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One of the Most Important Documents – A Financial Power of Attorney

A lot of people have questions regarding wills and trusts.  Those documents do make up a part of a complete plan, but one of the most important documents is a financial power of attorney.

For families without minor children, my first priority is ensuring my clients are taken care of if they cannot take care of themselves.  Now, the medical power of attorney is important to make sure the correct person can make health care decisions.  However, often times, I find medical professionals will follow instructions even without a medical power of attorney.  Now, that may not always be true, so a medical power of attorney is necessary.

However, I can guarantee a bank or financial institution will not allow someone who is not listed on an account to sign.  This is a major concern for those who have the majority of their money in retirement accounts.  On retirement accounts, only one person is listed as an owner for tax purposes.  There may be beneficiary designations, but those don’t go into effect until death.  So, without a power of attorney, if the owner cannot sign, no one can.  This can present a huge problem for married couples who rely on each other’s retirement money.

The same would be true of a couple with a house in joint names.  If the home would need to be sold to provide for them or just to downsize, both would need to sign.  However, if one can’t, the home cannot be sold without court intervention.

A financial power of attorney is an easy solution.  By completing a power of attorney, you can decide who can access financial accounts for you and what powers they have.  So, tell me, who do you trust with your power of attorney?

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Free Advice – Estate Planning Consultation – Burkhardt Law Firm

As soon as someone hears I’m an attorney, I get a rush of legal questions. And I actually enjoy answering questions when I can. However, so many questions don’t have an easy solution or a quick answer.

Every legal question I’m asked creates a whole list of questions that I have to ask in return.  There’s rarely an easy yes or no. In fact, one of the favorite responses of an attorney is “well, it depends.” And it’s the truth.  So much depends on who, what, where, when, how. And for each response, I generally have yet another question!

My other favorite thing that goes hand-in-hand with this is “my neighbor said” or” I heard.” And that’s great.  Your neighbor might be exactly right. But more likely, your neighbor’s situation is just slightly different.  Which is enough that causes what your neighbor said to not apply to you.  Or what your neighbors said failed to mention a really important detail that completely changes everything.

So, when you have a generic legal question, and you’re asking for advice, or you heard something, it’s not that simple. I’m not going to have an answer.  It’s going to take a lot more. That’s the reason I do free consultations.  That’s the reason I want to sit down with people and talk.  Because each person’s situation is going to be slightly different. Each person is going to have a different concern. Each person is going have a different thing that’s important to them.  And that’s what I went to law school for; to ask the questions to find those things out.  It’s after I ask those questions and get the answers (which most people don’t know to ask and didn’t know were important) that I will have an answer.

So, do me a favor next time you have a legal question, or your neighbor told you something: just stop and ask an attorney.  Set up a time to do a consultation and to give specific answers to the questions that your question just brought up.

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Another Estate Planning Attorney – Burkhardt Law Firm

I love working with all the families who have trusted me with their loved ones and avoiding probate through estate planning.  I even appreciate the opportunity to help those who needed probate and let me navigate them through court.

As I look forward to helping more people and families through these legalities, I wanted to also provide a back up, more options, and flexibility.  For those times I’m sick, in appointments, or just booked six weeks out, I’ve hired another attorney:  Lisa Villareal.  She joined our Burkhardt Law Firm family in June.

Lisa has been licensed to practice law in the state of Missouri since 2007.  A St. Louis native, she attended Parkway Central High School in West St. Louis for high school.  She graduated with her B.A. in Political Science from the University of Missouri-Columbia and continued her education at the University of Missouri-Kansas City School of Law. Knowing that she wanted to help individuals and families better plan for their futures she participated in the UMKC School of Law Estate Planning Clinic and was the recipient of the UMB Excellence in Estate Planning Award for her work in the Clinic.  When working in a position with H & R Block she was recognized for her excellent service to clients and now brings this same excellent service to the clients of Burkhardt Law.

Lisa is still shadowing me and learning how I practice, but if you see her in the office or out networking, don’t hesitate to say hi!

 

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5 Cybersecurity Tips to Keep Your Data Secure

In today’s world so much of our lives revolve in the digital world.  Beyond just email or social media, there’s online banking and access to investment accounts.  A lot of personal information is available through these online accounts.  Now, I deal with confidential matters on a daily basis and I’ve hired CMIT Solutions of St. Charles/Chesterfield  to make sure that my client files are well protected, but I asked them to provide me some simple, important, changes to personal digital security to share with you. Here are their five top suggestions:

  1. PROTECT YOUR PASSWORD.

Most of us create passwords that are easy for us to remember, but easy for others to guess. Our passwords may reference a pet, friend, family member, or “happy place”. Then, we adapt that same password to create new ones. Unfortunately, many sites fail to block or encrypt your password; the password that gets stolen from a website you may consider low-risk could hold the key hackers need to access your bank account, amazon account and more. Cybersecurity experts suggest that you use a combination 10+ characters that include uppercase and lowercase letters, numbers, and symbols. They advise you to change your passwords every three months if possible. If this feels like too much, one great tool I use is LastPass, which will manage all of your passwords for your, so you only have to remember a single password for all sites you visit on a regular basis. One final note: Many sites offer two-factor authentication (2FA), which pairs your username and password with a separate piece of data only you could have access to. This could include requiring you to confirm a pin you’ve set; a code form an SMS message or provide a fingerprint. Take advantage of this service whenever you can!

