Written by Robert T. Nickerson
So you’re thinking about taking the big step to have an estate plan created? Or do you already have one and want to update it? Or are you simply looking at what an estate plan even is? Don’t worry if you’re feeling overwhelmed and even a little intimidated. Anything that revolves around death or the concern for the well-being of your family is rarely ever easy. No one likes to talk about it, but at some point, something has to be done. The last thing you want for your family is to leave them with more headaches and bureaucratic red tape in probate court. But estate planning is also something that many people either assume they can do themselves or will click on the first ad on Google search.
So how do I know I’m not getting ripped off?
Here are five estate planning scams that should raise red flags and you should avoid.
Cold Calls Offering to Prepare Estate Plans
As a part of a law office, WE NEVER OFFER TO PREPARE ESTATE PLANS WITHOUT A IN-PERSON OR ZOOM MEETING. If you receive a phone call with the information they can create you an estate plan on the fly, you should hang up immediately. It’s important to know that estate plans are not “one size fits all”. Each document layout is created for a specific family, depending on a number of factors.
Paying for Estate Planning Templates
I see this one a lot. Someone might call to several law offices and find that the price for an estate plan is more then they realized. So they’ll do a google search and come across something that offers them the “right documents” to create an estate plan with a fee. Do not take these deals. These documents are not legally binding and are made with the purpose to get as much money as possible
Not Needing an Estate Plan
While this isn’t technically a scam, this is something I also see a lot. Perhaps it’s an older couple without much family or even many assets to distribute when their gone. So they simply decide not to even have an estate plan created, thinking that the rest of the family will abide by the honor system. I’m here to tell you now that estate plans aren’t just for when you pass away. They contain important documents like a healthcare directive (which sets up who makes legal decisions for you when your incapacitated). Even if this doesn’t become an issue, death has a tendency to bring our the worst in people. Without a will or an estate plan, that only invites an opportunity for multiple people to make a claim for your property. This is going to end up in probate court and possibly make relationships worse. See what a bad path this could end up without an estate plan?
Paying Way Too Much for an Estate Plan
I try to keep a reasonable service fee to have your estate plan created without taking you to the bank. I’d even encourage you to shop around if your feeling weary to commit, but be on the lookout for an attorney that wants a crazy expensive fee for their services.
Signing a Document You Don’t Understand
This is a big red flag that you should avoid. Yes, a lot of documents have a lot of technical language that’s hard to comprehend, but I always take time to go through each piece of paper to simplify what it all means. Like buying a car or a house, you never want to sign anything without having fully read through it. There could be a hidden clause that'll trigger something in your estate plan that you didn’t want. There could be somebody else’s name as a beneficiary that you didn’t add on. NEVER SIGN A DOCUMENT YOU DON’T UNDERSTAND.
Click on the tab below to contact us for more information on how we can help you properly with an estate plan.
Written by Robert T. Nickerson
One of the big changes that happened during the pandemic last year was a surprise surge in new homeowners. Young adults have been the highest percentage of new buyers as being stuck at home has forced them to consider what they can get; a larger backyard, easier conditions to work from home and more space. Okay, perhaps it wasn’t that surprising, though given how the economy went sour and mortgage rates going at a very low level, it makes sense that a lot of home buyers, especially new ones, would want to take advantage of a unique situation. Even as Covid-19 starts to recede and go back to something resembling normal, homes are still being heavily sought out.
So, what does this mean for your estate plan?
Most young people I come across see estate plans as something only older and wealthier people need to address. The first truth is that estate plan is not about protecting your money (that’s what banks are for). The goal of an estate plan is to protect assets of value and assure that there is a legal path for someone to inherit it. Perhaps your grandad’s estate plan might have only been for the wealthy. But estate planning can be for anyone. It just so happens that I recommend doing it when your start amassing a large asset like a home.
Should something happen to you, then an estate plan sets up an easy system to that a love one you trust will have the ownership of that home. Without an estate plan, then the home would enter into probate, which is a long and complicated process in which the court would have to figure out who gets what. Though each state is different, it can take years to finally get the home.
Now what do I do if I already have a trust?
