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A loved one’s passing is felt by their entire surviving family. But when it comes to carrying out the decedent’s final wishes, not everyone has an equal say. In fact, in many cases, only one person—the executor, or personal representative, of the estate—plays a role in administering a will. This role includes gathering the deceased’s accounts and property, paying debts, managing the money and property, then distributing the money and property to the chosen individuals or charities named in the will. The same is true of trust administration. The trustee, and typically the trustee alone, is in charge of managing, investing, and distributing the trust’s accounts and property according to the instructions in the trust document. If you are the executor of your loved one’s estate or the trustee of their trust, there are some things you need to know.

You are responsible for ensuring that the trust and estate administration goes according to plan as laid out in your loved one’s will or trust, possibly with the assistance of a lawyer. Though it is not legally required, you may choose to involve other family members in your meetings with the attorney, especially in the beginning phases of the administration. Bringing others to meetings can provide greater transparency and avoid contention. However, the attorney–client relationship extends solely to you. The attorney has a legal duty to, and takes direction from, only you. 

Key Parties in the Will and Trust

Wills and trusts are estate planning tools that allow people to transfer their accounts and property to others when they pass away. It is possible to have both a will and a trust that are part of a larger estate plan. Although wills and trusts are different kinds of documents, they use similar language to identify the key parties involved in asset distribution. Understanding the key parties will help you to better understand everyone’s role in the administration.

Another important term to understand in the context of will and trust administration is “fiduciary.” A fiduciary is somebody granted legal authority to act in the interests of another. Executors and trustees are fiduciaries. They have been given legal authority by the testator, trustmaker, or the court to carry out the distribution of the testator’s or trustor’s estate accounts and property. A fiduciary’s legal duty, known as a fiduciary duty, extends beyond the estate. Fiduciaries must also act in the best interests of beneficiaries. 

Whom Does the Attorney Represent?

When you, as the executor or trustee, hire an attorney to help you with the estate or trust administration, you are the client. This means that the attorney-client relationship extends solely to you; the attorney has a legal duty to, and takes direction from, only you. 

If you are also a beneficiary under the will or trust that you are administering, you must keep in mind that although the attorney represents you, it is only in your capacity as the executor or trustee. The attorney is there to assist you with the administration, not to handle any issues or advise you on your rights as a beneficiary under the will or trust.

In addition, if you choose to allow a family member to attend a meeting with you and the attorney, the attorney should make it clear to your family member that the attorney represents only you as the executor and no one else.

Keeping Beneficiaries in the Loop

Wills and trusts can be complex and difficult to understand. Most executors and trustees choose to hire an attorney to help them carry out the terms of these legal documents. 

Because executors and trustees owe a fiduciary duty to beneficiaries to communicate with them and keep them reasonably informed about the progress of the administration, it may make sense to invite beneficiaries to your meetings with the attorney. This can be especially helpful if the estate or trust administration is very complex. Allowing the attorney to explain first hand and answer any questions regarding the administration may be easier than remembering everything the attorney said and relaying the information to the beneficiaries.

Attorney meetings are a good setting for open communication, but the attorney–client relationship limits what the attorney can do and say. The attorney will follow instructions from, and is allowed to give legal advice to, only the client. During the meeting, the attorney can answer basic questions from beneficiaries about what to expect during the administration. The attorney can neither give legal advice to, nor act on behalf of, beneficiaries. 

Administration can become contentious when a beneficiary disputes a will or trust or claims that their beneficiary rights are not being protected. In that case, the beneficiary may choose to hire their own attorney. From that point forward, the beneficiary’s attorney can offer advice, communicate directly with the fiduciary’s attorney, and handle other tasks reserved for the attorney–client relationship. 

Setting Up Your First Meeting

If you are currently serving as an executor or trustee and need assistance navigating the administration, please give us a call. We are happy to sit down with you and discuss the process and help guide you through the next steps.

