What Happens When a Family Member Is Executor
May is National Elder Law Calendar month and Information technology's More than Important Now Than E'er
Most of usa have been taught to respect our elders. Back in 1963, President John F. Kennedy proclaimed May every bit Senior Citizens month which was later changed to Older Americans Month by President Jimmy Carter in 1980. The National Academy of Elder Police force Attorneys ("NAELA") now refers to May every bit Elder Law Calendar month. As an elder law attorney , I advocate for senior citizens and their families. Who knew that the year 2020 would be and then extremely devastating for seniors in the United States and around the earth? No one can deny the effect COVID-19 had on those aged 65 and over. And so many bad decisions were made by those entrusted with the care of our seniors and cracks that were already there turned into huge chasms. Nosotros cannot alter what happened in 2020 just we can certainly learn from information technology and come up with a solution for when the side by side pandemic or crisis comes. When the pandemic hit the U.S., so much was unknown about the virus; however, all optics were on New York Metropolis every bit cases seemed to proliferate there. It did not take long to see that COVID-xix was becoming an almost guaranteed death sentence for some older persons, especially those with certain comorbidities. As the virus spread, it was clear that the elderly were the most vulnerable population and the near likely to succumb to COVID-19. Nursing homes and assisted living facilities ("ALFs") went on lockdown, not allowing any outside visitors into their residences. While I empathise why these lockdowns occurred and don't disagree with them, oversight was incommunicable and equally we know, bad things happened. In the pre-COVID-19 globe, many nursing homes were understaffed so it wasn't surprising with COVID-19, these nursing homes lost employees temporarily or permanently due to the pandemic. When any healthcare facility is understaffed, things are overlooked and fail can happen; however, the problem during the pandemic with nursing homes peculiarly, is that there was no accountability and no advocacy or only advocacy from afar. I had to advocate for a ward from afar and it was extremely frustrating simply at least she had an advocate in place. I was the guardian for an elderly lady who was a resident of a nursing home for approximately ten years. She had no comorbidities but was in her eighties, so I was very concerned for her health and well-being. I received a telephone call that she was having problems breathing then they wanted to send her to the hospital to be tested for COVID-19. Several days later on I received a call from the hospital stating they needed to detect a new nursing dwelling placement for her because her sometime facility was not accepting any patients due to COVID-19. For whatever reason, her former nursing home accustomed her back and several days after the local newspaper broke a story that in that location was an outbreak of COVID-nineteen at this nursing domicile. My ward did contract COVID-nineteen and I was not informed until she had completely recovered. Although my ward survived, many did not and those families did not get the chance to say goodbye or give comfort to their elderly loved-ones during their last hours. What can nosotros learn from the pandemic when information technology comes to protecting our seniors? First, information technology is imperative that the elderly take advocates. The all-time way to ensure you accept an advocate is past signing a financial power of attorney and an advance medical directive. If you or a loved one has non executed these documents, information technology is time to practice then. Attorneys and their staff could non enter nursing homes or ALFs during the pandemic to run across with residents to effectuate drafting and executing powers of attorneys or advance medical directives. Powers of attorneys must be notarized to be valid and although Virginia allows for remote notarization, attorneys could not oversee the execution of these documents. The second thing we tin learn is to take an estate plan in place. Every bit with powers of attorneys and advance medical directives, information technology was impossible to execute estate planning documents for residents of nursing homes and ALFs during the pandemic. For a concluding volition and testament to be valid in Virginia, the will must be witnessed by ii witnesses who are in the physical presence of the testator (person signing the will) and in the presence of each other. In addition, a notary is recommended to complete what is chosen a "self-proving affirmation" which states that the witnesses did in fact sign the document in each other'due south presence and the presence of the testator. This was difficult enough to exercise in an attorney's part during the summit of the pandemic due to social distancing rules and impossible to execute at a nursing domicile and ALFs since attorneys could not even have access to their clients. The terminal thing we can learn, and this pertains to all of usa, is to cherish our loved ones and spend as much time as possible with them. Show kindness and grace to those you do non know considering you have no idea what battles they are fighting or those they have fought. As nosotros reemerge from our homes and reintegrate into the world, remember how precious all lives are and let usa not have our lives for granted. Be thankful for each new twenty-four hour period and live it to the fullest.
