Baby Boomers: Do Your Parents Have an Estate Plan?

Let's Talk about.......Baby Boomers: Do your parents have an Estate Plan?
By Alan Orlowsky

Baby Boomer Joe McGill (not his real name) loved his parents, and when they died, Joe and his sister grieved. The fact that his parents left their estate in a chaotic mess didn't diminish Joe's affection for them, but it did cost him and his sister hundred of thousands of dollars in estate tax and legal fees, plus many hours of administrative hassles. Since their mother's will was confusing, Joe and his sister feuded when deciding which of them would keep their mother's collection of antique sculptures. Joe wanted to keep it intact rather than divide and his sister only wanted certain pieces.

The taxes and fees were paid by the estate, to be sure. The problem was the if older McGills had planned their estates wisely, their children - not the IRS and the lawyers - would have inherited that money.

Estate Planning not only preserves wealth for succeeding generations,it also gives the aging parents satisfaction and peace of mine. If they really think about it, most parents would rather leave behind a grand legacy than a costly mess - not to mention help their children and grandchildren achieve their dreams and goals.


Let's talk about what a good estate plan consist of, and then suggest strategies for raising the subject of estate planning with your parents if they normally avoid talking about their financial situation with you.

What's in a good estate plan?

Each of your parents (in fact, every parent and person with substantial assets) should have a solid estate plan. At the very least, such a plan includes a will, durable power of attorney for property and a power of attorney for health care. Affluent parents should use revocable trusts to keep trust assets our of probate - which in IL can take months or years to resolve.

Depending on the value of the estate, the nature of the assets and the family relationships, a plan might also include a life insurance policy and irrevocable life-insurance trust, or a generating skipping gift trust, for example. Irrevocable trusts which we have talked about in this blog, help protect assets from estate tax.

If your parents have trusts, each year they should transfer new probate assets to their trusts. Probable assets include, cash, stocks and bonds, limited partnership shares, valuables and collectibles.

A Estate Plan should also involve life insurance to provide estate liquidity, if a substantial portion of the estate comprises liquid business interests or real estate.

Each Parent should appoint a competent and reliable executor (in the will), trustee (for a trusts) and agents (for powers of attorney). Those designations will need to be reviewed and modified if any of those people become disabled, or deceased.

Raising the Subject

In many families, especially in your parents generation, talking about your personal finances can be very difficult. Some parents don't feel comfortable telling their adult children how much money they have and what's going to happen to their wealth when they die. In some families, if adult children ask their aging parents about their assets, wills, trusts,beneficiaries or heirs the parents might suspect their children of having purely selfish motives. If the children raise the subject of powers of attorney, the parents might wonder if their kids are trying to take control of their property. They also might feel a little wary or suspicious if you advise them to give you and your spouse and your children $12,000 each, this year and every year.

Before you raise these issues with your parents, discuss them with your siblings, so when you do speak about this you present a unified, concerted message. Then you can either approach them as a team, or approach them alone, acting as the quarterback with their consent.

The best way to raise the subject of money, death and taxes with your parents who don't normally discuss those topics with you is to over the course of several visits ask them questions about their lives, their ancestors and your family history. Ask them how they hope to live out the rest of their lives, their dreams and goals, their worries and concerns, how they would like to be remembered, what would they like their grandchildren to remember about them and what family values would they like you to preserve.

If you are sincerer and truly interested in the answers, you will provide your parents with a sense of continuity and heritage. This will also build trust and open up an avenue for talking about sensitive issues like money, estate planning, their health and welfare and any other personal concerns that your parents were previously reluctant to reveal.

 If all fails, you might suggest they talk to their legal and financials advisers about their future - including their financial security, estate plan, long-term health care and future residential options.


There is no shame in wishing to preserve your parents wealth for the sake of your children and future generations.

If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559.

Are you concerened with your current Estate Plan?

Let's Talk about........Being concerned with your current Estate Plan or your Parents.
By: Alan Orlowsky 

Below is a video showing some of the concerns Orlowsky & Wilson can help with. For a full list of services please visit us at www.orlowskywilson.com 

 
If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559.

