Protect Your Family From Divorce and Creditors

Money left to children can disappear for a host of reasons — divorce, bankruptcy, litigation, or bad investments, just to name a few. One way to protect family money is to set up a bloodline trust. The following article explains how these trusts work, using the fictitious example of Mary and John and their four children, Dennis, Judy, Paula and Frank.

Mary and John have four adult children, all with varying degrees of financial and personal success. Dennis, the oldest and most successful financially, has no need for financial support from his parents. Judy, next in line, unfortunately has been through a bruising divorce and is struggling to raise her son on her own. Paula and Frank are both married, but their marriages have had their ups and downs. Paula’s husband has been known to sink their limited resources into failed get-rich-quick schemes. And Frank has just borrowed a lot of money to start his own dentistry practice.

Parents never stop worrying about their children, and Mary and John are no exception. They are worried about more divorces, about whether Judy will have enough money, whether Frank’s business will flourish, or whether he may be sued by a patient. They’re also worried about there being enough money for their grandchildren.

These concerns are not without basis. Nationally, half of marriages end in divorce. In our litigious society, some 17 million lawsuits are filed every year. With health insurance tied to employment, the loss of a job can mean the loss of health insurance and the bankruptcy that can result from a devastating illness or injury. Mary and John can help their children as needed while they’re alive. But whatever they leave their children in their estate could go up in smoke if bad luck strikes or poor decisions are made. This is even true in the case of money left to Dennis, the most successful of the four. While he may have sufficient funds to weather any bad luck, he’s likely to have a taxable estate. Money left to him will be subject to a hefty estate tax before it passes on to the grandchildren.

So what can Mary and John do to make sure that what they leave actually helps their children and grandchildren?

The answer is a ‘Bloodline’ or ‘Dynasty’ trust. These are trusts that continue after the parents’ death through the life of the children and, if the grantor chooses, during the life of the grandchildren as well. The funds are left for the benefit of the children and grandchildren, but limits are placed on access to the trust funds. They’re there if needed, but cannot be spent down on a whim. This restriction provides the necessary protection.

The wealthy have always used similar trusts, often called ‘spendthrift’ or ‘generation-skipping’ trusts. Spendthrift trusts were designed to protect beneficiaries from themselves. The landed gentry could leave funds for ne’er-do-well sons, knowing it wouldn’t all be quickly lost at the casinos in Monte Carlo. Generation-skipping trusts were designed to prevent estates from being taxed twice, both when the parents die and when their children die.

But don’t those with less money have an even greater need to make sure it is protected?

Here are some of the benefits of a bloodline trust:

Creditors: The funds in a bloodline trust are protected from creditors in the event of bankruptcy.

Litigation: Like creditors, plaintiffs in lawsuits cannot invade bloodline trusts. Funds left to Frank will not be subject to claim if he is ever sued for alleged dental malpractice.

Divorce: While everything is generally on the table in the event of divorce, a bloodline trust will be treated differently from property in the name of a divorcing spouse. It will not be considered a marital asset.

Bad judgment: An independent trustee can protect a trust beneficiary from bad choices, whether they be risky investments or foolhardy spending. And the bad judgment may not be on the part of one’s children but come from their spouses, who may prevail upon them to take risks with funds that should be there for their retirement or for their children’s education. Paula will have a lot easier time saying no to her husband if her funds are in trust and not in their joint bank account.

Bad luck: While parents can’t protect their children from bad luck, they can create a cushion for them if it occurs. If a child becomes disabled or loses insurance and incurs large medical bills, he or she can qualify for Medicaid coverage without having to spend down all the funds in a bloodline trust, as would be necessary if the funds were in the child’s name.

So, with all of these benefits, what are the drawbacks of a bloodline trust?

Cost: Mary and John will have to pay their attorney a fee to set up the trusts, but it will be quite minimal compared to the potential savings. In addition, there will be continuing administrative costs after they die. These will include the preparation of an annual income tax return for the trust and, if there is a professional trustee, a management fee. 

Restrictions: Some trust beneficiaries will object to not having complete control and access to their trust funds. This is a trade-off. Do the benefits outweigh this disadvantage? Mary and John will have to decide.

