Author Archives: Robert Mondo

I have long recommended the use of closely held entities such as family limited partnerships (“FLPs”) and limited liability companies (“LLCs”) to provide flexibility in allocating rights to profits and capital, to shift income and property appreciation from one generation to the next, and to provide asset protection.  Individuals transfer assets to the entity in exchange for membership or partnership interests, which provide management control and income distribution rights, but which may be subject to certain restrictions set forth in the governing documents.  These restrictions limit new owners to a class of individuals, usually the descendants of the original members or partners, although some documents allow for the interest to pass to a spouse.  Limitations like this insulate owners from liability, provide concentrated management in one individual, and allow the owners to carry out their business and tax objectives.  The manager of an entity owes fiduciary duties to the other members which protects the business from claims of ex-spouses, creditors, outsiders, or even adversarial family members.  Family entities provide great opportunities to leverage discounts for minority interests or freeze values by allowing appreciation to escape taxation at death when used in conjunction with other Estate Planning techniques.

Many states use partnerships as the default for two or more individuals in business together.  Sometimes the partners have a formal agreement called a partnership agreement, and sometimes it’s just a handshake.  LLCs and limited partnerships, on the other hand, require a more formal intent.  For example, with an LLC, the members file Articles of Organization to establish the LLC and use an operating agreement to govern the day-to-day operation.  The operating agreement generally contains provisions regarding distribution of profits, management of the company, restrictions on ownership, duration of the entity, and what happens upon dissolution.  Often, the operating agreement will include provisions that dictate what happens upon the death of an owner.  These provisions may override the provisions of an individual member’s Estate Plan, although they should work in conjunction with one another.  Questions can arise though, when the provisions of Estate Planning documents conflict with provisions in the entity agreements.  Let’s review an example based on facts from a real case.

Assume that Shirley and Warren created an LLC for their family business.  The operating agreement (“Agreement”) gave each sibling a 50% membership interest (“Interest”) in the company which consisted of the right to distributions, allocations, information, and the right to vote on matters before the Members.  Shirley and Warren included language in the Agreement that a member could transfer all or any portion of his or her Interest by obtaining the prior written consent of all the other Members unless certain limited exceptions applied.  The exceptions included a transfer of Interest outright or in trust for the benefit of another Member and/or any person or persons who are members of the “Immediate Family.”  The Agreement defined Immediate Family as living children and the issue of any deceased child of a Member.  If the Member failed to transfer the Interest during life in accordance with the provisions of the Agreement and failed to dispose of the Interest through the Will, then the Agreement provided that upon the death of such Member, the Interest would pass to and immediately vest in the Immediate Family of the deceased Member.  Shirley and Warren ran the business together for two years until Warren’s untimely death.  Warren left behind four adult children, and his estranged wife, Annette.

Upon Warren’s death, his Will was admitted to probate and Letters of Administration were issued to his son, Benjamin.  The Will did not dispose of Warren’s LLC interest but instead directed that his assets be poured over to his trust which distributed everything equally to his four adult children and named Benjamin as successor Trustee.  Shortly before his death, however, Warren amended his trust to include a distribution of his home to his friend, Faye.  The amendment also gave Faye his Interest.  Benjamin, as Personal Representative and Trustee, refused to transfer the Interest to Faye citing the provisions of the Operating Agreement.  Faye sued Benjamin and won in trial court but lost when Benjamin appealed.

The appeals court focused first on determining whether it was the terms of Warren’s Estate Planning documents, or the terms of the Agreement that would control disposition of his Interest.  That court determined that the laws of the state where the contract was made permitted the Agreement to dictate how the Interest would pass at death.  As such, the Agreement vested title to Warren’s Interest in his adult children immediately upon his death thereby overriding the provisions of his Estate Plan and his true intent.

The example above greatly oversimplifies the case; however, it provides universal lessons.  First, if you have an interest in a family entity, ensure that you transfer that interest in accordance with the terms of the governing instrument.  In the facts above, Warren needed to obtain Shirley’s consent to transfer his Interest to Faye.  Second, make sure that your Estate Plan works with the governing instrument for your entity.  Here, Warren would have needed to transfer his Interest to Faye during life and obtain Shirley’s consent in accordance with the terms of the Agreement, rather than relying upon his Estate Planning documents at his death.  Finally, if you are unaware of any governing instrument, understand the impact of local law on your interest in the entity and your overall Estate Plan.  The opinion for the case did not indicate whether Warren’s Estate Planning attorney reviewed the Agreement, but it’s best to start with a review of the entity documents when dealing with any closely held entity.  Remember that even if you set up the business without the services of an attorney, the business is a legal entity, as is the transfer of your interest in it.

Of note for everyone with a business that files documents with the Secretary of State is the Corporate Transparency Act (“Act”) that requires such entities that qualify as a “Reporting Company” to provide certain information about its “Beneficial Owners” and “Company Applicants.” Failure to report this information may result in civil and criminal penalties. The Act imposes the duty to report the required information to the Financial Crimes Enforcement Network (“FinCEN”) on any Reporting Company beginning on January 1, 2024. 

