The 10 Biggest Estate and Asset Protection Planning Mistakes People Make and How to Avoid Them!

The 10 Biggest Estate and Asset Protection Planning Mistakes People Make And How to Avoid Them!

by Dennis B. Sullivan, Esq, CPA, LLM

Published by

(781) 237-2815 www.DSullivan.com

Information iii

Disclaimer v

Introduction 1

Mistake #1: “I Don’t Think I Need a Living Trust” 2

Mistake #2: “All Living Trusts Are the Same” 5

Mistake #3: “Failing to Plan for Nursing Home Costs” 8

Mistake #4: “My Trustee Will Be Able to Step In and Handle Everything Immediately for Me if I’m Ill or Disabled” 10

Mistake #5: “I Have a Living Trust, So My Family Will Avoid Probate” 14

Lifetime Protection Program 16

Mistake #6: “My Beneficiaries Can Get Their Inheritance From My Living Trust and Handle It on Their Own” 17

Mistake #7: “I Have a Living Trust, So My IRAs and Retirement Plans

Are Fully Protected” 21

Mistake #8: “I’ve Got a Living Trust So I’m Fully Protected” 24

Mistake #9: “I’ve Got a Living Trust (Plus the Other Planning You Recommended), So I’m Done!” 29

Mistake #10: “I’ll Get Around to It Someday!” 32

Addendum A: “My Estate is Too Small to Worry About Estate Taxes” 34

THE ESTATE PLANNING & ASSET PROTECTION LAW CENTER OF

DENNIS SULLIVAN & ASSOCIATES

Wellesley, Massachusetts 781-237-2815

Dennis B. Sullivan, Esq, CPA, LLM has over 25 years of service to individuals, families and businesses. He is a member of the AARP Legal Services Network, National Academy of Elder Law Attorneys, WealthCounsel, Elder Counsel, and the Massachusetts Society of CPA’s. He earned a Masters in Business Administration from the MIT's Sloan School of Business, a Master of Laws in Taxation from Boston University School of Law, a J.D., cum laude, from Suffolk University Law School and a B.S., summa cum laude, from Suffolk University.

Mr. Sullivan has co-authored five books on Estate, Elder Law, Asset Protection and Wealth Strategies Planning including:

1. Generations: Planning Your Legacy 2. Legacy: Plan, Protect and Preserve Your Estate 3. Living and Learning Achieve Retirement and Income Security 4. Estate Planning Strategies: Collective Wisdom. Proven Techniques 5. Senior and Boomers Guide to Health Care Reform and Avoiding Nursing Home Poverty

He has authored several articles on the tax savings, asset protection, estate planning and benefits of proactive planning, some of which have been published in Lawyer's Weekly, Boston Business Journal, and community newspapers. He also provides continuing professional education courses for professional, business, and non-profit audiences.

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Mr. Sullivan founded The Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, a team of Attorney and CPA Estate and Asset Protection Planning Professionals who have many years of proven experience and commitment to helping clients protect their home, spouse, and life savings from the increasing costs of medical and nursing home care, taxes, and the costs and time delays of probate.

The Estate Planning & Asset Protection Law Center provides clients with a unique education and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future. There is even a unique program Lifetime Protection Program to ensure plans continue to meet client & family objectives in the future, even with all of the changes in taxes, healthcare, personal health and family situations.

DISCLAIMER

This Report is intended to offer general information only and does not create a client – attorney relationship with Dennis Sullivan & Associates. The Report is based on Federal and Massachusetts law at the time of printing. If you reside outside of Massachusetts or own assets outside of Massachusetts, the laws affecting you may differ. Also, keep in mind that laws periodically change and you should consult the most current laws before making any important estate planning decisions. This Report reflects the professional opinion of Dennis Sullivan & Associates and it may not be necessary for you to implement every planning recommendation made in the Report in order for your estate plan to work properly. You should consult with a qualified attorney before making any important estate planning decisions or implementing any of the ideas discussed here.