First of all, congratulations!! you’ve make the smart choice of understanding what’s most important; your family. A new home is very common. In fact, because life keeps changing us and our assets, I always recommend going over your estate plan every couple of years to see if it needs updating. I’ve seen a lot of people who’ve gone through something (like an accident that puts someone in a coma) and the health care directive (a legal document that dictates who makes decisions on your behalf) is one from twenty years ago.
Since you might be buying your first home, then your address will need to be updated. If you had a prior home that was sold, then you no longer can use it as an asset as it no longer belongs to you. Without a proper update, then the gift will be unvalidated.
Home ownership opens a new chapter into your personal life, and we want to be sure that your protected. The Law Offices of Jeffery C. Nickerson can help protect your new asset by making sure it’ll be ready to transfer to a loved one when the time comes. Click on the button below to contact us for more information. If you’re a millennial, it’s never too soon to consider.
Written by Jill Roamer J.D.
Florida has taken a major stand against abuse and fraud perpetrated on senior and disabled citizens. A week ago, the Protection of Elderly Persons and Disabled Adults Bill was passed; it is headed to the governor for signature. The new law’s effective date would be July 1, 2021. The bill has a myriad of protections for seniors and disabled individuals. Key provisions include:
With the Department of Justice reporting that 10% of seniors are exploited and with Florida home to roughly 4.3 million seniors, it is a big step in the right direction to protect their state’s population. Florida Attorney General Ashley Moody has stated "If you move here, if you retire here, if you come to Florida because you want to live out your golden years, we will make sure you can do that free from fraud and abuse."
Hopefully this new legislation will be motivation for other states to move to further protect seniors and those with disabilities, especially in light of the increase in these abusive and fraudulent activities that the pandemic has afforded scammers.
May is National Elder Law Month. This month is a great time to inform your local community about elder abuse and ways to protect our seniors. Here are other ideas for ways to raise awareness.
Another way to help is to have an estate plan setup sooner then later. People unfortunately put off this action until it's either too late or when their in a mental position or "not in the right frame of mind". Theres a rumor that the process is time consuming and stressful, and with us, it's not true. We at the Law Offices of Jeffery C. Nickerson work with you one on one to help determine the best course of action for a loved one and their assets. Click on the button below in order to contact us for more information with absolutely not obligation
By Robert T. Nickerson
For those that have read up on stories of celebrities and how their estates would end up impacting them after their deaths, then you might find the story of Prince Rogers Nelson, otherwise better known simply as Prince, quite interesting and a lesson on how not to prepare your own estate plan. Prince may have been a wealthy and powerful entertainer whose hits like
“When Doves Cry”, “1999”, “Little Red Corvette”, and of course, “Purple Rain” were massive hits, but when he passed at age fifty-seven, he made a lot of legal mistakes that resulted in consequences that his family had to deal with.
According to his family tree, Prince was twice divorced with no children. Neither of his parents were alive and had a couple of siblings and half siblings in which some have had children. The big problem was that Prince had no will and several of his siblings have claimed to be heirs and even sole heirs to the massive estate.
What Prince wanted is something we’ll never know. Maybe he wanted his siblings to have everything or nothing. Though his representatives searched his house and computer for clues or anything of indication to what he wanted, that proved fruitless. And without a will, this only makes the situation a lot harder.
In the event in which the party had no will, the court follows the state statutes and are given the task of who gets an inheritance and how much of it. For some people, who have small assets like one house and two cars, it’s not too difficult. Of course, for Prince, a guy who was said to have enough unreleased material for twenty albums, this was going to be a headache. It doesn’t help that Prince had little to no contact with his family, so whatever happens, it’s unlikely that it’s what he would have wanted to happen.
Because he didn’t have a will, it’s obvious that Prince didn’t have an executor. What the executor does is the person (or people) assigned to determine how assets of the deceased are distributed. This is crucial for a lot of families, especially if there is someone with special needs and requires instructions on how their cared for.
In the state of Minnesota, according to their laws, when someone passes away with an executor, then the court appoints an administrator who is “acceptable” to a majority to the party who has an interest in the deceased assets. If the family cannot agree on an “acceptable” administrator, then the court assigns whoever they want.
