Paul O. Dillon, Attorney at Law

Relocating in Retirement? What You Need to Know before You Go

Moving in retirement is a big deal. Whether moving to be closer to family or trying to cut your living costs, moving in your sixties or seventies should only happen after much consideration and careful planning. A recent article, “Moving in Retirement? 5 Things to Ponder Before You Pack” from Nerd Wallet, explains the details.

Lower property taxes or income taxes are an attraction for many. However, look at all the costs to get a total picture, including the cost of living, estate taxes and housing costs, which have rocketed in many Sunshine states. You may find the difference is not as much as you thought. Suppose you’re selling a business before you leave. In that case, your current state may be more interested in recouping taxes than you think, so speak with an estate planning attorney to make the sale as tax efficient as possible.

One unexpected opportunity from moving outside of a Medicare Advantage’s service area is the chance to change your Medicare coverage. Relocating provides an acceptable reason to change a Medicare Advantage plan or sign up for original Medicare. It is also a time when you can sign up for Medigap coverage. You can normally only sign up for Medigap during open enrollment, a six-month period after you turn 65, and when you have Medicare Part B. This coverage is difficult to buy later in life if you have health issues.

Don’t forget to notify your insurance companies and Social Security if you move.

Could you rent first? If you’re moving to a place where you’ve summered for twenty years, renting for the first year is best. The winters may not be as bucolic as the summer. If you have to sell a house quickly after a short period, it could be a costly mistake. You’ll also own capital gains taxes on any profit made on a home sale if you move after living in a new location for less than two years.

What level of healthcare services do you need now or might need in the future? Healthcare becomes more critical as we age, especially if we are living with a chronic condition. If services are not the same quality or are a day’s drive away, your move could lead to bad health outcomes and added stress.

Estate law is state-specific.  If so, your estate planning documents—last will and testament, power of attorney, health care power of attorney, living will, trusts and other documents—may not be considered valid by the courts in your new state. Consult with an estate planning attorney about what needs to be changed to be sure that your estate plan will give you the same results in your intended new state.

Will you enjoy your daily life in your new location? Retirees active in social activities, from sports to community theater to volunteer work, report enjoying their retirement. Will you be living with people who share your interests and values? Will you feel comfortable if your political views differ from those around you?

One last point: transportation doesn’t usually feel like an issue until it is. If your children live on the West Coast and you’re considering moving to a small New England town, will the added cost make frequent visits prohibitive? If your retirement agenda includes a lot of international travel, you may want to consider how living far from an airport will impact your travel plans.

Reference: Nerd Wallet (Aug. 5, 2024) “Moving in Retirement? 5 Things to Ponder Before You Pack”

Estate Planning for Digital Assets

Whether you know it or not, you have a “digital footprint,” defined as the trail of data you create when using the internet, including photos, opinions, videos and financial and tax records. Just as we need an estate plan for traditional assets, a recent article from Think Advisor, “4 Ways to Help Clients With Digital Assets,” urges us to have a plan for digital assets. This makes life far easier for loved ones after we pass, protects the estate and limits identity theft.

The first step is to take inventory of your digital assets. This includes everything from assets owned by your business to your personal life. Online content, graphics, audio and videos are just the start. These four categories may be helpful:

Personal assets: Photos, videos, emails, contact lists, medical records, blogs, e-books, e-gaming assets, information on frequent flier miles, loyalty programs, etc.

Social assets: Facebook, Linked In, Instagram, Pinterest, X (Twitter), What’s App, Telegram and any platform where you communicate and post with others.

Financial assets: Investment and retirement accounts, banks, credit cards, tax documents, Pay Pal, Apple Pay and cryptocurrency.

Business assets: Websites, domain names, customer information, vendor information, intellectual property.

A digital inventory should not be part of your will, as the will becomes a public document once it is filed with the court. However, it should be treated the same as wills, trusts and transfer-on-death documents: kept in a secure location.

Next, name a Digital Executor. This is not yet legally binding in all states. However, you’ll want to name a tech-savvy person who can manage digital assets. This needs to be someone comfortable with the digital world and who understands what you want to happen to your digital assets.