INTRODUCTION

It’s a terrible tragedy to see people work hard, sacrifice and save their whole lives, then just throw away their money - - and their family’s future - - when they die.

Unfortunately, in over twenty-five years as an estate planning attorney, I have seen this occur all too often.

How can this happen to someone who diligently watches his or her financial affairs and successfully builds a good size estate?

It’s often just plain lack of knowledge. Think about it…most of our knowledge is acquired through experience. But, few of us have yet to experience the consequences of death, unless someone close to you has gotten sick or has passed away and you’ve been involved in helping them through the challenges of a nursing home, conservatorship, guardianship or probate of the estate.

Because of certain common misconceptions about estate and asset protection planning, many people unwittingly commit some terrible mistakes that later cause tremendous grief for them and their family.

Let me share some of these mistakes with you - - the ones we consider “The Top 10” - - in the hope that you will not repeat them!

Mistake #1: “I Don’t Think I Need a Living Trust”

Although a Living Trust may not be a fit for everybody, it’s a must for most people. (If you already have one, good, you can skip to Mistake #2. If you don’t have a Living Trust, read on…)

Everyone - - whether you’re single, divorced, married or an unmarried couple - - has the same objectives in doing an estate plan.

First, distribution. Making sure the right people get your assets (not leaving it to a Court or others to decide), they get it at the right time (not necessarily all at once) and you keep the wrong peoples’ hands out of the cookie jar!

Second, management. For you, if you’re ill or disabled and can no longer manage things for yourself. And after you’re gone, for beneficiaries (those who will receive or benefit from your estate) if they are too young, disabled, inexperienced or foolish to handle it on their own. And third, preservation. Making sure the maximum amount of your lifetime’s work is protected from Court and attorneys’ fees, taxes and “predators” (such as divorcing spouses, lawsuits and creditors).

Sadly, many people opt to use a Will, Joint Tenancy or beneficiary accounts like Pay-On-Death (“POD”), Transfer-On-Death (“TOD”) or In-Trust-For (“ITF”). These can be a TERRIBLE DISASTER for you and your family.

I don’t have the time or space here to get into every advantage of a Living Trust, as compared to a Will, Joint Tenancy or beneficiary accounts. So, I’ll simply summarize by stating that a Living Trust is the only estate planning device that can achieve all of the following benefits:

 Distribution of your hard-earned assets to the people you choose. 7

 Immediate management of your affairs should you become ill or disabled - - by the person you choose - - without any Court interference (avoiding a potentially expensive and lengthy “Conservatorship” and/or “Guardianship”).

 Management of your intended heirs’ inheritance if they are too young, inexperienced, elderly or otherwise unable to manage money on their own.

 Avoidance of the delays, headaches and considerable expenses of death Probate. If you don’t have a Living Trust, this Court procedure may take over a year and cost your family tens of thousands of dollars - - even if you only have a relatively small estate!

 Reduction or elimination of Estate Taxes, if you are married. As opposed to Joint Tenancy or a simple Will, a Living Trust may save your family upwards of a half a million dollars (or more) in Estate Taxes! For federal purposes only the 2010 Tax Act permits “portability” and use of the first spouse to die’s federal estate tax exemption amount, without the need to establish a Living Trust that later splits into “A-B” trusts at the first death. For Massachusetts residents there is no portability so the tax planning with the “A-B” trust is still required for married couples.

 Added divorce protection, if you are single, live in a community property state and should later marry. Plus protection against property claims of a spouse’s or live-in partner’s heirs, if your spouse or partner should die before you.

 Privacy and protection of your family’s inheritance after you’re gone from their divorce claims, lawsuits, creditors or other “fortune hunters”, from loss of government benefits, and from another potential Estate Tax when they die and pass it down to the next generation.

In short, if you own any real estate, even just your home (regardless of your equity), or your total assets exceed $200,000, you should probably look into a Trust, because your family’s Probate fee savings alone could be substantial.