5 Asset Protection Planning Mistakes

Let's Talk About.......5 Asset Protections Planning Mistakes That Can Annihilate Your Business And Personal Finances!

By Alan Orlowsky

The honest unvarnished truth is that the vast majority of business owners and individuals fail to take simple precautions to protect and preserve their personal and business wealth. Regardless of the value of your assets, they can be protected from unforeseen or even foreseeable, business and personal risk. Catastrophe may occur unexpectedly and can annihilate even the best run business and personal financial portfolio. 

The past recession has heightened awareness of this sobering fact. As such, many of my clients now realize that it is incumbent upon themselves, as prudent businessmen and/or investors, to implement "asset protection planning strategies" that will insulate their economic interests from events beyond their control that could otherwise lead to economic annihilation! As a practicing attorney with over 25 years of experience, I have witnessed firsthand how little or no asset protection planning can lead to catastrophic results which could have been avoided through the use of basic asset protection strategies. This is what I have found:

5 of the most common asset protection planning mistakes I see individuals and business owners make are:

• Failure to legally separate business from personal assets. This mistake is made all the time and allows a business creditor to attack the personal assets of a business owner and his or her spouse. Many business owners erroneously believe they are protected by their corporate shield when in fact they are not. Avoid this mistake and you just might avoid a personal Waterloo.
• Failure to have or maintain required corporate legal records. Time after time I see business owners who fail to expend the resources to create and maintain their corporate records. People are notoriously pound wise and penny foolish and just don't want to expend the time or finances engaging an attorney. In the long run failure to do so can lead to economic devastation. You just have to have good and up to date corporate records in order to protect you business, and sometimes even your personal assets.
• Failure to hire a good attorney. Failure to hire a good attorney to navigate you through a virtual maze of rules and regulations is like rafting down the Amazon River in an inner-tube! Again, I have seen DIY (do it yourself) business records, contracts and paperwork lead to huge financial problems. I advise all my clients that it is always a lot cheaper to hire me now to prevent a legal problem then to hire me later to fix it.
  
• Unnecessarily having a spouse take on business liability exposure. It is not an honor to be an officer or director of your spouse's company.....it is an obligation! Involvement in your spouse's business exposes you to lawsuits, bank obligations and worst of all.....Federal and State Tax obligations!. Such exposure violates one of my most sacrosanct rules.....keep marriage out of it!
• No Estate Planning. There is no easier way to ruin your family's future than by failing to have a Will and Trust and the planning that accompanies them. There can be huge business and personal problems caused by an unplanned death; a few of them follow:
  • forced sale of a business to a surviving partner
  • loss of income for surviving family members
  • fighting among siblings for control of family assets
  • squandering a lifetime of your hard work and
  • government involvement and taxes!

If you have a business, investments and a family and you wish to protect against the harsh realities and consequences of an unforgiving world, you must engage in at least the basic asset protection strategies that are available. Nobody can go it alone, so you will need to hire trained professionals to build the firewalls required in a risky and unpredictable world.

If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559.

Only You Can Prevent Feuds Between Your Children

Let's talk about......Only You Can Prevent Feuds Between Your Children
By Alan Orlowsky

 

Hank and Betty, both in their eighties, each named their two adult children as co-trustees of their trusts. Hank died, leaving a $2 million estate.

While Hank´s estate was still being administered, Betty died, leaving a $1.5 million estate. The two children, Bill and Diane (both in their fifties), feuded over every dime in both estates, causing long delays and costly legal fees.

Hank and Betty (we´re not using real names in this article) could have prevented that messy state of affairs by doing one of the following when they created their estate plan:

• Name only the most competent of their children as trustee of their trusts, and explaining this decision to both of them so they would know what to expect
• Appoint a corporate trustee, which would have administered their estates dispassionately and prevented feuds and hard feelings

Feuds between siblings are not rare when one or both parents pass away. They feud over who should be in charge of the estate, the amount of fees that the executor takes out of the estate for services, how to divide up their inheritance, how and when to sell or take possession of their parents´ real property or business interests, who´s taking advantage of whom, who´s being greedy, and who´s being left out of the decision-making process. Sometimes they will use the occasion of a parent´s unfortunate death to perpetuate ancient sibling rivalries, even if it becomes very costly and is contrary to their best interests. Welcome to real life.

By taking a few simple precautions now, you can prevent - or at least minimize - feuding between your adult children. Here are the most important precautions:

• Meet with your children, either individually or in a group, and describe your estate plan to them. This includes your will, trusts, powers of attorney, and health care directives. If they have questions or concerns about equality or fairness, they can raise them now. You can explain your intentions, or revise your estate plan to accommodate their legitimate needs.

•  Select only one of your children to be executor, trustee, beneficiary, or attorney-in-fact (in the power of attorney)  If you don´t, and your reasons are misconstrued, there may be resentment or even hostility toward you, as well as among your children, after your death.

• Although money is still taboo in some households, tell your children as much as you feel comfortable telling them about your assets, income, net worth, and debts. Give them the names and contact information for your attorney, financial advisers, and business partners. Show them where your assets are located and how they are titled. Then there will be no surprises, and they´ll be prepared to take the necessary action to manage your estate when the time comes.

 Having such discussions with your children will help teach them the right way to relate to their children.

If you are uncomfortable discussing any of these topics with your children, ask your lawyer or other adviser to meet with them. Even if your relationships with your children are somewhat strained, they are still your children, and you undoubtedly want to save them from undue stress and heartache. Also, the discussions you have with them now can go a long way toward mending those relationships so that you can enjoy your family in your remaining years.

If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559 or visit our website www.orlowskywilson.com

Property Inspections and Disclosures - Sellers Obligations

Let's Talk About.....Property Inspections and Disclosures - Seller's Obligation
By: Alan Orlowsky

To view my Part 1 Property Inspections and Disclosures follow link: previous article.

 When it comes to Property Inspections it is important to realize the Seller's Obligation and what they need to disclose regarding the property. Let's talk about what their rights are and discuss good guidelines when purchasing Real Estate.


Seller´s obligations 

The sellers are not required to actively look for defects, only to state what defects they are aware of, if any. For example, they do not need to hire an engineer to assess the property's structural integrity or review floodplain maps.

Sellers also do not have to disclose previous defects that have since been corrected. If a flood control system has been installed in the basement, for instance, the sellers would not have to disclose previous flooding problems - assuming the problems have not recurred since the system was installed.

Inspect, no matter what

Even if you receive the seller´s disclosure report and are satisfied with it, you should conduct a thorough inspection of the property. Take the time to find a qualified inspector: Get recommendations from friends, your lender, or real estate professionals who aren't involved in your deal. (Realtors involved in the deal are likely to favor lenient inspectors who will understate defects, because they want the deal to settle quickly.)

Generally, a sales contract will include an inspection contingency clause, which makes the contract contingent on a satisfactory inspection by the buyers within a limited period, typically five to ten days.

 

Post-inspection options

If your inspector finds defects that weren't in the disclosure report, that doesn't necessarily mean the seller concealed or intentionally omitted them. They simply may not have been aware of them. At this point, your main concern is not whether the inspection report was fraudulent, but how serious the defect is and what you want to do about it. You have several options:

• Terminate the agreement
• Ask the seller to repair the defect
• Revise your offer (lower the price)
• Don't change the deal (repair the defect at your own expense)

You should also conduct a final walk-through inspection immediately before closing, especially if the seller has removed furniture and furnishings since your inspection.

At this point, the sellers have a legal obligation to report any new defects, or defects that they become newly aware of. But you do not now have a right to rescind the contract unless the seller knew of the defect prior to completing the disclosure form.

Fraud 

If you discover, after you close the deal and take possession of the property, a significant defect that was not disclosed by the seller, you can certainly contact the seller and ask them to pay the expense of repairs. In some cases, they might comply with your request in order to avoid legal action.

On the other hand, they might respond: We didn't disclose that problem because we didn't know about it, so we're not obligated to pay? Maybe they're telling the truth, maybe not. If you think they're lying, and they falsified the disclosure report, you can bring an action under the RRPDA (within one year of closing) or sue for fraud in state court. If you win the lawsuit, the sellers must pay the cost of repairing the defect, plus court costs and possibly attorneys fees.