Of course, the executor has a lot of responsibility placed on them. They select and hire professionals who go through assets and determine their worth. The executor is also responsible for filing the federal tax return and deal with any issues the IRS might bring up.
As of 2021, the family agreed when the court appointed the bank Bremer Trust as the executor, but they still had the difficult task of going through EVERY asset, and that includes the ones with copyrights and intellectual property that requires even more phone calls and emails. Bremer Trust eventually resigned, and the family hired another bank, but they are still at a standstill, which has resulted in a lot of wasted time and even lost income and assets.
When Prince’s family will be done with the estate is hard to determine. Chances are is that it’ll take many more years to determine who owns what and I never like to see that with any client. Contact my office to learn more about how estate plans can benefit your family and how your don’t have to end up like Prince’s family.
Written by Jill Roamer, J.D.
There has been a lot of heated debate on the topic of traveling with emotional support animals (ESA), psychiatric service animals (PSA), and traditional service animals. To resolve some of the conflict, the Department of Transportation (DOT) issued a Final Statementelaborating on the department’s expectations and priorities regarding the treatment of passengers traveling with animals.
It is well established that individuals with disabilities are permitted to bring their service animals to most places they choose to go. Businesses are prohibited from refusing entry or service to an individual with a service animal, unless particular concerns are present. The Americans with Disabilities Act (ADA) is probably the law that comes to mind in these situations. It is certainly one law that protects those with disabilities from ill-treatment. But, did you know that the ADA does not apply to the skies? The ADA does not apply to airlines, their facilities, or services – that is where the Air Carrier Access Act (ACAA) swoops in.
Some Basic Comparisons
While the two Acts are quite similar, there are notable differences worth investigation. The DOT oversees the ACAA, which applies to airlines, their facilities, and services. The Department of Justice (DOJ) oversees the ADA, which applies to airports, their facilities, and services.
The DOT regards “any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment” as an individual with a disability. Correspondingly, according to the DOJ, “[t]he term "disability" means, with respect to an individual[,] (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment […].”
In recent years, airplane cabins have started to look like menageries – passengers taking full advantage, and sometimes abusing, the ability to take certain animals along for the ride. With the uprising of sketchy online businesses “certifying” run-of-the-mill pets as service animals, or worse, providing doctor’s letters prescribing support animals, airlines began cracking down on the abuse. Airline restrictions became tighter and created questions of disability rights violations. Passengers flooded the DOT with complaints of unfairness and illegality.
In response to the rise of animal-toting airline-passenger complaints about unreasonable airline regulations, the DOT issued a Final Statement elaborating on its expectations and priorities under the ACAA. The statement provides clarification on the permissible and prohibited actions that airlines may take in regulating the in-cabin presence of various types of animals.
There are four general categories of animals when it comes to disability laws: pets, Emotional Support Animals (ESAs), Psychiatric Support Animals (PSAs), and service animals. In the aerial context, pets are often stored in the cargo hold of the aircraft and require an additional fee to the owner. ESAs and PSAs, are generally permitted in the cabin if certain criteria are met. Service animals are heavily protected and taken very seriously under both laws. Under the ADA, only service animals and some PSAs are protected.
Each Act provides guidance on various service animals, their legitimacy, and limitations. The ACAA establishes what animals are permitted in the cabins of aircrafts, and the ADA established what animals are permitted nearly anywhere else. Both Acts consider dogs and miniature horses to be “common” service animals, where the ACAA expanded the group to include cats as well. The ADA does not recognize any other species of service animal.
“Under the ADA, a service animal is defined as a dog [or miniature horse] that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog [or miniature horse] must be directly related to the person's disability.” The ACAA does not have a technical definition within the text of the Act, but the departmentinformally explained, in 2018, that the “DOT considers a service animal to be any animal that is individually trained to assist [sic] a qualified person with a disability or any animal necessary for the emotional well-being of a passenger.” (Note, however, that back-end of this statement contradicts some other provisions of the ACAA on the differentiation between service animals and emotional support animals.)
