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Last week, we discussed the benefits of a unique estate planning vehicle known as a Lifetime Asset Protection Trust (LAPT). We referenced this planning tool in the context of how it could have protected Clare Bronfman, the heiress to the multi-billion-dollar Seagram’s fortune, who was manipulated into blowing much of her $200 million inheritance by financing the cult-like group known as Nxivm.

Yet Clare’s case was quite extreme in terms of both the amount of her inheritance and the circumstances that wiped out her wealth. Though an LAPT would have almost undoubtedly protected both her and her family’s fortune, this planning vehicle can benefit families with far less wealth than Clare’s—and offer asset protection from far less outlandish threats.

Indeed, LAPTs are primarily designed to protect your loved ones and their inheritance from much more common threats, such as divorce, serious debt, devastating illness, and unfortunate accidents. At the same time, LAPTs can provide your heirs with a unique educational opportunity in which they gain valuable experience managing and growing their inheritance, while enjoying airtight asset protection.  

To demonstrate how LAPTs can provide protection to families of all asset profiles, here we’ll describe another true story involving a tragic—yet much more relatable—life scenario. While the following events are entirely true, the individual’s name has been changed for privacy protection.

The flooded penthouse

Eric was staying at a friend’s apartment in New York City. The apartment was the penthouse of the building, and Eric decided to run himself a bath. While the bath was running, another friend called and invited Eric to go out with him, which he did.

At about 2 a.m., Eric came back to the apartment and discovered he made a  huge mistake and left the bath running when he left the apartment. The resulting flood caused more than $400,000 in damage to the apartment and the one below it.

While there was insurance to cover the damage, the insurance company sued Eric for what’s known as “subrogation,” meaning the company sought to collect the $400,000 they paid out to repair the damage Eric caused to the property.

Because the flood was due to his negligence in leaving the bath running—a simple, but costly mistake—Eric was responsible for the damage. Now here’s where the inheritance piece comes into play and why it’s so important to leave whatever you’re passing on to your heirs in a protected trust. If Eric had received an inheritance outright in his own name, he would have lost $400,000 of it to this unfortunate mishap.

However, if Eric had received an inheritance in an LAPT, instead of an outright distribution, his inheritance would be completely protected from such a lawsuit—and just about any other threat imaginable.

Safeguarding your children’s inheritance

If you’re like most people, you hope to leave an inheritance for your children. Indeed, it may even be one of the primary motivations driving your life’s work. Yet if you don’t take the proper precautions, the wealth you pass down can easily be lost or squandered. And in certain cases, such as Clare’s, the inheritance can even end up doing more harm than good.  

When it comes to leaving an inheritance, most lawyers will advise you to place the money in a trust, which is the right thing to do. However, most lawyers would have you distribute the trust assets outright to your loved ones at specific ages, such as one-third at 25, half of the balance at 35, and the rest at 40. Check your own trust now to see if it does this or something similar.

But giving outright ownership of the trust assets in this way puts everything you’ve worked so hard to leave behind at risk. While a trust may protect your loved ones’ inheritance as long as the assets are held by the trust, once the assets are disbursed to the beneficiary, they can be lost to future creditors, a catastrophic accident or illness, divorce, bankruptcy—or as in Eric’s case, a major lawsuit.

Rather than risking their inheritance by leaving it outright to your children at certain ages or following certain life events, such as graduating college, you can gift your assets to your children at the time of your death using an LAPT. When you gift an inheritance to your kids via an LAPT, the trustee of the trust owns the assets, not your children.

Therefore, if your kids ever get divorced, file bankruptcy, have a major medical issue, or are ordered to pay damages in a lawsuit, they can’t lose their inheritance because they never owned it in the first place. An LAPT can be built into a revocable trust, which becomes irrevocable at the time of your death and holds your loved one’s inheritance in continued trust for their lifetime.

A trustee of your choice owns the trust assets upon your death. Because the LAPT is discretionary, this individual has the power to distribute the assets at their own discretion, instead of being required to release them in a rigid structure. This discretionary power enables the trustee to control when and how your kids can access their inheritance, so they’re not only protected from outside threats like ex-spouses and creditors, but from their own poor judgment as well.

And if you’re afraid that a trustee would keep your beneficiary from using the trust assets, you can build in protections to ensure your beneficiary has flexible use, unless there would be a significant risk of loss if he or she did. You can even allow your beneficiaries to become Co-Trustees and then sole Trustees of their own LAPT.

And contrary to what some might think, LAPTs are not just for the mega wealthy. In fact, the asset protection they provide is even more valuable for those leaving behind a modest inheritance. With less money to pass on, it’s much more likely that the inheritance could be totally wiped out by a single unfortunate event, as opposed to a much larger inheritance, which might survive even multiple mishaps.  

An educational opportunity

Additionally, you can use an LAPT as a unique way to educate your children about investing, charitable giving, and even running a business. This is done by adding provisions into the trust allowing the beneficiary to become co-trustee of the trust with a person you’ve chosen and trust to support their education.

In this way, the beneficiary would become co-trustee at a predetermined age or stage of life and be able to use and control the trust assets under the supervision of the other co-trustee you’ve named to guide them. You can even allow the beneficiary to become sole trustee later in life, once he or she has been properly educated and is ready to assume full control. As sole trustee, the beneficiary would be able to resign and replace themselves with an independent trustee, if necessary, to provide the ultimate asset protection.