Honey is in the Air: The Importance of Having an Updated Estate Plan for Blended Families
February is the month of love co-ordinate to the flower, greeting bill of fare and chocolate industries. According to the American Psychological Association, forty-l % of first marriages in the U.s.a. terminate in divorce and that charge per unit is fifty-fifty higher for subsequent marriages. And then what happens when Cupid's pointer hits you for a 2nd time and you lot are ready to requite matrimony another get? There are several planning options available to you. Offset, both spouses tin can concord to an manor plan which addresses how their individual and articulation assets are split amid each other and their pre-existing children. Second, this issue can be addressed prior to matrimony via a premarital agreement. Third, each spouse can execute their ain manor program not addressing the other spouse (but there are consequences to this option, and it is non appropriate). And finally, the upshot can be ignored potentially causing a mess in the future. I will address each of these options beneath. In my practice, one of the most surprising decisions I have seen is that the majority of my clients with blended families cull to treat all children every bit. Frankly, this astonished me initially, but I saw this trend repeating over the years. However, one of the factors is the length of the marriage-the longer the marriage the more prone the couple was to treat the children as and, in some cases, concord to disinherit a child due to a myriad of reasons. This pick can be executed through a last will and testament or a revocable living trust. Another option for couples tying the knot again is to address manor planning issues (among other things) with a premarital agreement. 1 or both spouses can choose to waive their respective elective share and/or property rights in the agreement. In Virginia, spouses cannot disinherit their spouses unless the spouse agrees to waive his or her share of the estate. Virginia Code Department 64.ii-308.4 went through a significant statutory rehaul taking event January i, 2017, changing the elective share percentage to a 50% maximum of the couple'southward marital holding depending on the length of marriage in order to get to the value of the marital belongings portion of the augmented estate. The maximum 50% is only applicable if the marriage is 15 years or longer with a lower percentage assigned depending on the length of the marriage. Prior to this modify, a spouse was entitled to a maximum of 30% if the deceased spouse had children (outside of the matrimony no matter the length of the spousal relationship. And then, if a couple chooses the tertiary pick above, this constituent share statute would take issue should the surviving spouse choose to do so. According to a Gallup poll in 2016, less than half of Americans take a will. Virginia Code Department 64.2-200 addresses what happens to an intestate estate. An intestate estate is one where in that location is no will or revocable living trust ("trust"). If a married person dies without a will and is married, his or her spouse will inherit his or her unabridged estate IF he or she has no children outside of the marriage. All the same, if the deceased spouse is married and has children outside of that marriage, the surviving spouse takes the elective share as discussed in the paragraph to a higher place. If the deceased Virginian is not married simply has children, the children will share in the estate every bit if there is no estate plan in identify. The intestate statute addresses other scenarios which I won't go into at this time, simply I believe you lot tin encounter how this option is not the best when information technology comes to executing an estate programme. Dear is a many splendored thing indeed. Then, if yous meet that very special person and are willing to effort again, include manor planning in your discussion. You don't need to brand any firm decisions right away simply opening the door to each other'south thoughts is a skilful step in the right direction. Elizabeth McMaster is an elder police force and estate planning attorney in Fundamental Virginia. She has had a practice in Fredericksburg, Virginia since 2007 and plans to open an office in the Hampton Roads, Virginia area the summer of 2020.
How To Prepare Your Affairs For Your Heirs
"Do non take life too seriously. You will never get out of it live." – Elbert Hubbard Expect, I don't desire to exist the bearer of bad news, merely eventually you are going to pass away. Probably not anytime soon, only eventually, years from now, you will (sorry!). However, you can help your loved ones gear up for your eventual passing by taking some steps now. Initially, you lot should have your master legal documents in place, including the Avant-garde Medical Directive, General Durable Ability of Attorney, and your Last Will and Attestation. As a general overview, a General Durable Power of Attorney gives 1 person (the agent) say-so to act on behalf of some other person (the principal). Full power or limited ability can be granted in the certificate. The Advanced Medical Directive allows a person to designate which medical procedures may be performed, choices about artificial life support, and the designation of an amanuensis to make medical decisions if you are unable to practice so. Finally, a Last Will and Attestation (or simply, Will) distributes your assets upon your death. It is of import to have these documents in place in gild to let your loved ones to manage your affairs both earlier and after your eventual passing. Additionally, there are a number of other steps that you lot can take now in gild to properly prepare loved ones for your passing: Non-Probate Assets : First (and very important!), some assets pass by means other than a will; these include insurance policies, Individual Retirement Accounts, 401(k) plans, pension plans, and profit-sharing plans. Beneficiaries and payable-on-death (POD) or transferable-on-expiry (TOD) designations are named on the contract, and—unless you designate "my estate" or make no choice at all—the transfer takes place directly upon death without involving the probate courtroom. Y'all can change your beneficiaries as the demand arises past completing the required paperwork with the account holder—a bank or brokerage company. You lot cannot change them using a will or other estate-planning method. Information technology is of import to review casher designations annually or when circumstances change to make sure that your assets volition be distributed as you lot desire. Gifts : Gifts are voluntary transfers of property without receiving payment earlier you die. Examples include stocks, greenbacks, real manor, equipment, and personal holding. Gifts can reduce the size of your taxable estate. Still, if deathbed gifts go out the estate without funds to pay creditors, the probate courtroom can order the property to exist paid back to the manor. Gifting law is complex. Gifts tin can take an impact on taxes and eligibility for public benefits such as Medicaid to pay for nursing home care. Consult experts earlier making any substantial gifts. Belongings Ownership : Belongings buying involves tangible, intangible, and real belongings (possessions) to which its owner has legal title. The mode in which yous own property or the way it is titled (such every bit single or joint buying) will determine how it is distributed upon decease. Moreover, ownership is divers by state laws. It is of import to make wise decisions most how property will be transferred to insure that it gets to the intended party. Careful consideration in planning and titling property will help avoid unintended consequences. Digital Assets : These assets include everything that you have digitally or online, including financial accounts, social media accounts, music, emails, etc. Nearly people are not aware that these digital assets can actually exist included in your estate, and without properly planning for these assets, tin can exist very difficult to access after your passing. Prepare loved ones by writing down passwords and usernames for each of your online accounts, and and then put these in a prophylactic identify. Delight be sure to notify your Executor where your passwords are located for these digital avails. Finally, and probably most important, delight brand certain to speak with your family unit members about your eventual passing. Even though this is apparently the nigh difficult stride to accept, it volition exist the most meaning step you can accept. Past informing all family members well-nigh your estate, as well as who will exist the Executor, I promise y'all volition save your loved ones tons of headaches later on. By taking all of these steps now, you can successfully prepare everyone involved to seamlessly and easily handle your affairs when y'all are eventually gone (years from at present, of course!!).