The Probate fees paid to both the Executor, the person in charge of your estate, and the Estate Attorney in Massachusetts often add up to about 3% to 5% of the gross value of your assets. So, if you have a home worth $500,000 (but only equity of $200,000 because you have a $300,000 mortgage), your Probate fees are based on the full $500,000 and may be $25,000! That’s over 12.5% of your actual equity!

Now, think about what your Probate fees would be after you add in all your other assets!

It may be argued that Joint Tenancy or beneficiary accounts can avoid Probate, but they don’t achieve all the other important estate planning objectives I’ve pointed out.

No wonder that, for most people, I call the decision to get a Living Trust a “no-brainer”.

If you’re still unsure whether a Living Trust is right for you, then give us a call and register to come to one of our free Trust, Estate and Asset Protection Workshops - - where you will have a full 2 hours to learn how to review your trust or estate plan, if you have one, or how to review your goals and objectives and create a plan if you do not already have one. You can check upcoming dates and register to attend by calling (800) 964-4295 (24/7) or online at www.DSullivan.com.

The words “properly drafted” now lead me to…

Mistake #2: “All Living Trusts Are the Same”

A lot of people think that a Living Trust is just a form that can be pulled off a bookshelf or printed out of a computer. Or that a Living Trust done online using the internet, or prepared by a non-attorney paralegal, or by an inexperienced attorney or a bargain-priced attorney “mill” is the same as one custom - drafted by an experienced and skilled attorney. The shocking reality is, all Living Trusts are NOT created equal!

True, all Living Trusts may be similar. You can buy a car that’s either a Yugo or a Cadillac - - both have four wheels and an engine - - but which one would you rather have you and your family drive? (Well, according to Consumer Reports, you don’t want to be caught in a Yugo because it could be a real death trap!)

The problem is…when will you know whether your Living Trust is a Yugo or a Cadillac?

When “you go” and it’s a little too late! Or worse yet, when you’re ill or disabled and you’re relying on it to take care of you while you’re still living!

You see, you have to be careful about who you have prepare your Living Trust. First of all, it should be done by a Law Firm, because if it isn’t, you’re probably asking for trouble right away! (In fact, in many states, it is illegal for anyone other than an attorney or his or her firm to prepare a Living Trust!)

Be especially careful about those internet sites or other non-attorneys. Keep in mind the critical importance of your estate plan, to protect your lifetime’s assets. If you need critical surgery, would you want the nurse - - or worse yet, the orderly - - to do it?

Second, if you do appropriately seek a law firm to prepare your Trust, they should be experienced in drawing up trusts and do this everyday for a living, not dabble in it on the side. 10

Some law firms only produce a few Living Trusts in an entire year. I certainly wouldn’t want to get heart surgery done by a doctor who has only performed a handful of operations, or worse yet, have the surgery done by a general practitioner!

Third, look at the credentials and experience of the law firm. If they claim they specialize in Trusts, do they have a team of dedicated, caring professionals experienced in helping people and their families in Estate Planning, Trust Tax and Elder Law as professionals at this firm? Or someone with a master’s degree in Tax Law as well as a Certified Public accountant with a Mastered Degree in Business? How many years of experience do they have in estate planning? How many Trusts have they drafted?

And don’t forget to ask this even more important question… how many Trusts have they handled after their clients have died - - when they are truly tested? (Are they building and selling cars that have never been test-driven?)

You may have noticed certain advertisements that offer Living Trusts at cut rates. This may sound great, but please, don’t be pennywise and pound foolish when it comes to protecting your entire lifetime’s assets! We’ve found these “bargain” trusts often cause more problems than if you had no Living Trust at all!

For example, drafting errors can cause needless taxes and Probate expenses for your family and can even unintentionally cut out certain people you want to share in your estate.

Think about it…would you select a doctor, who your life depends on, simply by searching the internet or yellow pages and choosing the cheapest? Then, why would you do that when it comes to preserving your home and the financial assets that you’ve worked so hard to accumulate over your lifetime and that your family’s future may depend on? As is the case with doctors, experience and expertise do count.