Both Acts give the highest protection to service animals. The text of the ACAA specifically categorizes service animals separately from ESAs and PSAs, which are lumped together. The ADA considers specifically trained PSAs to be genuine service dogs. The ADA explicitly does not recognize ESAs under the Act, where the ACAA provides them protection. Both Acts recognize the potential need for an individual to require the assistance of more than one service animal; but, the ACAA also permits a disabled passenger one ESA in addition to (up to) two non-ESAs.
Additional ACAA Clarifications
With the exception of snakes, other reptiles, ferrets, rodents, and spiders, airlines cannot categorically prohibit the use of species that are not dogs, cats, or miniature horses. An airline could determine that the particular animal compromises the health or safety of others, and therefore prohibit its entry onto the aircraft, but on a case-by-case basis only. Further, airlines are prohibited from breed bans as well.
Airlines are permitted to require travelers with ESAs and PSAs to: check-in early; provide advanced notice; provide a recent doctor’s note from their treating physician verifying that the individual suffers from a recognized emotional or mental disability, that the presence of the animal is necessary, and lists the provider’s credentials. Airlines are absolutely prohibited from requiring traditional service animal users to check in early, provide advance notice, or provide additional documentation, on flights less than eight hours.
Limited questions are permitted by both Acts when a disability is not obvious or clear. The ACAA permits airline personnel to ask “how does your animal assist you with your disability?” For service animals, this verbal assurance by the handler, in addition to any ID cards, harnesses, etc. must be accepted as evidence that the animal is a service animal. For ESAs and PSAs, the airlines may ask for documentation of vaccination, training, behavior, etc., for the purpose of determining the potential threat to the health or safety of others – but, generally, if the individual has complied with the advanced notice and check-in rules, has their doctor’s note, and does not have an unruly or unusual animal companion, the airline must permit its attendance.
The Long and the Short of It
The ADA protects the disabled on the ground; the ACAA protects the disabled in the skies. The DOJ controls the ADA; the DOT controls the ACAA. The ACAA has carved out additional service animal protections for Emotional Support Animals and Psychiatric Service Animals; the ADA only recognizes traditional service dogs (and miniature horses), including PSAs that have been specifically trained to complete a task for its disabled handler.
Traditional service animals are a familiar and, generally, accepted tool for many disabled people. However, the influx of psychiatric and emotional support critters exposed grey areas that the public was happy to explore. Prior to official guidance from the DOT, airlines and passengers were left without mutually understood limits for the presence and use of these creatures. As passengers pushed the bounds, airlines feverishly fought back with restrictions and refusals. The DOT has now offered airlines and passengers a better understanding of the department’s priorities, permissions, and definitive prohibitions. Both sides now have the explanation needed to better protect their specific interests and rights under the ACAA.
Written by Jill Roamer J.D.
Ms. Irving, a blind woman, lives in San Francisco. In 2018, she filed a Complaint against ride-share giant, Uber, alleging that she was discriminated against during various encounters with Uber drivers. Ms. Irving alleged that drivers refused to pick her up at least fourteen different times, and as such she was late for work on a few occasions and eventually lost her job. The reason that the drivers refused to let her in their car was that she had a guide dog with her. She also alleged that drivers employed by Uber left her in unsafe places at late hours, spoke to her in an abusive way, cut trips short before Ms. Irving had reached her destination, and on at least one occasion falsely claimed that Ms. Irving was at her destination when in fact, she was not.
Ms. Irving filed suit against Uber, alleging violations of the Americans with Disabilities Act (ADA). The ADA gives various protections to folks with disabilities, but it only applies to companies with 15 or more employees. Uber claimed that it was not subject to ADA requirements because drivers were independent contractors and not employees.
The arbitrator disagreed with Uber, finding that it is irrelevant if the drivers are independent contractors. Uber had a contractual relationship with drivers and Uber failed to prevent such discrimination via proper driver training.
Indeed, Uber wasn’t oblivious to the problem of individuals with disabilities being denied rider services. In May 2017, the National Federation of the Blind resolved certain allegations of discrimination with Uber. A settlement agreement was reach whereas Uber would revise their policies and training procedures so that drivers would be educated on non-discrimination rules. Drivers would be terminated if they were known to deny rides to those riding with a service animal. (A similar settlement agreement was reached with Lyft.)
