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Make Sure Your Estate Plan is Up-to-Date by Reviewing These 5 Things

Make Sure Your Estate Plan is Up-to-Date by Reviewing These 5 Things

by | Blogs, Elder Law, Estate Planning, Estate Planning and Administration

So you’ve established an estate plan with your attorney — made the tough decisions, written a will, and possibly created a trust. In an ideal world, it’d be time to simply “set it and forget it,” but unlike the rotisseries in those famous infomercials, you can’t completely forget about your estate plan. Because, simply put, things change. And if you want your estate plan to reflect those changes, you’ll have to review your estate planning documents from time to time.

Read on to find out exactly what you need to review.

Why do you need to do a review?

From a legal perspective, you should review your plan with your attorney to ensure that you’re minimizing estate tax, avoiding probate, and taking advantage of new opportunities. Laws and regulations change at least in small ways each year, and every once in a while there’s a sea change in estate law. There may be some major opportunities based on new regulations to create a more effective, efficient estate plan that optimizes how your financial assets are dealt with.

On a personal note, reviewing your estate plan is an opportunity to make sure it falls in line with your final wishes. You may want to alter who receives which assets or the size of their inheritance. Your charitable goals may have changed and so you want to shift what’s donated to different organizations. Your family and relationships evolve, and this is a chance for your plan to reflect what’s happened.

How often should you review your plan?

You don’t need to be hypervigilant about checking in on your estate plan. All things being equal, you should plan to revisit your full estate plan at least every three to five years.

Of course, life has a tendency to throw curve balls, so you may need to review everything sooner than that if there is a major life change in your family, you have a change of heart regarding your wishes, or there is a significant change in estate or tax law.

What documents should you review?

This isn’t an exhaustive list, and you should make sure and talk to your attorney and accountant before making changes. That said, here are the most important items to review:

1. Power of Attorney and Health Care Advance Directives

Being a representative under a financial power of attorney or a health care advance directive is an important role to fill, so it merits revisiting. These documents set forth a list of individuals to whom you delegate authority to make decisions on your behalf (whether financial or related to your healthcare) if you are unable to do so.

It’s a major responsibility, and the people chosen should be those most aligned with your personal interests. As relationships change, so, too, may your choice of who will represent you. Other life events, such as someone moving further away, death, or illness may necessitate choosing another representative as well.

2. Will

It’s important to confirm the executor (the person who carries out the will) and guardian (the person you nominate to care for your minor children if you’re unable to) of your will, as well as the beneficiaries.

If you have a trust, it will take care of many aspects of your estate plan, so reviewing a will becomes more important where there’s not a separate trust.

In many cases, a will can simply be amended, though if there are larger changes, you may need to revoke the old will and execute a brand new one.

3. Trust

Perhaps a trust has been drafted as part of your estate plan. Usually that document takes into account the potential for future changes in your situation. However, there are unexpected circumstances, whether legal or personal, that may merit changes. Of course, your ability to update the trust depends partially on whether it’s revocable or irrevocable and is something to discuss with your attorney.

When you reconsider your estate plan, it’s a good time to review who has been established as the trustee and beneficiaries of the trust. Look at how all of your beneficiaries are receiving your future assets, and whether you’d like to shift how things are being divided or the recipients of your assets.

Finally, the most important part of having a trust is ensuring that it is fully funded. Assets that are not titled to your trust or that do not pass via beneficiary designation are subject to probate unless those assets have a value under $100,000. If you aren’t sure whether your trust is funded, you should speak with your attorney to determine what steps may need to be taken to transfer your assets to your trust.

4. Beneficiaries

Though beneficiaries are named already in your will or trust, it’s important to understand that beneficiary designations listed on any of your assets will control the distribution of that asset at your death. You should regularly review your beneficiary designations, as they are an integral part of your estate plan.

If you’ve opened any new accounts, you’ll also want to double check that the account ownership or beneficiary designation conforms with your estate plan. You should also double check that your real estate is titled in a way that most benefits your estate plan.

Your attorney can offer guidance on the most efficient strategy for your beneficiary designations and real estate ownership based on the overall goals of your estate plan.

