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Thirteen Estate Planning Terms You Need to Know

Estate planning—it is an incredibly important tool, not just for the uber wealthy or those thinking about retirement. On the contrary, estate planning is something every adult should do.

Estate planning can help you accomplish any number of goals, including appointing guardians for minor children, choosing healthcare agents to make decisions for you should you become ill, minimizing taxes so you can pass more wealth onto your family members, and stating how and to whom you would like to pass your estate on to when you pass away.

While it should be at the top of everyone’s to-do list, it can be an overwhelming topic to dive into. To help you get situated, below are some important terms you should know as you think about your own estate plan.

Assets

Generally, anything a person owns, including a home and other real estate, bank accounts, life insurance, investments, furniture, jewelry, art, clothing, and collectibles.

Beneficiary

A person or entity (such as a charity) that receives a beneficial interest in something, such as an estate, trust, account, or insurance policy.

Distribution

A payment in cash or asset(s) to the beneficiary, individual, or entity who is entitled to receive it.

Estate

All assets and debts left by an individual at death.

Fiduciary

A person with a legal obligation (duty) to act primarily for another person’s benefit, e.g., a trustee or agent under a power of attorney. “Fiduciary” implies great confidence and trust, and a high degree of good faith.

Funding

The process of transferring (re-titling) assets to a living trust. A living trust will only avoid probate at the trustmaker’s death if it is fully funded, meaning it contains all of the decedent’s assets.

Incapacitated/Incompetent

Unable to manage one’s own affairs, either temporarily or permanently; often involves a lack of mental capacity.

Inheritance

The assets received from someone who has died.

Conservatorship

The court-supervised process of managing the assets of an incapacitated person.

Marital deduction

A deduction on the federal estate tax return, it lets the first spouse to die leave an unlimited amount of assets to the surviving spouse free of estate taxes. However, if no other tax planning is used and the surviving spouse’s estate is more than the amount of the federal estate tax exemption in effect at the time of the surviving spouse’s death, estate taxes will be due at that time.

Settle an estate

The process of winding down the final affairs (valuation of assets, payment of debts and taxes, distribution of assets to beneficiaries) after someone dies.

Trust

A fiduciary relationship in which one party, known as the trustmaker or settlor, gives another party, known as the trustee, the right to hold property or assets for the benefit of another party, the beneficiary. The trust should be memorialized by a written trust agreement, outlining how the trust assets will be distributed to the beneficiary.

Will

A written document with instructions for disposing of assets after death. A will can only be enforced through a probate court. A will can also contain the nomination of guardian for minor children.

If you have any additional questions about estate planning, or would like to consult an estate planning professional, reach out to us at 401.272.6300 or via email at astratton@mswri.com or kmoonan@mswri.com.We can make sure you have a comprehensive plan that is tailored to your unique needs and goals.

Wealth Transfer Strategies in an Election Year

With a push by the Democratic party to return federal estate taxes to their historic norms, taxpayers need to act now before Congress passes legislation that could adversely impact their estates.

Currently, the federal estate and gift tax exemption is set at $11.58 million per taxpayer. Assets included in a decedent’s estate that exceed the decedent’s remaining exemption available at death are taxed at a federal rate of 40 percent (with some states adding an additional state estate tax). However, each asset included in the decedent’s estate receives an income tax basis adjustment so that the asset’s basis equals its fair market value on the date of the decedent’s death. Thus, beneficiaries realize capital gain upon the subsequent sale of an asset only to the extent of the asset’s appreciation since the decedent’s death.

If the election results in a political party change, it could mean not only lower estate and gift tax exemption amounts, but also the end of the longtime taxpayer benefit of stepped-up basis at death. To avoid the negative impact of these potential changes, there are a few wealth transfer strategies it would be prudent to consider before the year-end.

