On the fateful morning of April 16, 2007, Seung-Hui Cho, a student at the Virginia Polytechnic Institute and State University entered Norris Hall, a building on the university’s main campus, and locked the doors from the outside, preventing students, professors, and law enforcement authorities from entering. Systematically, Cho went into one classroom after another and opened fire randomly on students and professors using two firearms he purchased locally. When he finished firing, he turned the gun on himself. In the end, Cho killed 30 students and teachers and seriously injured at least 17 others.

Within the next few years, family members and estates of the deceased students sued Cho’s family, the university, local psychologists and other third parties alleging wrongful death and failure to warn. In 2012, two families who filed lawsuits on behalf of the deceased students won their wrongful death lawsuits and will receive $8 million. As jurors listened to both sides argue their cases, they eventually decided in favor of the plaintiffs. Jurors decided that university officials should have and failed to warn its student about Cho’s erratic behavior. Attorneys for the Commonwealth of Virginia plan to seek a judicial reduction of the wrongful death award based on Virginia’s limited cap on wrongful death damages.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Same-sex couples face unique estate planning challenges. Because most states do not acknowledge same-sex unions or marriages, same-sex couples cannot benefit from their state’s statutory elective or forced share laws. In an opposite-sex marriage, most states have statutes that give surviving spouses the right to receive a minimum share of their deceased spouses’ estate. Thus, spouses of opposite genders who die without creating a will may be able to rely on their state’s elective or forced share statutes giving surviving spouse a statutory share of their estate. In a same-sex union, when one partner passes away, the surviving partner will receive nothing in most cases. In states that recognize same-sex unions, spouses usually have to first register their domestic partnerships to take advantage of their state’s same-sex laws. An unregistered domestic partner will usually receive nothing under a state’s intestacy statute if one partner dies intestate or without a Will.

If your state recognizes same-sex partnerships and you registered your partnership, your spouse will receive only a statutory intestate share if you didn’t create a Will before you die. To make sure your same-sex partner receives a larger share, you need to create an estate plan, including a written Will. It is especially imperative for same-sex couples to see an estate planning attorney to help them create estate plans that will work for them. An estate planning attorney can help you avoid probate by creating a revocable living trust for your same-sex partner. This allows you to avoid some delays in probate by transferring the bulk of your assets to your same-sex partner.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

You can make health care decisions ahead of time and one important medical choice is whether or not to have a living will. Just about 99% of our clients choose living wills when we explain the truth about living wills.

Is a living will right for you? It’s up to you to decide. Here’s the truth.

• A living will document is designed to avoid medical heroics such as life support machines.
• A living will is an advanced medical directive, meaning that you are providing or withholding informed consent for a later time.
• A living will allows you to stay in control.
• A living will is designed to keep you comfortable but not to artificially extend your life.
• A living will is only effective if you are in an end-stage medical condition, irreversible coma, or persistent vegetative state.
• A living will is only effective if it’s in writing and your treating doctor has a copy of it.
• A living will can not be overturned or disregarded by your medical power of attorney agent(s.)
• A living will removes the burden of having to decide whether to “pull the plug” from your loved ones’ shoulders.
• A living will may avoid family discord, in the event family members disagree as to whether life support should be continued.
• A living will may prevent your estate from being squandered on useless medical procedures.

If you have questions about livings wills, consult with a qualified estate planning attorney.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

The dynasty trust carries on generation after generation, providing assets and avoiding federal transfer taxes for as long as the assets remain in trust. In addition, the assets in the dynasty trust have asset protection.

“Asset protection” means that trust assets can’t be taken by the creditors, divorcing spouses, disgruntled business partners, bankruptcy court, medical bill creditors, or any lawsuit creditors of any of the beneficiaries….forever…so long as the assets remain in trust.

Federal Transfer Taxes Eliminated

The financial savings of avoiding the federal estate tax and generation skipping taxes is tremendous; this is how wealthy families maintain and build their wealth. Instead of the assets being sliced in half by taxation with each generation, they grow and grow and grow. Compounding.

Asset Protection Granted

Assets in the dynasty trust are only available for the trust beneficiaries, not their creditors. Likely, assets can be used for beneficiaries’ health, education, maintenance, and support; although, on occasion, different distribution terms are included. The trust itself will provide specific direction. The trust will, specifically, state that the assets cannot be assigned to creditors.