  1. BE AWARE OF YOUR PRESENCE ON SOCIAL MEDIA.

We use social media to connect with family and friends, but there are plenty of strangers ready to use your information for a profit. Social media sites have almost all of your personal information, ranging from your phone number and payment information, your birthday, and the answers to common security questions. A major data breach can easily lead to identity theft. I’m sure you’ve seen friends who’ve had their profile pictures and information hijacked on Facebook in order to be used by scam artists. To keep yourself safe, these social sites are constantly making changes to increase security. Take advantage of this! Use new features Facebook is offering, and be careful about what information you add to your profile, not every field on your profile is necessary or required. Be smart about friend requests, keep your profile private and only add people you know. Finally, be aware that there are scammers out there. Social engineering scams are on the rise: scammers try to gain your trust to learn personal information and then once they’ve gathered enough information, either guess a person’s password or get them to reset. Beware of links and attachments sent through social media, and be cautious if someone you know asks you a strange question on social media (they could be a scammer who’s hacked or created a fake profile).

  1. BACKUP YOUR DATA AND UPDATE YOUR SOFTWARE.

Imagine the headache of trying to reconstruct files and documents if someone were to steal your laptop. External hard drives are inexpensive and worth the cost. Save your data to an external hard drive and keep it in a secure place. Do not rely on thumb drives; they are handy but easy to lose! If your data is ever held hostage by ransomware, having a backup of your data will save you a lot of heartache. Another way to ensure you data is secure, is to update your devices. Companies regularly update software, making it easier to use and, more importantly, more secure.

  1. DON’T CLICK ON AN EMAIL OR WEBSITE IF YOU DON’T KNOW THE SOURCE.

Web browsing can lull us into a false sense of safety, and before we know it, we have clicked on a suspicious link. Not only do you put yourself at risk, but you also expose your friends, family members, and business associates to potential danger. Hackers can snoop around your profiles, likes, and activities and gather information about your contacts.

  1. MONITOR YOUR ACCOUNT FOR ACTIVITY

Log out of all websites and lock devices when you are finished. This means that you will have to log in each time, but it also means that you can see if an unauthorized person has tried to access your account. Delete all accounts that you no longer use.

With a little time and effort, you can begin to secure your electronic devices!

 

 

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When You Don’t Avoid Probate – Part 3 – The Worst-Case

Last month, we took a break from talking about probate to have a guest writer.  However, I want to tell you about the worst-case scenario of probate, or at least what I consider the worst-case scenario.  Before I get into specifics, I’m an attorney, I have to give a caveat:  Law is very fact dependent.  Probate cases can proceed in many different ways and require many different things depending on the specific case.  That being said, a full probate proceeding usually follows this generic procedure:

First, the people applying to be a Personal Representative has to apply for the Letters.  It can either be Letters of Administration if there is no will or Letters of Testamentary if there is a will.  As part of this process, the court requires the information I mentioned before.  If there is a will, the court requires the original will to be submitted.  Depending on the specific case, the heirs or beneficiaries involved may have several different forms to sign off.   These could include waiving bond and consenting to the Personal Representative being named, among others.

I also want to point out that notice has to go out to the legal heirs, not just the people listed in the will.  So this means if someone was disinherited, they get notice they were disinherited and have a court case already filed where they can contest the will.

Once the Letters have been approved, this court order will allow the Personal Representative to collect assets in the name of the estate.  From the estate account valid expenses of the personal who passed (burial, bills, taxes, etc.) can be paid.

After the Personal Representative has been appointed and received the Letters, the court requires an Inventory. This is just a list of assets that were held in the name of the person who passed.

Then after all of this initial work, there’s a waiting period.  Nothing really happens for about 6 months while the creditors have a period to file any claims.

After the creditor claims period, any claims can be negotiated.  Often times, we can set a hearing for the claims and the court will dismiss the claim if the creditor does not appear.  What this means is that I often will go to court, the estate will pay me for my time, but the claim does not need to be paid.

Once all of this has been taken care of, the Personal Representative can begin closing the estate.  To do this, they need to give notice to all of the people receiving money and an accounting (called the Settlement) of what has happened to the assets.  With the consent of everyone involved, some of these formalities can be waived.  They can then hand out the money and close the estate.