Intrafamily Notes and Sales

In response to the COVID-19 crisis, the Federal Reserve lowered the federal interest rates to stimulate the economy. Accordingly, donors should consider loaning funds or selling one or more income-producing assets, such as an interest in a family business or a rental property, to a family member in exchange for a promissory note that charges interest at the applicable federal rate. In this way, a donor can provide a financial resource to a family member on more flexible terms than a commercial loan. If the investment of the loaned funds or income resulting from the sold assets produces a return greater than the applicable interest rate, the donor effectively transfers wealth to the family members without using the donor’s estate or gift tax exemption.

Swap Power for Basis Management

Assets such as property or accounts gifted or transferred to an irrevocable trust do not receive a step-up in income tax basis at the donor’s death. Gifted assets instead retain the donor’s carryover basis, potentially resulting in significant capital gains realization upon the subsequent sale of any appreciated assets. Exercising the swap power allows the donor to exchange one or more low-basis assets in an existing irrevocable trust for one or more high-basis assets currently owned by and includible in the donor’s estate for estate tax purposes. In this way, low-basis assets are positioned to receive a basis adjustment upon the donor’s death, and the capital gains realized upon the sale of any high-basis assets, whether by the trustee of the irrevocable trust or any trust beneficiary who received an asset-in-kind, may be reduced or eliminated.

Example: Phoenix purchased real estate in 2005 for $1 million and gifted the property to his irrevocable trust in 2015 when the property had a fair market value of $5 million. Phoenix dies in 2020, and the property has a date-of-death value of $11 million. If the trust sells the property soon after Phoenix’s death for $13 million, the trust would be required to pay capital gains tax on $12 million, the difference between the sale price and the purchase price. Let us say that before Phoenix died, he utilized the swap power in his irrevocable trust and exchanged the real estate in the irrevocable trust for stocks and cash having a value equivalent to the fair market value of the real estate on the date of the swap. At Phoenix’s death, because the property is part of his gross estate, the property receives an adjusted basis of $11 million. If his estate or beneficiaries sell the property for $13 million, they will only pay capital gains tax on $2 million, the difference between the adjusted date-of-death basis and the sale price. Under this scenario, Phoenix’s estate and beneficiaries avoid paying capital gains tax on $10 million by taking advantage of the swap power.

Grantor Retained Annuity Trust

A grantor retained annuity trust (GRAT) is an efficient way for a donor to transfer asset appreciation to beneficiaries without using, or using a minimal amount, of the donor’s gift tax exemption. After the donor transfers property to the GRAT and until the expiration of the initial term, the trustee of the GRAT (often the donor for the initial term) will pay the donor an annual annuity amount. The annuity amount is calculated using the applicable federal rate as a specified percentage of the initial fair market value of the property transferred to the GRAT. A Walton or zeroed-out GRAT is intended to result in a remainder interest (the interest that is considered a gift) valued at zero or as close to zero as possible. The donor’s retained interest terminates after the initial term, and any appreciation on the assets in excess of the annuity amounts passes to the beneficiaries. In other words, if the transferred assets appreciate at a rate greater than the historic low applicable federal rate, the GRAT will have succeeded in transferring wealth!

Example: Kevin executes a GRAT with a three-year term when the applicable federal rate is 0.8 percent. He funds the trust with $1 million and receives annuity payments of $279,400 at the end of the first year, $335,280 at the end of the second year, and $402,336 at the end of the third year. Assume that during the three-year term, the GRAT invested the $1 million and realized a return on investment of 5 percent, or approximately $95,000. Over the term of the GRAT, Kevin received a total of $1,017,016 in principal and interest payments and also transferred approximately $95,000 to his beneficiaries with minimal or no impact on his gift tax exemption.

Spousal Lifetime Access Trust

With the threat of a lowered estate and gift tax exemption amount, a spousal lifetime access trust (SLAT) allows donors to lock in the current, historic high exemption amounts to avoid adverse estate tax consequences at death. The donor transfers an amount up to the donor’s available gift tax exemption into the SLAT. Because the gift tax exemption is used, the value of the SLAT’s assets is excluded from the gross estates of both the donor and the donor’s spouse. An independent trustee administers the SLAT for the benefit of the donor’s beneficiaries. In addition to the donor’s spouse, the beneficiaries can be any person or entity including children, friends, and charities. The donor’s spouse may also execute a similar but not identical SLAT for the donor’s benefit. The SLAT allows the appreciation of the assets to escape federal estate taxation and, in most cases, the assets in the SLAT are generally protected against credit claims. Because the SLAT provides protection against both federal estate taxation and creditor claims, it is a powerful wealth transfer vehicle that can be used to transfer wealth to multiple generations of beneficiaries.