For many people, the thought of meeting with an estate planning attorney strikes fear into their hearts. It can be uncomfortable to even consider the possibility of no longer being able to manage your own affairs, let alone no longer being alive, with your property and accounts passing to someone else. For far too many people, this causes them to put off the crucial task of estate planning. As a result, they are utterly unprepared when something unfortunate happens to them or their loved ones. And let’s face it: All the legal speak can be confusing and intimidating. Do you need a will? Do you need a trust? Or do you need both? What about powers of attorney? And what the heck is a “living will”? 

We are here to reassure you that estate planning is not as scary as so many people think it is. For most people, their fear is the result of the unknown. Not knowing what you are going to encounter at an attorney’s office frequently leads people to imagine all kinds of horrible scenarios and ultimately refuse to pull the trigger and set up an appointment. Forewarned, though, is forearmed. By explaining some of the common questions you might encounter when you meet with an estate planning attorney, we hope to help you prepare for your first estate planning meeting and alleviate some of the fear and anxiety that accompanies it.

Some Common Questions

What keeps you up at night? Though this might seem like an odd question for an attorney to start with, another way of putting this is, “What do you find yourself thinking or worrying about most often with regard to your property, your family, and your future, as well the future of your loved ones?” What the attorney is trying to find out with this kind of question is your motivation for meeting with an attorney in the first place. By identifying your underlying concerns, the attorney will be better able to bring the right legal tools to bear in addressing those concerns. In some cases, the attorney may discover that your most pressing concerns cannot be addressed with legal tools but may require the help of financial, tax, or even healthcare professionals.

Maybe you are at the attorney’s office merely because your financial advisor or tax advisor has told you that you need to get an estate plan in place. Perhaps these professionals have considered your finances and your potential future tax liability and are worried that without the tools that only an attorney can provide, there may be a significantly higher tax bill for you or your family in the future. 

Or perhaps the thing that keeps you up at night is concern for your children. Maybe one of your children has a really rocky marriage, and you are not sure if they will have the financial ability to provide for themselves and their children if the marriage breaks up. How can you protect whatever amount of an inheritance may end up passing to that child from a divorcing spouse? Or maybe you have a child who has special needs and will have significant medical and living expenses in the future because of their condition. Or perhaps you have a child that cannot seem to get ahead in life, has substance abuse issues, or is simply irresponsible with money and regularly needs your help to get back on their feet and headed in the right direction. 

If these are the kinds of things that keep you up at night, an attorney is going to want to understand your particular circumstances in order to properly draft legal documents that address your concerns.

Experienced estate planning attorneys spend ample time with you asking lots of questions to understand the particular dynamics of your family. These types of questions help the estate planning attorney determine where they should spend their time and effort to design an estate plan that will be perfect for your family and address your specific concerns, rather than just telling you what your concerns should be. 

Worst-case scenario questions. Another question your attorney may ask might go something like this: “Imagine yourself on an island with your spouse, your kids, your grandkids, and even great-grandkids for a huge family reunion. Then imagine that a meteor came out of the sky and hit the island directly, killing everyone.” 

Why on earth would an attorney paint such a grim picture? This is actually an important question to help you identify where you would want your money to go if you were to pass away and had no remaining natural heirs to inherit your money. This is not entirely theoretical, as there are real-life cases of entire families perishing in a disaster, for example, in a boat or plane accident. Each state has a default law that determines where the money and property of someone who has passed away with no heirs should go. If you do not like what the legislature has decided for you on this question, you may want to change it in your estate plan to ensure your property only goes to your favorite cousin or aunt, a best friend, or your favorite college or church.

Death and remarriage questions. A common line of questioning often includes the following type of scenario: “Imagine that you or your spouse were to pass away, and six months later, the survivor of you meets an old high school sweetheart who is single. A romance blooms, and they decide to marry soon after. How comfortable are you with the possibility of all of the money and property you acquired during your marriage becoming jointly owned by your surviving spouse and their new flame? Do you have any concerns about your spouse later dying and leaving everything to the high school sweetheart either intentionally or inadvertently?” If you leave everything that you own to your spouse, and that spouse remarries without taking certain legal steps, your spouse might put what you have left behind at risk of ending up in the hands of a total stranger rather than in the hands of your children or your other intended beneficiaries. By identifying these concerns through this type of questioning, an attorney can help you take steps now, while you are both alive, to ensure that your property is as protected as possible. You will have peace of mind that in the event of a remarriage, or even in the event of a lawsuit against the surviving spouse, you have taken the necessary steps to protect your property from being lost to a new spouse or to creditors or predators, and have ensured that what you leave behind will take care of your spouse until they pass away, and then will go to your chosen and intended beneficiaries.