Those with disabilities that limit or preclude driving would obviously benefit from ride-sharing services. And this recent case in California shows that Uber has responsibilities to ensure these folks have access to their services. The National Federation of the Blind would like to hear from anyone who is in a similar circumstance and would like to test Uber’s commitment to their legal obligations.
The Law Offices of Jeffrey C. Nickerson can ensure that your disabled family member will remain in good hands. We can help prepare a special needs trust that'll put your mind in ease. Click on the button below to contact us for more information.
Written by Robert T. Nickerson
Within the past week, a lot of the news cycles have covered the reaction to the death of Prince Philip, Queen Elizabeth’s long-time husband who recently passed at the age of 99. Some have felt a loss similar to a family member. Others have celebrated it. But regardless of how people saw him, losing a member of the royal family, whose been in the public eye for over seventy years, is a big deal. The next step is seeing what the royal family is going to do when he’s laid to rest.
It should come as no surprise, but Prince Philip had already presented his wishes on what was going to be done in the event of his death. This is also a requirement among state figures in England. As of April 13, 2021, the family is planning a small funeral with no public attendance allowed. This is quite the opposite of the situation involving Princess Diana back in 1997. Even though the circumstances surrounding their memorials are different, he wanted something more intimate than a large-scale event.
Being able to plan out your end of life wishes seems like something only available to royalty or super wealthy. The truth of the matter is that anyone can do. These terms can be legally bound within an estate plan document. This is what a health care directive can help accomplish. Along with funerals and memorial services, their also capable of stating which family member would be in charge of legal decisions and even the ability to terminate one’s life based on the medical issue.
But I bet your wondering; what is a health care directive? It’s a legal contract that names a person (typically a close family member or friend) to make decisions in your name should you not be able to (like if you slipped into a coma or became a vegetable). Upon your death, it also gives the selected individual to manage the affairs regarding the body.
What does this have to do with Prince Philip. He was able to add in more specific details into his own health care directive. He had wished to die at home in Windsor Castle, even if the hospital advised against that. This is what a healthcare directive can do. It just so happens he was able to get that into the document before it was too late.
Again, you don’t need to be a member of the royal family to accomplish this. Many people don’t want to have their end of days in a hospital. Most would rather do so in the comfort of their home. I’ll admit it may not be a guarantee, as there’s the chance it may not be doable (transportation or other medical issues) but having a health care directive stating your wishes at least makes it so that they at least have to try.
Also, according to his wishes, Prince Philip had asked for a light funeral ceremony. Funeral arraignments have been around forever, but most people have usually chosen to be buried or to be cremated. Modern people have been more specific in what they want in a funeral. They may want a definite religious ceremony, a list of speakers, and even the kind of parties that are held.
The grieving process is already going to be hard for the family. Having these kinds of instructions in a health care directive should help them through the struggle and give them a guide on what their loved ones would have liked.
If the recent pandemic hasn’t been a reminder enough, then the constant news of Prince Philip should be a wakeup call if you haven’t anything set up. We at the Law Offices of Jeffrey C. Nickerson can help out. Don’t be afraid to contact us for more information about setting up a health care directive or even an entire real estate. We’ll be able to make you feel like royalty when you won’t have to worry about this situation in the long run.
We all know what happened on October 24, 1929, just eight days after Professor Fisher’s bullish prediction, when the Wall Street Crash ushered in the Great Depression, ruining the great economist’s reputation. In hindsight, it is easy to spot the irrational exuberance exhibited in the run up to the greatest economic crisis in modern times. However, the fact remains that Professor Fisher was far from the only economist who expressed this opinion.
Market volatility did not end in 1929. On February 12, 2020, the Dow Jones Industrial Average stood at 29,551.42, an all-time high. Less than a month later, on March 9, 2020, the Dow had fallen 5,700.4 points to end the day at 23,851.02, finally bottoming out on March 11, 2020, at 23,553.22, down more than 20 percent from the February 12 high roughly a month earlier.
