating the intended asset protection effect.

This strategy may also be impractical from an estate planning perspective.  For example, assume that the doctor has children that are not also the children of the spouse.  When the doctor dies, there are no assets in her estate to be distributed to her children – all of her assets have already been transferred to her spouse, who may choose to disinherit the doctor’s children entirely.  While the doctor and her spouse may have had an agreement that the spouse would ensure that the children receive their inheritance upon the spouse’s later death, there is no guarantee that the spouse will honor this agreement, or that there will be any assets remaining at the spouse’s later death.

Transitioning or Unwinding the Practice

Another important estate planning consideration unique to doctors is how to transition or unwind a medical practice upon the doctor’s death.

Liquidating the Practice

In some instances, a doctor’s death may result in the liquidation of the practice (for example, if the doctor was a sole practitioner and did not designate a successor to take over the practice).  In these instances, the doctor’s executor will be responsible for winding down the business.

One of the first things the executor must do is to notify all of the doctor’s patients of the doctor’s death and advise these patients that they have the right to a copy of their patient file and to have their patient file transferred to a new doctor of their choosing.  The executor will also be responsible for arranging for copies of the patient’s files to be provided and/or transferred at their direction.

Additionally, New York law mandates that medical records must be retained and made available to patients for at least six years from the date of the patient’s last visit (and obstetrical records and the medical records of children must be retained for six years or until the child reaches the age of 19, whichever is later).  This means that the doctor’s executor will also be responsible for storing the doctor’s patient files in a HIPAA compliant manner and making these files available to patients upon request.

It should be fairly obvious that the requirements of liquidating a medical practice are incredibly burdensome for an executor, particularly if that executor is not also a doctor.  However, doctors can make this process easier on their executors through a thoughtful estate plan.

First, while a patient is always entitled to a copy of his or her medical records, the original records belong to the medical practice (or the doctor, if the practice is a solo venture), and the doctor can bequeath the medical records to a colleague who may be in a better position to properly maintain and store them.

Next, the doctor can include instructions in her Last Will and Testament that will help her executor wind down the practice, for example, directing the executor to deposit the medical records with a specific medical record storage facility that the doctor has already vetted and has a relationship with.  If the doctor intends to nominate someone unfamiliar with her medical practice as executor (for example, a spouse or child), she may also consider nominating a co-executor who is familiar with the medical practice for the specific purpose of unwinding the practice.  

Finally, the best thing a doctor can do to assist her executor in the ultimate unwinding of the practice is to be organized.  Maintaining clearly labeled files with complete patient and vendor information, in addition to other crucial details about the practice (such as bills, insurance, the location and existence of narcotics (which will need to be reported to the DEA)), will help to ensure an ease of administration.

Succession Planning

While succession planning should be a key component of the estate plans of all business owners, having the right succession plan is particularly important to doctors because the rules governing the operation of a medical practice impose special restrictions on the transfer of a doctor’s interest in the practice.

As an illustration, assume that three individuals entered into a real estate investment business together.  They each owned one-third of the company, and all decision-making was by majority vote.  Their operating agreement did not include a succession plan (e.g. a buy-sell agreement) and was silent on the issue of the effect of the death of a member.  Upon the death of one of the members, the deceased member’s heirs would take her place as a member and, while her heirs could seek a buy-out of the member’s interest from the other members, they could also sit back and simply collect their share of the company’s profits over the life of the company, which may be the more lucrative option.

However, if these individuals were doctors and their business was a medical practice, this would not be an option.  In New York, groups of physicians can only practice medicine through a professional service entity of which all owners, members or shareholders must be licensed physicians and practice only that profession.  As a result, upon the death of one of the doctors, the deceased member’s heirs would not be allowed to take her place as a member, unless they were also licensed physicians and practicing only that profession.

Realistically, the remaining members would have to pay the deceased member’s estate an amount equal to the deceased member’s interest in the practice.  However, this could devastate the practice if it lacks the necessary liquidity to do so.  Therein lies the import of having a succession plan in place – it ensures that the deceased doctor’s estate will receive its share of the practice within a reasonable time frame, and that the practice will not be forced to fold.

Buy-sell agreements are vital in this context.  A buy-sell agreement provides, generally, that upon the death of a member, the remaining members will buy back the member’s interest and pay the purchase price to the deceased member’s estate or heirs.  These agreements typically set forth the price to be paid (or the method by which the price will be assessed) as well as the time period for payment.  Buy-sell agreements thus provide necessary clarity – the members know how much liquidity they will have to raise over a certain time period (and can plan accordingly, for example, by purchasing term life insurance policies on the lives of the members, the proceeds of which will be used to buy back the member’s interest) and the deceased member’s estate and heirs know how much money will be coming into the estate and when.