What this all comes down to is: The money that is supposed to go to the loved ones, ends up paying for court and legal fees.  Disinherited family have the opening to contest.  Creditors have the opportunity to get paid. The beneficiaries have to wait over (and at best) six months before receiving money.  All in all, a situation most people want to avoid.

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Grandparent Rights

When clients call with family law issues, I am quick to defer to and refer to a few fellow attorneys I trust and who know family law infinitely better than I ever will.  However, one area, I think is important to touch on with regards to estate planning are grandparent rights.  Now I try to help my clients plan with ways to encourage visitation when I/we foresee a problem.  However, to give you a more educated view on those rights, George Halenkamp of Halenkamp Law was nice enough to put some thoughts together.

One unforeseen circumstance that can dramatically effect estate planning for grandparents is when a child goes through a divorce or has died. Goals can quickly change when this scenario occurs, especially when it comes to visitation with their grandchildren. It seems unfortunate that grandparents would have to go to court just to see their grandchildren, but sometimes grandparents are forced to consider their options.

Under Mo. Rev. Stat. §452.402 (RSMo Supp., 2011), the court may grant grandparent reasonable visitation with their grandchild under the following circumstances:

  1. When the parents of a child are filing for divorce, grandparents are able to file a Motion to Intervene to request a reasonable period of visitation from the Court or file to modify an existing order;
  2. When the parent of a child is deceased, and the surviving parent denies the decedent’s parent reasonable visitation with the child; or
  3. If the child resided with the grandparent for a minimum of six months within the two years from the filing of the petition, and if the grandparent has been denied visitation with the child for at least 90 days.

A common assumption has existed over time that grandparents have little to no chance of being awarded visitation with their grandchildren. This assumption is not necessarily true. It is presumed that parents living together know what is in their child’s best interests, but this is a “rebuttable presumption,” meaning that the burden of proof is on the grandparents to prove that granting them visitation is in the child’s best interest.

How do grandparents show that reasonable visitation it is in the child’s best interests? The answer is complex and fact specific. However, generally speaking, Missouri statutes allow the court to appoint guardian ad litem, order a home study or consult with the child in order to determine the child’s best interests. The court may consider several factors in determining the best interest of the child. Additionally, the court may conduct a further analysis to make this decision, including talking to the child about his or her own wishes.

In many cases, grandparents are a valuable part of a child’s life. While the parents of the child do generally have primary rights to the child, grandparents are place into a difficult situation if an unexpected divorce or death happens. Grandparents do have legal options to consider in certain circumstances. It is always preferable for the relationship to stay outside of the court room. However, grandparents sometimes may not have any other choice but to involve the courts.

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When You Don’t Avoid Probate (Pt. 2) – Your Options

So as I mentioned last month, I have been doing a lot of probate work recently.  And there I discussed what is needed to begin probate.  This month I want to discuss what the different probate options are.

The simplest option is the small estate affidavit.  The limitation is that you can only use a small estate affidavit if the total assets are under $40,000.  You also have to have proof of the assets and will not be an executor or personal representative. This means if you don’t know the assets, you cannot use a small estate. But if you know all the assets and they’re under $40,000, a small estate affidavit will result in a court order giving access to those assets. It’s a great option.

Another “easy” option is the determination of heirship. However,  this is only available a year after a person has died. It also requires a court hearing. And because a will has to be admitted into probate within a year of the death, you cannot use a will. The assets can only pass intestate.  At the end of the hearing, there is a court order showing who the heirs are who get the assets. So again, there will not be a personal representative to get access to unknown assets,  but it’s another simple option to get to assets.

However,  if the assets are over $40,000, you can’t wait a year, or if there’s an unknown and you need to gather information,  the only option is a full probate proceeding. A full probate process is what most people want to avoid with a proper estate plan for a few reasons.  First, it opens the assets to creditors and challenges.  Secondly, you’re paying attorney to handle it all.  And finally, in a simple case, it won’t be resolved for over six months and normally will take over a year to complete.  So while, it’s sometimes the only option, it’s the proceeding most people think of and want to avoid.

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When You Don’t Avoid Probate (Pt. 1) – What You Need

As I help clients form an estate plan, the main goal is normally to avoid probate.  There are different ways to do that, beneficiary designations or a trust, but sometimes it simply doesn’t happen.  More and more recently I have been hired to clean up those times when a person hasn’t properly planned.

When a new probate client comes in, there’s a few things that we need to figure out to determine how probate will work:

The assets – Only assets that do not have a beneficiary or owner will go through probate.  So, if a life insurance policy has a beneficiary, it does not need to go through probate.  Or if a bank account has another person listed as an owner (but please don’t DIY plan this way), it does not need to go through probate.  So the first step, is to figure out which assets need to go through probate and the approximate value.