For the most part, email accounts with companies like Yahoo and Google are actually owned by the companies and only licensed to users. Whether you remember or not, when you created the account, you opted into a “Terms of Service Agreement” or TOSA and agreed to use the platform. However, you didn’t purchase the email account itself.

Some platforms allow you to name a legacy contact to take control of your digital accounts. However, you’ll have to name someone, and they’ll need to reach out to the company and provide documentation as requested.

This may sound like a lot of work. However, not addressing digital assets means your digital and traditional assets may be vulnerable to cybercrime, including identity theft, hacking and fraud. Unlike traditional assets with a hard-copy paper trail, your digital executor will not be able to locate and manage digital assets without this information.

Talk with your estate planning attorney about how digital assets are handled in your state and for their recommendations on preparing this part of your estate.

Reference: Think Advisor (Aug. 4, 2024) “4 Ways to Help Clients With Digital Assets”

Can You Prepare for the Unexpected in Life?

It often takes a dramatic event, like an accident or illness, to wake us up to the importance of planning for the future. A recent article, “Are you prepared for a life-changing event?” from the Chattanooga Times Free Press, begins with a letter from a reader who experienced a bad car accident. At age 55, he had no plan for long-term care and questioned what he needed to do to protect himself and his family.

Step one in planning to protect the family is to have term, universal, or whole life insurance. Depending upon your financial situation, you likely need personal life insurance in addition to what you receive through employment.

Long-term care is missing from many people’s plans. The best time to purchase a long-term care insurance policy is during your thirties or forties when you are likely in relatively good health. This is usually not the time that people are thinking about long term care, unfortunately. The younger you are, the less costly they will be. Ensure that any policy includes at-home care and care provided in a nursing or other skilled care facility.

You may end up purchasing a life/annuity insurance policy with a provision for long-term care coverage. Since there are fewer and fewer life insurance companies selling long-term care coverage, this may be your best option.

Planning for the future also means having an estate plan prepared by an experienced estate planning attorney. You’ll need a power of attorney for you and your spouse, so you can manage their personal affairs if they are too sick or injured to do so themselves. This is not automatically granted because you are married, so don’t overlook it. If no one is a POA and something happens, you may end up having your affairs managed by someone the court has appointed instead of a loved one.

You’ll also need to have a medical power of attorney, sometimes called a health care power of attorney, so you and your spouse can act on each other’s behalf if you are incapacitated. Being someone’s married spouse used to be enough for this, but not in today’s highly regulated (and litigious) environment.

A living will is tough to contemplate. However, it is a blessing for those you love. This document is used to state your wishes if you should become incapacitated. Do you want to be kept alive by artificial means? In what situations would you want to be resuscitated? Your estate planning attorney can explain the different options to consider.

Your last will and testament is used to distribute property in the event of your death. These documents are state-specific, so you’ll want to work with an attorney in your jurisdiction. They can be combined with trusts to help minimize federal and state estate taxes and control how assets are distributed.

Speak with an experienced estate planning attorney to clarify your wishes and prepare you for the future, in the short and long term.

Reference: Chattanooga Times Free Press (July 6, 2024) “Are you prepared for a life-changing event?”

What a First-Time Executor Needs to Know

The executor of an estate is named in the will, chosen by the decedent, and, ideally, has been asked to serve. According to the article “Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor” from The Wall Street Journal, executors had no idea they were being given the job or what they needed to do.

Most people don’t realize how much work there is in settling even a modest estate, nor how much family drama might occur. If there is no will, then the court gets involved, which can add thousands of dollars and take months or even years to settle the estate.

One such story comes from a systems engineer whose father-in-law didn’t name him executor in his will but, on his deathbed, asked his son-in-law to take on the role. The other executors were more than happy to step down. The family had to apply with the court to have him named administrator.

It may feel better to name a family member, but someone coping with grief may not be up to the task. Naming one adult child as an executor could create problems if the siblings don’t get along. Having co-executors can lead to stalemates, where nothing gets done.