5. Estate Tax Opportunities

Your attorney and accountant can help you know whether there are state or federal regulations that have changed that may affect your estate plan. Things like estate tax exemptions, interest rates, or gains or losses in accounts can all mean opportunities you may be able to take advantage of.

Reasons Your Estate Plan May Need to Change

 

Family Changes

  • Birth or adoption of a new child or grandchild
  • A child or grandchild reaches adulthood
  • Education funding for a child or grandchild
  • Death or change in circumstances of the guardian named in your will for minor children
  • A family member passes away, becomes ill, or becomes disabled
  • Changes in number of dependents, such as the addition of caring for an adult
  • Marriage or divorce
  • Illness or disability of your spouse

Financial Changes

  • Your financial goals shift
  • Purchasing a home or other large asset
  • Purchasing real estate in another state
  • Borrowing a large amount of money
  • Large increases or decreases in the value of assets, such as investments
  • A large inheritance or gift
  • Change in your life or long-term care insurance coverage

Legal Changes

  • Changes in federal or state laws covering taxes and investments
  • Death or change in circumstance of your executor or trustee
  • Career changes, such as a new job, promotion, or if you start or close a business
  • Moving to a new state or country

Work with Us

With estate planning, there are a lot of t’s to cross and i’s to dot. Work with an attorney here at THK to make sure that you’re staying up-to-date with your estate planning, especially if there’s been a major change in your or a loved one’s life recently. And if you haven’t set up parts of your estate plan, get in contact with us to ensure you have everything taken care of.

Kahlyn N. Barcevic, Estate Planning & Elder Law Attorney, Tuesley Hall Konopa, LLP

Author: Kahlyn N. Ashcraft is an estate planning, estate administration, and elder law attorney at THK Law. Kahlyn helps clients with wills, trusts, special needs trusts, guardianships, powers of attorney, and long-term care planning including Medicaid planning.

You can contact Kahlyn by calling 574.232.3538 or email kashcraft@thklaw.com.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Diversity, Equity, and Inclusion in the Workplace and at THK

Diversity, Equity, and Inclusion in the Workplace and at THK

by | Blogs

As the nation and workforce become increasingly more diverse, and with recent heightened awareness of social injustices and economic disparities towards minorities, companies are recognizing the importance of viewing business practices through a variety of lenses. That’s why many companies are adopting Diversity, Equity, and Inclusion (DEI) programs into their business models.

DEI is a term used to describe initiatives promoting the representation, fair treatment, and belonging of different groups of individuals, ranging from gender, race, age, ethnicity, sexual orientation, socio-economic status, physical abilities, and religious and political beliefs.

Why DEI initiatives are beneficial to companies

While DEI initiatives have been around since the 1960s, they were often thought of as something “nice to have.” Today’s business leaders see DEI as a “must-have.” Companies with effective DEI programs are more creative and innovative, and employees who work at companies with strong DEI programs are happier in their jobs and perform better. Of course, that all leads to improved talent attraction and retention.

THK’s DEI journey

THK knew that diverse teams produced the best advice for their clients; the firm wanted to be more intentional about DEI in its practices but didn’t know where to start. So, they hired DEI consultant Kim Amrine in November 2020. Amrine began THK’s DEI journey with an overall DEI assessment of the firm; the assessment findings allowed firm leaders to construct a multi-year DEI strategic plan with four goals:

  1. Cultivate a Diverse, Equitable, and Inclusive Work Environment
  2. Develop and Utilize a Talent Strategy Incorporating the Firm’s DEI Goals
  3. Leverage THK’s DEI Work for Clients, the Community, and Legal Industry
  4. Communicate the THK Story

“Kim has transformed the way we see and communicate with each other,” said THK partner Greta Roemer Lewis of Amrine. “She has injected new energy and possibility into our thoughts and actions. We are continuing to learn and grow and Kim’s partnership on this journey gives us confidence as we move forward.”

While THK is still in the beginning stages of its plan, one of its early successes included a mandatory in-person DEI training. The 2.5 hour training touched on unconscious bias, microaggressions, and real world hypotheticals, where attendees openly shared and learned from one another.

