I don’t know what it’s like in your neighborhood, but where I live, everyone seems to have a dog. On my morning walk I routinely greet a wide variety of scruffy mutts of dubious lineage, sheepdogs, the biggest Great Dane I’ve ever seen, an obese Bulldog and a yellow Lab who has simply stolen my heart. For many people, especially the elderly, a pet is a loyal companion. It shouldn’t be surprising that people want to make provisions for their pets in their Living Trusts, just as they do for the rest of their families. In California, as in 39 states, there are Pet Trusts.
One woman loses her best friend and a dog
Clare Jackson’s eyes fill up when she thinks about the death of her best friend, Sylvia. Not only did Clare lose her friend of 40 years, but she also lost Sylvia’s beloved Labrador, Dolly. Sylvia had a stroke and died, and her caregiver immediately euthanized Dolly. “There was nothing I could do–Sylvia had revised her Will, and there was no mention of Dolly.”
This experience was a bitter lesson for Clare, who also loved Dolly and would have gladly provided a loving home for her. (Note that Clare and her husband have made provisions in their Trust for their own dog, Oliver.)
Animals who outlive their owners face uncertain futures
People who die before their pets leave stranded animals. In a best-case scenario, a neighbor, family member or friend cares for the pet for the rest of its life. The alternatives? The Humane Society estimates that six to eight million dogs and cats enter shelters annually. An estimated half are adopted, and the rest are euthanized. In some sad cases, after the death of its owner a pet is simply let out the front door to get lost, run over or any of the other horrible fates that befall abused animals.
Thinking of leaving a chunk of change to Spot or Fluffy?
So what are your options for your pets? A Will is a transfer of assets. An animal can’t own property–someone has to be in charge.
The solution: A Pet Trust
This legal document outlines the continued care and maintenance of domestic animals; it also names new caregivers or directs Trustees to find new homes for pets. A Trustee has a legal duty to carry out your wishes.
While owners may simply include their pets as provisions in their Wills, Michael Markarian of the Humane Society believes a Trust is a better option in case of disability. “Wills may take weeks to be executed and could be contested, but a Living Trustcan be written to take effect immediately.”
Creating a Pet Trust: Think about the economics of caring for your pet
When naming a Trustee, think about the expense of caring for a pet. Food and visits to the vet can add up. Some owners make outright gifts of cash for their animals’ care.
One woman set aside $5,000 to offset costs for the person who ends up with her dogs.
Another pet owner reveals that she has a list of ten people who are potential Trustees care for her cat, Sadie. What the new caregiver won’t know at first is that the estate is instructed to award the person $10,000 if the feline is still with him/her after six months. “I want someone to care for Sadie out of love and kindness and be rewarded if they keep her and fall in love with her like I did.”
Others leave money to be distributed over time—monthly, annually, or as reimbursement for expenses.
For even more security for a beloved pet, name someone other than the caregiver as Trustee. This person will dole out the cash on some kind of predetermined schedule, reducing the risk of someone’s taking the money and getting rid of the pet.
One man created a Living Trust for his three Rottweilers. If his ex-wife couldn’t take care of the dogs, two Trustees were given explicit instructions to use their best judgment to find good homes for his pets. There were dependencies: The dogs should be kept together, and the new caregiver would receive $150 per month, plus money for veterinary bills and other expenses.
Choose your Pet Trustee carefully, just as you would choose a guardian for your child
Talk to potential caregivers for your pets until you find someone you trust. In the same way that you would be choosing someone to take care of your children, what you really want is a person who will love your pet as you have.
Living Trusts are an important service for California Document Preparers, and many of our clients are retired or thinking about it. As a result, discussions frequently surface about a range of life-planning topics such as social security, financial planning and hospice. A recent New York Times article about assisted-living facilities got our attention.
Federal investigators have discovered significant gaps in the way that assisted-living facilities are being regulated, potentially jeopardizing the care of the growing number of people who rely on these services from a booming, poorly regulated industry.
