Estate Planning and Trusts Blog

When Will the Supreme Court Clarify the Scope of the Second Amendment?

Second amendmentRecently, the Supreme Court declined to rule in a Second Amendment case,  New York State Rifle & Pistol Association Inc. v. City of New York, which could have allowed it to clarify just how far the landmark Second Amendment cases Heller and McDonald go. But New York City changed the controversial law as soon as it realized the case was headed to the Supreme Court; since the law was no longer in effect, a majority of Justices said there was no case to rule on. But it looks like some Massachusetts cases just may provide the opportunity NYC didn’t.

In District of Columbia v. Heller, (2008), the Court struck down the District of Columbia’s handgun ban and its requirement that lawfully owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.” The Court declared that an individual’s right to keep and bear arms for lawful purposes is independent of service in a militia, and that such lawful purposes included self-defense within the home. Washington D.C. is a federal enclave, so people were unsure whether this ruling applied to the states under the “incorporation” theory of the Fourteenth Amendment. In McDonald v. City of Chicago (2010), the Court affirmed that it did.

So what’s going on in Massachusetts – my birthplace, and also the birthplace of the American Revolution? The place where its citizens once stood up to government oppression and where the confiscation of guns and gunpowder by the British was one factor that sparked a war? Under its current laws, individuals who want to carry a concealed firearm have to prove to government authorities that they have “good reason” to fear for their safety before a permit is issued. Not to go too in depth into constitutional law, but laws that restrict our individual rights can’t be arbitrary. In other words, they must be quantifiable, measurable, and apply equally to everyone. The argument here is that “good reason” is very subjective and therefore unconstitutional. And, of course, the other argument is that self-defense is a natural right and no reason is needed when it comes to self-protection.

Massachusetts has also enacted so-called “assault weapons” and ammunition bans. Its definition of “assault weapons” is so broad that it includes many popular guns. I’ve seen estimates that about half of the types of guns legal under federal law are banned in MA. The constitutional issue here is some wording in Heller that implies that individuals have a right to own guns “in common use.” But appeals courts are reading Heller and McDonald oddly – everyone’s all over the map and no one seems to really know how to apply either case.

The MA ban also includes “copies or duplicates” of so-called assault weapons. What does that mean? No one knows for sure. Another tenet of constitutional law is that a law can’t be vague, so that’s also on the table.

There’s no guarantee the Court will agree to hear these MA cases, but it’ll sure be interesting if it does.

Other articles you may find interesting:

What is a Title II or NFA firearm?

Medical Marijuana & Guns: Legal Advice from a Doctor?

What Types of Senior Care are Available for Veterans?

veteran benefits
VA Aid & Attendance can help defray the costs of senior care.

The U.S. Department of Veterans Affairs offers some funding programs that can help offset the cost of some types of senior care.

U.S. News & World Report’s recent article, “Veteran Benefits for Assisted Living,” explains that many senior living companies try to help many veterans maximize their benefits, which in some cases can significantly reduce the cost of senior living.

Note that the VA won’t pay for a veteran’s rent in an assisted living facility. However, VA benefits may pay for some of the extra services required, like nursing assistance, help with bathing and toileting, and possibly meals.

There are a variety of benefits that may help, based on a vet’s specific service history and eligibility. The most commonly used benefits are the Aid & Attendance Pension. Another common benefit is the Survivor’s Pension for spouses of a deceased veteran with wartime service.

The VA’s Aid & Attendance and Housebound program is part of the pension benefits paid to low-income veterans and surviving spouses. The VA says these benefits are paid in addition to a monthly pension to veterans or their surviving un-remarried spouses. A vet must meet certain military service conditions, and also satisfy one of the potential medical conditions, including:

  • Requiring the aid of another person to perform personal functions, like bathing, dressing, eating, toileting, or staying safe from hazards;
  • Being disabled and bedridden, above what would be thought of as recovery from a course of treatment, such as surgery;
  • Being a patient in a nursing home due to physical or mental incapacity; or
  • Having very poor eyesight (5/200 corrected visual acuity or less in both eyes) or a field of vision limited to five degrees or less.

Vets may qualify for these benefits, which are added to the standard monthly low-income pension, when he or she is “substantially confined to your immediate premises because of permanent disability,” the VA says. Eligibility for the program is based on a case by case basis and involves a review by the VA.

It’s important to begin the application process early, rather than waiting for a crisis to occur. Ask an experienced estate planning or elder law attorney to help you and to discuss your options.

Other articles you may find interesting: 

What is a Title II or NFA firearm?

Tax Implications of a Medicaid Personal Service Contract

Inheritance Distributions: Showing Your Children the Love

Father protecting children
As a parent, why wouldn’t you want to protect your children a bit after you’re gone, if you could?

If you’re a parent, you probably love to help and protect your children—you knew they’d have to fall down and go boom, but you always made sure you had Bandaids and a kiss ready. You bought them car seats and helmets, you had them vaccinated, and you taught them about the birds and the bees and how to drive responsibly. You bought them a cell phone so they could call you if they got in trouble, you paid for AAA so they wouldn’t be stranded in the middle of nowhere, and maybe you even bailed them out of jail due to a stupid mistake. You loaned (gave) them money or let them move back in when life dealt them a bad hand. We parents spend our lives showing our children how much we love them by helping and protecting them, and how we leave them an inheritance is one of the most tangible ways we can show our love once we’re gone.