Choosing an impartial person, such as a trusted and competent friend or an estate planning attorney, may be a better option. You should have a conversation with the person to be sure they are willing to serve as executor and be clear about whether or not compensation should take place.

Without a will, settling the estate becomes complicated. The article also refers to a retired defense attorney—who should have known better—who never got around to writing a will or naming an executor. Her stepdaughter had been caring for the retired attorney and her finances for years. However, because she was a stepdaughter and there was no will, the court appointed a relative to handle the estate and inherit assets. The executor chose to help the bloodline relatives. However, when she died suddenly, and a stepbrother took over, two more years passed before the estate was settled.

Executors who aren’t prepared for what’s coming are often exhausted and resentful when a mess has been left for them to clean up. A better legacy to leave is one where everything’s taken care of, including a will, trusts if appropriate and clear conversations with the executor and family members.

Reference: The Wall Street Journal (June 29, 2024) “Grief, Then Paperwork: The Messy, Thankless Job of an Estate Executor”

Can You Get Around Probate?

As any estate planning attorney will tell you, probate takes time, costs money and adds stress to settling a loved one’s estate. A reporter shares her personal experience in a recent article appearing in Market Watch, “Inheritance isn’t automatic: The probate process can take almost two years and cost thousands of dollars.”

Most people have a vague notion of what probate is. They understand it to be a process where the family must file the will with the country court and wait for it to be approved before distributing assets. If there’s no will, they may think probate is the process of settling the estate.

Others think inheritance happens automatically, with heirs receiving 35% of an estate. This is not true. One of the easiest ways for assets to go to heirs outside of probate is to make the most of beneficiary designations. Certain financial accounts offer the option to assign someone as a beneficiary, usually investment, retirement and bank accounts. After the account owner dies, the heirs apply for their inheritance with a death certificate and proof of their identity.

A recent study showed that only 2% of people understood that the average period of time to probate an estate is 20 months. While there are some jurisdictions where probate happens more efficiently, most estates take a long time to go through the process.

How can you avoid probate or simplify your estate so fewer assets go through probate? Your estate planning attorney will be able to explain how using trusts takes assets out of the estate. Another is simplifying your life. If you have assets with multiple investment companies, for instance, consolidating them into one account with one financial institution could streamline the process for your heirs.

While you’re consolidating your accounts, check on your beneficiary designations. If you opened an investment account twenty years ago, you may have named someone who isn’t in your life anymore. They may be happy to receive a surprise inheritance from you. However, your family won’t be able to get the assets, even if your will says otherwise.

For an excellent example of how to manage an estate, consider the actor Matthew Perry. Most of his estate was transferred to heirs through trusts, which avoided large assets going through probate and kept his personal business private. One bank account had no named beneficiaries, so his family went to probate court to file his “pour-over will.” This is a will where assets not already in trust are directed to be added to the trust after death. Because the will was filed in court, reporters were able to obtain information about this one account. The rest was private.

Consult with your estate planning attorney to determine how to structure your estate best to avoid or minimize probate for your loved ones.

Reference: Market Watch (July 17, 2024) “Inheritance isn’t automatic: The probate process can take almost two years and cost thousands of dollars”

Do Single Childless People Need an Estate Plan?

A single person without children can focus on their personal goals, including philanthropy. However, it takes planning to ensure that their assets are distributed according to their wishes. A recent article, “I’m an Estate Planner: 8 Ways Single and Childfree People Can Manage Their Assets” from AOL, provides tips for singles with no children and notes that they need an estate plan.

One of the challenges facing singles is the need to have an estate plan in place earlier in their lives than marrieds or parents. If the state is unable to identify a next of kin, the state will take the assets as unclaimed. This is probably not what anyone has in mind for their property.

Consider the people and organizations that have meaning for you. Have an estate plan prepared by an experienced estate planning attorney, who will help you clarify who might be a suitable heir. It may be a close friend, charitable organization, niece, or nephew. Remember to update your will as life changes occur.