Example: Karen and Chad are married, and they are concerned about a potential decrease in the estate and gift tax exemption amount in the upcoming years. Karen executes a SLAT and funds it with $11.58 million in assets. Karen’s SLAT names Chad and their three children as beneficiaries and designates their friend Gus as a trustee. Chad creates and funds a similar trust with $11.58 million that names Karen, their three children, and his nephew as beneficiaries and designates Friendly Bank as a corporate trustee (among other differences between the trust structures). Karen and Chad pass away in the same year when the estate and gift tax exemption is only $6.58 million per person. Even though they have gifted more than the $6.58 million exemption in place at their deaths, the IRS has taken the position that it will not punish taxpayers with a clawback provision that pulls transferred assets back into the taxpayer’s taxable estate. As a result, Karen and Chad have saved $2 million each in estate taxes assuming a 40 percent estate tax rate at the time of their deaths.

Irrevocable Life Insurance Trust

An existing insurance policy can be transferred into an irrevocable life insurance trust (ILIT), or the trustee of the ILIT can purchase an insurance policy in the name of the trust. The donor can make gifts to the ILIT that qualify for the annual gift tax exclusion, and the trustee will use those gifts to pay the policy premiums. Since the insurance policy is held by the ILIT, the premium payments and the full death benefit are not included in the donor’s taxable estate. Furthermore, the insurance proceeds at the donor’s death will be exempt from income taxes.

When Should I Talk to an Estate Planner?

If any of the strategies discussed above interest you, or you feel that potential changes in legislation will negatively impact your wealth, we strongly encourage you to schedule a meeting with us at your earliest convenience … and definitely before the end of the year. We can review your estate plan and recommend changes and improvements to protect you from potential future changes in legislation.

Reach out to us at 401.272.6300 or via email at astratton@mswri.com or kmoonan@mswri.com.

The Ins and Outs of Guardianship and Conservatorship

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 AttorneyA 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 learn more, contact Amy Stratton or Kristen Prull Moonan.

Nursing Home Residents Face Even Greater Barriers to Voting Amid Coronavirus Pandemic

The coronavirus pandemic has forced nursing homes to place a number of restrictions on their residents. These constraints are having the unintended consequence of making it more difficult for nursing home residents to vote. Hundreds of thousands of nursing home and assisted living community residents could be disenfranchised.

Older Americans are some of the most reliable voters, but nursing home residents face challenges to voting even in normal times, and they are encountering even greater barriers this election season. In response to the coronavirus pandemic, nursing homes have locked down, prohibiting family and friends from visiting residents and residents from leaving the facilities. This means residents may not be able to leave to vote and also will not be able to have help from family members or organizations in obtaining and filling out mail-in ballots.

In past years, nursing homes and assisted living facilities often acted as polling places, but many of those are being moved due to the pandemic. In addition, nonpartisan organizations have historically been able to enter nursing homes to assist residents with their ballots, but it is unclear whether this will be allowed this year. North Carolina and Louisiana specifically prohibit nursing home staff from assisting residents with their ballots, but even in states that don’t explicitly prohibit it, overworked staff may not have the time to help residents.

While federal law requires nursing homes to protect their residents’ rights, including the right to vote, it is “a really open question to what extent people in long-term care institutions are going to be able to participate in our election in November,” says Nina Kohn, a law professor at Syracuse University who has studied facility residents’ voting-rights issues. Kohn warns that “we should be clear that there is tremendous reason to be concerned that nursing home residents will be . . . systematically disenfranchised in this election,”

For more information about this issue, click here, here, and here.  Or, contact Amy Stratton or Kristen Prull Moonan.

 

Single? You Still Need an Estate Plan

Many people believe that if they are single, they don’t need a will or other estate planning documents. But estate planning is just as important for single people as it is for couples and families.