“I was able to have frank, open, and honest discussions with my colleagues regarding our personal histories and worldviews,” said THK attorney Libby Klesmith regarding the initial workings of DEI at the firm. “It seems like such an obvious thing, but I don’t think you can really understand how two people can see the same issue in very different ways (even if they agree on the ultimate goal) until you sit down and have a conversation with someone from a different background, culture, generation, education, state, family structure, etc.”

Another early DEI accomplishment for THK has been the establishment of a DEI committee comprised of firm equity partners, associates and a business professional. The committee is charged with taking consistent action steps that move closer to carrying out the strategic plan.

One of those committee members is THK Founding Partner Tom Hall. Hall understands that to be relevant in today’s world and to protect THK’s unique culture, the firm must be committed to continuous improvement in all facets–from employee recruiting and retention, to client service initiatives, and ongoing legal education.

When reflecting on why he believes DEI is an important consideration for the firm’s future growth and success, Hall said, “We need to help all our professional and paraprofessional staff recognize and respect the different history and heritage of American society. That way we can attract and retain a diverse group of members able to serve our clients.”

Even though THK has experienced early success in its DEI journey, the initiative is still in its infancy, and the firm is learning as it goes. Most importantly, this isn’t a one-time “project” that can be checked off a list and forgotten about. Looking ahead, the firm will have accountability reports at least twice a year, where it will examine its successes and progress.

“I am excited about the commitment to keeping the channels of dialogue and education open, and expanding our involvement in the South Bend and surrounding community,” Klesmith said of the potential of DEI at THK. “I believe you need diversity of experience, history, and thought to have a creative and productive workplace. These things are essential to effectively serving our clients, and they also make us better humans. Long term, I believe this will impact the talent we bring into the firm and the clients we serve.”

New Sick Leave Rules Coming to Michigan

New Sick Leave Rules Coming to Michigan

by | Blogs

Are you ready for the new Michigan Paid Medical Leave Act? Did you know there was such a thing? After much political wrangling, the current version of this law is scheduled to take effect on April 1. Under it, many Michigan employers will be required to provide paid sick time for their workers. Keep reading for an overview of the new law and what it requires.

The law began with a ballot initiative. Michigan voters were posed to give themselves a generous helping of paid sick time, so the Michigan Legislature intervened and passed the law themselves, thus taking it off the ballot and allowing time to delay the effective date. This gave us the Michigan Earned Sick Time Act—which never became effective. In the final weeks of 2018, the Republican-controlled legislature passed a series of amendments, including re-naming the law the Michigan Paid Medical Leave Act. Lame-duck governor Rick Snyder signed the amended version into law shortly before his Democratic successor Gretchen Whitmer came into office.

 

The politics of sick leave

The first thing to understand about this law is that the political battle rages.  Some activists feel the legislature “stole” their ballot initiative and watered it down. Movements are afoot to bring a new ballot initiative. There is also talk of court challenges, and with a divided government in Michigan, it’s hard to predict where this issue will ultimately land. But for now, employers have to prepare themselves and be ready to honor the new requirements that come into play on April 1.

 

Eligibility

The next thing to understand is that it currently only applies to employers with 50 or more employees. This was one of the biggest amendments in December, as the original version applied in some form to almost all employers. If you don’t employ at least 50 workers in Michigan, you are spared from this law—at least for now.

 

Benefits

For those employers covered by the Act, you must provide your workers with one hour of paid sick time for every 35 hours worked, up to a maximum of one hour per week and a maximum of 40 hours per year.

The benefit does carry over from year-to-year, but you are not required to allow employees to use any more than 40 hours in a given year. The law also includes some detailed definitions surrounding what types of health issues, family health needs, and domestic violence concerns qualify for paid time off under the Act. Be on the lookout for a poster published by the State of Michigan (not yet available) that employers will be required to post.

 

Strategies for Compliance

The law expressly allows you to “front load” the 40-hour benefit at the beginning of a year and permits reliance on a standard paid time off policy to satisfy the requirements of the Michigan Paid Medical Leave Act, so long as the benefit and eligibility rules are at least as generous.