Assisted Living: Little accountability or regulation
According to the Government Accounting Office (GAO), the federal government lacks even basic information about the quality of assisted living services provided to low-income people on Medicaid. Billions of dollars in government spending are flowing to the industry, yet it has only vague standards and limited supervision. States reported spending more than $10 billion/year in federal and state funds for assisted living services for more than 330,000 Medicaid beneficiaries. That’s an average of more than $30,000 a person, with very little accountability.
Individual states are supposed to keep track of cases involving the abuse, neglect, exploitation or unexplained death of Medicaid beneficiaries in assisted living facilities.
More than half of the states were unable to provide data about the details of those cases.
Out of 50 states, only 22 were able to provide data on “critical incidents—those cases of potential or actual harm.” These states reported more than 22,900 incidents, including physical, emotional or sexual abuse of residents.
Many of the people involved in these “incidents” are older, with physical or intellectual disabilities. More than a third of residents have Alzheimer’s or other forms of dementia.
The National Center for Assisted Living, a trade group for providers, said states already had “a robust oversight system” to ensure proper care for residents. According to this group, California, Oregon, Rhode Island and Virginia have adopted laws to enhance licensing requirements and penalties for poor performance of facilities.
The report, “Improved Federal Oversight of Beneficiary Health and Welfare Is Needed,” grew out of a two-year study requested by a bipartisan group of senators.
The report concludes that the Centers for Medicare and Medicaid Services have provided “unclear guidance” and have done little to monitor the use of federal money that is being directed toward assisted living facilities.
Without a clear process for evaluating and monitoring facilities, the committee has no way of knowing if states are meeting their commitments to protect the health and welfare of Medicaid beneficiaries in assisted-care facilities.
Standards for nursing homes
In 1987, Congress established standards for nursing home residents’ rights, imposed dozens of new requirements on homes, specifying the services they must provide. Yet assisted-living facilities have largely escaped scrutiny, even while the GAO says the demand is likely to increase with the aging baby-boomer population and increased life expectancy. Not surprising, the potential to make money off a needy population has attracted investors to an unregulated industry.
The report was commissioned by a bipartisan group of senators
Democrats and Republicans commissioned this report, and the Trump administration is recommending that federal officials should clarify the requirement for states to report on the abuse or neglect of people in assisted living facilities. The administration said it was studying whether additional reporting requirements might be needed.
Assisted living was not part of the original Medicaid program, but many states now cover it under waivers intended to encourage “home and community-based services” as an alternative to nursing homes and other institutions. The report said that assisted living could potentially save money for Medicaid because it generally costs less than nursing-home care.
Nothing in the report disputes the fact that there are many assisted living facilities that are doing an excellent job of providing high-quality, compassionate care for their residents.
The mission of assisted living facilities
Assisted-living communities can be a wonderful bridge between living at home and living in a nursing home. Residents live in apartments or houses; they have a high degree of independence but require help managing their medications and performing daily activities like bathing, dressing and eating.
Personal experience with assisted living
My own folks moved to a retirement community when their home became too much for them to manage. As their friends died, they also were becoming increasingly isolated. They loved this busy new environment, the activities and the warm, friendly people. They lived happily in their own little unit for seven years.
When my stepfather had a stroke, my mother was too weak to care for him. As part of their contract with the community, they were able to move to assisted care when and if it became necessary. The stroke was the catalyst, and we moved both of my parents into assisted care. Before long, my stepfather moved into nursing care. Both of my parents died within six months. During this time, they were extremely well cared for by kind, generous caretakers to whom we were all very grateful.
Few topics are as polarizing as guns and the controversy that inevitably surfaces over the second-amendment right to bear arms. Guns have dominated the headlines the past few weeks after yet another school massacre—this time in Florida. Angry kids, moms and others are increasingly vocal about the need to enact stricter gun control legislation, yet there remains opposition by gun owners, politicians and the NRA.
California: Stringent laws for passing guns from one generation to the next
As the nation struggles with gun-control issues, you may be surprised that California has some of the strictest laws in the country, including those that regulate the passing of firearms from one generation to the next. So restrictive are California’s regulations that some people have moved out of state to avoid them. Regulations vary not only by what weapon is to be inherited, but by who is in line to receive them. Assault weapons are for all practical purposes nontransferable, and if the relative to whom you’d like to bequeath a gun is a drug addict or ex-felon, be aware that the transfer is illegal.