Research shows that 86% of Trusts and Estate Plans do not meet the client and family’s current

© 2013 The Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates goals and objectives. In order to help prevent these problems we created a unique “19 Point Trusts, Estate, and Asset Protection Guide”. You can learn about how to improve your plan with this guide www.estateplanandassetprotection.com. Massachusetts residents can also call our office as 781-237-2818 and request a “19-Point Trust, Estate, and Asset Protection Guide”. If you prefer to learn more in a live workshop please go to www.SeniorWorkshop.com or call 800- 964-4095 (24/7). Register Now and receive a free Unique Self-Guided 19-Point Trust, Estate, & Asset Protection Legal Guide with accompanying DVD.

I could go on and on about all of the technical deficiencies of poorly-drafted Living Trusts - - many of the Trusts that I review for clients who did them elsewhere have significant problems - - but, let’s me move on and address some other common misconceptions like…

Mistake #3: “Failing to Plan for Nursing Home Costs”

One of the biggest mistakes in estate planning and asset protection that people often overlook, is the failure to plan for potential long-term nursing bills. Most people don’t like to think about this, but statistically more than 50% of us will someday wind up in a nursing home. The nursing home costs can be a very expensive drain a family’s life savings, particularly since modern medicine can sustain Alzheimer’s, Parkinson’s, and dementia patients for up to 10 years or more! To gain free online access to the Complete Alzheimer's Resource Kit, which contains care tips as well as other useful information on Alzheimer’s disease, please visit www.BostonMemoryLawyer.com.

Massachusetts range from $144,000 to $180,000 or more a year now (and future nursing care costs will likely rise faster than the general inflation rate). Even a wealthy person can have his or her estate significantly diminished. Unfortunately, many people cannot afford long-term care insurance. And even if you could, many people do not like the fact that if you do not use the nursing benefits, you and your family lose all of the premiums you paid into the policy. Also we find that for most people with long term care insurance, it only covers a fraction of the cost of care still leaving them responsible for the majority of the $400-$500 per day which amounts to $144,000 - $180,000 per year.

For those who are able to plan in advance, the solution is a Protective Trust. The Protective Trust permits you to retain income from the trust and manage your assets and best of all; your assets are protected from the reach of a nursing home. In almost all jurisdictions, including Massachusetts, assets retained in a Protective Trust are not considered available resources for Medicaid qualification after the passage of the look back period for transfers (currently 5 years; possibly increasing to as many as 10 years).

A Protective Trust is a great opportunity for people who want to protect their homes, spouse, and life savings, but provide them some flexibility as well. The Trust protects assets from nursing 13

© 2013 The Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates homes costs, keeps income available with access to assets. It also keeps your affairs private and permits assets to be distributed to beneficiaries in an asset protection trusts so they do not lose their inheritance from divorces, lawsuits, or claims from creditors.

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Mistake #4: “My Trustee Will Be Able to Step In and Handle Everything Immediately for Me if I’m Ill or Disabled”

Certainly, that’s what a well-drafted Living Trust plan is supposed to do.

However, not only must your Living Trust have the proper provisions (that I’ve found many don’t), but your Living Trust must also be properly supported by some additional legal documents and tools (that many estate plans also lack).

First, your Living Trust should have language that allows the next successor Trustee, that you named to handle your financial affairs, to act right away when you’re ill or disabled - - without first going to Court. You want to avoid the delays and expense of a “Conservatorship” when important financial matters, such as paying bills and managing assets, need to be taken over quickly. Unfortunately, with many Trusts, you may have to first be pronounced “incapacitated” or “incompetent” by a Court of law, exactly what we’re trying to avoid.

One way to avoid this - - that we’ve time-tested and prefer - - is for your Trust to require two doctor letters before the next Trustee can step in. I mean two doctors licensed to practice, who have actually examined you and stated in writing that, in their professional opinion, you’re no longer able to handle your own affairs.

(If you’re uneasy with the thought that two doctors could declare you “incompetent” and let your successor Trustee take over your finances, keep in mind we do build in a “fail-safe”. If two other doctors of your choosing at any time declare you are competent, you stay in charge or are placed back into control as Trustee of your Trust.)

