If you are like most people, at some point in your life you will have a family member or loved one who has entered his or her golden years. The golden years can be a time of rest and retirement; however, it can also be a time fraught with physical, mental and legal concern. If you are the caregiver of an elderly individual, you should have a firm understanding of the issues faced by the elderly as well as an understanding of what an elder law attorney does and how one may be able to help you.

One of the most common issues faced by family or loved ones of an elderly individual is how to know when your loved one has reached a point where he or she is incapable of making decisions due to a mental incapacity. No one wants to see that happen to a loved one; however, not recognizing that your loved one needs help can result in serious injuries. An elder law attorney can help advise you regarding what legal options you have if you find yourself in this situation. A guardianship, or conservatorship, for example, may be needed to protect your loved one from harm.

An elder law attorney may also be able to help if you suspect that a caregiver or facility is not treating your loved one as he or she should be treated. Unfortunately, elder abuse happens more often than most people realize. If you suspect abuse or neglect, an elder law attorney may be able to help.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

If you have an elderly family member or loved one who appears to be having trouble making day to day decisions, you may wish to intervene and help. As a person ages, both physical and mental disabilities can impact the ability to make good decisions, putting him or her at risk for a number of things. Day to day activities and decision making can be affected, which can result in accidents or things such as forgetting to eat, bathe or take medication when required. If you want to help, petitioning to become his or her guardian may be the answer.

Many people assume that simply because someone is their parent, child, spouse or other relative, that they have the legal authority to make decisions on behalf of that person. In most cases, that is not the case. Although state laws will vary to some extent, most states require you to obtain the legal authority from a court before you can step in and make those decisions. Unless the person has previously given you legal authority, such as by executing an enforceable durable power of attorney, you may need to become his or her guardian.

Becoming a guardian typically starts with filing a petition in the appropriate court. After notice and a hearing, if the court is satisfied that your loved one or family member is need of a guardian, and that you qualify for the position, you will be appointed. Exactly what authority you have at that point will differ from state to state; however, in most states you will be able to make day to day decisions regarding things such as where the person lives and what doctor he or she uses. Often, in order to have authority over the person’s finances as well, you will need to also become a conservator. This can often be done at the same time as the guardianship petition or through a similar proceeding.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Imagine that you spent a lifetime creating an estate that is worth a considerable amount of money at the time of your death. Like many people, you probably devised an estate plan that allowed you to pass those assets down to loved ones and family members upon your death. You may even have been concerned about a particular beneficiary’s ability to handle money or their age at the time and therefore created a trust in order to better control the assets left to him or her. How would you feel if you knew that the beneficiary managed to rack up a substantial amount of debt that went unpaid and that the creditors then attached the trust assets in order to satisfy the debt? This can happen unless you plan ahead by creating a spendthrift trust.

A spendthrift trust operates in much the same way as any other trust. At its core, it is created and administered in the same way as all trusts; however, it includes a specific provision that prevents a beneficiary from assigning his or her interests to a third party as well as preventing a third party from claiming any interest in the assets as a result of debts owed by the beneficiary. Not all states recognize spendthrift trusts, but most do in one form or another. Because trusts are governed by state law, the precise language needed to create a spendthrift trust will vary by state. The goal, however, of a spendthrift trust is the same in all states. By creating a spendthrift trust, you can be certain that your assets will not fall into the hands of a third party due to the poor money management of a beneficiary.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Whether you are developing your own estate plan, have recently had a loved one pass away or have been asked to be the executor for someone else’s Last Will and Testament, a basic understanding of the probate process is crucial. In general, probate is a legal process that is often required to be completed when someone dies. Although state laws will vary with regard to what estates are required to be probated and which type of probate process is appropriate, there are some common aspects to the probate process.

When someone dies, the first thing that loved ones or family members typically do, from a legal perspective, is to look for a Last Will and Testament. The next step is generally to petition the appropriate court to initiate probate proceedings. Some states allow small estates with total assets under a specific dollar amount to avoid formal probate by using a small estate administration, small estate affidavit or similarly named procedure. If formal probate is required, the process can be lengthy and costly. As a general rule, formal probate is also required when a will was not executed in order to determine who the legal heirs to the estate are.

Someone must be appointed or approved by the court to oversee the day to day handling of the decedent’s estate. If a will was executed, this is the executor named in the will.  If there is no will, the court will appoint someone to act as executor. The assets of the estate are then inventoried and the debts paid. If there are no contested debts, a will contest has not been filed and all estate taxes have been paid, then the court will eventually approve the release of the remaining assets to the beneficiaries.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Creating a comprehensive estate plan often requires employing various estate planning tools to accomplish your goals. Among those tools may be the creation of a trust.  In general, trusts offer flexibility and tax and probate advantages.  Before deciding which type of trust is best for you, a basic understanding of the advantages of different types of trusts is essential.

An irrevocable trust is a trust that is typically created and put into effect during your lifetime.  Unlike a revocable trust, an irrevocable trust cannot, under most circumstances, be modified, amended or terminated once created. Most states do provide for court procedures to modify or terminate an irrevocable trust; however, if you elect to create one, consider it to be unchangeable.

The primary advantages of an irrevocable trust relate to estate taxes and probate. Once you designate assets to fund an irrevocable trust, those assets become trust property. As trust property, they are no longer owned by you. Only property owned by you is included in the probate process and included in estate tax calculations. Considering the often high rate of estate taxes, a sizable irrevocable trust can save a substantial amount of money in estate taxes as well as months of waiting through the probate process.