Family entities serve a vital role in accomplishing numerous estate planning goals like asset protection, shifting appreciation and income to the next generation, centralized management, stability, and continuation of business upon death.  Family entities also provide the opportunity to leverage the benefits of other techniques to achieve more significant results during life by excluding assets from the gross estate and increasing valuation discounts.  To achieve these benefits, it’s vital to operate the entity in accordance with its governing documents.  If you have a business, now is a great time to talk to me to ensure that your estate plan and business plan work together to accomplish your goals and to explore any options that you have.

Recently, a headline titled “Eight Lessons from Killers of the Flower Moon” caught my eye, and the idea for this two-part blog took hold. The article talked about the movie titled “Killers of the Flower Moon” that received critical acclaim for its depiction of the plight of the Osage Indian Tribe. The article focused on the many real-life Estate Planning lessons that we can learn from watching the movie. The first part, Estate Planning Lessons from the Movies – Part I, of this two-part series, gave a brief overview of the movie’s plot along with beginning to introduce the lessons from the movie. This second part will finish exploring those lessons and their real-world application.

As a reminder, “Killers of the Flower Moon” focuses on the “Reign of Terror” which was the name given to the period when white “caretakers” murdered members of the Osage Indian Tribe to steal their rights to the oil under their reservation. After the oil was discovered, each member of the tribe received a “headright” or share in the oil money (learn more about that here: The Osage Nation). The tribe members could devise or distribute, but not sell, that right. Anyone could inherit the headright which meant that outsiders sought to marry into the Osage tribe or otherwise become an heir to one of the members of the tribe. This led to the murder of countless Osage tribe members. As if the murders were not tragic enough, the federal government decided to impose restrictions on the tribe’s financial autonomy by requiring tribe members to take a test regarding their competency to manage their own estates. Every tribe member failed, and the Bureau of Indian Affairs assigned each a white guardian to oversee their spending. It’s unclear whether the guardians had any training, but the article makes clear that the guardians were corrupt and completely unnecessary.

I find the story itself intriguing, yet it becomes even more fascinating when viewed through an Estate Planning lens and with an eye toward learning from mistakes of the past. The first part of this series gave us lessons regarding the importance of fiduciary duties, understanding your intended beneficiaries, how sudden wealth destabilizes, and that addiction knows no income bracket or socioeconomic status. The next lesson focuses on the importance of flexibility in family legacy. A good Trusts and Estates Attorney inquires about the legacy that you want to leave for your family and helps you accomplish that goal. A great Trusts and Estates Attorney helps you create a legacy that will evolve with your family over time. Family expectations may motivate one member while crushing another. This underscores the importance of building flexibility into a legacy. The movie highlights how the Osage people struggled to integrate their well-established traditions into their increasingly modern world as it grew with their sudden wealth and interaction with non-indigenous people. The ones who found ways to adapt their traditions to their changing reality seemed happiest. The same holds true for our modern-day families and the legacies they want to pass along – those who can change with the times experience greater satisfaction.

The next lesson focuses on the importance of the proper valuation of assets. While we often boil down the value of an estate to a single figure, it’s rare that an estate consists of only easy-to-value assets. Usually, an estate contains cash, securities, and many other assets such as real estate, tangible personal property, and even intangible rights. While most of these assets have monetary value, sometimes assets have sentimental value or a different intrinsic value and it’s vital to understand that. The Osage understood the importance of land and the rights attached both above and below it. Upon their forcible removal to the Osage reservation in Oklahoma, they negotiated a deal allowing them to keep any subsoil rights. Because the Osage kept those rights, when they discovered oil under their reservation, it was theirs. This resulted in the headrights at the heart of the controversy in “Killers of the Flower Moon.” While the tragic Osage tale demonstrates the ugly side of greed, among many other things, it also highlights the importance of understanding the value of what you have. For those of us who regularly deal with the valuation of assets in either estates or trusts, we understand the importance of assigning correct value both in terms of assessing taxes and maintaining family harmony.

Third, blended families bring complex issues. For most Estate Planning attorneys, this goes without saying. Anytime a potential client arrives and indicates that they have been married previously, or have children from another relationship, that information changes the advice the attorney gives. Apparently, the perpetrators of the Reign of Terror managed to integrate themselves fully into the society they sought to destroy, and the movie tells the tale of non-indigenous husbands and grandfathers murdering their wives, children, and grandchildren to ensure that they inherited the headrights. While most families agree that’s going too far, families, especially blended ones, have different goals. Estate Planning attorneys need to understand those goals and develop a plan that addresses and honors those differences.

Finally, “Killers of the Flower Moon” reminds us of the danger of undue influence. As our clients age, often their world shrinks, and they depend upon others for help and support. It’s that same help and support that create the opportunity for the caregiver to unduly influence the aging client. Apparently, that’s how the self-proclaimed “King of the Osage Hills” gained his wealth, by insinuating himself with the Osage people and exerting his influence both on his family and on members of the tribe. Ultimately, William Hale’s wealth came from his nefarious deeds and dealings with the Osage tribe. We, as Estate Planning professionals, have the duty to ask the tough questions and determine whether the plan that the client wants to create represents their true intent or that of someone else. It’s not always easy.

