Domestic Partnerships: How to Avoid Costly Inheritance Taxes on the Family Home

In this modern era, families come in all shapes in sizes.  It has become fairly common for same sex couples to buy a home and raise children.  Then there are opposite sex couples who share their lives, including buying a house together, but forego the formalities of marriage.  In 2009 the Maryland legislature enacted legislation providing some measure of protection to these more nontraditional families.  Specifically, the legislature created “domestic partnerships” and imbued them with one of the legal advantages of marriage. Continue reading

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6 Reasons Not to Put Your Child’s Name on the Deed to your House

Instead of drafting a Will, many people just put their child’s name on the deed to their house.  Their goal is to make things easier for their child by eliminating the need to go through probate.  If the house is the only asset, this can be an effective way to avoid probate.  (If there are other assets besides the house which they still own in their sole name – their child will still have to go through probate.)  In Maryland, though, probate is not a particularly daunting or expensive procedure.  In my opinion, the disadvantages of putting your child’s name on the deed far outweigh the advantage of avoiding probate. Continue reading

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Get Your Advance Directive: Don’t Be A Headline.

In giving estate planning seminars, I am always trying to impress upon my audience the importance of planning while young and healthy.  One of many reasons to plan sooner rather than later is to avoid being the subject of a news story like the one ran by the Associated Press on October 31, 2011: “Maryland Feeding-Tube Case Pits Wife Against Mother.”  My job as an estate planning attorney is to prevent tragic headlines like this.

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Should I get an Advance Directive, a Living Will or a Health Care Power of Attorney?

The answer is the first one or the second one and the third one.  The problem with answering the question is first and foremost one of terminology.  For starters, each state calls these legal documents by different names.  For instance, Maryland has an Advance Directive, Virginia has an Advance Medical Directive and the District of Columbia has a Power of Attorney for Health Care and Declaration of Living Will.  In addition, as a legal community we have simply not standardized our terms.  What one lawyer calls a Health Care Power of Attorney, another calls an Advance Directive.  In this blog I will attempt to clear up the confusion. (At least for Maryland residents). Continue reading

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Safekeeping Your Last Will & Testament: 5 Recommendations

So you stopped procrastinating, hired a lawyer, and executed a Will.  Now what should you do with it? To fully understand the following five recommendations it is essential that you understand the importance of the original Will.  After your death, the original Will needs to be delivered to the Register of Wills (or its corollary in your state).  The Register requires the original, not a copy.  The reason for the insistence upon the original is that the decedent may have purposefully destroyed his or her Will before death — because he or she no longer wanted it to control the distribution of his or her assets. Continue reading

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Think Twice About Designating A Disabled Person as a Beneficiary

Despite your good intentions, naming your disabled niece as the beneficiary of your life insurance policy may not do her any good whatsoever.  In this final installment in this series, I explain why disabled beneficiaries should be handled with extreme caution.  This advice actually applies to all manner of property given to a disabled person – including property distributed under a Will.  The reason for caution is this: an inheritance from any source could disqualify the disabled person from receiving public benefits.

Many disabled people (children and adults) receive disability benefits through the Social Security Administration (SSA).  The SSA administers two separate disability programs, disability insurance and supplemental security income (SSI). (See Have I Worked Enough to Qualify for Social Security Disability Benefts?).  The SSI program is means tested.  Thus, in addition to proving disability, the applicant must be below a certain level of means (e.g. income and resources).  SSI benefits are particularly important as the disabled person receives not only a monthly cash benefit but health insurance through Medicaid.  A sudden increase in resources may disqualify the person from both their cash benefits and, more importantly, Medicaid. Continue reading

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Estate as Beneficiary of Life Insurance, IRA or 401k: Bad Idea

The last place you want your life insurance, retirement account, or pay-on-death (POD) account to go upon your death is to your Estate.  Thus, do not name your “Estate” as the beneficiary on the designation form provided by your insurer, broker, or financial institution.  However, even if you don’t make this mistake on the designation form, the Estate can still end up being the beneficiary.  For instance, if you fail to designate any beneficiaries, the funds are paid to the Estate.  Also if the beneficiary you designated has already died, the funds are paid to the Estate.  This is why naming contingent beneficiaries is so important.  There are three main reasons to keep these funds out of the Estate.

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Avoid Naming Your Minor Children as Beneficiaries

Beneficiary designations can be an effective tool to avoid probate, if used appropriately.  (See Beneficiaries Instead of Probate: Use Caution).  Assets can go quickly and directly to loved ones after your death.  However, there are certain types of beneficiaries that should be avoided.  First and foremost – no minor beneficiaries!

I recently represented a widowed mother of three minor children.  Her husband had named as beneficiaries on his life insurance policy his wife (50%) and his three minor children (50%).  After his death, my client contacted the insurance company and provided the death certificate and requested payout of the insurance proceeds.  However, because half of the proceeds were going to minor children – the insurance company required that a guardianship of the property of the minors be established prior to the issuance of the checks.  Continue reading

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Beneficiaries Instead of Probate: Use Caution

The term “probate” refers to the court process whereby a decedent’s assets are gathered together and, after the payment of the decedent’s debts, distributed to the decedent’s heirs. One way to avoid probate is through the use of beneficiary designations.  The only assets that pass through probate are assets the decedent owned in his or her sole name without any beneficiary designations.  Any asset that contains a beneficiary designation passes directly to the beneficiary without any court intervention.  Life insurance is a classic example of an asset that passes directly to the beneficiary.  Retirement plans (e.g. IRAs, 401ks) also usually pass to a designated beneficiary.  Other examples are “pay on death” designations on bank accounts or investment accounts.

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3 Issues to Consider When Drafting your Power of Attorney

So you are now convinced that you need a Power of Attorney (POA) in place to help your family and loved ones take care of you in your time of need.  Or maybe you and your aging parent have decided that a POA needs to be executed in anticipation of deteriorating health.  Below are three items to consider prior to meeting with an attorney.

1.            Avoid Joint Powers

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Maryland’s New Power of Attorney Act

On October 1, 2010, a new power of attorney act went into effect in the State of Maryland.  Efforts had been made for a number of years to get legislation passed that would govern the use of power of attorneys.  The new Act should assist the general public by making power of attorneys easier to create, interpret, and use.

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5 Important Facts About the New Estate Tax

In December 2010 Congress enacted the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.  This law created an entirely new estate tax regime.  To understand the extent of the change, it is important to remember where we were prior to the new law.

In 2009, the maximum federal estate tax was 45 percent and the maximum amount that one person could give away without estate tax (exclusion amount) was $3.5 million.  Estate planners believed that a new law would have been enacted before the end of 2009 because the then current federal estate tax law was due to expire by the end of the year.  Congress did not act and, thus, in 2010 there was no estate tax.  This meant that no matter how much money there was in the estate, there was no tax in 2010.  No doubt this was good news for George Steinbrenner’s heirs! Continue reading

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Problems with Joint Ownership

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What is a Durable Power of Attorney Anyway?

So many people come in to see me and are convinced that they need a Durable Power of Attorney (DPOA).  When I ask them why, they don’t know.  Further probing usually reveals that they aren’t quite sure what a DPOA actually is.  Let me see if I can explain the idea.

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The 5 Most Important Reasons to Have a Will

1.  Avoid Intestacy Laws

If you never get around to getting a Will, don’t worry – the legislature will write one for you.  If you die without a will you are “intestate” and the intestacy laws of your state govern what happens to your property.  In almost all situations the legislature’s idea of what should happen to your property is very different than yours.

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