Estate planning allows you to ensure that your property will go to the people you want, in the way you want, and when you want. If you do not have an estate plan, the state will decide who gets your property and who will make decisions for you should you become incapacitated, and these aren’t necessarily the choices you would have wanted. An estate plan can also help you save on estate taxes and on court costs for your loved ones.

The most basic estate planning document is a will. If you do not have a will directing who will inherit your assets, your estate will be distributed according to state law. If you are single, most states provide that your estate will go to your children or to other living relatives if you don’t have children. If you have absolutely no living relatives, then your estate will go to the state. You may not want to leave your entire estate to relatives — you may have close friends or charities that you feel should get something. Without a will, you have no way of directing where your property goes.

The next most important document is a durable power of attorney. A power of attorney allows a person you appoint — your “attorney-in-fact” or “agent” — to act in your place for financial purposes if and when you ever become incapacitated. In that case, the person you choose will be able to step in and take care of your financial affairs. Without a durable power of attorney, no one can represent you unless a court appoints a conservator or guardian. That court process takes time, costs money, and the judge may not choose the person you would prefer.

In addition, you should have a health care proxy. Similar to a power of attorney, a health care proxy allows an individual to appoint someone else to act as their agent, but for medical, as opposed to financial, decisions. Unlike married individuals, unmarried partners or friends usually can’t make decisions for each other without signed authorization.

If you are planning to give away a lot of your money, there are ways to do that efficiently through the annual gift tax exclusion and charitable remainder trusts. Other estate planning documents to consider are a revocable living trust and a living will.

Finally, for singles who are unmarried but have a partner, an estate plan is arguably even more important than for married couples because without one, unmarried couples won’t be able to make end-of-life decisions or inherit from each other.

Don’t think that because you are single, you don’t need an estate plan. Contact your attorney to find out what estate planning documents you need to assure your wishes will be carried out and those you care about will be protected. To learn more, contact Amy Stratton or Kristen Prull Moonan.

 

How to Divide Personal Possessions Without Dividing the Family

Allocating your personal possessions can be one of the most difficult tasks when creating an estate plan. To avoid family feuds after you are gone, it is important to have a plan and make your wishes clear.

When passing on possessions to your heirs, savings and investments are easy to divide up, since they can be turned into cash. Real estate can also be turned into cash or co-owners can share it. The most difficult items to divvy up are personal possessions—silverware, dishes, artwork, furniture, tools, jewelry — items that are unique and don’t have a set resale value. In legal speak, these are known as “tangible personal property” and can become the focus of family fights. Often one or more children claim that a parent had promised them a particular item. Things may disappear from a house or an apartment shortly before or after a parent’s death, or a child may claim that her 90-year-old somewhat-demented mother “gave” her a cherished diamond ring during life. These types of situations can create great suspicion and irrevocably split families. Siblings may stop communicating due to their anger and distrust.

Clarity about one’s wishes can go a long way toward avoiding these difficulties. Also, it’s important that the personal representative of an estate (also called an executor) secure the deceased person’s residence as soon as possible after death to make sure items don’t disappear. Here are a few steps you or the personal representative of your estate can take to make sure splitting up your stuff doesn’t split up your family:

  • List the most important or valuable items in your will. While your will could get very long if you tried to list all of your possessions, you may have a few family heirlooms or valuable artworks that you want to stay in the family. It may be easier for all concerned if you say who should get what. But talk with your children or other family members first to determine who values which items most.
  • Direct that certain items be sold. If you have one or more possessions that have much greater value than others, it can be difficult to make your distributions equal. It may make more sense to sell the items of greatest value and distribute the proceeds. For example, in a family whose parents were able to save one painting by a famous artist when they fled Europe during the Holocaust, the children sold the painting and split the proceeds equally, since it would not have been fair for any one of them to have received the painting and none had the resources to buy out the other two. The painting was auctioned at Christie’s and they were all quite happy with the results.
  • Write a memorandum. You can write a list of who should receive what item. If your will references the list, it will be enforceable. Be careful about how you describe each item so that there is no confusion. Unlike your will, this list can be as long as you like, and you can change it without having to go back and redo your will. Send a copy to your lawyer as well as any updates as they occur to ensure the list doesn’t get lost or ignored when the time comes.
  • Give everything away now. Well, perhaps not everything, but the more you disburse during life, the less that will have to be dealt with at death. When you make gifts, make sure that everyone knows about it so that the person receiving the gift is not suspected of having pilfered your jewelry box, for instance. There may be items that you would like to give away, but still want in your house. This is especially true of artwork and furniture. As long as the new owner is agreeable, you can keep these items around. You might want to tape a note to the back or underside explaining that the Rembrandt, for instance, belongs to your daughter, Jane. (Of course, if it is a Rembrandt, you will need to file a gift tax return and a transfer document.) Be aware that for highly-appreciated property, for tax reasons, it may be better not to make gifts during life because they’ll lose the step-up in basis. So check with your estate planning attorney or tax accountant first.
  • Get an appraisal. For the tax reasons referenced above and to guide you in deciding who should get what, it can be useful to know the monetary value of the items you’re giving away, whether during life or at death. This can also be very important for your personal representative and for your heirs in making their decisions.
  • Use a lottery. If you do not made choices regarding your estate plan, your personal representative may want to set up a lottery system for distributing the tangible assets. The representative can put names or numbers into a hat and someone can draw them out to determine the order in which the family members or other heirs will choose items. In order to inform the process, the personal representative should create a list of the most valuable items, including their appraisal value if one has been obtained. If everyone is in the same location at the same time, they can simply take turns. If that’s not possible, the personal representative can add pictures to the list to help identify the items and the beneficiaries can choose online, informing the personal representative of their choices as their turns come up. The order of who chooses can change each round, whether reversing or moving along progressively. Here’s the distinction between these two alternatives:

Reversing: 1,2,3,4,5; 5,4,3,2,1; 1,2,3,4,5
Progressive: 1,2,3,4,5; 2,3,4,5,1; 3,4,5,1,2

  • Bidding. A more complicated structure would be to provide all of the heirs the same number of tokens or points that they can use to bid on the various items. For instance, someone who really wants one painting or photo album more than anything else could put all the tokens on that. Someone who doesn’t care as much would bid fewer tokens. The complication in this approach is what happens after an item is gone. Certainly, anyone who used up his or her tokens “winning” an item in the first round is out, but can those who lost reallocate their tokens to other items? A variation on this theme would be for everyone to rank the items by preference. When there’s no competition, everyone who chose an item first would get that one. When more than one person chose an item as their first choice, they might draw straws, with those losing getting to choose again.

The more you decide who gets what rather than leaving the decisions to your family, the less likely the distribution process will create family strife. To learn more, contact Amy Stratton or Kristen Prull Moonan.

Which Nursing Home Rating System Should You Trust?

Choosing a nursing home for a loved one is a difficult decision and it can only be made more confusing by the various rating systems. A recent study found that using both Medicare’s Nursing Home Compare site and user reviews can help with the decision making.

The official Medicare website includes a nursing home rating system. Nursing Home Compare offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. However, Medicare’s rating system is far from perfect. The staff level and quality statistics ratings are based largely on self-reported data that the government does not verify. The ratings also do not take into account state fines and enforcement data or consumer complaints to state agencies.  Nursing homes have learned how to game the system to improve their ratings.

While Nursing Home Compare doesn’t include consumer feedback, Yelp and other online platforms like Facebook, Google, and Caring.com allow users to review individual nursing homes. These user reviews are highly subjective, and it can be difficult to judge their legitimacy. These reviews are not usually taken seriously–for example, consumer guides to finding a nursing home do not usually suggest that consumers consult online reviews.  (It should be noted, however, that Caring.com goes to great lengths to ensure the integrity of its reviews, including having senior care experts read every submission before publication.)

In order to better understand what consumers were saying about nursing homes online, researchers at the University of Southern California evaluated 264 Yelp reviews and grouped them into categories. The researchers found that consumers rate different aspects of nursing home care than does the official rating system. User reviews were more emotional and more likely to focus on staff attitudes and responsiveness rather than on the quality of health care.