There are several different ways we can structure the trust to meet your family’s unique needs, so be sure to ask us what options might be best for your particular situation.

A priceless gift

If you wish to protect your child’s inheritance from all possible threats, while incentivizing them to invest and grow the money rather than squander and waste it, consider including a Lifetime Asset Protection Trust in your plan for the ones you love. Indeed, the trust’s highly flexible structure, combined with its bulletproof asset protection make it one of the most valuable gifts you can give your loved ones.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

When you create your estate plan, the idea that one of your adult children would ever use their inheritance to bankroll a cult is probably something you’d never dream of, much less anticipate.

Yet that’s exactly what 40-year-old Clare Bronfman, heiress to the multi-billion-dollar Seagram’s fortune, did with hers.

In the end, with her inheritance—and the power that came with it—she was led her down a dark path that seems almost too outlandish to be true.

In May, Clare pled guilty to felony charges of harboring an illegal alien and fraudulent use of a deceased person’s identity as part of a plea deal with federal prosecutors. The charges stem from her role as an executive board member of Nxivm (pronounced NEX-ee-um), a group that prosecutors described as a “deeply manipulative pyramid scheme” that forced some of its members to endure slave-like conditions and even have sex with the group’s leader and founder, Keith Raniere.

Had she gone to trial for her involvement with Nxivm, Clare would have faced up to 25 years in prison. But given her plea, she’ll likely serve just over two years. Her sentencing is scheduled for July 25.

Following Clare’s plea, Raniere, 58, was found guilty in June on seven felony counts, including racketeering and sex trafficking. He faces up to life in prison when he’s sentenced on September 25. His conviction comes following a six-week trial that exposed the world to Nxivm’s sordid inner workings and put wealth’s dark side on full display.

Unforeseen threats

Clare’s sad story highlights just how risky it can be to leave money outright to your children. Indeed, bestowing significant wealth upon your children or grandchildren can turn out to be a blessing—or it can just as easily be a curse.

Fortunately, there are proactive estate planning solutions designed to safeguard your adult children from such scenarios. And these planning protections aren’t just for the extraordinarily rich like Clare’s family—inheriting even relatively modest amounts of wealth can lead to similar issues. Regardless of your asset profile, we can help you put the proper planning vehicles in place to help prevent your heirs from falling prey to wealth’s darkest temptations—or even losing their inheritance to simple mistakes.

Indeed, the planning strategies we describe here can safeguard your child’s inheritance from being depleted out by other, less devious events, such as a divorce, a catastrophic medical expense, or even a simple accident. You just never know what life has in store for your heirs, and the right planning protections can ensure their inheritance is protected from practically all potential threats—even those you could never possibly imagine.

From self-help to self-sabotage

Clare joined Nxivm, which was billed as a life-coaching program, in 2002 at age 23. She reportedly joined the group in hopes that its mentoring might help her fulfill her dream of making the U.S. Olympic equestrian team. In large part due to her substantial financial contributions, Clare quickly rose to the top ranks of the organization and became increasingly close with Raniere.

According to a recent Forbes article, Raniere took advantage of Clare’s estranged relationship with her elderly father, Edgar Bronfman Sr., and emotionally manipulated her into believing that her family’s money was “evil and that she had to purify it by spending it on ethical things like Nxivm.”

To help convince her, Raniere constantly reminded Clare that the Seagram’s fortune was made selling alcohol, and that her grandfather, Samuel Bronfman, earned millions by conveniently setting up his Canadian whiskey distillery directly on the U.S.-Canada border during Prohibition.

Under the spell of Raniere’s devious manipulation, Clare reportedly came to view her financial support of Nxivm as a way to make up for her family’s past. All total, Clare is said to have poured roughly $150 million into Nxivm. Much of the money was spent on funding Raniere’s failed investment schemes in real estate and commodities.

Another big chunk of Clare’s inheritance was spent suing Nxivm’s detractors. During her time with the group, Clare reportedly hired nearly 60 lawyers and spent approximately $50 million on lawsuits against journalists, ex-girlfriends of Raniere, and others who were critical of the group.

Big money can cause big problems

While we don’t know the exact age Clare came into her money or just how much of it she had access to, her total inheritance was valued at an estimated $200 million. The inheritance was reportedly held in a trust, but given that she funneled roughly three-fourths of that sum into Nxivm in just more than 15 years, it’s likely her money was disbursed outright with little or no direction on how it could be used.

Though her case is extreme, Clare is certainly not the first wealthy person to be negatively impacted by inheriting too much money at a young age—nor will she be the last. Similar cases occur quite often, and no matter how well adjusted your children or grandchildren may seem, there’s just no way to accurately predict how their inheritance will affect them.

One unique planning vehicle designed to prevent the potential perils of outright distributions is a Lifetime Asset Protection Trust (LAPT). These trusts last for the lifetime of their respective beneficiaries, and provide them with a unique and priceless gift. With an LAPT, for instance, the beneficiary can use and invest the trust assets, yet at the same time, the trust offers airtight asset protection from unexpected life events, such as divorce or serious debt, which have the potential to wipe out their inheritance.