For some singles, the preferred option is to “die with zero.” The concept is not to leave any generational wealth behind but to live their lives to the fullest, including philanthropy and gifting while they are living. This lets them see the good work done by charities and the benefits to those they choose to give assets to.

A challenge for some singles is identifying a person to serve as their executor, who will administer their estate, including distributing assets, after their death. If no executor is named in a will or there is no will, a court will name an administrator, and assets will be distributed according to the state's laws.

Do single people need to establish trusts? Trusts are extremely useful in the event of incapacity, which no one wants to think about but needs to be addressed. If you become incapacitated, the trustee can use the funds in a trust to keep your bills paid and your household running. There are also trusts used in charitable giving to meet your philanthropic goals or trusts to protect assets if you need long-term care.

Designating people to serve as your Power of Attorney and Healthcare Proxy is especially important for singles with no children. This way, people of your choosing can oversee your day-to-day financial and legal matters and be involved in your medical decisions.

Finally, don’t leave any of this to chance. Have conversations with people you’ve chosen to fulfill various roles, including executor, power of attorney, healthcare proxy and trustee. Make sure that they understand what you are asking them to do, and be sure they are willing to take on the tasks.

A consultation with an estate planning attorney is the first step to implementing a plan.

Reference: AOL (June 7, 2024) “I’m an Estate Planner: 8 Ways Single and Childfree People Can Manage Their Assets”

Am I Obligated to Pay My Deceased Parent’s Medical Debts?

Being responsible for your parent’s medical debt plus your medical expenses is a genuine worry for many Americans. A recent article from U.S. News & World Report starts with an unsettling title: “This Is Why You Might Be Responsible For Paying Your Parents’ Medical Debts.” A total of 25 states currently have “filial responsibility laws,” enacted to give adult children the responsibility to support parents who can’t provide for themselves.

The reality is more nuanced than the headline. Technically, you could be required to pay for some of your parents’ essential needs if they cannot. In Nevada, a law states that if there’s a written agreement to provide care, the child has control over and access to the parent’s assets or income, and the child can financially support the parents.

In most cases, certain triggering events must occur before the children need to pay their bills. For one, the parent must be found to be indigent. If parents receive nursing home care and cannot afford to pay for care until they qualify for Medicaid, the facility could sue the children.

Enforcement now rarely occurs. In Pennsylvania, a statute was proposed to prevent having family members support impoverished family members, including a person’s “child, spouse and parents.”

However, there’s more to the story. Adult children might get phone calls and letters from debt collectors if medical bills are unpaid. If a healthcare provider doesn’t receive payment and sells the debt to a third-party collection agency, the collection agency then owns the debt. It may turn to any viable source—typically, an adult child.

What can you do? Unless you co-signed or agreed to be a guarantor on bills for your parents, you are not liable for the debt. The collection agency will hope you don’t know this and press for payment. They may not be polite about it either. They cannot sue you or add the debt to your credit reports by law. They can be very aggressive. However, you have the law on your side. You don't have to pay if you’re not legally responsible for the bill.

You’re also protected by the Fair Debt Collection Practices Act (FDCPA), which gives you the right not to talk with third-party debt collectors. Once you tell the person it’s not your debt and to stop contacting you, they are bound by the FDCPA to stop contacting you.

There are steps to prevent any accidental mingling of funds with parents. For starters, don’t co-sign debts, including loans, mortgages and credit cards. Read nursing home contracts thoroughly; some contracts may attempt to sign you up as a responsible party. Don’t sign anything you don’t understand—ask your estate planning attorney to review the contract first.

Plan by ensuring that your parents have wills, trusts and powers of attorney with medical directives. Talk with them about insurance policies and find out if they have created trusts to protect their assets. If they are relatively healthy, see if they are eligible for long-term care insurance.

Put a plan in place for the inevitabilities that occur in life. They may be spry today. However, aging is not always a kind or easy process. If it’s likely they will need your help, and you’re able to do so, build in some emergency funds for their needs. If parents have not put any estate planning into place, including planning for long-term care, talk with your estate planning attorney about how to help them get started.

