Posts Tagged ‘orange county wills lawyer’

Orange County Wills Lawyer Discusses Gifting to Nieces and Nephews – What You Don’t Know Can Hurt You (and Them)

Wednesday, October 6th, 2010

As an Orange County wills lawyer, I want you to picture this scenario…

You’ve worked hard, saved and managed to accumulate some wealth.

You’re not a robber baron by any means but you’re comfortable.  Your siblings haven’t fared as well and you want to make sure that their children have the benefit of a solid higher education.  With no children of your own, it seems the right thing to do.

So you set up 529 college education savings plans for your nieces and nephews, make them the beneficiaries, and mention everything in your will.

And life goes on…

You don’t give it another thought beyond making regular contributions. You move to another state.  You divorce.

All the things that happen in the normal course of living.

You know you need to change the beneficiary of your estate and name another executor (both are still your former spouse) but you never really get around to it.

And then the unthinkable happens. You die unexpectedly, with no time to make those changes you sincerely intended to make.

This is where things can quickly fall apart for those nieces and nephews you so wanted to take care of.

To make sure your wishes are carried out exactly as you intended, take these steps now to protect those 529 college education savings plans:

1. Name One or Both of the Child’s Parents as Participant or Owner

If you name your niece or nephew as the “beneficiary” of the 529 plan as a gift, you must add one or both of the child’s parents as the Participant or Owner.  This gives them actual control over the 529 account.  They can even change the beneficiary.  If the child’s parent is not listed as an owner or participant, the plan will be considered part of the estate (which would then belong to your former spouse in this instance).  Your niece or nephew would need the executor (again, your former spouse) to essentially turn the plan over to them in writing.  And the executor and beneficiary of your estate would be well within their legal rights to refuse.  Is that a risk you really want to take?

2. Update Your Will

I know you’ve heard this at least a thousand times but I’ll say it again because it is critically important in situations like this.  If you undergo any kind of lifestyle change (i.e., divorce, death of a spouse or child, become incapacitated, move to another state, etc.), take the time required to have your will updated.  This kind of situation happens all the time.  The former spouse, as both executor and beneficiary, controls the 529 college savings funds because of a failure to properly set up the funds.  If you’re going to the trouble of setting up a 529 fund and make regular contributions to it, take the necessary steps to ensure that money is used for what you intended. 

3. Don’t Leave Assets or Insurance Outright to Your Nieces or Nephews

If you leave either assets or insurance directly to your nieces or nephews and they are minors at the time of your death, their parents will have to go to court to be named as guardians to gain access to these assets.  Needless to say, that just adds another layer of complexity and more expense to the process.

4. Have Your Estate Planning and Financial Documents Thoroughly Reviewed

When you update your will, make sure that all your estate planning documents are reviewed, cross-referenced and do not contradict each other.  Also, make sure that the person or persons you’ve named as beneficiaries and owners of your accounts are coordinated with your estate planning documents and that all your documentation supports your ultimate goals and objectives.

I can’t emphasize enough how important it is to have current estate planning documents.  And this is especially true if you have 529 college education savings plans set aside for nieces, nephews, great-nieces or nephews, etc.

If you have started a 529 plan or would like to and would like an expert opinion from an Orange County wills lawyer on how a plan like this should be handled, call us at (949) 260-1400 to schedule your Family Wealth Planning Session today.  We can identify what needs to be done to ensure that you have the appropriate language in the plan to make sure that the money goes exactly where you intended.

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Orange County Wills Lawyer: “If I had a nickel for every time I’ve heard someone say – I’m not ready yet!”

Tuesday, August 31st, 2010

By Darlynn Morgan: Orange County Wills Lawyer

There are a couple of phrases that make an Orange County wills lawyer cringe at their mere utterance…. and today I would like to discuss one of them with you.  That is…

I’m not ready yet!

Truthfully, no one is really ever ready to discuss their own death or the death of a loved one.  The good news, though, is that most people see the logic in this and do ultimately understand the importance of planning so their children, spouse, or other loved ones are protected in the event that something happens to them.