One pitfall to avoid, however, is creating an irrevocable trust too close to the time of death. Assets transferred “in contemplation of death” will revert back to the decedent’s estate and be included for estate tax purposes.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Parents of young children typically have a substantial number of responsibilities and daily concerns.  Parents sometimes avoid thinking about what would happen if a tragedy were to strike, leaving their children without a parent.  Although unlikely, it is always possible that a tragedy could strike. By addressing the issue now, you can create an estate plan with your children in mind and put your own mind at ease.

One of the most important concerns parents of young children have is how to ensure that the person who will care for the child in the event of your death has immediate access to the funds necessary to do so. One option is to hold title to property jointly with another person. This works well if there is a spouse, partner or other adult you trust to share title to the property. Financial accounts can also typically be converted to “pay on death” accounts. A “pay on death” account, as the name implies, requires the bank, pension administrator or other financial institution to pay out the assets held in the account to a designee in the event of the death of the primary account holder. Both of these simple steps can provide for continuity in the care of your minor child in the event of your death.

In addition, although a Last Will and Testament should be prepared — specifically to nominate a guardian in the event one is needed — a trust should also be considered. A trust allows you to retain a large degree of control over how your money will be used to care for your child

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Americans love their pets. According the American Humane Society, over half of all American households own at least one pet, with many owning more than one. While pets have traditionally been the domain of young children, more and more older Americans are finding that the companionship of a pet can fill a void left by a deceased spouse or far away children and grandchildren. For pet owners in their golden years, concerns about what will happen to a beloved pet are valid concerns. Predeceasing your pet can leave your pet without someone to care for him or her. Luckily, there is a relatively easy solution — the creation of a pet trust.

There are a number of practical and financial reasons why a pet trust is often the best option for ensuring your pet is cared for after your death. By creating a trust, you have the option to appoint a trustee to oversee the administration of the trust. The trustee can be the same person who will actually care for your pet; however, if you have concerns about that person’s ability to handle finances, then appointing an attorney or other neutral third party can make good sense. In addition, a trust may have tax advantages that are not available if you simply gift or bequeath money in your will to someone in order to care for your pet. A trust also allows you to control the amount of money spent on your pet and how the money can be spent. Finally, trust assets typically grow over time, meaning you may be able to include a remainder beneficiary in the trust to receive any left over assets upon the death of your pet.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

In days gone by, a retirement plan was typically rather simple. For most people, their retirement plan simply relied on a pension plan or Social Security benefits to support them upon retirement.  That type of retirement plan had little effect on their estate plan. Today, however, retirement planning has become considerably more complex which in turn has often led to more complicated estate planning needs as well.

When a retirement plan consists solely of pension or Social Security income, as was the case 50 years ago, that income generally stops upon the death of the recipient.  Therefore, there is no need to address that income in an estate plan. Today, however, many retirement plans include more complicated components such as investment accounts, trusts and savings accounts. Because these aspects of a retirement plan include assets that do not terminate upon death, they must be accounted for in the estate plan.

Ideally, you will devise a retirement plan that provides sufficient resources and income to take care of you throughout your golden years, with assets left over upon your death. Those assets need to be transferred to your loved ones at that point. Absent a comprehensive estate plan, those assets may be inaccessible to your loved ones for months while a probate case is pending in court and may also incur significant estate taxes before they are finally transferred to your loved ones. By creating a comprehensive estate plan to go along with your retirement plan, you may be able to avoid probate altogether and limit the amount of estate taxes your estate incurs upon your death.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

When you open a bank account, investment account or retirement account, you typically open the account in your name without giving it another thought. The same is often true for securities registrations and vehicle registrations. In the event of your death, however, those accounts and registrations will become part of your estate and consequently be subject to the probate process. One way to avoid this is to convert those accounts to a “pay on death” account which can be accomplished quickly and easily.

In most states, your assets become part of your estate upon your death and must pass through the legal process known as probate before they can be transferred to your heirs or beneficiaries. The probate process can hold up assets or funds that are needed by your loved ones. To avoid this, change your accounts to “pay on death” accounts. As implied by the name, an account with a “pay on death” status requires the financial institution or agency to pay out or transfer the assets held in the account to the person designated by the primary account holder.

Converting an account to a “pay on death” account is generally easy to do. While state laws will differ somewhat, the process is similar in most cases. Contact the institution where the account is located or account administrator and request the forms necessary to convert the account. If your state allows vehicle registrations to be held as “pay on death”, then contact the bureau of motor vehicle for the forms. Once you have the required forms, designate a beneficiary and return them to the appropriate person or office.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.

Owning and operating a small business can be both challenging and rewarding. If you have been successful at operating your own small business, then you likely wish your loved ones to receive the benefit of your hard work and success in the event something happens to you, such as retirement, incapacity or death. One option to consider, is entering into a buy-sell agreement. Typically used in the case of a closely held business or partnership, a buy-sell agreement can erase the uncertainty that often follows an unexpected death or incapacity.

At its most basic, a buy-sell agreement is simply a legally binding agreement whereby you agree to sell your business to someone upon the occurrence of a triggering event. The benefit to entering into a buy-sell agreement is that you no longer have to worry about what will happen to your business if you become incapacitated or die unexpectedly. In addition, if the sale is for the full market value of the business, then the sale is typically not subject to estate taxes. This can significantly impact the net amount of assets you are able to leave for your loved ones.

Often, a buy-sell agreement is entered into by partners of a small business. A simple buy-sell agreement may pre-determine the value of your interest in the company or provide a mechanism for determining the current fair market value of your interest at the time of a triggering event. The other partners are then required to purchase your interest per the terms of the agreement.

The Law Offices of Richard B. Schneider, LLC is a member of the American Academy of Estate Planning Attorneys.