There are some other trade-offs and choices Mary and John will have to make. These include:

Choice of trustee: The hardest decision in any trust is choosing the appropriate trustee. The best answer for a bloodline trust is an independent, professional trustee, such as a bank, trust company or law firm. But this has a cost to it and may increase a child’s disgruntlement about not having complete access to the trust funds. The child may feel more comfortable if another family member or family friend serves as trustee. Or each child can be trustee of his or her own trust. However, this means more risk and less certain protection. The child must follow the terms of the trust. If he doesn’t, the trust might be attacked at a later date as a sham. If the child sees the possibility of litigation or bankruptcy, he should resign at the earliest possible date and appoint an independent trustee. The choice for Mary and John is ironclad protection versus somewhat less certain protection but less cost and more control for their children.

Distribution rules: Mary and John also need to decide the rules for distributing trust income and principal to their children. It’s typical, though not necessary, to have all trust income, interest and dividends distributed annually. The parents can leave principal distributions to the discretion of the trustee or limit it to necessities for their children, such as food, clothing, health and education. This may make the children more comfortable with an independent trustee.

So, after Mary and John have set up bloodline trusts for their four children, they can rest assured that what they’ve worked long and hard to accumulate will be there for their children over the long term. But do they stop worrying about them? No. That’s just what parents do.

Importance of Choosing a Funeral Agent

Although a morbid topic, choosing an agent to control your funeral and disposition of your remains is an important decision to be made in your Will. In New Jersey, if you do not select an agent to control your funeral and disposition of your remains, the following people will have the legal authority to do so:

  • Surviving spouse;
  • Majority of surviving adult children;
  • Surviving parent(s);
  • Majority of brothers and sisters;
  • Other next of kin based on their legal relationship to you.

While this may mirror what you want, in enough cases, it does not. In many families, for example, children do not get along or one child has not been in touch with the family in decades.

In one recent case decided in New Jersey (In the Matter of the Estate of Travers ), the decedent was unmarried and did not have children. His parents survived him but were divorced and did not agree on how to dispose of his remains. In this case, the Court decided which parent it felt was best able to articulate what the decedent would have wanted.

Any time the court is involved, however, costs escalate, issues take longer to resolve, and what you may have wanted to happen might not happen.

If you want to help your family avoid a battle about your funeral and disposition of your remains, you should appoint an agent in your Will.

Grim Reminder of the Importance of Estate Planning No Matter Your Age

The story of 33 year old Marlise Muñoz is a tragic one. When she was found by her husband lying unconscious on their kitchen floor in November 2013, she was taken to the hospital and declared brain dead.

While her family insisted that she had clear wishes not to be kept on life support, Texas law required that she be kept on life support because she was “a pregnant patient.”

While a Living Will/Advance Health Care Directive would not have helped Marlise Muñoz in Texas because of this law, New Jersey law allows a woman to include instructions as to what effect the advance directive shall have if she is pregnant. In other words, a woman in New Jersey could articulate in a Living Will/Advance Health Care Directive if she wanted to be removed from or kept on life support if she was pregnant.

In New Jersey, a Living Will/Advance Health Care Directive is a document that allows you to articulate your health care wishes for use by your medical providers in the event you lack capacity to make your own health care decisions. In the most basic sense, Living Wills/Advance Health Care Directives are used to indicate whether you do or do not wish to be given life sustaining treatment if your doctors determine that medical recovery is not a reality for you.

Marlise Muñoz’s story should serve as a reminder to all of us that, no matter your age, indicating your preferences for medical treatment in a Living Will/Advance Health Care Directive is incredibly important. We never know when tragedy will strike.

For more information on this story, see: http://www.cnn.com/2014/01/24/health/pregnant-brain-dead-woman-texas/

National Estate Planning Awareness Week | Toms River Attorney

Are you one of the estimated 120 million people that do not have an up-to-date estate plan?  October 15th through October 21st is National Estate Planning Awareness Week and an excellent reminder to make sure your affairs are in order, in the event of illness or an unexpected accident. All too often, people neglect proper planning, believing that they will not benefit from estate planning or that there will always be time to “do it later.” This month, take the time to plan for your future.

Estate planning is an important process that can help protect you, your family, and your assets. If your estate plan is not up to date, and you are incapacitated or unexpectedly pass away, your loved ones may be unable to manage your affairs or manage them in the way you would wish. Proper estate planning can not only save you and your loved ones significant amounts of money, but it also gives you peace of mind.

Most people should have at least three documents in their estate plan, including a Power of Attorney, Last Will and Testament, and a Living Will. For more information on each of these documents, please review our estate planning section and call us if you would like to schedule an appointment to have your estate plan updated.