Decisions about minor children. Another extremely important issue an attorney will raise is who should care for your minor children if you no longer can. Related to this question, the attorney will want you to consider who should manage your property and accounts for the benefit of your minor children in the event of your death or disability. Is it best for the people raising your children to be in charge of that money? Or will that invite potential financial abuse and exploitation by those guardians? It may make better sense to have a professional or another family member manage and distribute that money while someone else raises the children.

Healthcare decisions. Your estate planning attorney may also ask who should make healthcare decisions for you if you no longer can. This will require you to imagine yourself in a situation where you are receiving healthcare services but are no longer able to communicate your wishes regarding your care. In that case, do you want your spouse making those decisions? Or if you are not married, should it be a family member or a close friend? 

Your attorney can help you explore the various healthcare scenarios you may encounter as well as the kinds of decisions you are comfortable entrusting to a healthcare agent and those that should not be made by an agent but rather in advance, by you, and documented so that healthcare providers will know what your wishes are with regard to certain types of treatments. Perhaps you never want to receive chemotherapy, radiation, or electroshock therapy. Or perhaps you never want to be placed in a nursing home and would prefer that your money be used to keep you in your own home for as long as possible. If these are decisions you do not want to leave in the hands of others, an attorney can help you identify these scenarios and document your choices.


These are just a few of the questions you may encounter when working with an estate planning attorney. Understanding their purpose will help you prepare for a successful and productive meeting. While some of these questions and scenarios may make you feel uncomfortable or even a bit fearful, doing the hard work of thinking through these kinds of scenarios and how you want them handled is an important first step toward responsibly planning for death and disability, which every one of us will eventually face. Trust us, your loved ones will be thankful for your efforts.

According to a study conducted by Caring.com, the percentage of people aged fifty-five and older who have created a will has fallen from 60 percent to 44 percent since 2019. Although creating or updating your estate planning may seem like a daunting task, a proper estate plan can help address the concerns you may face as a senior citizen. We are here to help you.

Who can help me if I am unable to manage my own affairs?

According to a survey conducted by the US Census Bureau, approximately 69 percent of survey respondents who were age eighty-five and older had at least one type of disability. As you get older, it is more likely that you may need assistance in handling your financial and medical affairs.

A financial power of attorney allows you to choose a trusted person (an agent or attorney-in-fact) to handle your financial matters (sign checks, pay bills, file taxes, etc.). Without a financial power of attorney, a court will need to appoint someone if you need someone to handle financial matters on your behalf. This can take time and money that may not be optimal in the midst of a crisis.

A medical power of attorney allows you to appoint a trusted person as your decision maker to communicate or make healthcare decisions on your behalf if you cannot do so. If you do not have a medical power of attorney, the court may be required to name someone to make these decisions for you, costing your loved ones time and money and infringing on your privacy.

Can someone help me if I am out of town?

A recent New York Times article explored the trend of individuals over age sixty-five traveling more now that a COVID-19 vaccine is available. Whether you are visiting loved ones in another state or crossing countries off your bucket list, you, too, may be traveling more now than you did before. However, the world does not stop just because you leave home for a period of time. A financial power of attorney can allow your agent to handle financial matters on your behalf while you are out of town. Although it may seem scary to allow another person to manage your financial affairs, take comfort in the fact that you can still act on your own behalf if you are able, and if your agent makes a decision you do not like, you can remove them as your agent. This means that you can go out of town and feel assured that your agent can handle your financial affairs, if necessary, while you are gone.

How do I protect my loved ones after I am gone?