Yet millions of Americans have sizeable, sometimes valuable collections of guns for hunting or target shooting and may have antique guns that are prized family heirlooms. And now they’re preparing their Living Trusts, deciding how they will allocate their gun collections to their heirs. There are some important things to keep in mind.
Categories of severely restricted firearms
“Severely restricted” describes that category of weapons which is heavily regulated, such as assault weapons, including the Florida shooter’s AR-15, an AK-47 or an Uzi. California is intent on eliminating severely restricted weapons by making their transfer nearly impossible.
What happens to severely restricted firearms when their owner dies? The weapons must be:
Removed from California
Sold to a federally licensed firearms dealer
Turned over to law enforcement
The safest and simplest way to transfer a firearm from one person to another, even in distribution of an estate, is through a Federal Firearms Licensee (FFL) who also has the necessary California licenses to deal in firearms. Not only do such dealers know firearms, but they can carry out required background checks on intended recipients.
What about antique firearms–those manufactured before 1899
Curios, antiques or relics are those firearms of “special interest to collectors” by reason of some quality other than is associated with firearms intended for sporting use. These weapons must be at least 50 years old and derive monetary value for their owners.
Antiques, curios and relics can legally be transferred without going through an FFL, but a qualified FFL should verify a firearm’s classification before transfer.
Since January of 2014, transfer of antiques, curios and relics can’t be made unless the recipient has both a California Certificate of Eligibility and a Federal Curio or Relics license. The firearm must be registered with the California Department of Justice.
Here’s where it begins to get complicated . . .
Let’s say you want to leave your vintage Winchester rifle to your cousin Alfred, who served time for robbery in 2000. You also want your sister, Britt, to receive your Beretta. Everyone loves Britt; she’s got a big heart but also a bit of a substance-abuse problem and can’t seem to stay clean and sober or out of rehab for long. You’d also like to leave some of your gun collection to your nephew Brian—he’s just 13, but very responsible; he’s been hunting since he was five and understands gun safety rules.
You can’t transfer or bequeath shotguns or rifles to minors, and a minor who possesses such weapons cannot be prosecuted, but anyone who gives, sells, bequeaths or transfers a gun to someone under 18–including the executor of a Will–can be criminally liable for doing so. In California, minors can’t own handguns, and they themselves can be prosecuted in juvenile court for possession. There are certain exceptions, such as having the written consent of parents or legal guardians if weapons are for target shooting or hunting.
Who ends up on the no-gun list?
For Executors or Trustees, those prohibited by federal or California law from possessing rifles, pistols or shotguns include:
Convicted felons. If someone has been convicted of a crime and served time, that person cannot legally own a gun.
Anyone convicted of domestic violence or is under a restraining order from an intimate partner and is found to present a threat to that person or to that person’s children’s safety is ineligible to own a gun.
Those who unlawfully use or are addicted to narcotics. Narcotics use does not include spirits or tobacco, so chronic alcoholics, unless they are mentally ill, are not prohibited from owning firearms.
Anyone found by the courts to be mentally defective or who has been committed to a mental institution. This includes those deemed by a court to be a danger to others, mentally disordered sex offenders, and those found not guilty of a crime by reason of insanity or found mentally incompetent to stand trial. It also includes those in custody because they present a danger to themselves or others, individuals undergoing intensive treatment for mental illness, and those placed in a conservatorship because of a grave disability caused by a mental disorder or chronic alcoholism.
Anyone who has violated probation, restraining orders or injunctions by possessing firearms is in violation of California law.
California also has a longer list of misdemeanors–those involving violent or aggressive behavior–that generally result in a ten-year ban on firearm possession.
Conditions for families transferring firearms
Guns may be transferred from parent to child, child to parent, grandparent to grandchild, or grandchild to grandparent as long as all live in California and all children and grandchildren are 18 or older, 21 for handguns. Note that no more than five such family transfers can be made each year.
Recipients must first obtain a firearm safety certificate, issued by a licensed dealer after a written test is passed.
Those receiving anyfirearm (including rifles and shotguns) must have general firearm safety certificates.