In support of National Estate Planning Awareness Week, the Law Offices of Apicelli & Costanzo is offering a 10% discount off one estate planning document during the month of October.

Estate planning attorney: The importance of Wills for younger people

The term “estate planning” is an unfortunate misnomer which causes people to think only the wealthy or those with large “estates” need to engage in planning. Another unfortunate misconception is that only the elderly need to engage in estate planning. Estate planning can help everyone save money, make sure they receive proper care, and have their wishes respected by doctors and medical care providers. Estate planning can include setting up a will, power of attorney, and living will. This blog post explores how a will can help a younger person.

How can a will help a young person?

A will is the document that outlines how you wish your estate to be distributed when you pass away. While you may think that you do not have enough money or assets to justify the expense of a will, you are likely mistaken. If you pass away without a will, you are said to die “intestate.” If you do not leave a surviving spouse, this means that your heirs will have to apply to the local Surrogate’s court to have an administrator approved for your estate. Once approved, they will also have to purchase a bond, which functions like an insurance policy guarding against possible nefarious acts by the administrator. The bond must be renewed just like any other insurance policy, adding more expenses and meaning that more of your estate will be spent paying costs to the government and third-party companies instead of your heirs.

If you have a will when you pass away, you can select an executor (the person who will administer your estate) and even waive the requirement that they spend your money purchasing a bond until your estate is fully administered. In many cases, the cost of a simple will is less than the bond alone. Even if the only thing your will does is waive the bond requirement, you will save money which can be passed along to your heirs.

For those with children, a will can be an extremely important tool that allows you to appoint a guardian for minor children in the event both parents pass away and appoint trustees to hold the minor child’s inheritance.

What is the monetary threshold where administration becomes necessary?

If you pass away without a will and are a resident of New Jersey, administration through the Surrogate’s court is necessary when you have $10,000.00 upon your passing. The $10,000.00 threshold is not hard to meet—do you own a car? Have a bank account? Own real estate?  Investments like CDs, stocks, and bonds where a beneficiary is not named? Once the threshold is met, expensive and time-consuming court proceedings will have to be opened to appoint someone to distribute your estate. The cost of a simple will could help your loved ones avoid these expenses and headaches.

There are a number of other reasons that engaging in estate planning and having a will drawn is beneficial for young people. If you would like an estate planning attorney to prepare a will for you, please do not hesitate contact us.

Real estate corner: Home inspection issues

The biggest issues during real estate transactions tend to center around the results of home inspections. Oftentimes in this market, sellers feel as though they have already drastically reduced the purchase price for their buyer and are therefore not willing to make any further repairs or offer closing credits for issues that arise during home inspections. Buyers, on the other hand, want everything repaired, excessive credits, or to terminate the contract altogether. When the parties’ expectations are so far apart, it is sometimes difficult to reach a resolution. When this results in a terminated contract, it is particularly frustrating for sellers who have, at that point, kept the property off the market for a minimum of a couple weeks, losing exposure to the market, having to pay additional carrying costs, and having to explain to prospective buyers that the prior deal was terminated over home inspection issues—a red flag in buyers’ eyes.

Home inspection results almost inevitably devolve into negotiations regarding the final purchase price—a tense process. One of the best ways to avoid this tension is for sellers to spend the money and hire a licensed home inspector to conduct an inspection prior to listing the property. Sellers go through the expense of painting and cleaning their house before listing it, but rarely do they hire their own inspectors to evaluate the house and advise them of potential issues with the home.

At a minimum, conducting an inspection can make sellers aware of the problems with their house. Sellers may choose to repair those items that need to be repaired prior to listing a property so that, when a buyer does come around, issues regarding home inspections are less likely to arise.  Even if a seller does not want to spend money to make repairs to their property, home inspection reports can be shown to the buyer prior to entering a contract so that neither seller nor buyer makes any mistake as to  the “as is” condition of the property. Although we always recommend that buyers conduct their own home inspections, it is less likely that there will be any surprises during the inspection period if sellers act proactively and more deals would proceed to closing.

Have you recently sold or purchased a home? If so, would you have found the above information helpful? Is there a real estate contract with which the Law Offices of Apicelli & Costanzo can help you? Please contact us and let us know.

This blog post is for informational purposes only and is neither intended nor should it be interpreted to be legal advice or opinion.