Trustee Required

Although it has been commonplace for beneficiaries to be named as the trustee of their own trust share, this is short-sighted. If a beneficiary is the sole trustee of his or her own trust share, the court can order the trustee/beneficiary to release the assets. Instead, a co-trustee should be named to serve with the beneficiary/trustee, if the beneficiary is to serve at all.

Funded with Life Insurance

Dynasty trusts are often funded with life insurance. Consult with a qualified estate planning attorney to determine whether a dynasty trust fits into your customized estate plan.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Are you privy to this living trust information? Read on to see if you and your family have all the trust protections you can have. Here are 9 living trust secrets revealed.

1. You can minimize or eliminate federal estate taxes by using a credit shelter (i.e. AB trust) within your living trust.
2. You can provide asset protection for your spouse and children’s inheritance by creating lifetime trust shares within your own living trust.
3. You can avoid court interference into your financial affairs and having your assets frozen if you have strong disability language in your living trust and your trust is funded.
4. You can avoid probate by using a fully funded living trust.
5. You don’t have to disinherit a spendthrift, addicted, disabled, or minor beneficiary if you plan with a trust.
6. If you’re married and include a tax plan in your living trust, a significant portion of your legal fees to set up the trust are tax deductible.
7. Your trust is not a magic book, you must name trustees (and contingent trustees) to carry out your instructions.
8. Your trust needs to be updated every three to five years (or sooner if you experience a significant life event such as a new child, divorce, marriage, or move to a new state.)
9. You maintain control of your assets with a living trust.

If any of these 9 living trust secrets are a surprise to you and you don’t have an up-to-date trust in place, consult with a qualified estate planning attorney.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

If you don’t have an estate plan, the state legislature of Iowa and the Iowa courts have one for you.  It’s a one-size fits all (i.e., one-size fits none) estate plan that will determine important matters such as who raises your minor children, who makes health care decisions on your behalf, and who inherits your assets when you die.

It’s easy to improve on a plan in which you have no control, no choice.  But, did you know that even if you have your own estate plan, it can, likely, be instantly improved?

Here are 7 Instant Improvements for Your Estate Plan

1. If you don’t have your own written plan, get one.
2. Ask your trusted helpers (i.e., executor, trustee, power of attorney agent, and guardian) if they are willing and able to serve.
3. Let your trusted helpers and other loved ones know where you keep your estate planning documents and other estate plan.
4. Provide contact information so trusted helpers can reach your estate planning attorney, financial advisor, CPA, clergy person, and any friends you want to be notified if you become disabled or die.
5. Update your estate plan every three to five years and sooner if you have a significant life change.
6. Make sure that you own your assets properly and in accordance with your current estate planning goals. Ask your estate planning attorney how you should own your assets.
7. Check your beneficiary designations to make sure they match your current intent and your overall estate plan.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Iowa permits the use of a self-proving will, which means that the witnesses won’t ever have to go to the courthouse or provide an affidavit to testify that they did indeed witness you signing your will. The self-proving element of a will is a mighty convenience and, while it’s not required for your will to be legally valid, there’s no reason not to use the language and the formalities that makes the will self-proving.

Self-Proving Language and Formalities

The language of your will doesn’t have to be exactly like this below, but this is the gist of the required language:

Affidavit

State of Iowa)

County of THE COUNTY WHEREIN YOU’RE SIGNING )

We, the undersigned, WITNESS 1 and WITNESS 2, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, declare to the undersigned authority that said instrument is the testator’s will and that the testator willingly signed and executed such instrument, or expressly directed another to sign the same in the presence of the witnesses, as a free and voluntary act for the purposes therein expressed; that said witnesses, and each of them, declare to the undersigned authority that such will was executed and acknowledged by the testator as the testator’s will in their presence and that they, in the testator’s presence, at the testator’s request, and in the presence of each other, did subscribe their names thereto as attesting witnesses on the date of the date of such will; and that the testator, at the time of the execution of such instrument, was of full age and of sound mind and that the witnesses were sixteen years of age or older and otherwise competent to be witnesses.

_____________________
PERSON MAKING THE WILL

_____________________
 WITNESS 1

_____________________
 WITNESS 2

Subscribed, sworn and acknowledged before me by PERSON MAKING THE WILL, the testator; and subscribed and sworn before me by WITNESS 1 and WITNESS 2 witnesses, this . . . . day of . . . . . . (month), 2012.