Yet, I still hear it; the aforementioned phrase that can sound like fingernails on a chalk board to most estate planning attorneys.

This is because people think that they must be 100% organized and prepared before they take the first step toward creating a will or trust.   While it is true that the process of developing an estate plan will eventually help you get your affairs in order (this is one of the added perks!), you don’t have to have every “t” crossed and every “i” dotted to get started.

However, there are a few key items that you should have together (if at all possible) before your first visit with a qualified Orange County wills lawyer.  I’ve made a short list for you:

  • Names and addresses of your immediate family members and other beneficiaries, as well as people you may choose to serve in roles such as executor or guardian for your children.
  • An overall description of your income sources and major assets such as real estate.
  • Bank account information such as balances and account numbers.
  • Pension and retirement account information.
  • Life insurance policy information.
  • Copies of any legal agreements such as prenuptial or postnuptial agreements or divorce decrees.
  • Any existing estate plan documents.

With this information, a qualified estate planning attorney can go a long way in getting your will or trust together and protecting your family, assets and wishes should the unthinkable happen.

So please don’t let the fact that you are not totally organized stop you from developing a plan for your family.  Mention this article and come in for a free Family Wealth Planning Session (normally $750) where we’ll help you get started.  Simply call (949) 260-1400 to reserve your spot today.

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Orange County Wills Lawyer Answers, ‘Do Advance Directives Really Work?’

Monday, August 2nd, 2010

By Darlynn Morgan, Orange County Wills Lawyer

A Living Will…

A  Durable Power of Attorney…

An Advanced Health Care Directive…

Any of these documents can help to establish your wishes when it comes to the medical treatment you receive at the end of your life.

But do they really work?

According to one of the largest studies on the effectiveness of documents specifying medical treatments desired, or not desired at the end of life, yes, these documents do work.  And more and more Americans are using these tools to make their wishes known.

The results of this study, published in the New England Journal of Medicine, showed that seventy percent (70%) of the people followed in the study lacked the ability to make choices toward the end of their lives because of their mental or physical health. Fortunately, most of them had advance directives and their wishes were not only known but followed. The will of the patient prevailed.

So which documentation is the right choice?  Here’s what you need to know:

Living Will

A Living Will specifies the type of medical treatment you desire if you become incapacitated.  If you are permanently unconscious or terminally ill, your Living Will merely tells your family and the medical community whether or not you desire to receive life sustaining treatment.  The Living Will does not allow you to appoint someone else to make decisions for you.  It just makes your wishes known.

Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care allows you to appoint an agent with the legal authority to make decisions for you, relating to health care issues and treatment, should you become unconscious, mentally incompetent or otherwise unable to make those decisions. By making this a “durable” document, you are including language to make sure that this document remains effective or will take effect if you are mentally incompetent.  In many states, you can also include language to make your wishes known with regard to “life-sustaining procedures” if you are in a coma or terminally ill.  But a word to the wise, even if you include language about your wishes in this regard, make sure you discuss them with the person you designate as your agent.

Advanced Health Care Directive

In many states, the Advanced Health Care Directive has replaced the Living Will and Durable Power of Attorney for Health Care as the document for making your wishes known with regard to health care treatment and decision making.  This document instructs others (your family and the medical community) about your care if you are unable to make those decisions on your own.  It only becomes effective under the specific circumstances you provide for in the document itself.  The Advanced Health Care Directive allows you to do either or both of the following:

-          Appoint a health care agent

-          Prepare instructions for health care

This document provides a very clear statement of your wishes about your choice to prolong your life or to withhold or withdraw treatment.  You can be as specific as you like about the medical care you want at the end of your life.  For example, if you are a vegetarian or vegan, you can specify that you do not want to be fed meat.  You can indicate whether or not you want hydration and nutrition to be withdrawn and that it goes beyond whether or not you can breathe on your own.