The researchers concluded that user reviews can be used in conjunction with the Nursing Home Compare site to paint a fuller picture of life at the nursing home because they present complementary information. According to the study, online reviews shouldn’t be dismissed because they “directly capture the voices of residents and family members, precisely the kind of information [nursing homes] and their consumers need to hear and may want to act on, if resident-directed care is to be achieved.”

Yelp has gone a step further than other consumer review sites and has teamed up with the investigative news organization, ProPublica, to provide users with additional information. ProPublica’s Nursing Home Inspect site, allows users to compare nursing homes based on federal data. Yelp users viewing a nursing home review page see a ProPublica box that provides information on the nursing home’s deficiencies and fines.

To read an article about the study, click here.  To learn more, contact Amy Stratton or Kristen Prull Moonan.

 

How Will the Coronavirus Pandemic Affect Social Security?

The coronavirus pandemic is having a profound effect on the current U.S. economy, and it may have a detrimental effect on Social Security’s long-term financial situation. High unemployment rates mean Social Security shortfalls could begin earlier than projected.

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. This money is put into a trust fund that is used to pay retiree benefits. The most recent report from the trustees of the Social Security trust fund is that the fund’s balance will reach zero in 2035. This is because more people are retiring than are working, so the program is paying out more in benefits than it is taking in. Additionally, seniors are living longer, so they receive benefits for a longer period of time. Once the fund runs out of money, it does not mean that benefits stop altogether. Instead, retirees’ benefits would be cut, unless Congress acts in the interim. According to the trustees’ projections, the fund’s income would be sufficient to pay retirees 77 percent of their total benefit.

With unemployment at record levels due to the pandemic, fewer employers and employees are paying payroll taxes into the trust fund. In addition, more workers may claim benefits early because they lost their jobs. President Trump issued an executive order deferring payroll taxes until the end of the year as a form of economic relief, which could negatively affect Social Security and Medicare funds.

Some experts believe that the pandemic could move up the depletion of the trust fund by two years, to 2033, if the COVID-19 economic collapse causes payroll taxes to drop by 20 percent for two years. Other experts argue that it could have a greater effect and deplete the fund by 2029. However, as the Social Security Administration Chief Actuary morbidly noted to Congress, this pandemic different from most recessions: the increased applications for benefits will be partially offset by increased deaths among seniors who were receiving benefits.

It remains to be seen exactly how much the pandemic affects the Social Security trust fund, but the experts agree that as soon as the pandemic ends, Congress should take steps to shore up the fund.   To learn more, contact Amy Stratton or Kristen Prull Moonan.

 

When Should You Update Your Estate Plan?

Once you’ve created an estate plan, it is important to keep it up to date. You will need to revisit your plan after certain key life events, including marriage, the birth of children, divorce or the death of a spouse, and a significant increase or decrease in assets.  Here’s why.

Marriage

Whether it is your first or a later marriage, you will need to update your estate plan after you get married. A spouse does not automatically become your heir once you get married. Depending on state law, your spouse may get one-third to one-half of your estate, and the rest will go to other relatives. You need a will to spell out how much you wish your spouse to get.

Your estate plan will get more complicated if your marriage is not your first. You and your new spouse need to figure out where each of you wants your assets to go when you die. If you have children from a previous marriage, this can be a difficult discussion. There is no guarantee that if you leave your assets to your new spouse, he or she will provide for your children after you are gone. There are a number of options to ensure your children are provided for, including creating a trust for your children, making your children beneficiaries of life insurance policies, or giving your children joint ownership of property.

Even if you don’t have children, there may be family heirlooms or mementos that you want to keep in your family.

Children

Once you have children, it is important to name a guardian for your children in your will. If you don’t name someone to act as guardian, the court will choose the guardian. Because the court doesn’t know your kids like you do, the person they choose may not be ideal. In addition to naming a guardian, you may also want to set up a trust for your children so that your assets are set aside for your children when they get older.