Estate planning is important for everyone, but even more so for doctors because of their unique need for asset protection, and the nature of their assets.  Doctors should implement an estate plan early on – even before they acquire significant assets – because, as doctors are well aware, an ounce of prevention is worth a pound of cure.   

  

When to Call the Lawyer: When You Need a Will (Which, If You Don't Already Have One, Is Right Exactly Now)

According to a recent Gallup poll, a majority of Americans (66%) do not have a will.  While each state has its own rules governing how assets are distributed if someone dies without a will, these rules are inadequate for most people. 

For example, in New York, if you are married with children at the time of your death and you die without a will, your assets will generally be distributed as follows: the first $50,000 will be distributed to your spouse, and the remainder will be split equally between your spouse and your children.  This distribution scheme may be problematic for many reasons. 

First, most people want their spouse to inherit all of their property, especially if the children are young or if all of their children are children of that relationship. 

Second, the law provides for children to receive their inheritance outright if they are over the age of 18, or upon attaining the age of 18.  While an 18 year old is technically an adult, most parents would agree that even the most mature 18 year old is probably too young to responsibly handle even a modest inheritance. 

Third, property will be distributed based on value, not type.  This means that your property may be distributed among your heirs in a manner that you would not have intended – for example, your jewelry may be distributed to your son, not your daughter, or family heirlooms from your relatives may be distributed to your spouse, not your children.  This also means that your heirs may become joint owners of your property – for example, your spouse may end up owning ½ of the marital home, with your children (who may not be your spouse’s children) owning the other ½.

Finally, the statute sets forth the individuals who may serve as administrator of your estate – including creditors! – and, while the courts give priority to certain individuals (i.e. your spouse), any of the individuals set forth in the statute may petition for letters of administration and attempt to persuade the court why they should be in charge of your estate.

A properly drafted will can eliminate all of these problems.  A will sets forth who will inherit your property and how (outright or in trust) and nominates the individuals who will administer your estate as executors.  Perhaps most importantly if you have children, a will nominates the individuals who will act as guardians of your children in the event that their other parent predeceases them or otherwise cannot act as their guardian while they are minors.

So now that you know why you need a will, how do you go about getting one?  Answer: call your lawyer.   

You Need a Lawyer to Draft Your Will

When it comes to legal documents, the old adage, if you want a job done right, do it yourself, is terrible advice.  Legal documents are complicated and nuanced, and if they are not prepared correctly, the results can be disastrous.  Trusts and estates attorneys are specially trained to prepare wills to ensure that they are accurate and effective, and the cost of hiring a lawyer to prepare your will is nothing compared to the stress and expense to your loved ones when they discover that the will you prepared on your own contained errors unknown until after your death.    

Online Forms – You Get What You Pay For (and Sometimes A Lot Less Than What You Pay For)

In the past decade, websites offering Will drafting services (such as LegalZoom, Rocket Lawyer and Willing) have gained traction with the more enterprising (and frugal) individuals among us.  However, these websites are not a recommended alternative to having a lawyer prepare your will. 

As other commentators have pointed out, LegalZoom’s own disclaimer should give customers pause about using a LegalZoom form to prepare their own Will.  LegalZoom warns its customers that “the legal information on this site is not legal advice and is not guaranteed to be correct, complete or up-to-date.  LegalZoom is not responsible for any loss, injury, claim, liability, or damage related to your use of this site or any site linked to this site, whether from errors or omissions in the content of our site or any other linked site … In short, your use of this site is at your own risk.”

To put it another way, LegalZoom is telling you that LegalZoom forms may contain errors, that these errors may result in damages and that those damages are your problem.

LegalZoom also warns customers that 80% of people who fill in blank forms to create legal documents do so incorrectly.  So between human error and website error, it seems that little peace of mind can actually be purchased online.

However, even if a $69 Will does give you peace of mind, it shouldn’t, because the real danger of using a website to prepare your Will lies in the fact that errors are unlikely to be discovered until after you have died.  At that point, your heirs must either live with the error or commence a proceeding in court (a lawsuit, essentially) to fix it.  And if you thought a Will was expensive, wait until you see how much a lawsuit costs.

Furthermore, Wills prepared via websites are also arguably easier to attack.  In New York, and many other states, a Will is entitled to certain presumptions of validity when the Will was prepared by the testator’s attorney and when the execution of the Will was supervised by an attorney.  If neither of those factors is present, a disgruntled family member may find it easier to invalidate even an error-free Will.