Unfortunately, no one is immortal. At some point in time, you will pass away. Although you will no longer be with your family, you can still have a direct impact on your loved one’s financial future. A trust is a great tool to hold the money and property you want to give to your loved ones. Whether the trust is a revocable living trust or a part of your last will and testament, it allows you to set aside a portion of your accounts and property for the benefit of a loved one. You can name someone to oversee the money and property and instruct that person on when and how the money and property must be used. When establishing a trust, there are a few different options for how your loved one can receive the money and property:

We want you to enjoy your golden years to the fullest. One way to make sure that you live a full and happy life is to address your concerns with a proper estate plan. To learn more about the ways in which we can help you and your loved ones, contact us at your earliest convenience.

As a single individual, you may feel overwhelmed when you think about who will step in and make decisions for you if you cannot make decisions for yourself and who will receive your money and property when you die. You may consider your parents or siblings, but depending on whether they are living and the nature of your relationship, they may not be an option. Having an estate plan is important to ensure that your wishes are carried out during your life and after your death. If such worries are preventing you from completing your estate plan, we are here to help you.

Choosing the Right Decision Makers

A time may come when you will need someone to handle financial transactions or make or communicate medical decisions on your behalf. If you have not already chosen someone in a properly executed document, the court will step in and, using state law, choose the person who will make the important decisions for you. Below are a couple of the important roles that, to properly protect yourself, you should name someone to fill. 

Agent under a Financial Power of Attorney

The agent in a financial power of attorney is the individual who carries out financial transactions (such as signing checks or opening a bank account) on your behalf. The duration and scope of the agent’s authority are spelled out in the financial power of attorney. No matter whom you choose, it is important that your agent be responsible, keep detailed records regarding the financial transactions they undertake on your behalf, and have the time to dedicate to the role. If you have no family member or friend whom you trust to manage your financial transactions, you can hire professionals to assist you. 

Agent under a Medical Power of Attorney

If you cannot communicate or make medical decisions, someone else will have to do it for you. By properly naming this person in a medical power of attorney, you retain control over who will make medical decisions on your behalf instead of allowing a judge to select someone to make such decisions. When choosing this person, you must make sure that they will follow your wishes regarding your medical decisions and are available to make or communicate them. If you have no trusted family member to be your medical agent, consider a close friend or a trusted professional. However, state law may prevent certain professionals, such as doctors, from acting as an agent, unless an exception exists.

Choosing the Right Recipients

If you do not have an estate plan prepared, your state’s intestacy statute will determine who receives your money and property (owned solely by you and not controlled by a beneficiary designation) and the amount each legal heir will receive. Intestacy laws vary by state, but generally speaking, money and property go first to a surviving spouse, then to descendants (children or grandchildren), parents, siblings, and siblings’ children, in that order, depending on who survives you. 

If you have a life insurance policy and fail to designate a beneficiary, the proceeds from the policy may be paid to your estate, necessitating the costly and time-consuming probate process, or may go to individuals according to the order outlined in the policy agreement. Similarly, if your retirement account does not have a named beneficiary, that account may also end up going through probate, which may cause unintended income tax consequences or distributed according to the default rules of the account agreement.

Proper Tax Planning

The federal tax system gives preferential treatment to married people. Married couples can take advantage of the estate tax marital deduction and transfer an unlimited amount of money and property, tax free, to the surviving spouse when one spouse dies. In addition, married individuals are allowed to add any remaining part of their deceased spouse’s exemption amount to their own exemption amount. As a single person, you have only your lifetime exemption ($11,700,000 in 2021).

Similar to a married individual, you can give away up to the annual exclusion amount ($15,000 in 2021) without having to file a gift tax return and pay gift tax. However, married individuals can make larger gifts and split the amount between them. For example, Spouse 1 and Spouse 2 can give $30,000 to their child without having to pay gift tax. In this case, a return may still be necessary, but if Spouse 1 and Spouse 2 agree to split the gift, each is technically giving only $15,000 to their child.

Because you can use only your lifetime exclusion amount and the annual exclusion amount, if you are very wealthy, you may need to engage in tax planning earlier and it may be more complex.