Similarly, when your children reach adulthood, you will want to update your plan to reflect the changes. They will no longer need a guardian, and they may not need a trust. You may even want your children to act as executors or hold a power of attorney.

Divorce or Death of a Spouse

If you get divorced or your spouse dies, you will need to revisit your entire estate plan. It is likely that your spouse is named in some capacity in your estate plan — for example, as beneficiary, executor, or power of attorney. If you have a trust, you will need to make sure your spouse is no longer a trustee or beneficiary of the trust. You will also need to change the beneficiary on your retirement plans and insurance policies.

Increase or Decrease in Assets

One part of estate planning is estate tax planning. When your estate is small, you don’t usually have to worry about estate taxes because only estates over a certain amount, depending on current state and federal law, are subject to estate taxes. As your estate grows, you may want to create a plan that minimizes your estate taxes. If you have a plan that focuses on tax planning, but you experience a decrease in assets, you may want to change your plan to focus on other things.

Other

Other reasons to have your estate plan updated could include:

  • You move to another state
  • Federal or state estate tax laws have changed
  • A guardian, executor, or trustee is no longer able to serve
  • You wish to change your beneficiaries
  • It has been more than 5 years since the plan has been reviewed by an attorney

Contact your elder law attorney to update your plan. To learn more, contact Amy Stratton or Kristen Prull Moonan.

Four Steps You Can Take to Protect Your Digital Estate

While the internet makes our lives more convenient, it also adds new complications.  For example, what happens to all our online data and assets if we become disabled or die?

Whether or not we spend half our lives responding to devices, we all transact a lot of our daily business online — buying items on Amazon, paying our bills through online bank programs, accumulating and using airline miles, reallocating our investments, saving photos, listening to music, watching movies, or planning trips. And that’s not even mentioning dating sites or social media, such as Facebook, Instagram, or LinkedIn.

So, what happens to all these connections and information if you become disabled or die? Whom do you want to have access, and to which sites? For instance, although you may want your children to be able to access your financial accounts, do you want them scrutinizing your dating site?

The following are four actions you can take to make sure your digital estate is not lost or falls into the wrong hands:

  1. Share your passwords. Make sure that someone you trust, presumably the same person or people you appoint on your durable power of attorney and as personal representative of your estate, knows your passwords or how to find them. This can get complicated, since our passwords keep changing as sites require new passwords or have different requirements for password configurations. There are a few possible solutions to this challenge: (1) Keep a written list of your usernames, PIN numbers, and passwords and let your future agent know where it can be found. This has the benefit of being easy and impossible to hack, but it also means that anyone may be able to find the list. (2) Use a few secure passwords on all accounts that you can memorize and provide to your agent. (3) Use a service such as LastPass that stores all of your passwords. All you need to do is provide your agent with access to this one account. (Of course, use a different password for any sites you don’t want to share.)
  2. Add digital provisions to your estate planning documents. Make sure your durable power of attorney and will specifically authorize your agent and personal representative to access your digital accounts. This may or may not help since your access is governed by contracts with the online companies — those agreements we all check off without reading — which may or may not permit access to others. Strictly speaking, the sharing of passwords probably violates most of these agreements. However, there is an argument to be made that authorizing access in our estate planning documents gives our agents the legal authority to act for us and to use our usernames and passwords.
  3. Check if the online company has provisions for substitute access. Many online companies have their own systems for providing limited access to others in the event of our incapacity or death. See what they say and whether it’s possible to name someone to have access when and if necessary. Google, for instance, allows you to name an Inactive Account Manager.
  4. Save elsewhere. If you have anything saved online that’s really important to you, such as photographs, videos, or certain papers and documents, save it somewhere else as well. Print out important papers. Save everything to your computer (making sure you share your password) and to a USB drive. In fact, you should copy to more than one USB drive to share with whomever you deem appropriate.

If you take these steps, you and your family will be at much less risk of losing access to and control of your online life and property. Since things keep changing, it’s worth reviewing all of these steps on an annual basis.

To learn more, contact Amy Stratton or Kristen Prull Moonan.