Your Lawyer Does More Than Fill Out a Form

At first blush, it may not seem that drafting a Will is all that difficult – you name your beneficiaries, you pick an executor and voila, you have a Will.  However, Wills actually need to do more than name beneficiaries and appoint an executor – for starters, they need to account for contingencies in the event that the testator’s assets change or beneficiaries predecease the testator, they need to nominate successor fiduciaries in the event that the named executor cannot (or does not want to) serve, and they need to direct how taxes should be paid.

And that is just the beginning.  There is no one-size-fits-all Will, because no one’s life looks just like another’s.  Lawyers know what questions need to be asked, what contingencies need to be accounted for.  Because most lawyers who draft Wills also represent estates, they can anticipate problems that may arise in the administration of an estate and suggest ways to avoid such problems, thus saving your heirs the headache (and attorney’s fees) of dealing with problems after you have already passed.

The bottom line is that, if you are going to make a Will (which you should), you should make sure that it does exactly what you intend for it to do, and the best way to achieve that, is to call your lawyer.     

Tales From the Crypt(o): Estate Planning and Bitcoin

Bitcoins are abuzz.  Goldman Sachs recently announced that it is setting up a cryptocurrency trading desk, J.P. Morgan is backtracking on the position of Jamie Dimon that bitcoin is a “fraud,” and more and more investors – both foreign and in the U.S. – are placing their bets on bitcoin.  

But what, exactly, is bitcoin?  Bitcoin is one of several forms of cryptocurrency.  It is like money in the sense that it is used as payment – in fact, over 100,000 merchants and vendors accept bitcoin in lieu of money, and it can even be used to fund an IRA – but it is unlike money in the sense that it exists solely in its decentralized, digital form.  Bitcoin is not physically represented by tangible coins or bills, and there is no bank where one can go to access an account.

Bitcoin accounts exist and are exclusively maintained in a database called a blockchain.  The blockchain is public but ownership of bitcoin is pseudonymous, meaning that a user’s bitcoin account is linked to a unique bitcoin address and the user’s name is not tied to the account at all.  Bitcoin is accessed by means of two digital keys – one that is public and one that is private.  Both keys are required to access the bitcoin, and the private key is irreplaceable.  Because bitcoin is decentralized, there is no “system administrator” who can send you your private key, and there is no “reset” to obtain a new one.  A lost private key equals lost bitcoin.  

So what does this mean for estate planning?

First and foremost, it means that, if you own bitcoin, it is imperative that you either (a) tell someone about it or (b) document its existence in such a manner that your executor or heirs will be able to discover it after your death.  An executor cannot distribute – and your heirs cannot inherit – that which they do not know exists.  Unlike other types of accounts, which are often made conspicuous through the issuance of statements or 1099s, bitcoin accounts are, by design, completely inconspicuous, and the only way anyone will ever know that you own bitcoin is if you tell them.

The only thing worse than not knowing about a bitcoin account is knowing about it and not being able to access it.  Which leads me to my second point – if you own bitcoin, it is important that you store your private blockchain key someplace where it can be found promptly upon your death.  Without the private key, the bitcoin is as good as lost.  Moreover, because bitcoin is a volatile asset, it is important that your fiduciary be able to access it quickly in order to maintain a diversified portfolio of assets in your estate (or trust, as the case may be), as is required in many states (including New York) under the Prudent Investor Act.    

(Presumably, someone who is tech savvy enough to own bitcoin also owns other digital assets, and, in the interest of ease of estate administration, it is crucial that the usernames and passwords of all digital assets – not just bitcoin – be kept someplace where they can ultimately be found.)

Ensuring that bitcoin can be found and accessed is only the first step in estate planning with bitcoin.  As with any other asset, there are many other factors that must be taken into consideration, including taxation.  The IRS has determined that, for tax purposes, bitcoin is property, not currency.  See IRS Notice 2014-21.  Given the volatility in the value of bitcoin, this asset is potentially highly appreciable, and bitcoin users should consult an attorney to ensure that proper planning is in place (e.g. strategies to take advantage of the step up in basis to ensure that one’s heirs are not hit with a huge tax bill when they transact with the bitcoin). 

In the end, while bitcoin poses some unique challenges for estate planners, it can (and should) be properly accounted for in your estate plan.

How the New Tax Law Can (and Should) Affect Your Estate Plan

The Tax Cuts and Jobs Act (“TCJA”), effective January 1, 2018, made sweeping changes to the Tax Code, including the doubling of the estate, gift and generation skipping transfer tax exemption amounts.  These changes should prompt taxpayers to take another look at their estate plans and to update them where appropriate.