We Are Here to Help You

Completing your estate plan allows you to take control by providing instructions about what is to happen during your life and at your death. Estate plans can be drafted in a number of different ways to ensure that your unique wishes are carried out. Call us today to learn more about how we can help ensure that your legacy is protected and that the people and causes you care about are provided for.

A comprehensive estate plan consists of several documents that accomplish three important things. First, they lay out your wishes for the handling of your money and property during life and at death. Second, they explain your medical wishes if you are no longer able to make them yourself or communicate them to others. Third, they list the trusted individuals you want to carry out your financial and medical wishes. 

For some people, choosing trusted decision makers is easy; for others, it may be more difficult due to tense family circumstances, geography, or the lack of living family members. While most advisors and attorneys counsel clients to choose family members or close friends, this may not always be an option. But have no fear. You can consider hiring someone if you do not have a family member or close friend to appoint to one of these important positions. 

Below are some of the important decision makers you may need to select, options for whom to consider if you do not have a family member or friend who can fill the role, and questions to ask the prospective decision maker.

Financial Decision Makers

Executor or personal representative. This trusted individual, appointed in your last will and testament, is responsible for collecting all of your accounts and property, paying your outstanding debts, and distributing your money and property to your named heirs or trustee. This person’s task is to wind up your affairs at your death, which can be time-consuming.

Successor trustee of a revocable living trust. Serving after you, this trusted person or entity is charged with managing, investing, and distributing the money and property from your revocable living trust to you during your lifetime and to your chosen beneficiaries after your death.

Agent under a financial power of attorney. Your agent is an individual you choose to carry out financial transactions on your behalf (such as signing a check or opening a bank account). Subject to your state law, the type of authority and when the agent may act on your behalf can be specified in the financial power of attorney.

When it comes to selecting an agent to handle your financial transactions—whether at your death or during a time when you are unable to manage them yourself—there are several options available to you beyond family and friends.

When interviewing potential candidates, consider asking the following questions:

Personal Care Decision Makers

These may be the most difficult roles to fill because you are asking someone to look after your safety and welfare, as well as that of your beloved pet. Accordingly, each has unique considerations.

Agent under a medical power of attorney. This trusted individual is in charge of making or communicating your medical wishes in the event you are no longer able to make or communicate them yourself. In addition to naming someone, make sure you have completed an advance directive or living will to make your medical wishes known to the healthcare staff that could be treating you. It may also be helpful to draft a letter of instruction to your agent explaining, in your own words, the types of medical decisions you would and would not want made on your behalf. Such instructions can be extremely helpful to guide your agent when difficult decisions must be made.

If you have no trusted family member to be your medical agent, your decision may be more difficult. Because of the sensitive nature of making medical decisions for another person,

consider naming a close friend or trusted professional. It’s worth noting that state law may prevent certain professionals, such as doctors, from acting as an agent, unless an exception exists.

Caretaker for your pet.  You will need to select someone to take possession of and continue caring for your beloved pet if you are no longer able to care for it due to your incapacity or death. Although the law may treat these members of your family as just personal property, if you want to ensure that your pet is taken care of, you need to thoughtfully consider who will be able to care for it.

If there is not a suitable owner among your family or friends, there are many organizations that may be willing to either take your pet or help your loved ones find a suitable forever home for it. 

When interviewing potential candidates for your personal care decision makers, consider asking the following questions. Some of these questions are the same as those offered above for choosing financial care decision makers, but you will want to dig deeper when discussing them with these candidates because you are entrusting these individuals with caring for you and your pet.

Not knowing whom to appoint to these crucial roles can easily derail your estate planning process. Do not let this initial uncertainty prevent you from taking the necessary next steps to protect yourself and those you care about. Call us today so we can discuss your options to ensure that you have trusted decision makers in place to help you when needed.

“Basis” is a term used frequently in tax law. But for many, the term is unfamiliar and intimidating—perhaps something they feel is better left to a certified public accountant to worry about. Nevertheless, a basic understanding of the concept can be very helpful for understanding important estate planning strategies used by your attorney and financial or tax advisors. So what is basis, and why is it important to be familiar with the term, particularly as it relates to your taxes and estate planning? A technical definition of basis is “the value assigned to a taxpayer’s investment in property and used primarily for computing gain or loss from a transfer of the property. When the assigned value represents the cost of acquiring the property, it is also called cost basis.