Altruistic to a Charity and the 501(c)(3) Charitable Organization
With the contempo online trend of the ALS "Ice Bucket Challenge" and this Saturday'southward Fredericksburg Walk to End Alzheimer's event, many people accept been flooded with requests for charitable donations. Most people are willing to donate to a charitable organisation without any questions asked. However, very few realize the actual legal implications of their donations, as well as the charitable arrangement'due south corporate structure and regulations. Most people tend to think of charitable organizations every bit a not-profit system or public charity, such equally American Red Cross, Smithsonian Found, Alzheimer's Clan, etc. In order to become a non-profit organization, these businesses must exist structured under specific regulations by the Internal Revenue Service (IRS). The IRS has specifically outlined these regulations in 26 U.S. Code 501(c)(3) . Section 501(c)(iii) is the portion of the U.s.a. Internal Acquirement Code that allows for federal tax exemption of nonprofit organizations, specifically those that are considered public charities, private foundations or private operating foundations. Entities that can seek 501(c)(iii) determination from the IRS include corporations, trusts, community chests, LLCs, and unincorporated associations. The overwhelming majority of 501(c)(3) organizations are nonprofit corporations. The purpose of condign a 501(c)(3) arrangement is to receive "tax-exempt" status from the IRS. In club to authorize for 501(c)(3) condition, an entity must exist organized and operated exclusively for religious, charitable, scientific, testing for public prophylactic, literary, or educational purposes, or to foster national or international apprentice sports competition, or for the prevention of cruelty to children or animals. One of the virtually singled-out provisions unique to Department 501(c)(3) organizations every bit compared with other tax exempt entities is the taxation deductibility of donations. 26 U.S.C. § 170 provides a deduction, for federal income revenue enhancement purposes, for some donors who make charitable contributions to almost types of 501(c)(iii) organizations. Other unique provisions tend to vary by state. Similar federal law, nearly states allow for deductibility for state income tax purposes. As well, many states allow 501(c)(iii) organizations to be exempt from sales taxation on purchases, too every bit exemption from property taxes. Furthermore, 501(c)(iii) organizations fall into one of three primary categories: public charities, private foundations, and individual operating foundations. ane. Public Charity – A public charity is generally defined by the IRS as "not a private foundation". It receives a substantial portion of its revenue from the general public or from government. In guild to remain a public charity (and not a private foundation), a 501(c)(3) must obtain at least one/3 of its donated revenue from a fairly broad base of operations of public support. Public support can be from individuals, companies and/or other public charities. Donations to public charities can be tax deductible to the individual donor up to fifty% of the donor's income. Corporate limits are generally x%. In addition, public charities must maintain a governing body that is mostly made upwardly of unrelated individuals. ii. Individual Foundation – A private foundation is ofttimes referred to as a not-operating foundation, as in it typically does not have active programs. Revenue may come up from a relatively small number of donors, even unmarried donors. Private foundations are unremarkably thought of equally nonprofits which support the work of public charities through grants, though that is not ever the case. Donations to individual foundations can exist tax deductible to the individual donor up to xxx% of the donor's income. Governance of a private foundation can be much more than closely held than in a public charity. A family unit foundation is an example of a private foundation. 3. Individual Operating Foundation – The least common of the iii types, these organizations frequently maintain active programs similar to public charities, but may have attributes (such as close governance) similar to a foundation. Every bit such, private operating foundations are ofttimes considered hybrids. Well-nigh of the earnings must go to the conduct of programs. 501(c)(iii) organizations are highly regulated entities. Strict rules apply to both the activities and the governance of these organizations. No office of the activities or the internet earnings tin can unfairly do good any managing director, officer, or any private individual, and no officeholder or private private tin can share in the distribution of whatever of the corporate avails in the event the organization shuts down. Additionally, lobbying, propaganda or other legislative activity must be kept relatively low. Intervention in political campaigns or the endorsement/anti-endorsement of candidates for public role is strictly prohibited. In order for a corporation or other qualifying entity to receive 501(c)(3) status, information technology must apply to the IRS for recognition by filing Form 1023, Application for Recognition of Tax Exemption. The application is a thorough exam of the organization's structure, governance and programs. 501(c)(iii) organizations mostly take to adhere to strict state compliance regulations as well. So recollect, when you are making a donation to a charity, pouring an ice bucket on your head, or walking with us on Sabbatum, September 27 at the Alzheimer's Association Walk to End Alzheimer'south , delight remember that there are strict compliance requirements for these charitable organizations. Additionally, if yous are looking to set a charity upshot or organisation, it is important to know what regulations and rules you volition be required to follow. As ever, please feel complimentary to stop by our office if you have questions almost charitable organizations and we hope to see you tomorrow!
Proposed California Law Allows Relatives to Restrict Visitation from Certain "Bad Relatives"
Generally, a family fellow member cannot restrict the visitation rights of other family members without first having been appointed as a guardian or conservator over the elderly adult. It is usually very difficult to preclude visitation rights of "bad relatives" without a guardianship or conservatorship in identify because relatives are inherently accounted to be looking out for the elderly adult's best interests and care (similar to treatment of family members at hospital emergency rooms). However, there are many circumstances where the family member would like to restrict or even prevent the "bad relatives" from visiting the ward, often in cases of physical abuse, financial abuse, or full general illegal behavior. Yous may recall the famous cases involving Casey Kasem and Mickey Rooney, in which both of their families got involved in very heated and public feuds betwixt the family unit members and a "bad relative." In Casey Kasem's state of affairs, his wife attempted to forestall his daughters and other family unit members from visiting him during his final days past removing him from hospitals and hiding him in dissimilar states. In Mickey Rooney's case, a legal guardian had to be appointed to forbid his stepson from taking financial abuse of Rooney while he was living with the stepson. Rooney'due south family members attempted to prevent the stepson from visiting Rooney, but were unable to practice so until they were appointd guardians. As you tin run into from these examples lonely, there are sure advantages to allowing the family to restrict or prevent visitation rights from certain " bad relatives." California recently proposed A.B. 2034 to allow family members of the start degree (son, daughter, spouse) to petition the courts to either prevent or grant visitation rights to sure family members. California's onetime law authorizes just a conservator or a trustee of an elder or dependent adult, an attorney-in-fact of an elderberry or dependent adult, a person appointed equally a guardian ad litem for an elder or dependent adult, or another person legally authorized to seek a protective club on behalf of an elder or dependent adult who has suffered physical abuse, fail, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical impairment or pain or mental suffering, or the deprivation past a care custodian of goods or services that are necessary to avert physical harm or mental suffering. The new California law now allows a relative of the beginning degree to bring a petition for a visitation social club to enjoin a respondent from keeping an elder or dependent adult in isolation from contact with the petitioner. Essentially, this police at present allows a spouse (or kid) to bring a petition to preclude another family member from visiting the elderly developed or from keeping the elderly adult in isolation from the spouse or child. Thus, a family fellow member tin still protect the elderly adult from the "bad relative" past restricting visitation rights without having to go through the court procedure to be appointed as a guardian. This law also allows a relative in the start degree to ask the court for expanded visitation rights if they believe that the "bad relative" is hiding the elderly adult from the other family members. Although this law has yet to be formally enacted, it does provide a very useful tool and avenue for family members who are in a feud with other relatives based on physical abuse, financial abuse, etc. If this bill is passed, it will be highly likely that other states will follow suit as well, and thus provide a new avenue to protect elderly adults who are beingness taken advantage of by sneaky "bad relatives." Whether information technology is by preventing these "bad relatives" from visiting the elderly developed or past asking the court to permit visitation to the elderly adult being hidden by the "bad relative," this proposed police will accept a profound effect on guardianship/conservatorship proceedings and family visitation rights. If you or someone you know has found themselves in a situation with your own "bad relative," this constabulary may get a trusty tool for your legal fight. Please continue a close eye on the California legislature and the other states' legislatures as well in order to determine if this law may presently become available to you!
The Ultimate Betrayal: Financial Abuse From Your Own Ability of Attorney Amanuensis
"With great power comes dandy responsibility" – Voltaire The Power of Chaser document is a very disquisitional manor planning tool that allows a person (the "principal") to engage someone else (the "agent") to brand important decisions, such as fiscal transactions, admission to banking company accounts, contracts, etc. Under a General Durable Power of Chaser, the appointed agent's authority does not "kick in" until a principal is accounted incapacitated (the inability to make major decisions, care for oneself, loss of average daily living skills, etc.). At this time, the agent is then responsible for making major financial decisions, gaining access to depository financial institution records, and monitoring bank accounts, as well as selling real estate, signing contracts, and purchasing belongings on behalf of the principal. Typically, the principal appoints a person whom they trust, such as a spouse, oldest child, caregiver, or some other relative to be their agent on the Ability of Attorney. The appointed agent is required to act in the all-time interests of the principal, and thus, make all major fiscal decisions solely to benefit the principal. All the same, there have been a number of cases where the appointed agent has taken advantage of the principal due to their authority nether the Power of Attorney, such as elimination bank accounts, purchasing new vehicles and personal property on the principal's account, and taking out credit cards in the main'southward proper noun. What happens when it is discovered that the agent has been abusing their authorization under the Power of Attorney document? What remedies do you have when your amanuensis has been stealing coin from yous? The most mutual example of this occurs when family members realize that the appointed agent (normally some other family member) has been staying with the elderly adult and "taking care of him/her," yet it is discovered that the elderly developed'southward accounts accept been depleted, there are several new accounts in his or her name, or at that place is a large increase in consumer debt in his or her name. Generally, these are clues that the appointed agent has been financially abusing the principal and has been using the Power of Attorney document to do information technology. If you or a family member discover that an agent has been abusing their authority under the Power of Attorney, at that place are a number of remedies that y'all can pursue in order to hold the agent responsible and disengage the damage. If you are nonetheless mentally able to empathise what you are doing and you believe your amanuensis is non interim in your best interests, y'all tin revoke the Power of Chaser. You should notify the agent that he or she is no longer authorized to act on your behalf. You lot should also notify any bank or other institution with which your agent may accept done concern for you and then that they know the agent is no longer authorized to handle your business. Additionally, under Lawmaking of Virginia § 64.2-1612(H), you can request your agent to requite a full accounting of all belongings or interests entrusted to the agent, likewise as a record of all financial transactions that the amanuensis has performed. Chiefly, under Code of Virginia § 64.2-1612(I), any other person interested in your welfare (for case, a family member or a co-agent), can likewise make a written request to your amanuensis asking him or her to disclose any deportment taken on your behalf inside the past v years and to let reasonable inspection of records near these actions. If the agent refuses to comply with this request inside 60 days, the person interested in your welfare can bring a case in excursion courtroom to go a courtroom order requiring the agent to provide the requested records. This provision is a very helpful tool for other family members that are non listed on the Ability of Attorney, withal suspect that the agent is taking advantage of the parent. Finally, you lot could likewise file a case in circuit court seeking an accounting from your agent. This is a more formal and legal avenue to pursue confronting your agent, simply will nevertheless result in your agent having to disclose their transactions, records, and purchases for the principal. Additionally, family unit members tin can seek aid from the local authorities and Department of Social Services – Adult Protective Services if they suspect financial abuse against an elderly adult. In conclusion, you should exist aware of the authority that you confer upon your agent when you execute a Power of Attorney document. Additionally, when it appears that your agent has been abusing their authority and taking advantage of the principal, other family members should be aware of the remedies and procedures available in order to investigate the agent. Finally, if you exercise suspect that an agent is misappropriating funds or financially abusing the main, please contact our office so that nosotros provide further details on these remedies!
Family unit Caregivers: Your Career, Family unit, and Legal Rights
Before today, Anne Fisher of Fortune magazine published a brilliant article highlighting the struggles of family caregivers trying to succeed in their career and notwithstanding take intendance of their elderly parents, friends, etc. ( Can y'all intendance for an elderly parent and however succeed at piece of work? ). Fisher'southward article reveals the fact that as the U.S. population grows older, elder care is condign as big a challenge as childcare…simply many employers are notwithstanding ignoring it. Importantly, her article reveals the alarming statistics involving family caregivers and their issues with employers and future career success: "To put your predicament in perspective, a few statistics: about 40 1000000 Americans, nearly anile forty to 59, now are helping at least one elderly parent with the tasks of daily living, says a Pew Research study , and, although most caregivers are women, almost 45% are men. Moreover, AARP inquiry says most caregivers have jobs, but seventy% are obliged to "make workplace adjustments"—coming in late or leaving early on, for example. Yet it seems many employers haven't caught on. Consider: a scant 5% offers a referral service to employees looking for elder care resource, co-ordinate to the 2014 Employee Benefits Survey from the Society for Human Resources Management. Fewer than ane% offers benefits similar geriatric counseling or fill-in elderberry care services for emergencies." Undoubtedly, at that place are a few of you that are currently facing this situation, or will well-nigh likely be facing it in the near future. Either way, it is important to note that y'all exercise have a few legal rights in this area, although the legislatures have yet to enact total, consummate protections for family caregivers who are pursuing their own careers and caring for an elderly adult. The most clear and obvious legal protection for family unit caregivers arises from the Family Medical Leave Deed (FMLA), also as the comparative state laws as well. The FMLA and its land counterparts require employers to keep your job open for you if yous take an unpaid leave of absence to deal with family issues. In some instances, the time off tin be intermittent, rather than continual, and in increments equally small as 15 minutes. Nonetheless, in regard to the FMLA, the employee must be employed with the company for at least 12 months prior to becoming eligible for leave nether the FMLA. Additionally, you may have 12 weeks of leave during whatever 12 calendar month period to care for a family unit member, but you only have the right to take leave to care for someone who is a biological or adoptive parent, or who acted every bit your parent when you were a child. Then, for example, you cannot take FMLA leave for your mother in law unless your relationship with your mother-in-law goes back that far, or you live in a land with a law that covers care for in-laws. Next, a few cities, including Milwaukee, Tampa, Washington D.C., and Atlanta, accept passed local statutes prohibiting "family responsibleness discrimination." Since most caregivers are female, the Equal Opportunity Commission and the courts have as well found that some federal and land laws against sexual activity bias apply in these matters. Finally, family unit caregivers may exist covered by the ever-evolving federal and state employment and labor laws. Generally, under these laws and regulations, employers may not discriminate confronting or treat employees different from other employees in the company. These laws take historically been enacted for the protection of women and minorities in the workplace, but in recent years, they have been expanded to recognize other "groups" of employees, such every bit nursing mothers and family caregivers (Is there a legal case for piece of work-life balance?). Employees should also accept a close look at their visitor'south Employee Assistance Program (EAP) to see if there are available elderberry intendance resources. Some EAPs can connect family unit caregivers with local government agencies and nonprofits that offer elder intendance information and support, or with organizations similar the National Alliance for Caregiving or the Family unit Caregiver Brotherhood. So, as discussed in a higher place, a family unit caregiver does take some, but not consummate, protection from disparate treatment from their employers. It is likely that within the next few years lawmakers will expand existing laws, also as adopt new ones, in club to provide for the growing population of adult caregivers with careers. Until that time occurs, please be aware of your legal rights equally a family caregiver and that you lot can even so pursue your career goals while providing the proper attention to your family and friends.
Legal Disposition of Unclaimed Remains (Or How to Avert a Zombie Apocalypse)
Okay, this week's blog post is not a "How To Avoid Being Eaten By Zombies" or a "Survival Guide for the Zombie Apocalypse," just it is still informative and helpful (and you may acquire something about where possible zombies may finish up). Rather, this post explores the legal issues of unclaimed human remains, whether it is the actual bodies or cremation remains. Generally, in one case a person has passed abroad, that person's family unit or next of kin will be responsible for funeral arrangements and preparations for that person's body. However, what happens to the remains when no family members or next of kin exist, such equally in the cases of guardianships (public and private), appointed agents, and many medical and nursing facilities? In Virginia, the disposition for unclaimed remains (simply meaning that no family members or next of kin can be located or are willing to accept the torso) are governed by statute Va. Code 32.1-309 – Disposition of Expressionless Man Bodies . Va. Code § 32.1-309.1 first addresses the process for the identification of the decedent and next of kin. In the absence of a next of kin, a person designated to brand arrangements for the decedent'southward burial or disposition pursuant to§ 54.ane-2825, an agent named in an advance directive under § 54.1-2984, or a guardian appointed pursuant to Chapter twenty of Championship 64.ii may fulfill the duties of a side by side of kin. If whatsoever of these persons fails to or refuses to fulfill the role of next of kin, the statute authorizes "whatever person 18 years of age or older who is able to provide positive identification of the decedent and is willing to pay the costs associated with the disposition of the decedent's remains shall exist authorized to make arrangements for such disposition of the decedent's remains." So, this could only exist a church building member, a neighbor, an Ground forces buddy, or only a friend. The statute clarifies the obligation of whatever person or establishment (near probable a hospital or nursing home) having initial custody of the decedent to endeavor to identify the decedent, if the identity is not known, and attempt to notify next of kin of the decedent's death. If the next of kin fails or refuses to claim the torso within 10 days then the trunk volition be disposed of pursuant to the provisions of Va. Code § 32.1-309.2. If the institution having initial custody of the decedent is unable to decide the identity of the decedent or notify next of kin, the institution shall contact the main police force enforcement bureau for the locality. Law enforcement must then make a adept faith effort to identify the decedent and notify next of kin. If law enforcement is able to place next of kin and the next of kin wishes to claim the remains, the next of kin shall be authorized to exercise so and bear the expenses. If law enforcement is unable to identify the decedent or, despite good faith efforts, next of kin is not identifiable or is non willing to accept the remains, constabulary enforcement shall notify the institution that has custody and the torso will be tending of in accordance with Va. Code § 32.1-390.2. Annotation that where a next of kin wishes to merits the decedent'south remains but the next of kin is unable to pay the costs of disposition, the costs are to be paid by the locality in which the decedent resided or where the decease occurred if the decedent resided out of state. The locality may recover from the decedent's estate the cost of burial and may seize such assets for that purpose. As stated earlier, if law enforcement cannot locate any next of kin or if the next of kin refuses the remains, then the procedure is governed past Va. Lawmaking § 32.1-390.ii. Under this department, law enforcement shall notify the attorney for the county or city in which the person is located or if there is no county or city attorney, police force enforcement must contact the Republic'south Attorney and he or she shall obtain a court social club authorizing the institution to transfer custody to a funeral service establishment for final disposition of the decedent. The reasonable expenses of the disposition shall be paid by the locality in which the decedent resided at the time of his expiry or the canton or metropolis where the death occurred, if the decedent was not a resident of Virginia or if his locality cannot exist identified. The statute also codifies a practice that has been employed by a number of hospital and wellness care systems and funeral service establishments. Basically, these parties have been encouraged to enter into agreements whereby the remains volition be stored past the funeral service institution until location or identification of next of kin tin can be obtained. Likewise, these agreements ordinarily will provide for the disposition of the remains at a reduced price, because the costs have been paid past hospital and health care systems, not the local authorities. The statute clarifies that fifty-fifty though a funeral service establishment may have possession of the remains pursuant to an agreement, the obligation to identify the decedent and next of kin continues to be the responsibility of the person or establishment that had initial custody. Then, in conclusion, if a deceased person's trunk is not claimed by a family member or next of kin, information technology is beginning the responsibility of the establishment to locate someone willing to have the torso. If no such person is found, the local police force enforcement agency is responsible for locating someone willing to accept the body as well. If that such person is not located (or unwilling to accept the body) by constabulary enforcement, so the metropolis attorney must obtain a court order authorizing the institution to transfer the remains directly to the funeral service institution for training, and probable cremation. So while this post may not help you in constructing your underground bunker to foreclose zombie attacks, it should at least be educational and informative if you should find yourself in a situation where you may be responsible for the disposition of a decedent'south body (such as a guardianship or advance medical directive). If nothing else, you tin at least rest assured that if a zombie apocalypse does happen, yous will now know where all of the unclaimed human remains have ended up!
Inherited IRAs Now Bachelor To Creditors In Bankruptcy
A few weeks ago, nosotros spoke about the relatively unknown estate planning tool called the IRA Trust ( http://themcmasterlawfirm.wordpress.com/2014/06/13/the-ira-trust-the-manor-planning-tool-that-nobody-knows-about/ ). We mentioned the meaning tax and estate planning advantages of the IRA Trust, as well as a few disadvantages and possible obstacles to the creation of an IRA Trust. One of the major advantages of having an IRA Trust is that within the trust document, the "spendthrift provision" provides protection for beneficiaries against creditors of the original IRA participant, thus preventing the creditors from collecting from the beneficiary's trust share. So why is this so important, y'all may ask? Well, because on June 12, 2014, the United States Supreme Court issued its stance in Clark 5. Rameker, xiii-299, ruling that inherited IRA accounts are available to creditors in bankruptcy. At issue was a Bankruptcy Code provision that exempts from a debtor's bankruptcy estate "retirement funds to the extent that those funds are in a fund or business relationship that is exempt from revenue enhancement under department 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986." The Supreme Court adamant that inherited IRAs (IRA accounts that are simply passed down through beneficiary designations, i.east., not by an IRA Trust) exercise not constitute "retirement funds" because the holder of an inherited IRA (i) may never invest additional money into the business relationship; (two) is required to withdraw coin from the account regardless of how far he or she is from retirement; and (iii) may withdraw the entire balance of the account at any time, and utilize it for whatsoever purpose, without penalty. Therefore, inherited IRAs are not covered by the Bankruptcy Code exemption fifty-fifty though they are exempt from electric current income taxation nether the enumerated Internal Acquirement Code provisions. Clark was an appeal from a 7th Excursion conclusion which had similarly ruled that inherited IRAs were not exempt from a debtor'due south defalcation estate. In upholding the seventh Circuit'due south determination, the Supreme Courtroom evaluated the residuum Congress established betwixt the interests of creditors and debtors. Congress permitted an exemption for funds that a debtor would apply to meet essential needs in retirement. However, the Court determined that exempting inherited IRAs from a defalcation estate would not further this goal. So what does this hateful? This means that the Supreme Court ruling will have a significant impact on an individual's wealth preservation strategy. For many people, retirement accounts such every bit traditional IRAs, Roth IRAs and IRA Rollovers represent a substantial portion of their assets. Accordingly, protecting these accounts from the creditors of their beneficiaries is disquisitional. Now that the Supreme Courtroom has determined that these accounts tin exist attacked by creditors of the casher, it is imperative that culling strategies be explored in order to provide creditor protection for a non-spouse beneficiary of a retirement account. Essentially, an IRA Trust should be pursued in order to fully protect your beneficiaries from any creditors that may arise out of your manor. Furthermore, financial advisors should alert clients that it is now more than important than ever to use trusts in conjunction with retirement accounts. Such trusts must exist drafted carefully in order to preserve the income tax-favored treatment of an inherited IRA. Specifically, the IRA Trust contains a specific "spendthrift" provision that protects each individual beneficiary and their separate trust share from whatever creditor of the estate. Thus, it is highly beneficial to explore the cosmos of an IRA Trust with experienced estate planning professionals, such every bit an chaser and/or a financial advisor. Additionally, defalcation creditors also should take this ruling into account when reviewing a debtor's bankruptcy petition. Currently, Schedule B—Personal Belongings does not separately identify inherited IRAs. Creditors should carefully scrutinize IRA accounts listed on a debtor'due south bankruptcy petition to ensure an exemption is not being claimed for inherited IRAs. These creditors should also be aware that if a debtor has created an IRA Trust, the assets independent in that IRA trust are untouchable and may not exist attacked in order to satisfy the debts of defalcation. In determination, the United States Supreme Courtroom has now adamant that an inherited IRA account (one that is but transferred to the beneficiary past the standard beneficiary designations) are now subject area to the claims of creditors during a defalcation proceeding. It is important to note that this ruling has only extended to bankruptcy proceedings (so far) and is not considered a broad application to all situations (yet!). Withal, in order to avoid the claims of creditors confronting your IRA account, in bankruptcy actions or otherwise, it is highly advisable to establish an IRA Trust. Please contact our office if you lot would similar to speak in farther detail about the procedure for establishing an IRA Trust and the optimal estate planning strategy for y'all!
The IRA Trust: The Estate Planning Tool That Nobody Knows About
Generally, most people today have some sort of Individual Retirement Account ("IRA") set up in order to protect their finances in grooming for retirement and their eventual passing. In club to pass their accumulation of wealth on to their spouse, children, or anyone else, about people designate a beneficiary on their IRA to receive the value once the person has passed away. However, most people do not realize that an IRA subjects the casher to a number of rules and restrictions regarding the ability to withdraw and receive income from the account. The largest restriction on the beneficiary's use of an inherited IRA is the Required Minimum Distribution ("RMD") rules, as well as several tax consequences. Broadly speaking, the Internal Revenue Service requires that participants in an IRA must have required distributions from their IRA first April 1 of the year following the calendar year in which the participant reaches age lxx 1/2 or the agenda year in which the employee retires from employment (Treas. Reg. § 1.401(a)(nine)-2). Later the original participant passes away, by and large the beneficiary is required to accept RMDs based on the participant's original life expectancy, thus subjecting a beneficiary to income taxes and RMDs, fifty-fifty though the beneficiary may non crave the RMD at that time. Additionally, if the original participant passes away prior to the RMD, and so the IRS requires the unabridged IRA to be distributed within 5 years (the dreaded "5 Yr Rule") to the beneficiaries, resulting in huge negative tax implications to the beneficiaries. Well-nigh people would like to pass on their IRA accumulation not only to an private beneficiary, just to multiple children and grandchildren. Even so, this is almost incommunicable with a standard IRA business relationship, and almost certainly liable for significant tax consequences to their children and grandchildren. If merely at that place was a way…. Introducing the IRA Trust (ta da!). The IRA Trust (too known as an IRA Living Trust, IRA Inheritor's Trust, IRA Stretch Trust, or IRA Inheritance Trust) is a special type of revocable living trust that'southward designed to hold your IRA assets later on your death. Within the IRA Trust agreement yous will establish different subtrusts for the benefit of your spouse and/or other beneficiaries. If you want to create a lasting legacy for your family, then the subtrusts established inside the IRA Trust understanding tin be prepare as lifetime Dynasty Trusts that can continue for many years into the future. An IRA Trust should exist considered if any of these issues are a business for your estate plan: Decision-making distributions later on death; Maintaining accounts as divide property upon divorce; Ensuring accounts volition pass to descendants upon death of casher; Compelling long-term tax deferral; Providing nugget protection for IRA assets; Ensuring that the benefits stay in the family unit; Ensuring estate tax savings for children or grandchildren. Substantially, the IRA Trust is initially structured equally the beneficiary of your IRA account. That IRA Trust is so structured into several Sub-Trusts, which would be individual separate accounts for each one of your Designated Beneficiaries. Yous then have the power to control which percentage of your IRA is distributed to each casher (ex: Pecker gets x%, Bob gets 15%, Sally gets 10%, etc.). Note that each Sub-Trust account is viewed as a separate business relationship for each Designated Casher, thereby providing maximum asset protection from creditors while avoiding the negative revenue enhancement implications of the Traditional IRA business relationship. Importantly, there is no tax penalisation or fees for an early withdrawal on the Sub-Trust, so that each Designated Casher tin can take out as much as he or she would like or need at any time. Why should yous consider an IRA Trust? Well, if your IRA is left direct to your beneficiaries outside of a trust, then your beneficiaries can immediately cash out your IRA and spend the money as they run across fit. What happens if a beneficiary chooses this option? Then not only is a stretch out of the required minimum distributions, or RMDs, over the beneficiary's remaining life expectancy lost, but 100% of the amount withdrawn will be included in the beneficiary's taxable income in the year of withdrawal. A different type of problem can exist created if yous name your small-scale grandchild as the direct beneficiary of your IRA. If this is the instance, then a guardianship or conservatorship will need to be established to manage the IRA for the benefit of the grandchild until he or she reaches the historic period of 18. So, once the grandchild reaches 18, he or she tin withdraw 100% of what's left in the IRA. On the other hand, if your IRA passes to your beneficiaries through an IRA Trust, and then you can put restrictions on how your IRA is spent and when and how much the beneficiary can withdraw. This can create an ongoing legacy for your family since the IRA assets that aren't used during a casher'south lifetime can continue in trust for the benefit of the beneficiary's descendants. This can too exist important if the beneficiary already has a taxable manor since the IRA Trust tin exist drafted to minimize or even eliminate estate taxes in the beneficiary'southward own estate. An IRA Trust can also be used to insure that the RMDs are stretched out over the entire lifetime of each of your beneficiaries, thereby preserving assets left in the IRA for the benefit of hereafter generations. Bated from these benefits, if y'all're in a second or later spousal relationship and want your current spouse to have access to your IRA, but insure that what'southward left after your spouse dies goes to your children or other beneficiaries, and then an IRA Trust is a must for you lot. Additionally, IRA assets passing into a subtrust created for the benefit of an individual beneficiary under the terms of an IRA Trust will proceed to be protected from creditors. This will insure that the IRA assets volition remain intact for the benefit of the beneficiary in the outcome a lawsuit is filed against the beneficiary, if a married casher later on divorces, or if a single beneficiary gets married and after divorces. Withal, that being said, there are several downfalls to an IRA Trust that you should strongly consider earlier making a determination. With an IRA Trust, an RMD still must be made annually to the Designated Beneficiary of each Sub-Trust. However, this RMD is distributed according toeach Designated Beneficiary'due south life expectancy and not the original IRA business relationship holder's life expectancy, thus avoiding "The 5 Yr Rule". Furthermore, at that place are several revenue enhancement consequences of administering and receiving distributions from the IRA Trust. When the grantor of the IRA Trust passes away and distributions are made, the IRA Trust is taxed every bit whatsoever other non-grantor trust, and a fiduciary income revenue enhancement return, Form 1041, must be filed each twelvemonth. Each distribution from the initial IRA account must be reported as income to the IRA Trust. However, the IRA Trust gets a tax deduction for whatsoever income it distributes and this income is then taxed to the Designated Casher of the trust at that person's individual income tax rates. If you find yourself wondering how to distribute your IRA account among multiple beneficiaries, I suggest that you consider the possibility of creating an IRA Trust account with the dissever Sub-Trusts for your estate planning needs. Our role has experience in drafting IRA Trusts in order to reach the most tax-favorable strategy for both you and your beneficiaries. If yous believe that an IRA Trust is the perfect tool for you, please contact our role so that we can come across with you discuss this wonderful (and even so unknown) tool to satisfy your testamentary desires and manor planning needs!
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Source: https://www.themcmasterlawfirm.com/im-the-executor-what-happens-when-my-loved-one-passes-away
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