Transfers between spouses or domestic partners must go through dealers, and the receiving spouse or partner must have a safety certificate.
A firearm may only have one registered owner who must pass a background check.
Becoming Executor of an estate that involves the transfer of firearms requires becoming familiar with laws relating to their storage, transportation and transfer. If there are questions, an FFL will be able to help you legally manage a firearm transfer.
We encourage everyone to create a Living Trust
This issue of transferring firearms provides a window into some of the responsibilities that an Executor may encounter. We encourage our clients to think carefully about the people they choose for this role, which is an important part of the Living Trust process. If you need to create or update your Trust, contact California Document Preparers at one of our three Bay Area offices today to schedule an appointment. Our dedicated team is helpful, compassionate and affordable.
Baby boomers have profoundly affected the way we do business and the way we live our lives. They’re the big, noisy generation that demanded to be heard. They pioneered breakthroughs in multiple industries, including art, medicine, science, education and technology. Now the boomers have gotten old, and while they’re being replaced by millennials, they’re still setting records. They’re joining the ranks of the estimated 5.5 million Americans who have Alzheimer’s disease, a demographic that is growing at an alarming rate. With no cure in sight, one in 10 people aged 65 and older has Alzheimer’s.
With the increased occurrence of some kind of dementia, it’s not surprising that the matter of testamentary capacity is being raised more frequently when it comes to signing legal documents.
What is testamentary capacity and why is this important?
Testamentary capacity is the legal term defining a person’s legal and mental ability to make or alter a valid Will. Wills are often executed by older adults who may be losing their mental capacity; determining testamentary capacity is a process that helps protect these potentially vulnerable adults from those who may be hoping to profit from the Will.
Testamentary capacity is a legal question, not a medical question
It is important to note that having dementia or Alzheimer’s disease does not necessarily mean that a person lacks capacity to execute his/her Will. There is no single definition of capacity, nor is there a general test or criteria that we can apply to establish capacity, mental capacity or competency. Rather, in every case, capacity is specific to each time and situation. Legal capacity can fluctuate. In terms of the law, there is a presumption of capacity until it is disproved.
In determining testamentary capacity, it is critical that the person signing the legal documents understands the relevant information and the consequences of the documents he/she is signing.
Capacity characteristics and criteria
The following capacity characteristics and determining criteria are used as guidance in determining capacity, but it’s important to keep in mind that determining capacity can be a very subjective exercise. It requires the testator to have the ability to understand the following:
The nature of the act of making a Will and its essential elements.
The extent of the property of which he or she is disposing.
The claims of those persons who expect to benefit from the terms of the Will.
An overall understanding of the relationship among these factors—the Will as a legal document, the property identified therein and the people who will be named as its beneficiaries.
While many of the changes to the GOP Tax Cuts and Jobs Act are geared toward corporations, big businesses and those who own them, a repeal of a deduction for alimony is an example of how the tax law will have consequences beyond the one percent.
In some cases, the new law will be turning over tax policy that has been in place for decades. Given the highly partisan and controversial manner in which this bill was passed, it leaves many wondering if Republican legislators thought through the consequences for those who are likely to be most affected—in most cases women.
Current law has included an alimony payment deduction for 76 years
According to the Act as it is currently written, this deduction will be eliminated, effective 2019. Couples who are in mediation, separated or contemplating Divorce are being counseled to act now if it seems that Divorce is the inevitable outcome. A result of the new law could be a surge in Divorces.
“Now’s not the time to wait,” said one Philadelphia lawyer and former chair of the American Bar Association’s section on family law. “If you’re going to get a Divorce, get it now.”
The deduction substantially reduces the amount of alimony payments
What does the deduction mean for divorcing couples? For those in the highest income-tax bracket, it means that every dollar someone pays to support a former spouse is actually costing him/her a little more than 60 cents. Potential divorcees have all of 2018 to use the alimony deduction as a bargaining chip in their negotiations with estranged spouses.