A simple example illustrates how basis is used in everyday situations: Imagine that you purchased one acre of unimproved land in 1990 for $10,000 and still own it. Generally speaking, this land’s basis is $10,000, the amount you paid for it. Imagine further that you decide to sell the property in 2021, and a neighbor has offered to pay you $100,000 for it. Upon investigation, you determine that your neighbor’s offer is reasonable, so you accept the offer. Your profit (or gain) on your investment is $90,000. This is the amount that you must report to the Internal Revenue Service and your state tax authorities as capital gains on your 2021 income tax returns and that is typically subject to federal, and possibly state, capital gains taxes (depending on your state of residence). 

State capital gains tax rates vary from state to state, and federal capital gains tax rates range from 0-20 percent, depending on a variety of factors associated with the forms and amounts of your other income.

On the other side of the tax equation, it is important to establish the basis of investments even when the value of your investment has dipped below the amount you paid. If you sell your property for a price below its basis, you may be able to report capital losses that can be used to offset capital gains realized on other assets that were sold. If you are actively buying and selling investments, your tax advisor is the person best suited to help you determine how to manage your capital gains and losses to achieve the best tax results available from year to year.

What is stepped-up basis?

Stepped-up basis is a very important tax concept for estate and tax planning purposes. Section 1014 of the United States Code provides that a person who inherits property that was included in the decedent’s estate obtains a new basis for the property that is equal to the fair market value of the property as of the decedent’s date of death. Therefore, an individual who inherits property can sell it and pay little to no capital gains taxes, resulting in significant tax savings for families who intend to pass on highly appreciated property such as land, company stock, or a family business instead of selling or gifting it during their lifetimes.

Continuing with the example described above, if you leave your one acre of land to your only child in your will or trust, their basis in that property at your death will be $100,000 (assuming that amount is the fair market value as determined by a qualified appraisal). If your child were to turn around and sell the property for cash the day after you die, there would likely be no additional capital gains because of the short time between your death and the sale of the property and, therefore, no capital gains taxes due.

What is carry-over basis?

A different basis rule applies to property that is transferred as a lifetime gift from the property owner directly to an individual or to an irrevocable trust for the benefit of another person. This rule results in what is called “carry-over” basis, meaning that the gift recipient’s basis is the same as the giver’s basis. 

In our example above, if you deed your property to your child before you die (or if you make an irrevocable gift of the property to a trust for the benefit of someone other than yourself), the basis for that property remains the same as it was when you owned it ($10,000). This is important to remember because, even if your child holds onto that property for years after you die and then decides to sell it, they will still have your basis in the property. So assuming they sell it for a price greater than the basis, they will probably end up paying significantly more capital gains taxes than would be due if they had inherited the property as a result of your death.

This is not to say that it never makes sense to give away property during life. In some cases, such as when certain property is appreciating rapidly or your estate is large enough to be exposed to estate taxes, it could very well be wise to transfer property out of your estate to avoid the 40 percent estate tax on property that will pass to your beneficiaries or heirs without being sheltered by the estate tax exemption at your death.

Why are people talking about basis right now?

The Biden administration has been openly exploring the idea of eliminating the step-up in basis rule, or at least modifying it significantly, in an effort to increase tax revenues on property passing from generation to generation. If this proposed legislation becomes law, the estate planning landscape will change dramatically, creating a need for many individuals and families to revisit their planning with their legal and tax professionals

Should you be worried?

It is too early to tell whether President Biden has the political capital to be able to push such an impactful tax law change through Congress. He will almost certainly receive stiff opposition from Republicans and perhaps also from a number of moderate Democrats. The jury is still out on how likely it is that this change will be implemented. If President Biden is successful, however, rest assured that tax and estate planning advisors will be working overtime to find creative and effective tax-minimization solutions for their clients. Although the future may be uncertain, we are committed to keeping you informed about the changing landscape. Call us if you have any questions about how we can help you prepare for the uncertain future.