The heirs/devisees – I also need to know about the family left behind.  The court will need to know who the heirs are and if there was a will, who was entitled under the will.  For all these people, I need legal names, addresses, dates of birth, and, if possible, social security numbers.

The death certificate – Where a person lived and when they passed determine which court and which probate process will be used.

As you can see, it’s not a long list of things of things that I need.  However, gathering the information can be difficult.  Even just getting an approximate value of the assets can be hard, because when a person passes most companies will not give out that information until probate has begun.   But this is just the first step to beginning the probate process, next month I’ll explain those processes and how they each work.  From there, I’ll tell you the drawbacks to each and why it’s just best to avoid probate from the start!

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Not Just One – Using One Beneficiary, Instead of Multiple

In the past month, I’ve talk to two different clients who have listed one person as a beneficiary on an asset when the asset is meant to go to multiple people or another person entirely.  If you have done this, please stop reading, and go change it right now!

Now the most common place I see this is for minor children.  Parents will put the person who is supposed to use the money for the child as the beneficiary on life insurance.  Now, I really dislike this for two major reasons.  First, that person is the legal owner of the money and does not have a legal obligation to use it for the child.  Well, if you trust that person enough with the money, hopefully that’s a non-issue.  But even if that’s not an issue, what happens if that person inherits the money then dies?  Chances are it will not go back to the children, but rather a spouse or that person’s children.  Just best to avoid by planning properly for minor children.

The other time I see people do this is for real estate.  They want to avoid a beneficiary deed where all the beneficiaries (and their spouses) must sign and make decisions together; instead they put one person on the beneficiary deed and tell them their wishes.  But the problem is that person has no legal obligation to share the money as instructed.  Further, while there may not be a tax consequence, there are likely extra tax returns that should be filed (which probably won’t be).  In the end, it causes a bigger mess than just creating a proper estate plan with a trust.

Finally, the biggest asset this is a problem with is traditional retirement money.  Instead of listing all the beneficiaries on an IRA, I had a client only list one sibling and ask them to share that money among all eight siblings.  Again, this person has no legal obligation to share, which makes me wary, but even more importantly there is likely to be a tax problem here.  Traditional retirement money has not had income tax taken out of it yet and so when the account is liquidated, income tax is paid at that time.  So, if a person inherits the retirement money, then liquidates it to divide it, that person will be paying a lump sum of taxes.  Instead, by listing all intended beneficiaries, each beneficiary will have the option to retain the retirement money as an inherited IRA, and only pay taxes in small amounts each year.  A much more tax efficient option.

So, if you have set up your plan listing one person instead of all the intended beneficiaries, you might want to reconsider your plan and even start thinking about a trust.

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A New Year’s Resolution – Don’t Wait to Plan

A New Year’s Resolution – Don’t Wait

We have had the wonderful privilege of being extremely busy since I have returned from maternity leave.  I feel extremely lucky and blessed that my clients and those who refer me trust me enough that we had a great 2018 and are looking forward to a full and eventful 2019.  So, thank you to all who read this for your continued faith and trust in me.

However, I do have a bit of a request.  As we enter 2019, if you hear someone talking about a will or power of attorney, any estate plan, with the phrase “We’ve been meaning to do that…” or anything similar, please interrupt.  Now, estate planning is my business, so of course, it’s a bit self-serving.  But that really isn’t the reason.  I’ve had many acquaintances over the years who haven’t used me for one reason or another, and I understand when that happens.  A person can be too close.  But even when I’ve been told a potential client has had their plan done elsewhere, I thank them for getting it done.  Because it can be too late to plan.

I’ve helped a lot of families form a plan to avoid probate, but this year we’ve also helped many loved ones grieving sort through when a plan wasn’t in place.  And I’ll be honest, I prefer the planning in advance.  Many times, probate is simple, a few months, everyone getting along, and a magic court order that gives easy access.  I try to help it work this way any opportunity I can.  That, of course, isn’t all the time.  If there are people who need access to funds immediately, families that are more complicated, or just small assets spread everywhere, it can make probate a nightmare.  Unfortunately, I also have had to tell many families that with the amount of work (and legal fees) involved, probate just wouldn’t be worth it.

There’s also the call I get on a regular basis, where a loved one wants to help get a person a power of attorney, but there’s a question of capacity.  Sometimes, we’re able to proceed, but more often then not, it’s too late.  In that situation, the only way to access accounts would be to go to the court and petition for a conservatorship.

I hate those calls where I am the one breaking the news that court is the only way and often not a practical way because of the legal fees.  It’s terrible for me, and I’m not the one dealing with the situation.  So, do me a favor this year, and if you hear anyone making a resolution to get their estate plan encourage them not to wait!

Burkhardt Law Firm

Phone: (314) 518-1581
Email: mburkhardt@burkhardtlaw.com
Address:
2333 Grissom Dr., Suite 107
St. Louis, MO 63146