For many employers, it may be possible to make modest tweaks to your current policy and bring it into compliance with this new law.  For others, providing this benefit will represent a major change.  You should consult with your legal and HR advisors to determine what works for your organization. Even for Indiana employers or small businesses in Michigan that do not fall under this law, it is important to stay tuned to changes in sick leave rules so that you are offering competitive benefits for your workers.

Whether your business is domiciled in Michigan or Indiana, your employee benefits manual should be reviewed annually, and updated as needed. If you have questions about being in compliance in either state, please call Employment Law Attorney, Michael Hays at 574.232.3538.

Michael J. Hays, Business Counsel & Partner, Tuesley Hall Konopa, LLP

Author: Partner, Michael J. Hays, is an employment law and civil litigation attorney at Tuesley Hall Konopa, LLP. His practice areas include business transactions, real estate law, and employment law. Michael is licensed to practice in Indiana and Michigan.

You can contact Michael by calling 574.232.3538 or email mhays@thklaw.com

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.

Back to School Legal Planning

Back to School Legal Planning

by | Blogs

The supplies are purchased, the bags are packed and it’s time for kids to go back to school. But have you considered the legal planning you may need before sending kids off to college? From powers of attorney to privacy issues, there are a number of things you need to know about your rights when you leave your child on campus.

If your child is over 18, whether you believe it or not, they are an adult. This means that hospitals, doctors and medical providers no longer have to give parents information about a child’s treatment or condition. Similarly, banks, credit card companies, and student loan servicers will not give access to information unless the account is joint. And many parents are surprised to learn that, even though they pay the tuition bills, they have no rights to access their child’s educational records or talk to professors.

Even if your child is under 18, legal planning is still necessary. If college is not close to home, you may not be able to quickly get to a hospital if your child is sick or injured. Without a specific authorization to treat, your child may not be able to receive necessary medical treatment.

Luckily, there is a fairly easy solution to these issues – proper legal planning with powers of attorney.

Everyone over the age of 18 should execute a financial and a health care power of attorney, naming someone they trust (in this case, presumably parents) to make decisions if they cannot and to have access to information. Consider adding backups who may live closer to college, in the event parents are not available.

For access to educational information, a specific consent or release form is needed. Ask if the college or university has its own form. If not, the Department of Education has a sample FERPA release form available here: https://www2.ed.gov/policy/gen/guid/fpco/ferpa/safeschools/modelform2.html.

For students who are not yet 18, parents can sign a health care power of attorney giving someone else authority to seek medical treatment or obtain information. Typically, these are signed when you leave your child with relatives for a week or two, but if there is a trusted friend or relative who is closer to the school your child attends than you are, it might be a good idea to provide them with a power of attorney, along with insurance and pertinent medical information.

Finally, even for those parents whose kids are not yet going off to college, as you fill out those emergency contact information forms at the beginning of the school year, you will likely be asked to name someone other than you or your spouse who is authorized to pick up your child, if necessary. Those individuals should also have a health care power of attorney for your child in the event that you cannot be reached in an emergency.

Call us at 574.232.3538 to schedule an appointment to set up powers of attorney for your children and dependents when you cannot be there to make important decisions about their care.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.

The Truth About Guardianships

The Truth About Guardianships

by | Blogs

Recently, the HBO show Last Week Tonight with John Oliver ran a segment about the dangers of guardianships. The show has prompted many people to ask if guardianships are actually as dangerous as portrayed and what they can do to protect themselves.  The truth is, guardianships are probably more dangerous than the examples given, but, as the show humorously points out, proper planning can provide some protection.

Guardianships (or conservatorships in Michigan) give a third party decision making control over an individual who is determined by a court to be incapable of making decisions for themselves.  While generally, the process is used to the benefit of seniors and those with disabilities, and protections exist to prevent the exploitation seen on Last Week Tonight, the sad truth is that many courts are underfunded and understaffed and cannot follow through on the monitoring required by the law.  Many of the harms seen in the piece could have been uncovered much quicker by two simple safeguards.  In the establishment of a guardianship, courts may, but are not required to, appoint an independent investigator (referred to as a guardian ad litem) to visit the person over whom a guardianship is sought and report to the court whether a guardianship is necessary.  This step can prevent an unnecessary guardianship from being created in the first place.  Once a guardianship or conservatorship is in place, regular accounting must be filed with the court, showing how the ward’s finances are being managed.  Unfortunately, these are rarely reviewed in depth and, in Indiana, are only required every two years, by which time substantial financial damage can occur.