Besides directing what happens to your finances when you pass away, a comprehensive estate plan also addresses the possibility that you could become unable to handle your financial affairs while you are still alive. 

You may have signed a financial power of attorney (POA) that allows one or more people to act on your behalf if and when you become unable to act for yourself. However, a financial POA is not valid in certain situations. Knowing when your POA will not be recognized is an often-overlooked aspect of estate planning. To ensure that you have anticipated every contingency, you should discuss with your estate planning attorney the POA exceptions noted in this article. 

What Is a Financial Power of Attorney?

When you sign a financial POA, you grant the person you designate, known as an “agent” or “attorney-in-fact,” the legal authority to manage your financial matters, including banking transactions, real estate transactions, investments, gift giving, and paying bills. 

You can name more than one person as your agent under a financial POA, though joint agents might not be advisable in some circumstances. You can also appoint alternates in case your first choice cannot fulfill their responsibilities. Before naming anyone in a POA, it is a good idea to consult the person you wish to appoint as agent to make sure they are willing and able to handle the role. 

In most states, a financial POA can be immediate or springing. An immediate POA takes effect the moment it is signed whereas a springing POA is conditional, taking effect when you become incapacitated or when another predetermined condition is present. Both types of financial POA are effective only while you are living. When you die, your designated agent loses their authority. 

Some Situations Can Require Additional Documentation

Financial POAs can be broad, but they are not recognized in all situations. If you want to authorize your agent to work with the Internal Revenue Service (IRS), the Social Security Administration (SSA), the Department of Veterans Affairs (VA), and some financial institutions, you may have to complete additional documentation. 

Working with the IRS

The IRS has its own means for designating an agent. Before an agent can represent you in front of the IRS, you must complete Form 2848, Power of Attorney and Declaration of Representative. Form 2848 authorizes an agent (typically an enrolled agent, an accountant, or an attorney) to represent you in IRS audits and negotiations. But Form 2848 is also required if you just want an agent to handle basic tax matters such as filing your tax forms or paying your taxes. 

According to the Form 2848 instructions, the IRS might accept a POA that meets the requirements for being a substitute and is submitted to the IRS along with Form 2848. Although your signature is not required, your agent must sign the form. Form 2848 also requires you to specify the tax matters and years for which you are authorizing the agent to act. For more information, see IRS Publication 947

Working with the SSA

The SSA does not recognize financial POAs. To designate someone to manage your Social Security benefits (including SSI payments), you must appoint a “representative payee.” You can appoint a representative payee in advance. If you do not appoint a representative payee and the need for one arises, the SSA may appoint one for you. 

A potential representative payee must complete form SSA-11 and, usually, an in-person application at their local Social Security office. Representative payees are expected to fulfill a range of required duties and be actively involved in the beneficiary’s life. They may occasionally be asked to submit a report to the SSA accounting for how they used the beneficiary’s benefits. 

Working with the VA

Veterans who are not physically present or who want help with their claim may authorize another person to represent them when pursuing a claim for compensation or special monthly pension benefits. The veteran does not have to be incapacitated. 

However, the VA states that an “individual with POA under State law is not authorized, based on the State appointment, to engage in VA representation.” The VA allows only certain types of representatives, and they must apply for accreditation using different forms. Individual representatives must use VA Form 21-22a. Accredited representatives must use VA Form 21-22. 

More information about the VA and POA is available in this document

Working with Financial Institutions

Banks and other financial institutions sometimes refuse to honor financial POAs. In some cases, they may simply be exercising caution to protect themselves from authorizing an illegal transaction. In other cases, the institution may have their own standard POA form for accounts under their management. 

In some states, including Florida, financial institutions may be legally required to accept or reject a POA within a certain time frame and could face penalties for unreasonable denials. However, for the sake of expediency, check with your financial institutions and find out whether they have their own power of attorney forms. If they do, bring the form to our office to be reviewed and executed alongside your financial POA. We will also need to ensure that the two documents do not conflict.