To prevail in court, of course, you would have to prove that the seller was actually aware of the defect and failed to disclose it. Your attorney can do this by introducing repair estimates, inspection reports, appraisals, or statements from contractors or neighbors who were aware of the problem before the property went up for sale.

Anxiety and excitement 

Often the sellers are anxious to sell their property, and fail to adequately reveal defects hoping that they'll be overlooked. At the same time, many buyers are excited about the property and tend to rush through the inspection phase of the negotiations. Protect yourself by taking advantage of every opportunity that the law allows to uncover possible problems before you make what might be the biggest investment of your life.


If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559.

Property Inspections and Disclosures

Let's Talk About......Property Inspections and Disclosures
By: Alan Orlowsky
A version of this article was published in the Pioneer Press, January 3, 2002. Debra Fox, Attorney at Law, helped prepare this article.

Before you buy a home, understand the seller's obligation to disclose defects, and your right to inspect. 

In many cases, people are so in love with a house or condo, and they're so eager to sign a contract and close the sale, that they gloss over the inspection process. Often, when they are advised by an inspector that there might be a significant defect such as a leak or a boundary dispute that's worth investigating further, they tend to downplay it or even ignore it rather than risk delaying -- or worse, scotching -- the deal.

That kind of wishful thinking and denial sometimes lands buyers in a heap of trouble. Once you close the deal and move into the place, if you find a defect and suspect the sellers of fraudulently concealing it, your remedies are much more limited than if you had discovered it (or addressed the issue) well before closing. Fixing a serious defect such as asbestos or water contamination could cost you tens of thousands of dollars. In the worst cases, families have had to move out shortly after moving in, due to such a catastrophe.

The bottom line is, don't rush through the inspection process. Read the seller's disclosure statement carefully and critically, ideally before you make an offer. Never sign a contract that doesn't contain an inspection contingency. Hire a competent home inspector -- and if necessary a specialized engineer -- and thoroughly investigate all indications of a possible defect. If you discover a defect that wasn't disclosed, pursue remedies immediately. Here is an explanation of the law and available remedies:

Disclosure rule

The Illinois Residential Real Property Disclosure Act (RRPDA) requires sellers to complete a disclosure report indicating whether they are aware of any "material" defects in the home or on the property.

The term "material" isn't defined by the Act, but such defects may include:

• Flooding or recurring leaks in the basement; property located in floodplain
• Cracks or other defects in basement walls or foundation
• Roof or ceiling leaks
• Defects in plumbing, electrical, heating, ventilation, air conditioning, or sewer systems
• Lot line or boundary disputes
• Presence of asbestos, lead-based paint, water contamination, high levels or radon
• Underground storage tanks that may leak

Many sellers complete the disclosure form and give it to their Realtor as soon as they put their house or condo on the market. They should make the report available to prospective buyers at the outset. According to the RRPDA, they must provide this information to prospective buyers before entering into a contract with the buyer. But as a matter of common law, the buyer may decide to waive this requirement, although it's usually not a good idea. If they provide the disclosure report after you sign a contract but before closing, you have three business days in which to rescind the contract if you're not satisfied with the report.

Law or no law, you should ask to see the disclosure form before you make an offer. If the seller´s Realtor refuses to show it to you at this point, ask why. If the reason doesn't seem to make sense, you may still decide to go forward with an offer, but be wary and give yourself plenty of time for an inspection and, if necessary, rescission.

If you see the disclosure report and it contains a defect that you're not willing to live with (literally), you have three options: ask the seller to fix the defect at their expense, decide that you will bear the expense of fixing it, or withdraw your offer.

If you have questions about this post or about a particular legal situation, please contact Alan Orlowsky by calling 847-325-5559 or visit our website http://www.orlowskywilson.com

Happy New Year From Orlowsky & Wilson

From All of us at Orlowsky & Wilson we wish you a Happy and Healthy New Year. Should you need any legal services for Estate Planning, Wills & Trusts or Taxation please contact Alan Orlowsky by calling 847-325-5559. Have a safe and healthy New Year.