Exercise your discretion

When drafted properly, an LAPT can be used to educate your beneficiary on how to handle their inheritance. This is done by allowing the beneficiary to become a co-trustee with someone you’ve named at a specific age or stage of life, and then the beneficiary can become the sole trustee later in life, once he or she has been properly educated and are ready to take over.

The LAPT is discretionary, which means that the trust would not only protect your heir from outside threats, like creditors and ex-spouses, but also from their own mistakes. The trustee you name holds the trust’s assets upon your death. This gives the person you choose the power to distribute its assets to the beneficiary at their discretion, rather than requiring him or her to release the assets in more structured ways, such as in staggered distributions at certain ages.

Your direction and guidance

Many of our clients choose to provide non-binding guidelines directing the trustee on how the client would choose to make distributions in up to 10 different scenarios, such as for the purchase of a home, a wedding, the start of a business, and/or travel. Some clients choose to provide guidelines around how they would make investment decisions, as well.

This ensures that future trustees will be aware of your values when determining whether to make distributions, as well as how to invest trust assets, rather than operating in a vacuum of information, which often leads to problems down the road. In many cases, the beneficiary may eventually become the trustee him or herself, and then resign and appoint an independent trustee, if needed, for asset-protection purposes.

Don’t take any chances

You might think that something as depraved as what happened to Clare Bronfman would never happen to your children or grandchildren—but don’t be so sure. It can, and does, happen to even the most successful and upstanding among us. Having too much money at a young age is a Pandora’s Box, so it’s best not to open it.

Yet even if your heirs never experience a threat as evil as Nxivm and Raniere, their inheritance is still vulnerable to more common threats like divorce, poor spending, and sudden accident or illness.

Meet with a trusted advisor to see if a Lifetime Asset Protection Trust is the right option for protecting your family wealth and loved ones from situations and circumstances (no matter what they may be), which are simply impossible to foresee.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

In a recent Facebook post “Processes to go through with your parents before they die,” Daniel Schmachtenberger, founder of the Critical Path Institute, outlined seven simple exercises to use with your parents that can offer significant healing and completion for their life and yours.

While Daniel shared these processes in the context of the impending death of a parent, the reality is that your parents are heading toward death, even if there is no official diagnosis. And starting these processes when mortality is not immediately on the table is even better.

1. Help them make a timeline of their life

Create a timeline of all the big events in their life, starting with birth and their earliest memories up to the present. This is a great way to get to know them even better while you still can. Recalling their life through these stories can help them harvest the gifts, relive the good times, and identify any areas that still feel unresolved.

There are apps for creating timelines, but it is easily done with pen and paper. Create the timeline by writing “birth” on the far left of the page, and draw a horizontal line going towards “death” on the far right. Experiences are placed on the line chronologically in the order they occurred. Positive experiences are depicted as vertical lines going up from the horizontal line, and difficult experiences as lines going down. Write short descriptions to correspond with each experience.

One way to help prompt memories is to ask questions about different people, places, and things from their past: romantic relationships, jobs, and places they lived. Going through old photos, letters, and music can also trigger meaningful memories.

When documenting their life events, the positive experiences can simply be recalled and enjoyed. For the negative ones, you can ask them what they learned from the experience and write that lesson in the description. In this way, you can find beauty and meaning in all of it.

2. Relationship healing

To foster healing in your personal relationship with them, focus on three areas:

●       Peacemaking: Forgive them for any way they hurt you, and help them forgive themselves. Apologize for the ways you hurt them. You want to ensure that neither of you feels any residual pain (resentment, guilt, or remorse) in the relationship.

●       Appreciation and gratitude: Write them a letter detailing everything you learned from them and all the positive experiences you had together. Go deep within to discover all they did for you, really appreciate it, and use the letter to help them feel your appreciation. Pinpoint any of their virtues you hope to embody most in your life and share that commitment with them, so they know they will live on through you once they are gone.

●       Reassurance: It is common for parents to resist leaving you over concerns for your future well-being. Reassure them that you are alright, will be alright, and it is okay for them to go. Using estate planning to help them get their affairs in order is a major part of this.

3. Family healing

If possible, help other family members go through the above healing process with your parents. Help your dying parent make peace with everyone in their life, even if some individuals cannot speak directly with them. Reassure them that you will help take care of those loved ones who are in the most need.

4. Wisdom gathering

Ask them for life advice on anything and everything you can think of. As the old African proverb says, “Every time an old person dies, a library burns,” so make sure to write down or record as much of their personal wisdom as possible.

5. Bucket List

To make the most of the time you have left, ask them if there is anything they really want to experience before they go, and fulfill as many of these bucket-list items as you can.

6. Help them see how they touched the world

In addition to documenting the positive impact they have had on your life, help them inventory all of the meaningful ways they have touched the lives of others. You want them to clearly see all of the beauty and meaning their life has brought to the world.

7. Help them be at peace with passing

While the above steps can help bring them peace, if they experience any fear of death, do your best to help them move through that. When death comes, you want them to be ready to greet her as an old friend.

If they are fond of a particular religion or spiritual practice, you can recite their favorite verses, hymns, and/or prayers. Or they might find comfort in hearing their most beloved poems or songs. Silent or guided meditation is often helpful as well. But sometimes, simply offering them your loving presence and holding their hand is enough.

We are exceedingly grateful to Daniel for sharing these practices. If you would like to share them with friends or family, you can either share this article from us or share Daniel’s note directly here.

Preserving your family’s intangible assets

While the above steps can help bring them peace, if they experience any fear of death, do your best to help them move through that. When death comes, you want them to be ready to greet her as an old friend.

If they are fond of a particular religion or spiritual practice, you can recite their favorite verses, hymns, and/or prayers. Or they might find comfort in hearing their most beloved poems or songs. Silent or guided meditation is often helpful as well. But sometimes, simply offering them your loving presence and holding their hand is enough.

We are exceedingly grateful to Daniel for sharing these practices. If you would like to share them with friends or family, you can either share this article from us or share Daniel’s note directly here.

Legacy planning

Though estate planning is mainly viewed as a way to pass on your financial wealth and property, when done right, it also enables you to preserve and pass on your true legacy: your memories, values, and wisdom. And it can also be a source of overall healing in the family. With the right support, having these all-important final conversations does not have to be intimidating or awkward at all.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

In the first part of this series, we discussed the dangers of reverse mortgages for senior homeowners. Here, we’ll look at how these complex loans can negatively impact your family and estate plan.

For decades, reverse mortgages have been touted as an easy way for seniors to access extra money during retirement. Indeed, there was a time not too long ago when it was nearly impossible to watch TV without seeing at least one commercial extolling the benefits of these unique mortgages.

Yet, reverse mortgages turned out to be a financial disaster for many senior homeowners and their families. Tens of thousands of retirees lost their homes to foreclosure after defaulting on what was promised to be a “risk-free” way to convert the equity in their homes into cash.

Moreover, reverse mortgages were aggressively marketed mainly to low-income homeowners, who possessed minimal financial assets outside of the equity in their homes—the very people most likely to default. And though the federal government has recently enacted new laws to better protect seniors, reverse mortgages are still being hyped as a safe way for retirees to obtain much-needed cash.

Last week, we talked about how reverse mortgages work and discussed the devastating effects they can have on senior homeowners and their spouses when things go wrong. Here, we’ll cover the potential risks reverse mortgages pose for your family and estate plan.

A reverse in value

When it comes to reverse mortgages, you must not only consider the negative effects such loans might have on you while you are living, but also how they could affect your estate and family when you die. Like any loan, a reverse mortgage is a debt that decreases the value of your estate. But unlike most loans, the balance of a reverse mortgage increases with time, rather than decreases.

With a traditional mortgage, you accrue equity and lower the balance of the loan with each payment you make. Upon your death, your estate receives the net equity from your home, minus the balance, if any, remaining on your mortgage. So in most cases, the longer you hold a traditional mortgage (and the more payments you make), the more value your home will add to your estate.

But with a reverse mortgage, it’s the exact opposite.

With a reverse mortgage, you’re taking out a loan against the equity you already have in your home. Since you’re receiving payments from the lender, rather than making them, the equity you have in your home decreases over time, while your loan balance increases. Thus, the longer you hold a reverse mortgage, the less value your home is likely to add to your estate.

The effect on your family

If you take out a reverse mortgage, you can still leave your home to your family in your estate plan. However, you’ll not only leave your loved ones a less valuable asset, but they’ll also have to pay off the balance of the loan after you die, otherwise the lender will foreclose.

Whomever you select to inherit your home will typically get six months to pay off the reverse mortgage. And they should move as quickly as possible because until the loan is settled, interest on the balance and monthly insurance premiums will continue to eat into any remaining equity.

Unless your family has enough money on hand to fully pay off the reverse mortgage upon your death, they’ll probably end up having to sell the home. If so, the proceeds from the sale can be used to pay off the loan (including all fees and interest), and your family keeps any remaining equity. And this is the best-case scenario.

More trouble than they’re worth

While reverse mortgages are designed to stay within the equity value of your home, this only works as long as home values are rising. If home values crash, like they did during the recession, the balance of your reverse mortgage could end up exceeding the market value of your home.

The good news is reverse mortgages are “non-recourse” loans insured through the Federal Housing Administration (FHA). This means your family won’t ever owe more than the home’s appraised value, and lenders can’t come after your family or estate to recoup their loss. If your reverse mortgage balance exceeds your home’s value at the time of your death, your family is only responsible for paying the lender 95% of the home’s appraised value.

For example, let’s say your home is appraised for $100,000, but the reverse mortgage balance is $200,000. To keep the home, your family would need to pay $95,000—95% of the $100,000 market value. Federal mortgage insurance covers the remaining amount.

Lenders, however, still make back their money. If your home’s sale doesn’t meet the lender’s expenses, an FHA fund insuring the loan pays the difference. Not surprisingly, this fund is currently more than $13.6 billion in the red, which reflects just how risky reverse mortgages can be.

So in this scenario, your family would have to go through all of the hassle of selling the home and end up with nothing to show for it. In such a case, your home would be more of a burden than a benefit to whomever ends up inheriting it, which is the exact opposite of how your estate plan is supposed to work.

Given this, unless there’s equity in the home, your family would have little incentive to sell the property and may want to simply hand it over to the lender to avoid the time and expense of foreclosure. Known as “deed in lieu of foreclosure,” your loved ones can do this by signing the home’s deed over to the lender.

Mitigating the damage

Obviously, the best course of action is to never take out a reverse mortgage in the first place, but if you already have a reverse mortgage on your home, it’s absolutely critical that your family knows about it. This is something that you must not hide from your loved ones. If you have a reverse mortgage, talk to your family now to discuss the available options.

Telling your family that you’ve taken out a reverse mortgage may be embarrassing, but if your family is unaware of the loan and you die or need to move into a nursing home, they’re in for a potentially awful surprise. Indeed, your adult children may be counting on your home’s equity to help cover the costs of your long-term care and/or funeral expenses, so they’ll need to know as soon as possible to make other arrangements.

And once you’ve spoken to your loved ones, mitigate any potential fallout through proactive planning strategies.

A trusted advisor

The vast majority of seniors should simply avoid reverse mortgages all together. If you’re in desperate need of extra money during retirement, there are numerous safer options to consider.

And before you make any major life decision, especially one involving the family home, discuss the potential impact on your loved ones’ future. You never know when one seemingly minor choice might end up causing all kinds of trouble for your family down the road.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

If you’ve watched TV lately, you’ve likely seen ads touting the benefits of reverse mortgages. The spots typically feature famous actors like Henry “Fonzie” Winkler, Robert Wagner, and former U.S. Senator Fred Thompson telling elderly homeowners how they can dramatically improve their retirement with a reverse mortgage.

But what the ads don’t show is that reverse mortgages have actually caused heartbreak and financial devastation for thousands of elderly homeowners and their families. In fact, a USA TODAY review of government foreclosure data between 2013 and 2017 found that nearly 100,000 reverse mortgages failed during the years following the recession.

As a result, thousands of elderly citizens ended up losing homes that had been in their families for generations. In other cases, adult children, who expected to inherit the family home, were forced to sell the property (often below market value) or sign it over to the lender a few months after their parent’s death.

To make matters worse, the hardest hit have been low-income homeowners, targeted by shady lenders who dramatically underemphasized the risks of the loans and oversold their benefits. In particular, USA TODAY found that reverse mortgages were six times more likely to end in foreclosure in predominantly black neighborhoods than in neighborhoods that are 80% white.

While the Department of Housing and Urban Development (HUD) and the Consumer Financial Protection Bureau (CFPB) have recently enacted new laws to better protect seniors, reverse mortgages are still heavily marketed as an easy way to access extra money in retirement. Given this, seniors and their families should exercise extreme caution when considering reverse mortgages—and in most cases, avoid them entirely.

How they work

A reverse mortgage is a complex loan that allows homeowners 62 and older to convert some of the equity they have in their primary residence into cash. The amount of equity required to obtain a reverse mortgage depends on your age. Younger borrowers need about 60% equity in their homes to qualify, while those over 80 may need just 45%.

Once approved, you can receive the money in one of three ways: as a lump sum, as monthly installments, or as a line of credit. Because you receive payments from the lender, your home’s equity decreases over time, while the loan balance gets larger, thus the term “reverse” mortgage.

With a reverse mortgage, you no longer have to make monthly mortgage payments, and you can stay in your home as long as you keep up with property taxes, pay insurance premiums, and keep the home in good repair. Lenders make money through origination fees, mortgage insurance, and interest on the loan balance, all of which can exceed $10,000 to $15,000.

Although you often have to read the fine print to learn this, the reverse mortgage loan (plus interest and fees) becomes due and must be repaid in full when any of the following events occur:

●       Your death●       You are out of the home for 12 consecutive months or more, such as in the case of needing nursing home care●       You sell the home or transfer title●       You default on the loan by failing to keep up with insurance premiums, property taxes, or by letting the home fall into disrepair

How things go wrong

While reverse mortgages may seem like a good deal (and they can be for those with ample financial resources) the surge in foreclosures occurred mainly among low-income homeowners—the very demographic most likely to default. These seniors were aggressively targeted by lenders after the recession, when money was tight and credit was less accessible.

Homeowners were attracted by flashy ads claiming reverse mortgages were a way to “eliminate monthly payments permanently,” with “a risk-free way of being able to access home equity.” Other ads promised “you can remain in your home as long as you wish” and “you can’t be forced to leave.” Other times, the sales pitches came directly to seniors’ doorsteps vial mailers, door hangers, and door-to-door salesmen.

Some consumer advocates believe the upswing in reverse mortgages was a result of predatory lenders, who simply switched from selling risky subprime mortgages to selling reverse mortgages after the real-estate crash. Whatever the case may be, those who fell prey to these tactics eventually defaulted on their loans for a variety of reasons.

Some people fell behind on their property taxes after their tax rates went up. Some took the lump sum payment, spent the money too quickly, and then left with nothing to live on. Others defaulted after having to move into a long-term care facility or after their finances were depleted by a medical emergency.

Some of the saddest cases involved spouses who were not listed on the reverse mortgage because they were too young to qualify when the loan was taken out by their older spouse. Younger spouses can be listed as co-borrowers, but they have to be at least 62. These widows and widowers were tragically forced from their homes upon their spouse’s death, after they were unable to pay back the balance of the loan.

New rules offer little help

In 2014, HUD developed new policies to better protect at least some surviving spouses. Under the rules, if a married couple with one spouse under age 62 wants to take out a reverse mortgage, they may list the underage spouse as a “non-borrowing spouse.”

If the older spouse dies, the non-borrowing spouse may remain in the home. But he or she cannot access the remaining loan balance and must continue to meet the loan requirements like paying property taxes and insurance premiums. While this may delay things, these surviving spouses are still likely to be foreclosed on down the road.

In 2011, the CFPB cracked down on some of the most misleading ads. All reverse mortgage advertisers are now required to disclose that the loans must be repaid after death or upon move-out. Additionally, the ads can no longer claim the loans are a “government benefit” or “risk free.”

In spite of these new restrictions, the number of  ads for reverse mortgages hasn’t seemed to decline in any significant way, with more seniors and their families likely to fall for them.

Next week, we’ll continue with part two in this series on the dangers of reverse mortgages, focusing on how these loans can negatively affect your family and estate plan.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

Whenever the topic of estate planning comes up, people invariably mention creating a will. And with good reason—having a will is a foundational aspect of your estate plan.

However, a will is only one small part of effective planning. In fact, if your plan consists of a will alone, you’re guaranteeing your family will have to go to court when you die. There’s a saying in the lawyer world of estate planning: “Where there’s a will, there’s a probate.” And it’s no laughing matter.

In our view, a primary goal of estate planning is to keep your family out of court and out of conflict no matter what happens to you. Yet with only a will in place, your plan can fall woefully short of that goal, leaving your loved ones—and yourself, if you become incapacitated —susceptible to getting stuck in an unnecessary, expensive, time-consuming, and public court process.  

Here’s why having just a will is not enough:

A will offers no protection against incapacity

A will helps ensure your assets are properly distributed when you die. But it offers no protection if you become incapacitated and are unable to make decisions about your own medical, financial, and legal needs.

Should you become incapacitated with only a will in place, your family would have to petition the court to appoint a guardian or conservator to manage your affairs, which can be extremely costly, time consuming, and traumatic. The first article in this series offers an in-depth look at some of the consequences of failing to plan for incapacity.

Your family must still go to court

While you may think having a will allows your loved ones to inherit your assets without court intervention, this is not true. For your assets to be legally transferred to your beneficiaries, your will must first pass through the court process called probate.

The probate process can be an extremely distressing for your loved ones. The proceedings can drag out over months or even years, and in most instances, your family will have to hire an attorney, generating hefty legal bills that can quickly drain your estate.

Moreover, probate is public, so anyone can find out the value and contents of your estate. They can also learn what and how much your family members inherit, making them tempting targets for frauds and scammers.

And if you think you can just pass on your assets using beneficiary designations to avoid all of this… well, that’s just asking for trouble. In fact, we plan to write a whole separate article on that topic in a future installment of this series.

A will doesn’t protect against creditors, lawsuits or poor decisions

Passing on your assets using a will leaves those assets vulnerable to several potential threats. If your will distributes your assets to your beneficiaries outright, those assets are not only subject to claims made by a beneficiary’s creditors, they are also vulnerable to lawsuits and divorce settlements the beneficiary may be involved in.

And if assets left via a will pass to beneficiaries without any conditions, those assets are susceptible to the beneficiary’s own poor judgment. For instance, a sudden windfall of cash could cause serious problems for someone with poor money-management abilities and/or addiction issues.

Not all assets are covered by a will

Some assets can’t even be included in a will. For example, a will only covers assets or property owned solely in your name. It does not cover property co-owned by you with others listed as joint tenants, nor does a will cover assets that pass directly to a beneficiary by contract, such as a life insurance policy or retirement account.

Don’t let your plan fall short

Though a will is an integral part of your estate plan, a will is almost never enough by itself. Instead, wills are often combined with other planning vehicles, such as living trusts, to provide a level of protection devoid of any gaps or blind spots. And here’s the thing: If your plan is incomplete, it’s your family that suffers, having to clean it all up after you are gone.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

In the first part of this series, we discussed one of the most frequent causes for dispute over your estate plan. Here, we’ll look at another leading cause for dispute and offer strategies for its prevention.

No matter how well you think you know your family, you can never predict how they’ll behave when you die or if you become incapacitated.

Family dynamics are complicated and prone to conflict during even the best of times, but when tragedy strikes a key member of the household, minor tensions and disagreements can explode into bitter conflict. And when access to money is involved, the potential for discord is exponentially increased.

No one wants to believe their family would ever end up battling one another in court over inheritance issues or a loved one’s life-saving medical treatment, but we see it all the time.

This is especially true for those who rely on do-it-yourself estate planning documents found online.

The good news is you can dramatically reduce the odds of such conflict by enlisting the support of an experienced lawyer to assist you in creating your estate plan. Even the best set of documents will be unable to anticipate and navigate the complex emotional dynamics that make up your life and family, but we can.

Last week, we discussed one of the most common reasons for dispute, poor fiduciary selection, which involves selecting the wrong trustee, executor, or guardian for your kids. Today, we focus on another leading catalyst for conflict: contests to the validity of your will and/or trust.  

2. Contesting the validity of wills and trusts

The validity of your will and/or trust can be contested in court for a few different reasons. If such a contest is successful, the court declares your will or trust invalid, which effectively means the document(s) never existed in the first place. Obviously, this would likely be disastrous for everyone involved, especially your intended beneficiaries.

