July 30, 2018
GOALS, ASSESSING NEEDS
In your initial intake meeting with your clients, determine who your client(s) will be. The client is the person who you are drafting the estate planning documents for. Another person can pay for the work, but this person is not your client. Another person can sit in on the meeting with your client's permission, but this person is not your client. But always determine who your client is and provide your focus to your client and not to the other persons involved in the estate planning process. You cannot prepare estate planning documents for someone other than your client unless your client is a conservator or an attorney in fact with powers to seek advice and to execute estate planning documents for the conservatee or principal.
Once you have determined who your client is, you will need to determine the nature of your client's assets. In addition, you will need to determine the nature of your client's bounty. In other words, what does your client own? Who is your client's family? Once you have determined assets and family (married, single, child, no child, issue, no issue, deceased child, issue of a deceased child and so forth) you can begin to determine your client's estate planning objectives as to who should get what.
Often clients have concerns about certain family members. You will want to listen and ask if there are any children or issue with special needs for which a special needs trust would be appropriate. You may want to determine if there are any other concerns with spendthrift children, adult children who are too wealthy or not good with money. A client's estate plan may have unintended effects on their children or issue after they die. A well drafted estate plan will be drafted to include these concerns of the client. For example, a child that is not in a good marriage may benefit from a separate share trust terms to protect that child's inheritance from a bad spouse.
Often clients have an idea of how their estate planning should be structured in this initial intake meeting. This is your time to listen and take notes. Write down what your client is telling you. Ensure you begin to address each desire, concern or problem as it is presented to you. You will want to address each of these matters with your client and ensure that it is either incorporated into the estate plan or you have prepared correspondence to document your file with a letter to the client indicating what matters you will not be able to resolve with estate planning. Often clients are given a questionnaire to complete at home and bring to the meeting. Some clients will complete entirely, some partially and others will find the questionnaire to be "too much." Work with each client as appropriate to ensure that your file is fully documented as to client assets, bounty and desires so that your estate planning is comprehensive. You will want to note any problem family members, note any problem assets for titling purposes and also note anything unusual in your meetings and other interactions with your clients in your file. Again, where appropriate you will want to send your client correspondence to indicate issues that you cannot resolve or that they must address on their own.
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Once you have identified what you will do for the client in the estate planning context, you will want to prepare a retainer to outline the scope of the work. You will want to tell the client what to expect next in terms of receiving and review draft documents and how/when the documents will be finalized for the client's review and execution.
NATURE OF ASSETS AND DEBTS
Most clients will readily tell you what they own, but they may need reminders about unique or unusual assets. You will want to review their documents, investigate titling to real property and assist with identification of unique assets. Identify all assets belonging to your client. Identify the nature of the assets if your clients are married or were married. Separate property versus community property characterizations must be made. Also review if the client will be inheriting additional assets soon – has someone died recently? Is there an on-going probate or trust administration? Does the expected inheritance need to be identified in the estate planning?
Assets include real property, tangible items of personal property and other personal property tied to financial assets (cash, investments, etc.).
Real property: House, condo, rental property, timeshare and so on. Client will need to bring in last vesting deed or other information concerning nature and type of ownership for their real property assets. If property is held with others as tenants in common then each client can transfer their own respective interests to their own trust as it may be. If property is held as joint tenants with right of survivorship then transfers from one client's portion to their own trust will sever the joint tenancy and cause probate later if any property owner dies without their share also in their trust. This needs to be carefully reviewed and discussed with the client. Attorney may want to write a warning letter to client concerning treatment of jointly owned property where estate plans or trusts are not going to be prepared for all owners by your office or another attorney.
Tangible items: car, guns (this needs to comply with laws so research will always be needed if you are not familiar with guns), jewelry, piano, artwork, and so on.
Other personal property: bank accounts such as checking, savings, money market, certificates of deposit, U.S. savings bonds, other bonds, stocks, mutual funds, business interests such as LLCs, partnerships, corporations, and so on.
Business items: when a client owns or runs a business, care must be taken to ensure that the estate plan identifies and assigns such business interests to the trust or otherwise handled in the estate planning. LLCs interests are often assigned to a trust. Corporations issue stock, whether private or public, so such stock must be reissued to the trust or, at a minimum, assigned to the trust for private corporations.
Unusual items: oil and mineral rights, royalty income from art or music or other media must be reviewed and captured in the client's estate plan. Promissory notes must be issued to the trust or assigned. Deeds of Trusts also issued in the name of the trust or assigned. You have to review all of the client's assets and determine what needs to be done. Clients are responsible for telling you what they own. You can protect yourself with a well drafted questionnaire for clients to complete and a checklist so you can run down the list to ensure that you are having an open conversation about their assets.
Retirement assets: in general, retirement assets should be left outside of a revocable living trust. Clients should be advised to name their spouse as the first beneficiary and children as the contingent beneficiaries or other individuals if not married or have no children. Retirement assets may also be community property within a marriage so this needs to be reviewed when making recommendations to clients concerning planning for retirement assets. If a client has a large retirement asset, such an IRA, more research and review needs to be undertaken to see how this asset should be treated and if a conduit trust needs to be drafted or a special beneficiary designation provision should be submitted to the plan owner.
A conduit trust contains specially drafted provisions in a revocable trust that becomes irrevocable upon death where your IRA beneficiaries are entitled to the minimum required distribution from the IRA. The minimum required distribution is still calculated over the beneficiary’s lifetime, so there is still the benefit of stretching out the life of the IRA. A conduit trust is a flow-through entity and does not accumulate income, as each year’s minimum required distribution is distributed to the beneficiary with no trust tax due. See Treasury Regulation Sec. 1.401(a)(9)-4 for a trust to be used as an IRA beneficiary:
1. The trust must be valid under state law
2. The trust must be irrevocable at death
3. The trust beneficiaries must be identifiable in the trust document
4. All beneficiaries must be individuals
5. Documentation must be provided to the custodian of the IRA by October 31 of the year following the IRA owner’s death
Estate Tax Estimations: Where client has retirement related assets, 401k, 403b, IRAs, Roth IRAs or other retirement vehicles as part of their assets – care must be to review the values of these assets to ensure that the entire asset holdings will not exceed the applicable federal estate tax exclusion amount when dollar values are estimated to see if the attorney needs to do additional tax planning. The cash values or death benefit values for life insurance needs to be calculated as well. And yes, add in expected values of all real property in this estimation. Deductions are made for mortgages and other items, but start with a raw calculation of the assets to see if you are in a range near the applicable federal estate tax exclusion amount. You are designing an estate plan for the client based on today's laws. Today's estate plan for that client must be sufficient if the client were to pass away today. You cannot predict the future. So if the client is well under the applicable federal estate tax exclusion amount, you can plan for no estate tax in most scenarios. If the client is higher net worth, more attention needs to be made in evaluating and advising this client.
BLENDED FAMILY
A blended family is easily definable. It is a family unit where the settlors (whether man/woman married couple or a same sex married couple) have children within and outside of the family unit – they have children together and other children not from the family unit. It could also be where this is a second marriage for one or both spouses and the spouses have children outside of the marriage. It could also be where we have a first time marriage with an older spouse and a younger spouse.
Considerations as part of the intake in general is to always ask if there is a prenuptial agreement or other spousal property agreement already in place that may affect the estate planning scheme. It may determine what is separate property. It may also determine what is community property. Another item that comes up more often with a blended families is whether one attorney can represent both spouses in the estate plan. It is advisable to explain to your clients (where you have two) that there is a potential for a conflict of interest, prepare and have them sign a conflict of interest waiver and remind them both that you will not keep confidences. The attorney represents both spouses jointly and cannot withhold information from other spouse Also remind them that if a conflict arises, it will mean that they both will have to secure a new attorney or sign another waiver. For example, a married couple that sees you for an estate plan and later they divorce, your office is not going to be able to represent one spouse against the other spouse in this dissolution of marriage proceeding. Same for a conservatorship proceeding if one spouse becomes incapacitated.
Once you determine you have a blended family and have disclosed the potential conflicts nad obtained waivers, now you need to ask about how the children will be identified and treated. Will all of the children involved to be treated as children of both settlors? In other words: is intention of the settlors is to include in the definitions of "child" and "children," the currently living children of one settlor who are not children of both of the settlors? This treats all children as if they were children of both for dispositive provisions. And how to treat after-born children? They should not be disinherited – avoid the Anna Nicole Smith issue. Of course, children can be treated separately and provisions drafted so that each parent devises their separate property and their one-half of the community to their own children.
Thus, a couple with a child together and the mother has two children – one in the marriage and one before her current marriage can devise a plan where the father's share goes 100% to his child and the mother's share goes 100% to her two children to be divided into equal shares. This means 50% of a community property estate is to one child and the other 50% of the community property estate is divided into halves with 25% to the child together and 25% to the child outside of the marriage.
EXISTING ESTATE PLANS
Care must be taken with clients who have existing estate planning documents. In general, preparing an amendment or codicil to existing trusts or wills may subject the new attorney to liability for what may be contained in the existing estate planning documents. Thus, the new attorney must read and have understood what was in the existing documents as they may be ratified by such amendment or codicil prepared by the new attorney.
It is almost always preferred that if you are going to update existing estate planning documents not prepared by your office originally to have new documents prepared. A restated trust and new pour-over wills. New powers of attorney and new advance health care directives will include new language, meet with the updated laws and often put the client at ease to ensure that their documents are current and comport with their desires.
The California Probate Code allows for a restated trust to take the place of all prior trust documents. Thus, all prior trust documents do not need to be provided or produced in the context of a trust administration where there is a restatement. If a trust can be amended by its terms, read the trust to find out, then a restatement can be prepared to replace the prior trust and any amendments prepared.
A restated trust could be named as follows, to provide you with an example: " The Smith Family Revocable Trust Dated January 12, 1998, as wholly amended and restated on March 4, 2014." The beauty of a restatement is that all trust assets funded into the prior trust will remain vested in the same restated trust.
Also, an existing trust may contain tax savings clauses that are no longer appropriate for a client or clients that must be reviewed. This will be an opportunity for the attorney to review and suggest more appropriate trust type for the current estate planning tax regime and client wealth.