An increase in acrimonious Divorces that disproportionately target women
Many believe that removing this deduction will make Divorces more acrimonious, that people won’t be willing to pay as much alimony. More couples will end up fighting in court because they won’t be able to agree on alimony terms. Since it is women who tend to earn less and are most often the recipients of alimony, many believe this tax change could disproportionately hurt women. One family law attorney believes that the repeal reduces the bargaining power of vulnerable spouses, mostly women, in achieving financial stability after a Divorce.
Tax break: An overview
A burden on the IRS. This alimony deduction has been criticized for being a burden on the IRS. There is a one-one relationship between what ex-spouses are paying and receiving. In 2010, there was a $2.3B gap in the reporting. If they don’t match, the IRS may be auditing two people who may already be feuding—a very difficult situation.
Alimony has been deductible since 1942 because lawmakers believed it was unfair to tax people on the alimony they paid when the money was not available for them to spend.
The deduction is significant for divorcing couples. Let’s say that John earns $250,000, which puts him in the 24% tax bracket. He agrees to pay $4,000 per month in alimony, but it really costs him about $3,000, with the deduction. Without the break, John may agree to pay only what would have been his after-tax amount, about $3,000.
Unfair to give divorcees a special break. House Republicans justified the repeal by suggesting that it was unfair to offer a special break to divorcees. The repeal prevents divorced couples from reducing income tax through a specific form of payments unavailable to married couples.
The tax change is projected to raise $6.9B over the next decade; it is one of the ways Republicans are trying to compensate for the huge deficit created by the tax cuts.
If you are contemplating Divorce, if it’s uncontested, we can assist you
Abby’s mother died in a tragic automobile accident in January. She had never prepared a Living Trust because, like many people, she assumed that this was something she’d have plenty of time for when she grew old.
An only child, Abby would be the Administrator of her mother’s estate
When Abby came in to our Oakland office, we reviewed the Probate process and her responsibilities as Administrator. On the day of our Probate hearing, Abby showed up at the courthouse, and she clearly had prepared for her day in court—she was wearing a suit and heels, makeup and she’d had her hair done. She confessed that she wanted to look professional, but there was another reason. “There were going to be all those good-looking lawyers in the courtroom.” Abby was turning her mother’s Probate hearing into a drama. Hearing her description of how she scanned the courtroom for witnesses, the judge and prosecutor, we couldn’t help thinking that she’d watched too many old episodes of Law & Order.
There’s no prosecutor or jury in Probate Court
Our client was in the courtroom specifically to get the judge’s permission to proceed with the Probate of Abby’s mother’s estate. “The judge will review your petition and grant Letters Testamentary, the document that authorizes the Executor of a Will to take control of a deceased person’s estate.” When the required paperwork is completed and submitted to the court, the judge is most likely to review and approve it without any discussion.
California Document Preparers generally manages this process for our clients. We answer our client’s questions and ensure the Probate process continues to move forward after the hearing. Disputes and objections are rare. Settling an estate is a straightforward, orderly process.
Probate can be intimidating, yet it’s a very methodical process
As part of Probate, the Court appoints a personal representative, or Administrator, to settle the estate, so we work with that person throughout the Probate process. The Administrator is responsible for:
Collecting all Probate property of the decedent.
Paying all debts, claims and taxes owed by the estate.
Collecting all rights to income, dividends, etc.
Settling all disputes.
Distributing or transferring the remaining property to the heirs.
Access to the decedent’s accounts
As the Administrator, Abby will gain access to all of her mother’s records–bank statements, savings accounts and income tax returns–to fully understand the financial landscape. This may include valuing assets, taking physical custody of assets and selling assets, as necessary, to pay off debts or expenses.
During Probate, the deceased’s estate becomes a separate tax entity, so Abby will need to obtain a federal identification number and open a bank account in the name of the estate to pay creditors. It is also necessary to file the estate’s tax return and a final individual tax return.
Distribution of remaining assets
Once all taxes and debts have been satisfied, the Court will then distribute any remaining assets according to the Decedent’s will, or according to state law when there is no Will. In California, as in most states, when there is no will, the first priority is given to the deceased’s spouse, followed by the deceased’s children.
In Abby’s case, her father died in 2013, and she was an only child. Once all debts are paid and the estate is settled, the remaining assets will be hers.