Reference: U.S. News & World Report (June 28, 2024) “This Is Why You Might Be Responsible For Paying Your Parents’ Medical Debts”

Your College Student Needs a Power of Attorney for Finance and Healthcare

Once a child reaches the age of legal majority, they are considered an adult with privacy rights.  This means that parents lose access to private information. This can have dire consequences if the student is involved in an accident or gets seriously ill, explains the article “Navigating The Transition To Adulthood: A Legal Guide For Parents” from mondaq. With proactive steps, parents can address these situations before they occur.

Whether or not your insurance covers your child’s healthcare doesn’t matter. Without a Healthcare POA, parents cannot make medical decisions, speak with healthcare providers, or talk with the health insurance company. Parents are strongly urged to have their college-bound student complete a Healthcare Power of Attorney.

If there is no POA and the child is incapacitated, parents will have to go to court to be able to make medical decisions for their child. Hospitals and healthcare providers are extremely strict about following these rules to avoid litigation and fines. No matter how bad the situation is, don’t expect any rules to be bent.

Your adult child should also have a Living Will. This is a document controlling decisions about end-of-life. It only becomes effective when a person is in a state of permanent unconsciousness, like a coma, or if they are terminally ill. The student uses this document to express their wishes concerning care: do they want to be artificially fed, hydrated, or kept alive by extraordinary means? Do they want to become an organ donor? This document conveys their wishes and can save the family an unimaginable amount of added stress during a trying time.

A Durable Power of Attorney is used to name a person, known as an “agent” or “attorney in fact,” to act on their behalf. The agent can take care of legal and financial matters. This is needed in case of incapacity so the parent or trusted person may deal with financial institutions, colleges, courts and any other company or organization on behalf of the student. Without it, parents cannot access account information or act on the student’s behalf.

Does your student need a will? The estate planning attorney who helps create the documents listed above can help you answer this question. Depending on their situation, if the student owns a car, has a bank account, an inheritance, or sizable cryptocurrency accounts, they may need a will.

The documents mentioned above should also be in place for parents. If parents don’t have a will, Power of Attorney, Healthcare Power of Attorney, Living Will and trusts, if appropriate, their newly minted adult will have a lot to deal with if they should both die unexpectedly. A visit to the estate planning attorney for all generations is a good idea.

Reference: mondaq (June 24, 2024) “Navigating The Transition To Adulthood: A Legal Guide For Parents”

Estate Planning for Digital Assets

Almost every state has by now enacted laws giving executors the right to manage digital assets, including computer files, web domains and cryptocurrencies, reports a recent article from Forbes, “Smartphones, Email, Other Digital Assets And Your Estate Plan.” Another law, The Uniform Electronic Estate Planning Documents Act, is making its way through statehouses and would recognize electronic and digital signatures on trusts, wills and other estate planning documents, making paper and ink signatures a thing of the past.

Neither of these laws gives anyone, executor, spouse, or best friend, the legal right to access email, text messages, social media accounts and any other digital assets, unless the power to do so is given expressly in a will, trust, power of attorney, or court order. Without express permission, the digital door is permanently shut.

Making matters even more complicated, each digital platform has its own rules about allowing people other than the account owner to access digital assets, even if they have the username and password.

Another factor further complicating digital estate planning is the two-factor authentication many websites use today. This is done via biometrics, i.e., facial recognition or a code sent by text or email to the original owner's cell phone or email address needed for access.

Cyber thieves are aware of the problems facing unskilled executors, and stealing the identities of recently deceased individuals has become a fast-growing crime. When identity theft occurs online, the assets are often compromised before executors and survivors can access the decedent’s assets.

There are steps to take that will prevent your executor from grappling with these problems.

First, create an inventory of devices, including cell phones, tablets, laptops and desktop computers. If you have old devices that you no longer use, delete your personal data and label them as not in use. A tech-savvy person could use an old device to access your accounts.