How can you protect yourself from a guardianship?  Having properly drafted powers of attorney and health care decision making documents in place can provide the tools that individuals you trust can use to make decisions for you if you cannot.  In the event a guardianship is necessary in spite of these documents, your plan can nominate a person of your choosing to be named as your guardian.  The key to avoiding a guardianship is making sure that your family knows who is named in these documents, where the documents are, and how to use them.  If your documents are drafted by an attorney, you have the additional protection of legal counsel advising your chosen decision makers and helping them navigate the process of acting on your behalf.  Even if someone initiates a guardianship action, notice requirements mean that, if you have shared your plan, one of the individuals receiving notice will know that you have documents in place and can file with the court to have those documents followed.

In short, yes, the dangers of guardianship are very real.  But, having the right team empowered to act on your behalf, backed up by knowledgeable legal representation, can protect you from being one of the victims.

Call us at 574.232.3538 to schedule an appointment to find out what your best options are for keeping control of the future you envision for yourself and loved ones.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.

Time’s Up; Me Too; Now What?

Time’s Up; Me Too; Now What?

by | Blogs

Time's Up; Me Too; Now What? blog by Michael J. Hays, Partner & Civil Litigation Attorney at Tuesley Hall Konopa, LLPYou’ve seen the news. You’ve heard about Harvey Weinstein and Matt Lauer and Garrison Keillor and countless others. There is a new conversation in America about sexual misconduct and sexual harassment. Many women speak proudly about joining a movement. Lots of men are part of “the movement,” too. Political debates are happening—not only in newsrooms and on colleges campuses—but in ordinary workplaces, too. People are trying to understand what this movement means and how far it might go.

But this article is not about politics or philosophy. It’s about good, old-fashioned legal compliance. In the wake of #Time’s Up and #MeToo, business owners and managers should expect more scrutiny in their workplaces. Here are a few tips for navigating those waters:

  1. It’s all about respect. An employer should work to cultivate an atmosphere of respect in the workplace. It doesn’t really matter what the law allows or requires, how a policy reads, or where the political movements may be going. If employees are treated with respect, they will be more satisfied and more productive. The company will run more smoothly and will have less risk of liability. Getting workers to respect one another is the key to a successful workplace. Plus, it’s the right thing to do.
  2. Think about dusting off your equal employment and anti-harassment policies. In the past few years, the basic law surrounding sexual and other unlawful harassment has not changed much. If you have a policy crafted within the last few years, it is probably adequate under controlling law. But do employees understand it? Does anyone even read it? One small step in promoting a culture of respect is simply revising and re-circulating an easy-to-understand policy. This lets employees know you take the matter seriously.
  3. Consider workplace training. Lawyers and other outside professionals can come to your workplace and provide training on discrimination laws and promoting a culture of respect. Work closely with any training provider to make sure you don’t receive the kind of bad skits that are rightly satirized on workplace sit-coms. But new training materials and methods are constantly being made available. And taking time out of a workday to promote awareness is another way to encourage a culture of respect.
  4. Lead by example. The best way for managers and business owners to encourage their workers to respect one another is by showing respect themselves.  If you’ve been a little too glib with off-color jokes, then change your behavior. If you have a Weinstein in your organization, then clean house. My standard workplace advice is that if there is something you’d be ashamed to say or do with your spouse or mother watching, then don’t ever say it or do it.
  5. Respond appropriately to complaints. Despite best efforts, you may receive a complaint of harassment or other discrimination. It could come through internal channels or from an outside agency, like the EEOC. If that happens, take it seriously. Contact your legal advisors for assistance; investigate thoroughly; implement any changes that may be needed; and protect complaining parties against retaliation.

Most employers are just trying to run a business. They don’t want to be for or against a political movement, and they certainly don’t want to be in the news for complaints of harassment or other misconduct. To help run your business as smoothly as possible, pay attention to the little things that promote a culture of respect.

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation.