Interactive Legal Blog

The Collectibles Trustee: It's crucial to place your treasured items in the right hands

Historical items can be valuable.  This presentation-inscribed Colt Model 1861 New Model Navy Revolver, from the Colt Co. to E.W. Parsons of Adams Express Co., sold for $805,000 at a September 2011 auction. 

by Vanessa L. Kanaga, Esq.

This article was originally published by Heritage Auctioneers & Galleries, Inc., "Trusts & Estates Journal," Fall 2019, page 17.

Tell me if this story sounds familiar: Brian was a military history buff who gathered a carefully curated collection of books and artifacts over his lifetime. By the time Brian died, his collection was quite valuable. Brian named his daughter, Jessica, as the Executor under his Last Will and Testament. Jessica was the only of Brian's three children living nearby, had always been a devoted daughter, and had an MBA, so it only made sense for her to administer his estate. Unfortunately, Jessica did not share Brian's love of military history and, not knowing what she had on her hands, sold most of the collection to a local pawn shop for less than half of what it was worth. Brian's son, Jacob, who shared his father's affinity for the collection, was devastated when he heard what his sister had done. Not only was the estate depleted of valuable assets, Jacob was deprived of the opportunity to own these very meaningful items.

Selecting an Executor or Trustee

Naming an Executor (called a Personal Representative in some states) to administer your estate is an important decision, and can be a difficult one, particularly if you own property that requires special knowledge and attention, such as fine art and collectibles. Though sad, it is safe to say that most estate planners could tell a tale or two like Brian's. Often, the people we trust most to handle our affairs after death did not share all of our interests in life, and may not be the best choice to manage, sell, and distribute items that are precious and valuable. Conversely, those who share a common interest in collectibles may not be the best fit when it comes to handling the other financial and personal aspects of estate administration (not to mention that it can be quite a burden to place on someone who is not a close family member).

Are You a Sitting Duck in Your Law Practice? An In-Depth Look at ADA Accessible Websites

by Audrey Ehrhardt, Esq., CBC, Practice42

ADA accessibility and compliance in law firm websites across the nation are becoming not only more relevant, but a necessity as we see an increasing amount of litigation against businesses over their websites.  Website accessibility lawsuits center around the fact that all, or a portion of, the business website or app is inaccessible to the disabled.  We are watching as the filing of website accessibility lawsuits rises dramatically.  While in 2017, we only saw an increase in these types of lawsuits by 17%, in 2018 we have seen an increase by 181%.¹

Most of us understand and have taken the steps we need to take in order to ensure our physical location is ADA friendly, but what about our law firm website?  From parking spaces and clear, wide entryways to employee training on relay communication and braille friendly documents, our law practices are friendly to disabled persons.  This holds true in many small firms, even when they are not required to be disability-friendly under Title I of the ADA.

Documentary Film, “Lives Well Lived,” Continues to Impact Lives, For Both Young and Young at Heart

In January 2019, at The Heckerling Institute on Estate Planning, a select group of InterActive Legal subscribers were invited to a private luncheon screening of the documentary film, "Lives Well Lived."  The film visits with 40 people ranging in age from 75 to 100 years young and casts a light on what these fully actualized individuals continue to do in order to make their own lives rich and well lived in the latter decades of life.

At the January event, InterActive Legal guests were delighted to meet and have their photo taken with the film’s creator, Sky Bergman.  Ms. Bergman closed out the event by describing the creative process behind the film and answering audience questions. 

 

InterActive Legal Welcomes Deirdre R. Wheatley-Liss, Esq. and Scott M. Solkoff, Esq. to its Advisory Board

Melbourne, FL - InterActive Legal welcomes Deirdre R. Wheatley-Liss, Esq. and Scott M. Solkoff, Esq. to its Advisory Board.

It is my honor to welcome two of the nation’s top elder law attorneys, Deirdre Wheatley-Liss and Scott Solkoff, to the InterActive Legal Advisory Board. It is fitting that Deirdre and Scott join our cadre of Advisors at the same time, because each of them exhibits what I have come to appreciate as the essential qualities of many successful elder law attorneys: compassion for those they serve, a commitment to supporting the elder law community and their colleagues, and the entrepreneurial spirit to develop a thriving practice.

Deirdre, a long-time InterActive Legal subscriber, has a depth of knowledge in the areas of elder law and estate planning, and a phenomenal insight into the business of an elder law practice. She understands the needs of the broad spectrum of elder law attorneys, whether practicing at a large firm or in a solo practice. Scott, in addition to being a talented and successful elder law attorney, has a unique gift for teaching, which I had the pleasure of witnessing when I attended the 360° Elder Law Practice Builder Conference earlier this year. His ability to explain the foundational concepts of elder law and estate planning in a way that is comprehensive yet approachable led to numerous “a-ha” moments for all of us in attendance, regardless of background and level of experience.

Major Change in Planning for Retirement Benefits on the Horizon

by Vanessa L. Kanaga, Esq.

On May 23, 2019, the U.S. House of Representatives passed a bill that, if signed into law, would significantly change estate planning for Qualified Plans and IRAs (referred to herein, collectively, as "Retirement Benefits"). The Setting Every Community Up for Retirement Enhancement Act of 2019 (the "SECURE Act")[1] received overwhelming support in the House, passing 417-3. The SECURE Act extensively amends the provisions of the Internal Revenue Code (the "Code") relating to Retirement Benefits, including provisions that apply during the life of the account owner or participant (referred to herein as the "participant"), as well as provisions applicable to Retirement Benefits inherited by beneficiaries at the participant's death.

In addition to other changes affecting contributions to and administration of retirement accounts, the SECURE Act would eliminate the maximum age for contributions to "traditional" IRAs (currently age 70 ½).[2] It also would raise the age at which a participant must begin taking distributions (referred to as "Required Minimum Distributions" or "RMDs") from a Qualified Plan or traditional IRA from age 70 ½ to age 72.[3] However, one of the more significant changes in the SECURE Act, from the perspective of estate planning professionals, is its effect on the ability to stretch distributions of inherited Retirement Benefits over the life of the beneficiary.

Meet the newest member of InterActive Legal's content team, Mohineet Khosla!

 

Melbourne, FL — InterActive Legal extends a warm welcome to the newest member of its legal team, accomplished estate planning attorney, Mohineet Khosla.

Mohineet Khosla received her J.D. from New York University School of Law in 2001. Following law school, Mohineet practiced for over a decade at Milbank LLP in NYC, where she was a colleague of InterActive Legal Editor-in-Chief and Co-Author, Jonathan Blattmachr, and InterActive Legal President, Vanessa Kanaga. Her practice included providing sophisticated estate planning advice to high net worth families, both domestic and international. Mohineet has also represented clients in audits before the Internal Revenue Service and fiduciaries on complex estate and trust administration matters.

As a consultant with the InterActive Legal Content Team, Mohineet will apply her expertise in researching and developing content for the InterActive LegalSuite programs. Her depth of knowledge and experience, combined with her meticulous and reasoned approach to her work, will allow InterActive Legal to continue to enhance and expand its offerings while maintaining the quality and accuracy that have given InterActive LegalSuite its reputation as the premium automated document drafting system for estate planning and elder law attorneys.

The Merging of Estate Planning and Elder Law

by Scott M. Solkoff, Esq.[1]

Two major pressures are moving the practices of Estate Planning and Elder Law together. The dominant pressure is one of demand. For most Americans, the greatest threat to their financial well-being is not taxes. It is the cost of incapacity and long-term care. Addressing these needs with the ethics and skills of an attorney are in high demand. The second pressure is the continuing erosion of value proposition. This second pressure is further broken down twofold: perceived commoditization and the reduced market for tax planning.

Those who routinely deal with high net-worth clients are largely insulated by these pressures. The very wealthy can bear the storm of incapacity and long-term care and they are more apt to understand the value of good lawyering relative to taxes. Given today’s large exemption amounts, however, only one-tenth of one percent of Americans are subject to federal estate, gift and generation-skipping tax exemptions.[2] Most Americans need a different approach, one that blends the Estate Planning and Elder Law toolboxes.[3]

Estate Planning Attorneys are therefore looking to diversify their practices, address prevalent problems and preserve or increase their income streams. Many are wedding Elder Law to their existing practices. Elder Law is among the fastest growing areas of law and has a great level of personal reward. For Estate Planning attorneys, it is also a relatively easy practice area to incorporate since Elder Law and traditional Estate Planning are not-too-distant cousins. This blog post explains the core practice components of an Elder Law practice and how to determine whether Elder Law is right for you.

Healthy Debate Shines Light on Automated Drafting

by Vanessa L. Kanaga, Esq.

A recent set of articles published in the February issue of Trusts & Estates discusses the pros and cons of using Document Assembly Systems (referred to in the articles as "DAS"). The articles are nicely presented as a Point/Counterpoint feature. In the first article (the "Point")[1], Jonathan G. Blattmachr[2] and Martin M. Shenkman[3] discuss the advantages of using DAS in an estate planning practice, ultimately reaching the conclusion that DAS are a must for estate planning attorneys, because they offer the consistency and efficiency needed to stay competitive in the market. In the “Counterpoint” article[4], Douglas J. Paul[5] warns of the dangers of using DAS in an estate planning practice, primarily focusing on the concern that attorneys will become overly reliant on DAS, rather than applying their own expertise in planning and drafting documents for clients.[6]

Certainly, it goes without saying that my colleagues and I appreciate and share the views expressed in the Blattmachr and Shenkman article. However, what may come as a surprise is the extent to which we respect and welcome the objections and concerns discussed in the Paul article. It may be tempting for those of us in the DAS business to sweep the counterpoint article under the rug, or argue that it reflects an outdated view that will be irrelevant in the near future. Yet, the truth is that Paul raises reasonable points that should be in the mind of any good attorney considering the use of DAS in practice. In fact, I venture to say that those of us in the industry are intimately familiar with the concerns raised in the Paul article, because we face them every day, in addressing the questions of prospective customers, and in the decisions we make regarding our systems and the documents within them. The Trusts & Estates articles shed light on these concerns, creating a welcome opportunity to address them in an open forum. In this post, I will discuss how the concerns raised by Paul, though valid, can be addressed by selecting the right system for your practice.

No Time to Waste

© 2019 by Jonathan G. Blattmachr & Martin M. Shenkman. All Rights Reserved.

With the estate, gift and GST exemption at nearly $11.5 million and scheduled to grow until 2026 when they will be cut in half, few advisers are focusing on wealth transfer tax planning for their clients. And even fewer clients at wealth levels that are not significantly in excess of the current exemptions, e.g. couples perhaps under $25 million, are considering planning options. That may all prove a costly mistake. But nothing seems ever to stay static. And if the political winds turn sharply Democratic, there is a real likelihood that tax changes of extraordinary measure may occur. The good news for some is that the deduction for state and local taxes may be fully restored. There may be bad news for others, such as those holding stock in corporations that may have their income tax rates increased dramatically.

In any case, there are proposals (many of which have been made before) that would drastically affect estate tax planning. Many of the components of the proposals include restrictions on estate tax planning similar to those contained in President Obama’s Greenbook. The climate has also changed. There is an increasing chorus of complaints to the effect that the “wealthy are not paying their share of taxes.” This sentiment may have been compounded by the recent scandal of wealthy and famous people paying bribes to secure college acceptances for their children. Overall, this environment should cause worry for those of wealth and motivate them to act while they can. And because most estate tax planning typically takes years to produce significant positive results, it seems appropriate for practitioners to consider that impact of the proposals on their clients, advise them of potential changes and, at least in many cases, encourage them to act now. There are also significant benefits to beginning planning earlier, rather than waiting for more certainty that the law might in fact change. Every practitioner remembers the rushed transactions at the end of 2012 when it was believed that the exemption might decline from $5 million inflation adjusted to $1 million in 2013. Many of the plans were implemented with inadequate thought and planning, too short of a duration between asset transfers and trust funding and more. These problems were not the result of practitioners and clients both not knowing the risks, but rather were the inevitable result of the compressed time frame during which planning had to be completed. No one should want a repeat of that scenario.

One set of proposals is set forth in Senate Bill S. 309 introduced by Bernie Sanders. S.309 — 116th Congress (2019-2020), dubbed "For the 99.8 Percent Act" (“Proposal”). The title alone reinforces the anti-wealthy sentiment that seems to be growing. Here are some highlights of the bill and a brief discussion as to what the changes mean for certain clients and, perhaps, what they should do.

No One Can Read My Email, (And Other Myths in the Practice of Law Today)

By Michael L. Graham, Esq.

Your law firm email is secure, right? If it were not, you would have issues with your state’s ethical rules requiring you to keep client confidences. As a summary and guide for the multiple state ethical rules, ABA Model Rule of Professional Conduct §1.6(a) provides:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Carrying this focus further, §1.6(c), provides:

A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

First, are your laptop and desktop computers password protected, do they have locators on them so that they can be tracked if lost, and do they contain remotely activated erase software so that one can remotely erase the hard drive if someone tries to connect a stolen laptop to the internet? Is this important? ABA Formal Opinion 477R (revised May 22, 2017) tells us:

A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access.