However, just because someone disagrees with what he or she received in your will or trust doesn’t mean that person can contest it. Whether or not the individual agrees with the terms of your plan is irrelevant; it is your plan after all. Rather, he or she must prove that your plan is invalid (and should be thrown out) based on one or more of the following legal grounds:

• The document was improperly executed (signed, witnessed, and/or notarized) as required by state law.
• You did not have the necessary mental capacity at the time you created the document to understand what you were doing.
• Someone unduly influenced or coerced you into creating or changing the document.
• The document was procured by fraud.

Furthermore, only those individuals with “legal standing” can contest your will or trust. Just because someone was intimately involved in your life, even if they’re a blood relative, doesn’t automatically mean they can legally contest your plan.

Those with the potential for legal standing generally fall into two categories:

1) Family members who would inherit, or inherit more, under state law if you never created the document.2) Beneficiaries (family, friends, and charities) named or given a larger bequest in a previous version of the document.

Solution: There are times when family members might contest your will and/or trust over legitimate concerns, such as if they believe you were tricked or coerced into changing your plan by an unscrupulous caregiver. However, that’s not what we’re addressing here.

Here, we’re addressing—and seeking to prevent—contests that are attempts by disgruntled family members and/or would-be beneficiaries seeking to increase the benefit they received through your plan. We’re also seeking to prevent contests that are a result of disputes between members of blended families, particularly those that arise between spouses and children from a previous marriage.

First off, working with an experienced lawyer is of paramount importance if you have one or more family members who are unhappy—or who may be unhappy—with how they are treated in your plan. This need is especially critical if you’re seeking to disinherit or favor one part of your family over another.  

Some of the leading reasons for such unhappiness include having a plan that benefits some children more than others, as well as when your plan benefits friends, unmarried domestic partners, and/or other individuals instead of, or in addition to, your family. Conflict is also likely when you name a third party trustee to manage an adult beneficiary’s inheritance because he or she is likely to be negatively affected by the sudden windfall of money.

In these cases, it’s vital to make sure your plan is properly created and maintained to ensure these individuals will not have any legal ground to contest your will or trust. One way you can do this is to include clear language that you are making the choices laid out in your plan of your own free will, so no one will be able to challenge your wishes by claiming your incapacity or duress.

Beyond having a sound plan in place, it’s also crucial that you clearly communicate your intentions to everyone affected by your will or trust while you’re still alive, rather than having them learn about it when you’re no longer around. Indeed, we often recommend holding a family meeting (which we can help facilitate) to go over everything with all impacted parties.

Outside of contests originated by disgruntled loved ones, the potential for your will or trust to cause dispute is significantly increased if you have a blended family. If you are in a second (or more) marriage, with children from a prior marriage, there’s an inherent risk of dispute because your children and spouse often have conflicting interests.  

To reduce the likelihood of dispute, it’s crucial that your plan contain clear and unambiguous terms spelling out the beneficiaries’ exact rights, along with the rights and responsibilities of executors and/or trustees. Such precise terms help ensure all parties know exactly what you intended.

If you have a blended family, it’s also essential that you meet with all affected parties while you’re still alive (and of sound mind) to clearly explain your wishes in person. Sharing your intentions and hopes for the future with your spouse and children is key to avoiding disagreements over your true wishes for them.

The best way to deal with estate planning disputes is to do everything possible to make sure they never occur in the first place. This means putting in place planning strategies aimed at anticipating and avoiding common sources of conflict.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

No matter how well you think you know your loved ones, it’s impossible to predict exactly how they’ll behave when you die or become incapacitated.

Of course, no one wants to believe their family would ever end up battling one another in court over inheritance issues or a loved one’s life-saving medical treatment, but we see it all the time.

Family dynamics are extremely complicated and prone to conflict during even the best of times. And when tragedy strikes a key member of the household, even minor tensions and disagreements can explode into bitter conflict. When access to money is on the line, the potential for discord is exponentially increased.

The good news is you can drastically reduce the odds of conflict through estate planning with the support of a lawyer who understands and can anticipate these dynamics. This is why it’s so important to work with an experienced lawyer when creating your estate plan and never relying on generic, do-it-yourself documents found online. Unfortunately, even the best set of do-it-yourself fill-in-the-blank programs will be unable to anticipate and navigate complex emotional matters like this.

By becoming aware of some of the leading causes of such disputes, you’re in a better position to prevent those situations through effective planning. Though it’s impossible to predict what issues might arise around your plan, the following two things are among the most common catalysts for conflict (we cover the first in this post, and then we will cover the second in next week’s post).

1. Poor fiduciary selection

Many estate planning disputes occur when a person you’ve chosen to handle your affairs following your death or incapacity fails to carry out his or her responsibilities properly. Whether they are acting as your power of attorney, executor, or trustee, these roles entail a variety of different duties, some of which can last for years.

The individual you select, known as a fiduciary, is legally required to execute those duties and act in the best interests of the beneficiaries named in your plan. The failure to do either of those things is referred to as a “breach of fiduciary duty.”

The breach can be the result of the person’s deliberate action, or it could be something he or she does unintentionally. Either way, a breach – or even the perception of one – can cause serious conflict among your loved ones. This is especially true if the fiduciary attempts to use the position for personal gain or if the improper actions negatively impact the beneficiaries.

Common breaches include failing to provide required accounting and tax information to beneficiaries, improperly using estate or trust assets for the fiduciary’s personal benefit, making improper distributions, and failing to pay taxes, debts, and/or expenses owed by the estate or trust.