I’m excited to catch this movie and look for the lessons explored in these articles. If you have concerns regarding your Estate Plan or any of its provisions, make it a point to talk to me and I can guide you through the maze of Estate Planning and ensure that your plan addresses the lessons raised in this two-part series.

I like to draw inspiration for my blogs from articles and other blogs that I read. Anytime those sources pull from real life, it piques my interest. After all, Estate Planning focuses on real life and the most real and inevitable part of life, death. Earlier this week, a headline titled “Eight Lessons from Killers of the Flower Moon” caught my eye, and the idea for this blog took hold. The article talks about the movie titled “Killers of the Flower Moon” that hit theaters late last month to critical acclaim, but that’s not all it discusses. The article lays out the many real-life Estate Planning lessons that we can learn from watching the movie. This first part of a two-part series will delve into the plot of the movie and start introducing the lessons. The second part will finish exploring the lessons.

Before we get into the lessons, it’s important to understand a bit about the plot of “Killers of the Flower Moon.” The film focuses on the “Reign of Terror” which was the name given to the period when white “caretakers” murdered members of the Osage Indian Tribe to steal their rights to the oil under their reservation. After the oil was discovered, each member of the tribe received a “headright” or share in the oil money. The tribe members could devise or distribute, but not sell, that right. Anyone could inherit the headright which meant that outsiders sought to marry into the Osage tribe or otherwise become an heir to one of the members of the tribe. This led to the murder of countless Osage tribe members. As if the murders were not tragic enough, the federal government decided to impose restrictions on the tribe’s financial autonomy and required tribe members to take a test regarding their competency to manage their own estates. Every tribe member failed, and the Bureau of Indian Affairs assigned each a white guardian to oversee their spending. It’s unclear whether the guardians had any training, but the article makes clear that the guardians were corrupt and completely unnecessary.

The story alone is fascinating, but it becomes even more interesting when viewed through an Estate Planning lens and with an eye toward learning from mistakes of the past. The first lesson we can take is understanding and appreciating the importance of fiduciary duties. Setting aside the question of whether the guardians were necessary, guardians or trustees, as we know them, have fiduciary duties that they must uphold. Without question, those tasked with guarding the Osage failed miserably in this regard, especially because many of them ended up murdering their charges. In the Estate Planning world, fiduciary duties are sacrosanct, and the fiduciary must always put the beneficiary’s needs before the fiduciary’s own self-interest. Choosing the right person to serve as fiduciary makes a plan; likewise choosing the wrong person to serve as fiduciary breaks it.

The second lesson is to know your beneficiaries. Any time that an individual serves in a fiduciary capacity, it’s important that they know and understand their beneficiary. The trustee/guardian relationships served no purpose for the Osage. The government established those relationships in bad faith, and the relationships were borne out of greed and racism. Prior to the creation of these relationships, the Osage negotiated ownership of their land and contracts with the government relating to the oil rights so it’s clear that they needed no help in managing their finances. A fiduciary must recognize what their beneficiary needs and determine how to address those needs either through the trust or another entity. Undoubtedly, a Trustee must exercise their discretion for the benefit of their beneficiaries.

Third, sudden wealth destabilizes. We have all heard stories about how lottery winners end up penniless, or that even those that come from wealth end up losing the family fortune. A sudden change in fortune changes things. People have unique views about money and just because an individual’s fortunes change, doesn’t mean that their view on or relationship with money does. Many a relationship has ended because the parties disagreed about how to spend their funds. If we know how a beneficiary views money, and understand their need for it, we can create a plan that addresses that need and viewpoint. This lesson piggybacks off the first two and underscores why choosing the proper fiduciary and understanding your beneficiary both matter. The relationship between the fiduciary and beneficiary will change because of the money involved.

The final lesson from this first part of the series is perhaps the most sobering. Addiction knows no tax bracket. Some movies and television shows cast alcohol and drug abuse as problems of the poor, but nothing could be further from the truth. Those with unlimited resources or who never hear the word “no” run just as much a risk for addiction as those without resources. Again, this underscores the importance of choosing a proper fiduciary and understanding the beneficiary. If the beneficiary struggles with addiction, the fiduciary needs to know that and the trust needs to have the tools to address that beneficiary’s addiction.

While the movie sounds intriguing because of the plot, I’m excited to watch it through the lens of an Estate Planning professional. The lessons discussed in this first part of a two-part series have real-life application. If you have concerns regarding your Estate Plan or any of its provisions, make it a point to talk to contact me so that we can discuss the nuances.

As we gather with our family, friends, and loved ones to celebrate Thanksgiving, let’s take a moment to savor the food and our time together.  This time of the year offers a special opportunity to show our loved ones just how much we care. We can do this in any number of ways, including gifting.

Let’s make this year the year we give gifts that benefit both the recipient and the donor. Annual exclusion gifts provide a benefit not only to the recipient but also to the donor. Annual per donee exclusion gifts allow the donor to make gifts to multiple individuals without incurring any transfer tax consequences provided that the total gifts to an individual are present interests and do not exceed the threshold amount. Internal Revenue Code (“Code”) Section 2503(b) sets the amount that an individual taxpayer can gift to any other person at $17,000 for 2023 ($18,000 for 2024). Giving now allows individuals to reduce the value of their taxable estate without impacting the lifetime exclusion amount of $12.92 million in 2023 ($13.61 million in 2024). In addition to allowing the donor to avoid use of any applicable exclusion amount, annual per donee gifts remove future appreciation on the assets gifted from the donor’s estate as well.

The Code imposes no limit on the number of annual per donee exclusion gifts per taxpayer meaning that an individual taxpayer may gift up to that $17,000 amount to an unlimited number of individuals without ever worrying about estate or gift tax consequences. Gifting the funds or assets removes them from the donor’s taxable estate without ever impacting the lifetime exclusion amount. It’s one of the few totally “free” estate planning techniques. Because annual gifts reduce the size of the taxable estate, they also reduce the potential tax liability. For married couples, the benefit doubles because each spouse can gift the annual per donee exclusion amount to the same individual, and if the recipient has a spouse, then the donors can double the impact of their gifting again. Let’s review an example that demonstrates effective use of the annual per donee exclusion amount.

Assume that Mike and Carol recently met with their attorney who suggested that they start reducing the value of their taxable estate. Mike and Carol were preoccupied with the pending nuptials of their daughter, Cindy.  They realized that they better act quickly to utilize their 2023 annual per donee exclusion amounts. They decided to give each of their six now-married children, Greg, Marcia, Peter, Jan, Bobby, and Cindy an envelope containing $68,000 ($34,000 from each of Mike and Carol to each child, plus an additional $34,000 for each spouse of each child) at Cindy’s wedding on New Year’s Eve 2023. After the clock strikes midnight, the family rings in 2024, and Mike and Carol hand out another set of envelopes, this time, with $72,000 ($36,000 from each of Mike and Carol to each child, plus an additional $36,000 for the spouse of each child) cash in each envelope.

In the example above, in just a few hours, Mike and Carol gave away over $800,000 without incurring any estate or gift tax consequences. Mike and Carol each gave $17,000 to each of their six children and their spouses, totaling $408,000 in 2023, and Mike and Carol each gave $18,000 to each of their six children and their spouses, totaling $432,000 in 2023, for a total of $840,000. In fact, Mike and Carol could each also gift $17,000 to a grandchild in 2023 and $18,000 to that same grandchild in 2024. The foregoing example demonstrates how quickly these gifts can add up and make a huge impact on an estate. In addition to using the annual exclusion gifts, the Code gives taxpayers a tax-free pass when they pay the medical bills of another individual or pay the tuition bills of a student. The Code imposes no limit on the amount of these medical and tuition gifts, as long as the amounts are paid directly to the provider. The Code also allows contributions to charitable exempt organizations. The Code imposes no limit on the amount of these contributions for gift tax purposes, which provides another easy option for those who want to do some easy estate planning. Such charitable contributions may also qualify for a charitable income tax deduction, up to certain percentages of the taxpayer’s adjusted gross income.

The upcoming holiday season presents the perfect time to consider these and other estate planning issues. Options may exist for the use of annual exclusion gifts in conjunction with trusts and a long-term Estate Plan. Giving now, rather than waiting until death provides several estate planning opportunities in the form of tax-free distributions, reduction of the gross estate, and appreciation outside of the taxable estate, not to mention the benefit to the recipient that the donor will witness while alive. I can help you explore these opportunities and to determine whether they make sense for your family situation.

Charitable gifts offer a great opportunity to reduce income tax liability. When a taxpayer makes a charitable contribution, typically they get an offsetting charitable income tax deduction. Unfortunately, that offsetting deduction doesn’t always end up reducing the total tax burden. To take a charitable income tax deduction, the taxpayer needs to itemize their deductions. If the charitable contribution and other itemized deductions don’t exceed the standard deduction amount, then it makes sense to take the standard deduction and forego the itemized deductions.

Let’s look at an example. Assume that Charlie Charitable has taxable income of $100,000 each year. He files as a single taxpayer with a standard deduction of $13,850 (in 2023). He has $10,000 of state and local taxes (an itemized deduction and the most one could take as a deduction for such taxes under current law). In addition, he makes a charitable contribution each year of $2,500 to his alma mater. His itemized deductions would be $10,000 plus $2,500 = $12,500, i.e., less than the standard deduction amount of $13,850. It doesn’t make sense for Charlie to itemize his deductions since they would be less than the standard deduction he could take without itemizing.

If Charlie Charitable spoke with an advisor, he would discover that by making several years’ worth of charitable contributions in one year, he would increase his charitable deductions to an amount exceeding the standard deduction amount. Charlie could refrain from making charitable contributions in the “off” years and simply take the standard deduction amount. Charlie likes that idea and decides to make a charitable contribution of $10,000 in 2023. That raises his itemized deductions to $20,000. This saves him the tax on $20,000 (his itemized deductions) less $13,850 (the standard deduction) = $6,150. Assuming he’s in a combined state and federal bracket of 40%, that would result in savings of nearly $2,500. In the “off” years of 2024, 2025, and 2026, he’d take the standard deduction amount each year and the strategy would not impact his taxes in those years. In 2027, he could repeat the large charitable contribution for another itemized deduction.

Another way for Charlie to optimize his charitable deduction would be by using a Donor Advised Fund (“DAF”). Contributions to DAFs give an immediate income tax deduction to the donor while creating a reservoir of assets for distribution to charities in the future. In addition, DAFs provide an opportunity for donors to invest contributed funds and make suggestions regarding which charities should receive the distributions. Donors may change their recommendations regarding the charitable distributions allowing great flexibility coupled with immediate benefits. In our example above, that means that Charlie could continue to make charitable contributions to his alma mater, but Charlie could decide to switch to a different charity altogether. In the interim, Charlie could invest the funds as he determined was appropriate prior to their distribution to a charity.

Donors may combine DAFs with other strategies to produce even better results. For example, if a donor gave highly appreciated public stock to a DAF, the donor would receive an income tax deduction for the full value of the appreciated stock without ever paying tax on the gains. Going back to our Charlie example, assume that Charlie gave $10,000 worth of publicly traded stock in which he had a basis of $1,000 to the DAF. If Charlie had sold the stock, he would have had to pay tax on the $9,000 gain. Assuming a state and federal combined capital gain tax rate of 30%, he’d owe $2,700 on the gain. If he then contributed the proceeds to charity, he’d only have $7,300 to contribute to charity. By giving the appreciated publicly traded stock directly to the charity (or DAF), he increases the amount that he contributes to charity which increases the deduction he receives.

DAFs complement any charitable giving strategy already in effect and provide a great opportunity for those new to charitable giving to discover the benefits it provides. It allows one to maximize the tax benefit from charitable giving, while retaining a say over the timing and distribution of the money. I can help you decide if a DAF is right for you.

It’s my favorite time of the year. Temperatures fall and spirits rise as we approach the holiday season. While we count down the days to year-end and enjoy gathering with our loved ones, it’s a great time to remind ourselves and our loved ones about the seedier side of the holiday season: scams. Scams run the gamut in ingenuity and range in form from charity scams to debt collection scams and from grandparent scams to imposter scams. Each scam has its own unsavory elements, but the grandparent scams strike me as the most deplorable of all by preying upon a grandparent’s natural concern for the welfare of their grandchildren.

Imagine that you are a grandparent and receive a late-night call from your grandchild pleading with you to send them money. The grandchild admits to having been arrested, maybe in a foreign country, and begs you to refrain from mentioning the call or the arrest to mom or dad because they will be upset with the child. Worse yet, imagine that you receive a call from a stranger purporting to be a lawyer, doctor, or arresting officer and discover that your grandchild has been arrested, hospitalized, or hurt in some other manner. This probably tops the list of nightmare possibilities about which grandparents worry. Many receiving this call would not think twice and be only too happy to help their grandchild by sending funds…except those funds never make it to the grandchild and by the time the grandparent realizes the ruse, the scammer has moved on to their next victim.

The grandparent scam has existed for several years and only continues to grow in popularity. With the near ubiquitous use of social media, scammers have more means through which they can obtain and use personal information both about the grandparent and the grandchild. Some social media sites encourage listing family members and connections which only makes determining pressure points easier. Often, unsuspecting users post private details on public forums without realizing that their privacy settings won’t protect the information from ne’er-do-wells. Some of the most common scenarios include receipt of an email or telephone call from the grandchild or someone pretending to be calling to advise the grandparent of the grandchild’s circumstances. Unfortunately, bad actors know how to use artificial intelligence technology to mimic voices and hold a conversation in that voice which makes recognizing the scam that much more difficult.

How can we help protect ourselves or the grandparents in our lives? First, be vigilant about calls from any number you don’t recognize. Understand that scam calls happen often and seem to happen more regularly during the holidays. Some swindlers manage to spoof numbers known to the target, thus it’s vital to use caution whenever someone asks for money, especially in what seems like “high-pressure” situations. Scammers impose pressure and bully targets into sending money quickly through money orders, gift cards, or cash apps, before the target has time to think and when adrenaline runs high because they are worried about their grandchild. Some may even insist upon receiving money in person. If you receive a call like this, hang up and report the call to local law enforcement, and then call your family members directly to confirm that they are safe. If the call came from someone claiming to be in law enforcement, call the agency to verify the person’s identity along with any information provided in the call. Resist the urge to keep the call a secret.

Next, review the privacy settings on your social media accounts and prevent strangers from accessing posts and photos. These sites have many benefits in allowing us to stay connected, but they provide fertile ground for scammers to obtain private information. Even on the telephone call, refrain from providing any information, such as your grandchild’s name. Force the scammer to say your grandchild’s name and remember to stay calm. Scammers rely upon causing panic and getting their targets to drop their guard and make quick decisions in the heat of the moment.

Finally, increase your awareness about the latest scams. The Federal Communications Commission (“FCC”) publishes consumer guides on spoofed caller IDs such as Caller ID Spoofing, Stop Unwanted Robocalls and Texts, and Call Blocking Tools and Resources. The FCC’s website has several links allowing a user to file a report about unwanted calls or spoofing or to find information on imposter scams.

The Better Business Bureau website contains consumer awareness articles about scams targeting older Americans, find these articles by reviewing BBB Scam Alert: Top trick used to scam older adults. The American Association of Retired Persons keeps track of scams by location and allows users to either submit a report or see local scams. To report or view scams in your area look at AARP Fraud Watch Network Scam-Tracking Map.

We can combat scams targeting our elders by learning to recognize the more common signs of a scam, educating our clients on scams aimed at the elderly, especially the grandparent scams, and alerting trusted individuals, such as family members and authorities when we suspect a scam, and understanding the resources designed to prevent, intervene, and investigate these scams. These scams will continue to gain popularity as artificial intelligence improves and makes it easier to replicate a loved one’s voice. It’s important that the community continues to evolve with technology and remember that we all have a duty to protect our elderly clients and loved ones.

October brings fall, pumpkin-spiced everything, and macabre things. Ghosts, ghouls, and goblins may Monster Mash through your mind; however, when I think of something truly terrifying, it’s dying without an estate plan…it’s the trick in Trick or Treating. Although everyone knows that they should treat their family to a comprehensive Estate Plan, many folks experience feelings of superstition and dread when considering planning for the end of their life, as if by planning for death, they invite it. The chilling truth is that most of us have no idea how much time we have and when we will depart our mortal coil. Accidents happen, and an alarmingly high number of people die without an Estate Plan, which can have disastrous results.

The excuses for failing to create a plan run the gamut, from being young or childless to being single or refusing to face mortality. Many people believe that if their assets do not exceed a certain amount, then they needn’t worry about an estate plan. Whatever the reason, failing to create an Estate Plan causes chaos at your death, leaving your loved ones in the lurch. Inevitably, those loved ones will need to attend to your legal affairs such as paying your debts and transferring your assets, and, without a clear set of instructions that a comprehensive estate plan provides, you are leaving a mess for those grieving your demise.

If you die without a Will or Revocable Trust, that’s called dying intestate. It’s so common that states have created statutes to address the issue of intestacy. Wills and Revocable Trusts address numerous issues such as who will care for minor children or pets, how and when assets will be distributed, who will oversee distribution of those assets, and how taxes will be paid. If you die without any Estate Planning documents in place, state statutes will determine how and to whom your assets will be distributed without any input from you or the loved ones you leave behind. Many states’ intestacy laws give only a portion of assets to the surviving spouse, making no provisions for anyone to whom you were not legally bound. Those same statutes give the remainder to descendants, without regard for the needs of individual recipients. This includes those who may have special circumstances, such as receiving governmental benefits, often leaving these individuals in the lurch.

If you die intestate, then your estate would need to go through probate. An individual would petition a court for appointment as executor, personal representative, or administrator, which would give that individual legal authority to collect and distribute your assets. That individual likely would need to retain an attorney to understand and navigate the complex court system. A judge oversees the many steps involved in this public probate process. The judge would issue Letters of Administration or similar documents that give the executor power to marshal the assets of your estate. If your family disagrees about who should serve in that capacity, then the court would make that decision and could appoint a total stranger. Usually, statutes entitle the executor to take a commission or fee as compensation for their services. Imagine, a stranger and the public knowing your personal business and then that stranger being paid out of your money to give your assets to the people whom you didn’t even select. There’s something incredibly unsettling about that.

The treat in this tale of woe is that you control your destiny, at least with respect to your Estate Plan. By contacting an attorney, you can accomplish your goals, keep your estate out of probate with an Estate Plan that includes a Revocable Trust and a Will, and preserve your legacy. As part of the estate planning process, your attorney will guide you through the perils of failure to plan and make suggestions and recommendations about the legal documents necessary to accomplish your goals. Most people feel relief and well-being upon executing their Estate Planning documents. Creating an estate plan allows you to determine who will care for your minor children, how your assets will be distributed to those children, who will control those distributions, when those distributions should be made, and whether distributions should be made to individuals, charities, schools, or museums. A comprehensive Estate Plan prevents disputes among beneficiaries and provides for tax planning, if appropriate. With a properly created and funded estate plan, you (not a Court) controls what happens to your children, your pets, and your property after your death.

Dying without a Will can haunt your family years after your demise. Even if this ghoulish endeavor gives you the chills, it’s important to undertake this task before it’s too late. Financial trouble, delayed distribution of assets, and stress are just a few of the frightening things in store for your loved ones if you die intestate. Most individuals find the probate process as torturous as touring a sanitorium; however, you can circumvent it. Avoid the tragedy of intestacy by creating a set of instructions regarding what you want to happen when you die, otherwise known as an Estate Plan.

Most folks know that the federal government imposes an estate tax on estates with total assets that exceed $12.92 million in 2023. The Internal Revenue Code (“Code”) Section 2010 calls that amount the “Applicable Exclusion Amount” (“AEA”) and adjusts it for inflation annually. Even if individuals do not have that number etched in their memory, they understand that they need not worry about estate taxes at the federal level unless their estate includes assets well into the millions. Some might even understand that the temporary doubling of the AEA sunsets on January 1, 2026, or understand that portability permits the surviving spouse to “port” or use the amount of their decedent spouse’s unused AEA. Most people require only a cursory understanding of estate taxes at the federal level to make decisions with respect to their Estate Plan. If you live in a state that imposes a state estate tax or an inheritance tax, then you need to understand estate taxes at the state level, as well.

Death taxes at the state level fall into one of two categories: estate taxes which are those imposed upon the estate itself, like those at the federal level, or inheritance taxes which are taxes imposed on the individuals inheriting the property. Twelve states plus the District of Columbia impose a state estate tax. Six states impose inheritance taxes. Maryland stands alone in imposing both and is one of only two states that allows portability. Hawaii also gives its residents the benefit of portability.

Most of the states that impose a state estate tax impose a progressive tax which means that the tax rate increases as the value of the estate increases. In 2023, two states, Connecticut and Vermont, impose a flat tax. Connecticut taxes resident decedents whose estates exceed $9.1 million a flat tax of 12% on the value that exceeds the exclusion whereas Vermont taxes resident decedents whose estates exceed $5 million a flat tax of 16% on the value exceeding its exclusion. Seven of the ten remaining states that impose a state estate tax and the District of Columbia all impose a top tax rate of 16%. Hawaii and Washington have the highest estate tax rate at 20%. Maine imposes the lowest rate of 12% for estates whose assets exceed the state exclusion amount of $6,410,000. These states vary in the amount of estate assets that they exclude from tax. Oregon comes in at the lowest, with a mere $1 million exclusion whereas Connecticut follows the federal amount and allows $12.92 million to escape taxation under state law beginning in 2023.

Some states like Illinois, Maine, Maryland, Massachusetts, Minnesota, Vermont, and Washington also recognize a state Qualified Terminable Interest Property (“QTIP”) deduction. The state QTIP deduction, like the federal QTIP deduction found in Code Section 2056, provides an estate with an unlimited marital deduction for property passing to the surviving spouse in trust if the trust meets certain requirements. But for the QTIP deduction granted in the Code, property passing in trust to the surviving spouse ordinarily would not qualify for the marital deduction. Interestingly, while neither Kentucky nor Pennsylvania has a state estate tax, both recognize a state QTIP.

Of the states that impose an inheritance tax, Kentucky and New Jersey have the highest rate of 16%. Iowa has begun to phase out its inheritance tax, with full repeal scheduled for 2025. It has a top rate of 6% in 2023. All the states that impose an inheritance tax exempt surviving spouses from the tax and others fully or partially exempt other immediate relatives. In 1926, the federal government began offering federal credit for state estate taxes. This provided a way to equalize the amount of tax paid by anyone regardless of their state of residence. Some estates paid taxes at the state level, while others paid it at the federal level, but no estates paid it at both levels, which happens now that the federal government has phased out the state estate tax credit and instead gives a deduction for state estate taxes paid. When that happened, many states, like Florida, stopped collecting state estate taxes because their state provisions were linked to the federal credit, while others, like Indiana, repealed their estate tax retroactively.

Obviously, this article only began to scratch the surface of this complex topic. Everyone worries about tax implications both for their estate and their beneficiaries. When residents understand how their state taxes estates and beneficiaries, that could drive high-net-worth individuals to states with lower estate and inheritance tax burdens. If you have questions regarding the implications for your estate and beneficiaries, reach out to me and I can help you understand the impact that state estate and inheritance taxes could have on you and your loved ones.

It’s important to understand that elder abuse, neglect, and exploitation happen frequently across all socioeconomic levels, in every culture.  According to the National Council on Aging, one in ten Americans over the age of 60 has experienced elder abuse.  In almost 60% of those cases, a family member perpetrates the abuse, most of whom are adult children or spouses.  That’s a frightening statistic.   The ones who have an existing long-term relationship with the elder are the ones most likely to abuse that same elder.  Abuse most often occurs in the elder’s home, another’s home, or in a nursing home.  Whatever preconceived notions you have about elder abuse, throw them out.  Elder abuse can occur by anyone, to anyone, anywhere for any number of reasons, none of which excuse the abuse.

Not too long ago, this blog explored the multiple lawsuits initiated by Katherine Feinstein, on behalf of her mother, Dianne Feinstein, the Senior United States Senator from California, Exploring the Many Issues Surrounding the Estate and Trust of Richard Blum – Part I, Part II, and Part III.  The most recent lawsuit alleged the acts and lack of action on the part of the Trustees constituted elder abuse by depriving Dianne of property rights granted to her in the Trust of her late husband, Richard C. Blum.  I read a recent article that used the Feinstein matter to dive deeper into the many facets of elder abuse and thought it would be an interesting topic to explore.

The National Center on Elder Abuse prepared a study identifying seven types of elder abuse:  Physical abuse, sexual abuse, emotional or psychological abuse, financial or material exploitation, neglect, self-neglect, and abandonment.  As an estate planning attorney, I encounter these situations in my daily practice.  Elder abuse takes many forms, but I see it when a family member or caregiver gains access to funds through a Power of Attorney or by gifts or transfers in exchange for care or transportation to medical appointments.  It could even take the form of the senior revising their estate plan to provide a larger share to a family member who handles care for the senior.  Maybe the elder updates the estate plan to leave a modest bequest to a caregiver that continues to grow in a short period of time.  Perhaps a family member removes the senior from their home and takes them to a bank, or worse, a new attorney.  While we want to believe that every client walking through our door is there of their own accord, that’s not always the case.  If the attorney notices a senior’s apprehension in speaking in the presence of the individual who brought them to the appointment, that could be a sign of elder abuse or mistreatment.  Even those with feisty personalities may find themselves the subject of abuse.  Many elders experience embarrassment that it happened to them.

If you pay attention, you can spot signs of potential elder abuse.  Look for things such as bruises on the elder’s body, withdrawal from loved ones, poor hygiene, weight loss, untreated health issues, dehydration, unusual changes in financial accounts, hesitation when speaking, a caregiver that interferes with visitation, fearful behavior, anxiety or depression, and unexpected changes in estate planning documents or property ownership.  While any one of these things may occur as part of the aging process, several of these signs together could signal a problem.  If an attorney notices one or more of these issues, speak to the elder individual alone, ask questions, and listen to the answers.

In addition to paying attention to our elderly clients when they visit us, we have other tools at our disposal that we can pass along to others.  For example, each state administers its own ombudsman program established through the Office of the Ombudsmen.  It serves as a neutral third party for nursing home residents.  Look for your local Consumer Voice office. The National Adult Protective Services Association lists local offices that investigate suspected elder abuse.  Finally, the National Center on Elder Abuse provides guidance on reporting elder abuse.  It’s possible to obtain a protective order if an elder lives with the abuser or call 911 if the senior is in immediate danger.

We can combat elder abuse by learning to recognize the signs of elder abuse, educating our clients on scams aimed at the elderly, alerting trusted individuals, such as family members and authorities when we suspect it, and understanding the resources designed to prevent, intervene, and investigate elder abuse.  This area will continue to gain importance as our population ages and technology continues to improve.  It’s important that we continue to evolve with technology and remember that we all have a duty to protect the elderly.

Have you inherited your family’s photo collection? Is it overwhelming your life? What can you do to manage these photos, and how do you deal with the emotional baggage tied to all these things?

Martie McNabb, a personal historian and founder of Show & Tales and Memories Out of the Box, has helped hundreds of people deal with these issues. “It’s sentimental, it’s memories, it’s the stories that people get deeply attached to,” said McNabb. “You can’t keep a house full of stuff, and you can’t keep every photo for multiple generations. What will you do with it for the future as well?” “I encourage people to make choices, just like a museum or a documentary film maker ends up curating what they keep…. That stuff that you let go of, at the very least, you can have a photo or make a video, or even make a book about these objects, saving and sharing the story while letting the physical clutter go.”

It can be too much to focus on details at the very beginning. Set up three boxes:

• A “Keep” box, for those items you absolutely must keep;
• A “Maybe” box, if you don’t know for sure but think the photos might be important;
• And a “Toss” box, for multiple duplicates of photos, blurry images, and unremarkable landscape pictures.

Photo Curating Tips

Here are some key takeaway points from the video conversation with Gail Rubin, The Doyenne of Death®.

• To help pare down what you keep, save three to five of the best pictures from trips and special events.
• Organize the “Keepers” chronologically. “We all think, compare, and understand our lives chronologically, generally speaking,” said McNabb. “Don’t get into ‘Is this 1955 or 1956?’ An era range is fine.”
• Scanning is not the answer to everything. It can be expensive and time-consuming. Ask who are these for? Who’s the audience? Who’s going to inherit them? Who’s going to appreciate this?
• You can recycle albums that have no personal information like names, birthdates, anything that could be used for identity theft. Shred items with personal details.
• Old yearbooks can be sent to alumni associations for universities or schools. Sometimes small historical societies, museums or libraries might want them.

Photo managers, professionals who can help you tackle what can be a seemingly enormous task can also be hired to get the job done.

Gail Rubin, Certified Thanatologist and The Doyenne of Death®, is an award-winning speaker, author, podcaster, and coordinator of the Before I Die New Mexico Festival (www.BeforeIDieFestivals.com). She is also a Certified Funeral Celebrant. Her four books on planning ahead for end-of-life issues – A Good Goodbye, Kicking the Bucket List, Hail and Farewell, and Before I Die Festival in a Box™ – are available through Amazon and her website, www.AGoodGoodbye.com.