_________NOTARY____________
Notary Public, or other officer authorized to take and certify acknowledgments and administer oaths.

(Seal)

If you’re not sure whether you’re will is self-proving, consult with a qualified estate planning attorney. If you’re will is more than three to five years, you need a new will anyway.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

There are sometimes misconceptions about living trusts, including the myth that a living trust provides asset protection for the maker’s assets. The goal of this article is to set the record straight: A living trust that you create does not offer asset protection of your assets.

Asset Protection

Every comprehensive estate plan includes planning for asset protection so that assets can’t be taken in a lawsuit or spent down for nursing home care. While a living trust, has tremendous benefits, your own living trust doesn’t provide asset protection for your own assets.

Insurance

A full insurance plan is required to protect assets. Insurances you need to consider include:  homeowners/renters, auto, umbrella (personal catastrophic), life, disability, malpractice, business insurance, and long term care.

If you live in a zone where earthquake, flood, or wind and rain insurances are needed, buy them.

Advanced Estate Planning

In addition, if you have significant assets, consider advanced estate planning such as limited liability companies, family limited partnerships, or trusts sited in states that offer asset protection for self-settled trusts.

Asset Protection for Beneficiaries

A valuable benefit of living trust planning is that you can design the trust to create individual trust shares for beneficiaries (i.e., spouse and children.)  This means that assets you pass to them can’t be taken in a divorce, lawsuit, malpractice case, or bankruptcy.

Asset protection planning is wise; however, remember that your own living trust does not provide asset protection.  If you have questions about your individual situation, consult with a qualified estate planning attorney who can guide you through the asset protection process.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

A comprehensive estate plan includes a lot of documents and many trusted helpers so it’s important for both you and your helpers to understand who’s in charge, when.

Here’s a brief outline, but if you have questions or concerns about your individual estate plan, be sure to consult with a qualified estate planning attorney.

Guardians

Guardians for minor children are appointed in a stand-by guardian designation and in your will.

The stand-by guardian designation is effective if you are alive, but unable to care for your children due to some form of disability; the will is only effective if you’re dead.

Contingent Trusted Helpers

It’s imperative that you name back-up trusted helpers in the event that your primary trusted helpers are unable or unwilling to serve when the time comes.

Communication

Be sure to communicate with your trusted helpers and loved ones so everyone understands who’s in charge when. Show them where you keep your estate plan documents and provide the contact information for a qualified estate planning attorney who can provide additional guidance.

Where to Get More Information

If you missed it, please continue reading part 1 of this article: Your Estate Plan: Who’s in Charge, When, and consult with a qualified estate planning attorney. An attorney can help you to explain duties and timing to your loved ones and trusted helpers.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.

Most estate plans don’t work; it’s absolutely true (and shocking.) Most estate plans don’t work for two reasons. First, assets aren’t owned properly and second, estate plans aren’t updated.

Proper Asset Ownership

Assets must be aligned with your estate plan.

For example, if you want your trust to control assets, avoid probate, provide asset protection, and outline instructions for when you are disabled or die, the trust must own the assets. Otherwise, the trust has no control over your assets and your estate plan will fail.

A second example would be using your will to dispose of assets at your death. If you want your will to control assets and get them to certain people, you must own your assets in your individual name.

Assets in the name of your trust, owned jointly (with survivorship), or which have a beneficiary designation (i.e. life insurance and retirement accounts) are NOT controlled by your will.

This means that if you include provisions in your will to give $50,000 to each child, but own everything jointly with your spouse, your children will get nothing and your estate plan fails.

Updating Your Estate Plan

Estate plans need to be updated every three to five years….even sooner, if you experience a significant life change such as a new child or spouse.

All estate plans experience three types of changes:

• Changes in the law
• Changes in your personal situation (finances, goals, family, and situation)
• Changes in your estate planning attorney’s planning methods

If you have a qualified estate planning attorney, he or she will be constantly striving to implement new techniques to make your estate plan more effective.

If you want your estate plan to work, make sure you own all of your assets properly and update your estate plan.  Otherwise, your plan will, likely, fail.

Duffy Law Office is a member of the American Academy of Estate Planning Attorneys.