The proper Living Trust provisions - - like the two doctor letter requirement - - must also deal with a relatively new law that many old Living Trusts and new Living Trust “forms” have not

© 2013 The Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates kept up-to-date with: HIPAA (The Health Insurance Portability and Accountability Act). This is a federal law intended to protect the confidentiality of your private health information - - including your Social Security number that often appears on many health forms and fraud artists would love to get a hold of! Unfortunately, an unintended consequence of this law is that it has made it much more difficult for your spouse, children or others close to you to immediately access your medical information when it’s needed, like when it appears that you may no longer be able to handle things and your successor Trustee needs the two doctors’ letters to take over without going to Court. Your Living Trust must have the right HIPAA language in it.

Second, you need a properly drafted Durable Power of Attorney for Property. This will allow your successor Trustee access to assets that, for whatever reason, you may not have titled into your Living Trust (we’ll discuss this in more detail in Mistake #5). This Durable Power of Attorney also enables your successor Trustee to handle certain planning and decisions not covered by your Trust, such as certain contracts (like for care in your home or at a nursing facility), planning to qualify for government benefits if you need them (like MassHealth nursing care benefits) or planning to reduce your Estate Taxes (like making last minute gifts to your Trust beneficiaries while you’re still living). The typical statutory “form” document that many attorneys use does not include those vitally important items. Plus, like the Living Trust, the Durable Power of Attorney must have up-to-date HIPAA provisions in order for your power holder to be able to act right away when you need it, without first going to Court.

Third, you should have a supporting documents known as “Advance Health Care Directives”, which include “Health Care Proxies” and a “Living Wills” (these have been combined into this one document). This Advance Health Care Directive covers medical decisions that may need to be made for you, if you can’t make them yourself. These aren’t covered by your Living Trust, which only deals with your assets. The Directive covers decisions like operations, feeding and hydration, all the way up to the final “pull-the-plug” decision (that, unfortunately, due to modern medicine, most people and their families will face). You should have the newest version of this Advance Health Care Directive, because it’s this document the hospital administrators are familiar with. Anything else may cause the administrator to kick things up to the legal

Fourth, you also need a document known as a “HIPAA Authorization” to support your Trust, and your Durable Power of Attorney and Advance Health Care Directive. This allows your decision makers immediately access to your medical information. But watch out - - just a federal government form may not be good in certain states, including Massachusetts.

Are you starting to see how important it is that the “details” of your estate plan are correctly handled in your documents if you’re ill or disabled?

Well, here’s another detail…

Fifth, your decision makers need the right tools to ensure that your legal documents will be properly implemented when the time comes.

This is something we call a “Health Document Emergency Card”. Imagine if you’re rushed to a hospital in the event of a stroke, heart attack or severe illness. What do you think the chances are that you’ll have your HIPAA Authorization, Healthcare Proxy and Advance Health Care Directive on you? Probably about zero. And then, how will important medical decisions be made if these documents can’t be located or aren’t immediately available? We provide all our clients an “Emergency Card” to keep in your wallet near your health insurance card, so the hospital administrator will spot it right away. This “Emergency Card” contains instructions to dial a toll-free number, punch in your special access code and the hospital’s fax number - - and it automatically, 24 hours a day, faxes over who to contact in an emergency as well as copies of your HIPAA Authorization, Healthcare Proxy and Advance Health Care Directive (without the HIPPA documents, medical professionals are prohibited from speaking with anyone about your situation). Not only that, the card contains the name and phone number of your primary health decision maker, plus any medical conditions or allergies you may have. Do you think this one simple card could make a big difference, in terms of your plan working properly someday?

You should also have another of the tools we provide our clients, so your estate plan will function efficiently and quickly if you’re ill or disabled - - a “Trustee Manual”. This gives your successor Trustee(s), and your Power of Attorney and Health Document decision makers a clear, plain-English set of checklists and instructions so they know what to do, when, and how to do it right. (Think about it, they may never have taken on such responsibilities before, and when was the last time you took on a complex, vitally important task and did it exactly right the first time without any help?) We’ll talk about the Manual some more later on.