If a suspected breach occurs, beneficiaries can sue to have the fiduciary removed, recover any damages they incurred, and even recover punitive damages if the breach was committed out of malice or fraud.

The solution to this problem, given the potentially immense responsibilities involved, is to be extremely careful when selecting your fiduciaries, and make sure everyone in your family knows why you chose the fiduciary you did. You should only choose the most honest, trustworthy, and diligent individuals, and also be careful not to select those who might have potential conflicts of interest with beneficiaries.

Moreover, it is vital that your planning documents contain clear terms spelling out a fiduciary’s responsibilities and duties so the individual understands exactly what is expected of him or her. And should things go awry, you can add terms to your plan that allow beneficiaries to remove and replace a fiduciary without going to court.

An experienced attorney who is sensitive to family dynamics can assist you with selecting the most qualified fiduciaries; drafting the most precise, explicit, and understandable terms in all of your planning documents; and ensuring that your family understands your choices so they do not end up in conflict when it is too late. In this way, the individuals you select to carry out your wishes will have the best chances of doing so successfully – and with as little conflict as possible.

Next week, we’ll continue with part two in this series discussing common causes for dispute over estate planning.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.

This week Tom Petty’s daughters escalated the battle over their late father’s estate by filing a lawsuit against Petty’s second wife that seeks $5 million in damages.

In the lawsuit, Adria Petty and Annakim Violette claim their father’s widow, Dana York Petty, mismanaged their father’s estate, depriving them of their rights to determine how Petty’s music should be released.

Petty died in 2017 of an accidental drug overdose at age 66. He named Dana as sole trustee of his trust, but the terms of the trust give the daughters “equal participation” in decisions about how Petty’s music may be used. The daughters, who are from Petty’s first marriage, claim the terms should be interpreted to mean they get two votes out of three, which would give them majority control.

Alex Weingarten, an attorney for Petty’s daughters, issued a statement to Rolling Stone magazine asserting that Petty’s widow is not abiding by his wishes for his two children.

“Tom Petty wanted his music and his legacy to be controlled equally by his daughters, Adria and Annakim, and his wife, Dana. Dana has refused Tom’s express wishes and insisted instead upon misappropriating Tom’s life’s work for her own selfish interests,” he said.

In April, Dana filed a petition in a Los Angeles court seeking to put Petty’s musical assets under the control of a professional manager who would assist the three women in managing the estate’s assets. Dana alleged that Adria has made it difficult to conduct business by acting abusive and erratic, including sending angry emails to various managers, record label reps, and even members of Petty’s band, the Heartbreakers.

Since Petty’s death, two compilations of his music have been released, including “An American Treasure” in 2018 and “The Best of Everything” in 2019. Both albums reportedly involved intense conflict between Petty’s widow and daughters, over “marketing, promotional, and artistic considerations.”

In reply to the new lawsuit, Dana’s attorney, Adam Streisand, issued a statement claiming the suit is without merit and could potentially harm Petty’s legacy.

“This misguided and meritless lawsuit sadly demonstrates exactly why Tom Petty designated his wife to be the sole trustee with authority to manage his estate,” he said. “Dana will not allow destructive nonsense like this to distract her from protecting her husband’s legacy.”

Destructive Disputes

The fight over Petty’s music demonstrates a sad but true fact about celebrity estate planning. When famous artists leave behind extremely valuable – and highly complex – assets like music rights, contentious court disputes often erupt among heirs, even with planning in place.

The potential for such disputes is significantly increased for blended families like Petty’s. If you are in a second (or more) marriage with children from a prior marriage, there is always a risk for conflict as your children and spouse’s interests often are not aligned. In such cases, it is essential to plan well in advance to reduce the possibility for conflict and confusion.

Petty did the right thing by creating a trust to control his music catalog, but the lawsuit centers around the terms of his trust and how those terms divide control of his assets.

While it is unclear exactly what the trust stipulates, it appears the terms giving the daughters “equal participation” with his widow in decisions over Petty’s catalog are somewhat ambiguous. The daughters contend the terms amount to three equal votes, but his widow obviously disagrees.

Reduce Conflict With Clear Terms and Communication

It is critical that your trust contain clear and unambiguous terms that spell out the beneficiaries’ exact rights, along with the exact rights and responsibilities of the trustee. Such precise terms help ensure all parties know exactly what you intended when setting up the trust.

You should also communicate your wishes to your loved ones while you are still alive rather than relying on a written document that only becomes operative when you die or should you become incapacitated. Sharing your intentions and hopes for the future can go a long way in preventing disagreements over what you “really” wanted.

For the Love of Your Family

While such conflicts frequently erupt among families of the rich and famous like Petty, these can occur over anyone’s estate regardless of its value.

Working with the right lawyer to draft clear terms for your plan as well as facilitate family meetings where you can explain your wishes to your loved ones in person and answer any questions they may have both can dramatically reduce the chances of conflict over your estate and bring your family closer at the same time.

Proper estate planning can keep your family out of conflict, out of court, and out of the public eye. If you’re ready to create a comprehensive estate plan, contact us to schedule your Estate Plan Strategy Session. Even if you already have a plan in place, we will review it and help you bring it up to date to avoid heartache for your family. Schedule online today.