There are a variety of ways that you can leave money and property to your children, and you can choose the method that you think takes your goals, including their well-being, into account.

The Outright Gift

The first option for leaving an inheritance is to make an outright gift using a Will to all children over the age of majority in your state (18 in Florida). This is often what comes to mind first when people think about planning for their children’s inheritance. This may be a fine solution for parents who have financially responsible adult children and who’ll be leaving a small amount of property and money to them.
For most people, however, leaving an outright gift using a Will is not the best option. If your children are minors, they can’t legally take control over an inheritance, so it’ll more than likely have to be held in a special account or be managed by a court-supervised guardian until they reach adulthood. But even if your children are young adults, they may not have the maturity to make good financial decisions. Further, it’s impossible to foresee what the future holds, even for mature children who normally exercise good financial judgment. They could, for example, experience a divorce or be sued and have a judgment entered against them, and their inherited money could be used to satisfy those claims. Leaving an inheritance outright provides them with absolutely no protection.
Certain types of trusts can be used to protect your children from their potential predators and creditors. They can prevent the money you have worked hard to save from going to your children’s creditors or divorcing spouse, while enabling the trustee to make distributions for your children’s benefit in accordance with your wishes.

In Trust with Child as Trustee

If you make your adult child the trustee of a trust that’s established when you pass away, and he or she is also the beneficiary, the trust terms will specify the amount of discretion your child will have in making distributions to him or herself. Like an outright gift, this is often not the best choice for parents concerned about immature children or children who may have present or future money or liability problems. If your child is able to exercise control over the trust property in his or her role of trustee, then his or her creditors and predators will be able to reach those assets to satisfy their claims.
There’s also the possibility of conflict, especially if the siblings don’t get along, if there are multiple siblings acting as co-trustees, or if one sibling is the trustee and the other siblings are beneficiaries (from my experience, having one child control another child’s money is usually a recipe for the destruction of a family after a parent dies).
Some of these concerns can be addressed by a beneficiary-controlled trust. This type of trust enables a beneficiary to be a trustee of his or her own trust, but the trustee/beneficiary can only make distributions for his or her health, maintenance, education, and/or support. An independent co-trustee may be empowered to make distributions for the beneficiary’s benefit for reasons beyond health, maintenance, education, or support. Typically, the terms of this type of trust enable the beneficiary to remove and replace his or her co-trustee if the beneficiary is not satisfied with the co-trustee’s performance. Although the trustee/beneficiary has some degree of control over his or her inheritance, this type of trust prevents the money and property intended for your child from being used to satisfy the claims of creditors, divorcing spouses, and lawsuits.

Distribute percentage at certain ages

One of the most common–though not necessarily the best–choices parents make regarding how to distribute money and property held by a trust is to include terms requiring or allowing distributions of principal at a certain age or at several ages. For example, a trust could require or allow one-fourth of the trust’s principal to be distributed at age 25, one-fourth at age 30, and the balance at age 35. This distribution scheme may address parents’ concerns about their children receiving a large sum of money before they have the maturity to handle it responsibly, but it may not provide as much protection against creditors as many parents would prefer—which is a concern regardless of the age of the beneficiaries. If a beneficiary can require a distribution to be made from the trust, his or her creditors or divorcing spouses can also look to it to satisfy their claims. In addition, once a distribution is made to one of your children, it is vulnerable to present or future creditors’ claims.

Incentive trust distributions

Many parents want to pass on their values to their children, and an incentive trust is sometimes used as a mechanism for encouraging children to achieve important goals by authorizing trust distributions based upon the beneficiaries’ achievement of certain conditions, e.g., graduating from college, or denying distributions to beneficiaries who use drugs.
Although this trust protects the money and property held in the trust from the beneficiaries’ creditors until the funds are distributed, there are some possible downsides. This type of trust has the potential to trigger resentment in the beneficiaries whose behavior you wish to influence, especially if they believe the trust’s conditions are unfair: For example, a trust that rewards high income by increasing distributions as income increases may be perceived as unfair by a beneficiary who has chosen a laudable but low-paying career such as teaching or social work.
In addition, this type of trust may not provide trustees with much flexibility in making distributions and may be difficult and expensive for trustees to administer, as substantial investigation or proof may be necessary to establish whether the trust conditions have been met by the beneficiary.

Distributions for specific purposes

A trust providing for distributions for the beneficiaries’ “health, maintenance, education, or support” is quite common. It’s also possible to set up a trust that gives the trustee the discretion to make distributions to beneficiaries for other specific purposes, for example, starting a business or buying a house. In those circumstances, the trustee may need to evaluate, for example, whether the beneficiary is able to afford the monthly payments, home maintenance, and taxes before making a distribution to be used as a down payment on a house. Like other types of discretionary trusts, the money and property held by the trust will be protected from claims by creditors, divorcing spouses, or lawsuits.