We Are Here to Help

Though a financial POA is crucial for ensuring that your financial affairs will be handled according to your wishes, it may not cover all possible needs. By planning proactively, we can help ensure that you are properly protected regardless of the situation. Call us today to review your current estate planning documents or put your own personalized plan in place.

“Hello, my name is [insert your name] and I am your constituent from [insert city and state]. I am calling to ask [senator or representative’s name] to urge the prompt issuance of an executive order, emergency proclamation, or similar order appropriate for our state allowing remote notarization and witnessing by simple means that can be offered to most clients by all attorneys in [your state], regardless of the size of their firm.

With so many attorneys and their clients working from home and socially isolating, the simple act of face- to-face execution of documents needing acknowledgment by a notary public has become an obstacle to business. The state of emergency created by COVID-19 mandates that a simple remote notarization be allowed so that neither notary publics nor signatories have to congregate unsafely just to execute a document. There are several examples of simple remote notarization executive orders that have been issued or are proposed for remote notarization, such as New York’s Governor Cuomo’s recent executive order.

Which option is selected is not critical, just that a simple method is selected. Thank you for your time and for considering my request for your support.”

Find the contact information for your Governor, Representative, and/or Senator here: https://www.usa.gov/elected-officials

Protecting yourself and your assets is basic. We all know the basics by now to protect ourselves from acquiring a virus: wash your hands frequently; clean and disinfect frequently touched objects and surfaces; and cover your cough or sneeze.

Now in California we’ve been ordered to stay home and avoid contact with others. Now is a good time to stay ahead of the estate planning curve, while flattening the virus curve. There has never been a time in recent memory when the need is more pressing for protective documents like a Financial Power of Attorney, Healthcare Directives, or a Living Trust.

Burris Law remains open and fully operational in a secure virtual environment. We are ready to help you get you, your family, and your assets protected. Schedule a virtual appointment.

The holidays are right around the corner, bringing the joyous season of gathering with family and loved ones into full swing. It is the time to slow down, get caught up with loved ones, and enjoy the family and experience quality time around the dinner table. It is also a great idea to take this opportunity to review your estate plan and talk about the topic with your loved ones.

Do Not Be Indifferent

While the entire topic of estate planning can be a touchy subject, covering your eyes about the issue is not good for you or your family. According to a Caring.com survey from 2017, as many as six in 10 Americans do not have an estate planning document put together -  like a will or a trust. This is particularly alarming when it is estimated that $30 trillion in wealth is set to transfer between baby boomers and their heirs in the next few years. Accordingly, it is vital that families discuss estate planning well in advance of an emergency or life tragedy - while the eldest members of the family are still physically and mentally healthy. Leaving the topic to chance can result in disastrous or costly outcomes.

Time it Right

Not surprisingly, estate planning is a topic that does not come up in everyday conversation. And randomly informing your loved ones who will get your things when you die or if you become incapacitated will likely damper the holiday spirit.

There are ways, however, to discuss estate planning during this season with grace and tact. Instead, choose or make a time when you and your loved ones can be together and talk within a comfortable, calm, and private environment. Make sure that everyone is relaxed and distractions are at a minimum so the conversation stays on track.

In an ideal situation, the parents - or the elders - will bring up the subject. Sometimes, however, they refuse to discuss estate planning. In such a case, children have to broach the subject. Asking where important papers and records are kept is a great start.

Boundaries Are Important

Once you find the time, place, and opportunity for the conversation about estate planning to happen make sure to set down some ground rules. Keep the discussion as transparent as possible, perhaps by having each family member address their thoughts, questions, or wishes and discuss together. Some items that may be on the list to discuss may include:

Bottom Line

While discussing estate planning needs can be straightforward and simple, the conversation can quickly become complicated when personalities clash or emotions get in the way. The main goal is to let your family and loved ones know you have a plan, without needing to go into detail about the plan’s contents. We can help parents and children come together and create an appropriate plan that will meet your family’s short- and long-term estate planning needs.

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Burris Law is a family-owned law practice based in Orange, California that specializes in Probate, Trust Administration, Estate Planning, Real Estate Law, and Business Law.
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