The Advanced Health Care Directive allows you to do everything in one document that a Living Will or Durable Power of Attorney for Health Care allow you to do separately.  If you already have a Living Will or Durable Power of Attorney for Health Care, don’t worry.   Both of these documents are still valid until you take steps to replace them with an Advanced Health Care Directive.

If you have any of these documents in your current estate plan, make sure that copies are provided to your appropriate family members, your primary care physician and/or anyone you have named as an agent in these particular documents.

If you don’t currently have these documents in your estate plan and would like an expert opinion on which is appropriate for your particular circumstances, call me, your neighborhood Orange County Wills Lawyer, to schedule your Family Wealth Planning Session today.  We can identify what needs to be done to ensure that you have the right documentation to make your wishes known and followed.

Also, as part of our estate planning process, we will interview you about your specific wishes and what you want your family to know.   We provide you with a copy of the interview so you can pass on the information you want your family to remember.  We understand that it’s not just about the paper you leave behind, but the voice you leave behind.  Our Family Wealth Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge.  Call today and mention this article.

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A Virtual Smack in the Head From Your Neighborhood Wills Lawyer, Orange County

Friday, July 23rd, 2010

From the desk of Darlynn Morgan, Wills Lawyer Orange County

One of my greatest passions in life is educating parents on the importance of naming guardians for their children and preparing in advance should death or incapacity occur.

Of course the possibility of leaving this world can be difficult to accept and for that reason, many parents struggle with this issue.  Yet on the flip side, those feelings can easily lull parents into paralysis and prevent them from taking the proper steps necessary to protect their loved ones should something tragic occur.

Usually when I speak to various groups around Orange County, I try to deliver this message in a more upbeat and cheerful way so the public can see that estate planning can be a positive, interactive and joyful experience.

But for today’s post I am going to be blunt and to the point.

Simply put, it is critical for EVERY PARENT to get their legal and financial house in order to ensure their children stay protected should the unthinkable happen. As you can imagine, children are extremely helpless and vulnerable in emergency situations, so it’s up to YOU to put safeguards in place so your kids are never left at the mercy of a judge or in the arms of someone you would never want to raise them in your absence.

But again, in case I didn’t already make my point, here are a few hard-cold facts about what would happen to your kids if you died tomorrow without a will or trust in place:

1. A judge who doesn’t know you or your children will decide who raises them.

If something happens to you, who is going to step up?  Is it the person that you want to raise them?  If you don’t have an estate plan in place, will your relatives squabble over who is or isn’t responsible for raising them? Do you really want to put your children through that?

2. The person who the judge picks to raise your kids will also be responsible for their financial well-being.

If something happens to you, all of your assets will be handed to the guardian (that you didn’t select) to be managed for the kids. The obvious fear is that this person could possibly use the funds for something other than the care of your children.  However, there are many other things to consider.  Does the person that the judge picked have the same financial values that you do?  For example, you may feel strongly that you would like your children to attend high-end sports clinics to help develop their athletic skills.  But, will the guardian see the value in this?  Maybe they think spending that much money is a waste.

3. All of the money left from your estate (assuming there IS any) may go to your child in a lump sum when she is 18 years old.

Think about this one.  What would you have done if someone handed you a bunch of money at 18 years old?  Scary thought, huh?  The hard truth is that most 18 year olds are simply not mature enough to handle finances at that age.  I’ve witnessed case after case of kids who should have been well-off financially, but weren’t because they decided to buy cars and clothes instead of investing in their future by going to college.

So, there you have it.  Consider this a virtual smack in the head for those that need it.  My hope is that you’ll see this article as an urgent wake-up call and do what it takes to make sure your family is protected, no matter what.  To help you do just that, I’ll give you a FREE Family Wealth Planning Session (normally $750) as a reward for stepping up and doing what’s right by your family.

Simply call me, your neighborhood Orange County wills lawyer at 949-260-1400 to reserve your spot. However, this offer is limited to the first 10 appointments so don’t wait….protect your family today!

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