Next, create an inventory of all your digital accounts. This includes everything from social media to websites, photo storage, device access, shopping sites, subscriptions, video games, cryptocurrency, bank accounts, investment accounts, medical portals and frequent flier miles. Add notes regarding two-factor authentication: Will your texts need to be accessible to gain access to the account, or have you activated facial recognition?

Go through each item and decide who you want to access each item. Your will, trusts and POA should include notes on who should have access to each of the digital assets. Without it, your executor will take far longer to complete their task.

Some online services allow you to name a legacy contact and give someone you name access to your accounts and phone after your death. For now, Apple, Google, Facebook and Instagram have these features. Set them up and include them in your digital inventory.

Your will needs to state very clearly who you want access to which accounts. However, it should not include any details about the account, especially not your username and password. If you don’t want your executor to access everything, you’ll need to specify which ones you want them to access and which you don’t want them to access. If that’s the case, you’ll want to have whoever does have access to review emails and other accounts regularly and share any information needed with the executor.

Digital assets are still a relatively new asset class. However, they require as much care as traditional assets.

Reference: Forbes (June 19, 2024) “Smartphones, Email, Other Digital Assets And Your Estate Plan”

How to Prepare for Cognitive Changes in Your Life

Planning for the cognitive decline that often accompanies aging can prevent expensive mistakes, says a recent article from U.S. News & World Report, “How to Minimize 4 Financial Management Disasters That Come With Aging.” Planning for cognitive decline can make our later years less stressful.

Age and Vulnerability to Financial Elder Abuse. Simple tasks like paying bills can become problematic as our cognitive abilities diminish. This also leaves people more susceptible to fraud and scammers—today’s thieves’ prey on the elderly through telephone, online, mail and in-person schemes. Add a layer of protection by having a trusted person or family member oversee accounts. A professional fiduciary or a bill-pay service could be used if no family member is available or trustworthy enough.

Freezing a senior’s credit with major credit bureaus can make it harder for thieves to steal their identity, take out loans, or open credit cards under their names.

Financial documents should be organized, and their location should be shared with loved ones. Your estate planning attorney, financial advisor and CPA should have the contact info of a trusted person who can step in to manage your affairs, if necessary. Your estate planning attorney can create a Financial Power of Attorney, so they can act on your behalf.

You can appoint a representative payee with the Social Security Administration, so another person can help you with Social Security matters.

The Death or Disability of the Family’s Financial Person. One person in the household very often runs the business side of life, paying bills, balancing checkbooks and keeping an eye on investments. If that person dies or becomes disabled, the spouse needs to be able to take over finances. To do this, they’ll need to know more than the usernames and passwords on accounts—although they’ll need to know this information as well. Regular check-ins on financial matters with a spouse and a trusted adult is a good practice.

Planning for Long-Term Care Expenses. Failing to prepare for the cost of long-term care or to protect a couple’s assets with Medicaid planning can be financially catastrophic. Medicaid can help with the cost of nursing home care. However, if the family has assets, they must be used up before the person is eligible for care. Medicaid also has a five-year lookback period, meaning any transfers or sales of assets taking place five years from the date of application will delay eligibility. An estate planning attorney can help with the use of irrevocable trusts, often referred to as Medicaid Asset Protection Trusts. There are also trusts designed to protect assets for the healthy spouse. A consultation with an estate planning attorney long before long-term care is needed is critical to avoiding this mistake.

Outliving Your Money. Experts believe nearly two-thirds of Americans nearing retirement age are unprepared for two, three, or even four decades of retirement. The past year’s skyrocketing costs of living have prevented many from adding to their savings during the end of their working lives, and many don’t even have emergency savings. Having a financial plan and an estate plan is important at every age and stage of life.

Cognitive changes don’t happen to everyone as they age. However, it is still wise to have your estate planning done long before any changes occur. Having a will and any necessary trusts created and executed while you are at full capacity allows you to be the one making these decisions.

Reference: U.S. News & World Report (June 26, 2024) “How to Minimize 4 Financial Management Disasters That Come With Aging”