Complete discretion by the trustee

A fully discretionary trust authorizes a trustee to make distributions to beneficiaries but does not require distributions to be made. Although this type of trust protects the money and property held in the trust from being used to satisfy claims made by the beneficiary’s creditors, some parents may be concerned that this type of trust gives the trustee too much control. Because the trustee does not have to make distributions, your children will not be able to depend upon receiving money at certain intervals or occasions, which may make financial planning more difficult. There is also the risk that unequal distributions among multiple beneficiaries could lead to family conflicts and resentment when the trustee is the only one to decide who gets money and when.

Let’s talk about the best option for you and your family

Each type of trust has its pros and cons. But don’t let the options paralyze you – there’s no one “right answer” when it comes to estate planning. Estate planning is a fluid process and can change as needed or desired. The right strategy–or combination of strategies–for your family depends upon your unique circumstances and goals. Call our office today at 941-44-5958 to set up a consultation so we can make sure your Will and/or Trust will provide for your children in the way you intend after you pass away.

Other articles you may find interesting:

Should I Use a Bank as My Executor Instead of a Family Member?

Blended Families Need More Thoughtful Estate Plans

Don’t Give Your House to Your Kids

Don’t give your house to your child – it’s almost always a bad idea.

I see this all the time – a parent wants to make sure his or her adult children get the Florida house without going through probate. So, do they call an estate planning attorney? Of course not – lawyers cost money!

Instead, they consult with their neighbors, their Facebook friends, their second cousin’s nephew who practices corporate law in NYC, and, of course, Google, to see what they should do. Relying on this “free” legal advice, they download a fill-in-the blank quitclaim deed, complete and record it, and think they solved their problem.

No, as this article outlines, they likely just made things much worse. And now someone will likely either have to pay a lawyer a lot more to fix it, or the government and/or the nursing home will receive a lot more money than they would have if things had been done correctly.

The parent had good intentions. But he or she was focused on only one thing – avoiding probate (which, as the article points out, is fairly onerous in Florida). But the parent didn’t see the forest for the trees.

Probate is just one tiny issue in the huge estate planning puzzle. Did the parent consider what would happen if he or she needs nursing home care? Or what would happen if one of the children named on the deed dies? Or is sued or divorced? Or needs government benefits? Or has a child applying for college (the house is now considered the child’s parent’s asset). And what about taxes? Does it make more sense financially for your children to pay a $32,000 tax bill or a $5,000 probate bill?

The article mentions that life estate deeds or “transfer on death” deeds (we call them ladybird deeds in Florida) are a good option. Maybe, maybe not. They can also present problems.

An experienced estate planning and elder law attorney can help you recognize and address the pros and cons of every possible choice. There’s no one-size-fits-all when it comes to estate planning. Don’t be penny wise and pound foolish.

Other articles you may find interesting:

To Probate or Not to Probate?

Titling Property Correctly for Your Estate Plan

Power of Attorney vs. Guardianship

Power of Attorney
In most cases, a valid and effective Durable Power of Attorney will avoid the need for guardianship.

Did you know that if you don’t have a valid and effective Durable Power of Attorney, and you became incapacitated (usually through a gradual decline of cognitive ability or sudden traumatic event), a judge could appoint a person you wouldn’t want or even an organization you’ve not heard of before to handle your financial and legal decisions and your property? And that relationship may continue for the rest of your life, all the while eating up your assets to pay ongoing fees to the guardian and the courts for taking care of you.

But there’s a simple way to avoid this nightmare scenario – sit down with an estate planning attorney and draw up a proper Durable Power of Attorney so you can appoint the people you’d trust to handle your financial and legal matters when you can’t.

So why doesn’t everyone do this? This article says it’s because:

  • People aren’t aware of the importance of the Durable Power of Attorney;
  • People can’t afford or don’t want to spend the money or don’t look for a lawyer who will prepare one for them;
  • People don’t have a trusted person in mind who is willing to take on the role as agent; and
  • People just don’t want to think about or discuss the possibility of future disability and don’t think it will happen to them.

Whatever the excuse, realistically, using a Durable Power of Attorney instead of the government-controlled guardianship process is one of the best ways to stay in control; to be proactive instead of reactive.

For some people, finding a family member or other trusted person to name as and agent is difficult, but there are professional individuals and organizations who will act as an agent if you can’t find anyone else.

And the best thing about a Durable Power of Attorney is that you can always change the document — without having to go to court.

Other articles you may find interesting:

Common Myths about Your Estate When You Die

Estate Planning: Writing Your Own Obituary

Welcome to Manasota Elder Law’s YouTube Channel

As of May 1, 2020, the Law Offices of Cynthia M. Clark is changing its name to Manasota Elder Law. Since it is the 21st century, in addition to written blog articles, we’ll also be posting (very!) informal vlogs – video blogs. At some point, we plan to get a bit better microphone and camera, and have each video transcribed for those who prefer reading. But you have to start somewhere. 🙂

Here’s a brief welcome and the first vlog. We hope you enjoy them, and if you do, please “Like,” share, and Subscribe to the Manasota Elder Law YouTube channel!