The increased exemption amounts are scheduled to “sunset” in 2026, at which time they will return to $5 million per taxpayer, indexed for inflation.  However, taxpayers can take advantage of this temporary increase through strategies designed to “lock-in” the current, record-high exemption amount and avoid future transfer taxes permanently.

Lifetime Gifting

Taxpayers can now gift $11.2 million (or $22.4 million if married and gift-splitting) without incurring gift tax.  The estate tax benefit of making large gifts is that it reduces the overall value of the taxpayer’s estate (assuming that the taxpayer does not die within three years of making the gift).  Taxpayers can achieve even greater estate tax savings by gifting highly appreciable assets.  For example, if, in 2020, a married couple makes a gift of $14 million worth of stock to a trust for the benefit of their child and, by the time of the last taxpayer’s death eight years later, the stock has doubled in value, the taxpayers have effectively reduced the size of their estate by $28 million while still providing their child with the full value of the asset.  This gift of $14 million would not be subject to gift tax even when the gift tax exclusion amount returns to its pre-2018 threshold of $5 million for individuals and $10 million for married couples.

However, because, under the TCJA, inherited property still receives a step-up in basis, taxpayers will want to consider the capital gains tax implications of making gifts.  In some cases, the capital gains tax savings of the step-up in basis may outweigh the estate tax savings of a lifetime gift.

Dynasty Trusts

Taxpayers may also consider taking advantage of the new exemption amounts by establishing dynasty trusts.  Dynasty trusts are irrevocable trusts structured to last the maximum term permitted by law (in perpetuity in some states, such as New Jersey) and to avoid the imposition of transfer taxes – particularly generation-skipping transfer taxes – during the trust term.  The generation skipping transfer tax is a tax imposed upon transfers to individuals more than one generation below the transferor (a grandchild, for example).  When coupled with the estate or gift tax, further imposition of the generation skipping transfer tax could result in an effective tax rate of up to 64%.  As a result, avoidance of the generation skipping transfer tax could result in significant savings.

To maximize tax savings, a taxpayer can transfer the full gift tax exemption amount ($11.2 million) to the dynasty trust and allocate the full generation skipping transfer tax exemption amount (also $11.2 million) to the transfer.  The property transferred to the trust can grow without incurring any transfer taxes (and, in some jurisdictions, state income tax) and the taxpayer will have reduced the value of his/her estate by the appreciated value of the transferred property.  The taxpayer can further reduce the value of his/her estate by making annual exclusion gifts to the trust (currently $15,000 per year).  Dynasty trusts can also be made flexible, to account for changes in the tax laws and in personal circumstances, and can include provisions to allow the taxpayer to be added as a beneficiary at a later date.

529 Plans

The TCJA permanently expands the benefits of 529 education savings plans by allowing for tax-free distributions to be used for elementary and secondary school expenses, not just higher education expenses.  These plans are now more valuable to taxpayers – particularly those who pay private school tuition for their elementary- and secondary-school aged children – and can be utilized as an estate planning tool.  Contributions to 529 plans are excluded from a taxpayer’s gross estate even though he/she retains the right to change beneficiaries and take back the money.  Further, taxpayers can aggregate five years’ worth of annual exclusion gifts into one year – for example, in 2018, when the annual gift tax exclusion is $15,000, a taxpayer engaged in estate planning could contribute $75,000 (or $150,000 for married couples) without triggering gift or generation skipping transfer tax or using up any amount of exemption.  A taxpayer could thus reduce his/her gross estate by up to $150,000 per child every five years.

Charitable Giving

Charitable giving has long been a strategy for reducing a taxpayer’s gross estate, and is attractive because the taxpayer gets the simultaneous benefit of the charitable deduction for income tax purposes.  The TCJA increases the charitable deduction limit from 50% of adjusted gross income to 60% of adjusted gross income.

Business Succession

In addition to the increased estate, gift and generation skipping transfer tax exclusion amounts, the TCJA may well trigger the formation of an unprecedent number of pass-through entities, meaning that many taxpayers will have to update their estate plans to account for business succession. 

Perhaps the component of the TCJA that has received the lion’s share of attention has been the 20% deduction available to pass-through entities, such as sole proprietorships, partnerships and S Corps.  While the effect of this component remains to be seen, it is foreseeable that the number of pass-through entities will increase significantly in the coming years.  From an estate planning perspective, it is important that taxpayers organizing themselves as pass-through entities put into place a business succession plan.  A business succession plan provides what happens to an owner’s share of the entity upon his/her death.  Buy/sell agreements – in which the deceased owner’s estate is obligated to sell, and the remaining owners are obligated to buy, the interest in the entity – are common solutions.    

 

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