Flash forward ten months, however, and the market has rebounded, with an all-time market high of 31,385.76 on February 8, 2021. Along the way, fortunes were made and lost and made again. These fluctuations have humbled pedigreed economists, and retail investors have brazenly rushed in to capitalize wherever possible (GameStop, anyone?). Perhaps with the lesson of Professor Fisher in mind, we may be hard pressed to find any economists willing to make bold public predictions regarding the future performance of the current market.
This unprecedented volatility has created not only enormous opportunities but also immense risks, particularly for those who act in a fiduciary capacity. Volatility places the typical trustee, confronted with duties to both principal and income beneficiaries, in the difficult position of needing to balance growth and income while still mitigating risk. So what are the best practices for trustees acting in this seesaw economy? What legal standards should trustees follow? How should trustees react with care and prudence in a market seemingly untethered to any historical sense of value and predictability?
Courts have confronted these questions since 1830, when Justice Samuel Putnam articulated what eventually became known as the “prudent man standard”:
All that can be required of a trustee to invest, is, that he shall conduct himself faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital invested.
Of course, prudence presents much more of a guideline than a bright line, and courts (and trustees) have struggled ever since to define the standard in a manner that both protects beneficiaries and remains achievable by trustees living in the real, and messy, world of modern capital markets.
For example, for many years following the 1929 Wall Street Crash, trustees understandably placed their focus squarely on risk avoidance, and capital preservation was the name of the game. Large baskets of safe corporate and municipal bonds, and “legal lists” of acceptable investments, ensured that trustees could follow reasonably well-defined standards and avoid the dreaded surcharge resulting from “abuse of the trust.”
Advances in economics in the 1970s significantly changed the understanding of market mechanisms and presented the first big change in trust administration in nearly 150 years. Modern portfolio theory moved the focus from the “prudent person” (as the standard eventually became known) to the “prudent investor.” This subtle yet important change in nomenclature signified a fundamental shift from a focus on safety in individual investments to a more holistic approach aimed at managing risk throughout the entire investment portfolio. Gone were the days of 100 percent bond allocations, and a new era of quantitative risk management dawned.
Inevitably, by the early 1990s this change had found its way to the uniform law movement, and the Uniform Prudent Investor Act was born. As described by the Uniform Law Commission:
The Uniform Prudent Investor Act (UPIA) provides rules to govern the actions of trustees with respect to investment of trust property. Trustees are required to take into account such factors as risk and return, needs of the beneficiaries, the effect of inflation or deflation, general economic conditions, potential tax consequences, and the beneficiaries’ need for liquidity, income, or preservation of capital.
Although the “prudent person” standard received a much-needed facelift in the 1990s, the fact remains that the UPIA retained the “prudence” standard, and courts still struggle from time to time to apply that standard to the facts on the ground. For example, in recent years, some trustees have been found liable for being too conservative. Other times, trustees have been found liable for not being conservative enough. It seems that modern markets have sometimes created an impossible environment for trustees to operate in at a time when trust planning is more important than ever before.
Written by Jill Roamer, JD
In a recent case out of Ohio, a court of appeals analyzed whether the state could recover child support arrears from the estate of a Medicaid recipient. Here, Betty was the legal guardian of her grandchildren, Emily and Bradley. Their father was under court order to pay child support, with Betty as obligee. After both children reached the age of majority, Betty died intestate.
In the probate case, the state filed to recover the amount expended upon Betty during her life. The only asset of the estate was the intangible personal property of the child support arrears. Emily filed an Exception to the Inventory, claiming that the child support arrearages were her personal property and not an asset of the estate. After a hearing on the matter, the trial court ruled that since Betty was the obligee and the amount owed was reduced to a judgement, the arrearages were a party of Betty’s estate.
Emily appealed, arguing that the arrearages were not reduced to judgment before Betty’s death and that she had a superior claim to the money. Emily’s arguments relied heavily on In re Estate of Antkowiak, 95 Ohio App. 3d 546 (6th Dist. 1994). In that case, the court ruled “the existence of a child support arrearage upon the beneficiary’s emancipation and the death of a custodial parent establishes a prima facie case that the emancipated child has been denied the standard of living to which he or she was entitled…he or she has a superior claim to the arrearages. * * * [T]he right to collect support arrearages passes directly to the emancipated beneficiary upon the death of the custodial parent.” However, in that case, the court was clear that this ruling applied only to child support arrearages that had not been reduced to judgment prior to the obligee’s death.