My point is, if you think your Living Trust (or the one you plan to get) will automatically take care of you immediately if you’re ill or disabled - - when you most need it to work properly - - think again! It’s all about the “details” being done right.

At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.

We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com.

Which leads me to the next big estate planning misconception people have…

Mistake #5: “I Have a Living Trust, So My Family Will Avoid Probate”

The harsh fact is: all Living Trusts do NOT avoid the expenses, delays and publicity of a Court Probate.

Are you shocked? Confused? You’re not the only one. Many Living Trust preparers don’t realize this either, because they haven’t handled Trusts after clients have died.

You see, although you may have signed your Living Trust, there is another step that must be accomplished properly and completely in order for your assets to avoid a costly, disastrous Probate.

This is, the titles (or in some cases, beneficiaries) to each of your assets must be properly placed in the name of your Living Trust. Any assets left outside of your Living Trust may go through Probate, which is a minimum of one year and may last even longer. In Massachusetts, if the total value of assets outside your Living Trust exceeds $15,000, you may have a full Probate. And even if your estate value is less but you have just one piece of real estate with a gross value over $15,000 that’s not in your Trust, you may still have a Probate.

Keep in mind that there are two forms of Probate, when you and your assets can be tied up in a Court. One can occur when you’re living but ill or disabled, known as a “Conservatorship”. And another can happen when you’re gone, known as a “Death Probate”. The purpose of a Living Trust is to avoid both, but it may not if your assets aren’t properly transferred to it. Plus, the failure to transfer assets to the Living Trust may cause a married couple significant, unnecessary Estate Taxes!

Some people think that merely attaching a list of your assets to your Living Trust is sufficient to transfer them into it. The unfortunate truth is this just doesn’t work without going to Court. In

© 2013 The Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates fact this is probably one of the most frequent mistakes we see, causing 86% of estate plans to fail. To learn more about how to protect your estate and gain control of your affairs you may attend one of our free educational workshops, call 800-964-4295 and register.

Other people think that the Will they got with their Living Trust - - commonly referred to as a “Pour-over Will” - - will avoid Probate of those assets left out of the Living Trust when you die. It’s true that this Pour-over Will catches those assets left outside the Trust and makes sure that they are placed into the Trust and distributed according to its terms. However, assets passing through a Will must typically go through Probate Court first!

If you set up a Living Trust and don’t get your assets into it, you’ve only gotten half (or less) of the job done. At our firm, we assist our clients with placing their assets into their Living Trust - - so they know their families will avoid Probate. Here’s how…

At the same time as you sign your Trust, we prepare legal documents (deeds) to transfer in your real estate. We also assist you in transferring all of your non-real estate assets by preparing “transfer letters” and trust account applications. With these, our clients can typically get all of their assets into their Living Trust in a matter of days and then go onto “auto pilot” with the peace of mind that it’s taken care of.

But we don’t stop there, like many others who prepare Trusts. Just because you get your assets into the Trust at the time you set it up isn’t enough to guarantee you won’t wind up in Probate Court.

We also help you continue to monitor your plan so that later acquired assets get into your Trust. We even provide all clients with a one year free membership in the Lifetime Protection Program.

Lifetime Protection Program

Once your plan is established we help review it to make sure it continues to meet your objectives even as the law, finances and personal circumstances change. We call this review process the Lifetime Protection Program. As part of the program we also review your planning for changes in health, finances and personal circumstances and make sure your assets are coordinated with your trust. We update documents and provide educational seminars exclusively for members. We also review planning so that it will be effective if you are disabled or need nursing home care. We want our clients to know they’ve made the very best decisions for their family during their lifetime and to give them peace of mind, knowing a trusted adviser will always be there for their family’s needs. You can learn more about the Lifetime Protection Program at here or simply call our office at 781-237-2815 and we will send you some helpful information.

Isn’t the type of follow up maintenance and support the Lifetime Protection Program offers, the kind of attention and service that you and your loved ones deserve?

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