Whether you’re in the process of getting a Divorce or still just thinking about it, you understand the toll that it will take on you and your family. Divorcing couples are faced with the stark reality that they will be starting a new life as a single person, often a single parent, and on a single income. As couples divide their lives, property and parental responsibilities, they are relieved to be ending what is generally a troublesome relationship, but that ending can leave them with significantly fewer assets and retirement savings.
Most of the articles about Divorce are endless discussions of the negative effects on budgets and families. But here’s a look at seven financial benefits that could help make a sad situation a little brighter.
1. Easier budgeting and more control over money
The end of a marriage can mean the end of fights over money. If one spouse is a carefree spendthrift and the other is thrifty, the relationship will inevitably run into serious conflicts. The expenses you and your partner prioritize and the way you spend money are fundamental to a relationship. If this is one of the issues that has driven a wedge between you and your spouse, and ultimately caused your Divorce, you are looking forward to freedom from having to plead with your spouse to rein in spending.
Nancy Hetrick, a senior financial advisor with Better Money Decisions in Phoenix is an example. In the six months after her Divorce to a spendthrift husband, she accumulated $20,000 in savings, while her ex racked up tens of thousands in debt over the same period. This is a dramatic example of different priorities about how to spend money. In this case, it drove a couple to Divorce.
2. Early access to a retirement fund, penalty-free
A Divorce is one of the few times a person can pull money out of a retirement account early and not be slapped with an early withdrawal penalty. If a Qualified Domestic Relations Order is reached as part of a Divorce, it allows for an early withdrawal from the account. This money is exempt from the typical 10% penalty assessed to those younger than age 59 ½. Note that income tax still needs to be paid if the money is not rolled into an IRA.
Cashing out part of a retirement account can be a risky move, and should only be considered after receiving sound financial and tax advice, but it gives the newly divorced some much-needed cash-flow flow at a difficult time when money may be tight.
3. Potentially better investment returns
Divorce could mean better investment returns, at least for women. Men usually take a more aggressive approach to investments and take more risks. After a Divorce, women have the opportunity to take over their own retirement planning, which ultimately can be advantageous.
4. More college financial aid for the kids
Divorce can be hardest on children, but there is one place where they come out ahead–college financial aid. The Free Application for Federal Student Aid (FAFSA) only requires financial information from the custodial parent rather than both parents. However, child support and alimony received from the noncustodial parent must be included on the FAFSA application. Additional financial aid is a little-known benefit of Divorce, but one that can be significant.
5. Social Security perks for older divorcees
Divorced spouses may be eligible to file for Social Security spousal benefits at retirement. If you were married to your spouse for at least ten years, you’re entitled to these benefits. This is something the ex-spouse doesn’t know you’re doing, and it has no impact on the benefits the ex-spouse receives.
If you were 62 by Jan. 1, 2016, you can file a restricted application for Social Security spousal benefits once you hit full retirement age. No longer allowed for younger workers, this application will allow you to receive half of your spouse’s benefit, while you defer your own and let it grow until age 70. For married couples, this only works if a person’s spouse has already started his/her benefit. For divorced couples, you don’t have to wait until your ex-spouse turns on Social Security.
6. Opportunity to reset financial priorities
Many divorced couples end up resenting the lifestyle changes necessitated by their Divorces. Divorce often means selling the family home; membership in the country club may no longer be affordable. Moving to a more modest neighborhood or apartment may be unsettling. Financial experts point out that a Divorce gives people the opportunity to rethink their priorities. It well may be that giving up a family home is a good thing—families are often significantly overextended with huge mortgages, spending more than they can afford, constantly challenged to keep up with their neighbors. Downsizing and living an affordable lifestyle can be a relief.
7. A better bottom line
Divorce doesn’t have to mean a depleted bank account. Even on a lower income, divorced people can build wealth by making smart use of their resources. Not everyone’s financial situation will improve with Divorce, but some people are surprised to learn that it does.
Getting a Divorce isn’t something to rush into, but if you find yourself in the midst of a crumbling marriage, don’t despair. You can still come out ahead. While it is always disruptive and emotionally draining, many couples enjoy new lives that are free of constant tension and bickering.