The appeals court here held that Antkowiak was a narrow ruling and most courts do not rely on that precedence. Instead, most courts rely on the general rule that the child was not denied the standard of living to which she was entitled. Rather, the obligee assumed an additional burden when child support wasn’t received, and so that money is owed to them, and subsequently, their estate.
The state argued that since Ohio has expanded estate recovery, whether the arrearages are included in Betty’s probate estate is inconsequential. The court agreed, citing the definition of “estate” in R.C. 5162.21(A)(1):
“(a) All real and personal property and other asserts to be administered under Title XXI of the Revised Code and property that would be administered under that title if not for section 2113.03 or 2113.031 of the Revised Code; (b) Any other real and personal property and other assets in which an individual had any legal title or interest at the time of death(to the extent of the interest), including assets conveyed to a survivor, heir, or assign of the individual through joint tenancy, tenancy in common, survivorship, life estate, living trust, or other arrangement.” (emphasis added)
In the end, the court confirmed that the trial court was correct when it declined to apply the Antkowiak ruling to the case. The arrearages were Betty’s property and not Emily’s property. And because the state has expanded estate recovery, it was not determinate to decide whether the arrearages were a part of the estate or not. The judgment was affirmed.
Written by Robert T. Nickerson
Don't be afraid to admit that despite hearing about Bitcoin millionaires and Cryptocurrency trailers, you don't understand a lot about this kind of new market. Digital currencies are an intangible, electronic form of cash that only exists on computers. Compared to physical currencies like dollars and coins that are physical, digital currencies are still very new and are in the "wild west" era of regulation in the United States. Congress is even in the middle of "digitizing the dollar" to keep up with China in what appears to be a new kind of economic war. But that’s a conversation for another day. I wanted to focus on the personal ownership of cryptocurrencies and how they apply to your estate plan.
As stated before, Cryptocurrency is so new that there have been stories of people throwing out old computers…forgetting that they have hard drives of Bitcoin still stored, and ultimately neglecting potential thousands and even millions of dollars in real world value. We don't want anybody making the same mistake, especially if their heirs might have a better understanding of how to utilize Bitcoin to their advantage. So how do we integrate Cryptocurrency into an estate plan?
First, we have to have a way for beneficiaries to have access to their digital assets. Bitcoin and other digital currencies are already quite secure, but it'll mean nothing if their stored on a computer that someone can't get into because of a lost password. It's important to state in a will where they can find that information. It'll be interesting as like real money, Cryptocurrency can't be traced. Unless if the transfer is done on a platform like a bank or an online store, then there is no electronic or paper trail that can tack a link between two people who make a transfer. But there's an advantage. Because Bitcoin is digital, a transfer could be make in a moment. Documents need to be created to provide legality and proof of ownership.
Second, we have to look into the risks of Cryptocurrency. It can't be studied and exchange like regular money. Because its market is volatile and can fluctuate at different points throughout the day, it needs to be analyzed more like a stock in a private company. Because Cryptocurrency operates outside of United States regulation (as of 2021), neither federal nor state is liable for any losses due to scam or theft. Security options seem to be forming and we can expect even more to come soon, similar to bankruptcy protection.
As for taxes, the current rule by the IRS is that Cryptocurrency is filed as Property rather then currency. This means that the fair market value is set by conversion into U.S. dollars at “a reasonable exchange rate” and transactions involving Cryptocurrency are subject to the capital gains tax regulations. While that doesn't make sense at all, this is all likely to change beyond 2021. This also means that for trusts, writing in cryptocurrencies needs to have very specific language otherwise the wrong names or terms could create problems.
Our office is one of the few in the area that has experience with wills, trusts, estate plans, and the addition of complex assets. Click on the button below to learn more about how we can make the estate planning process simple.
Jeffrey C. Nickerson - Estate Planning Attorney - My Passion is Special Needs Planning!