Trusts are a legal tool that can be used for many purposes including estate planning, asset protection, and income tax minimization. Trusts are a way of managing property with the intention of protecting it so that it can be passed on via inheritance to future generations.
Trusts establish a fiduciary relationship that allows a third party to hold a person’s assets on behalf of that person’s beneficiary or beneficiaries. The person establishing the trust and designating the beneficiaries is known as the “settlor” or “trustor,” and the third party who holds the assets on behalf of the beneficiaries is the “trustee.”
Why do people create trusts?
Why do people create trusts in the first place? How do you know if you need a trust? First, people create trusts to control and protect their assets, especially for after they pass away. Trusts provide legal protection for the trustor’s real and personal property, and can also provide protection from creditors. Second, people create trusts because they are concerned about their money being spent on someone other than who it was intended for. Trusts are established to make sure that the trustor’s assets are distributed according to their wishes. If you have significant assets, especially a significant amount of real estate assets, or you have very specific wishes about how and when you want your assets distributed after you pass away, a trust might be for you. The best thing to do is talk to your attorney, who will help you determine whether a trust is the best way to protect your assets.
A beneficiary cannot just “take” an inheritance out of a trust
Since the purpose of a trust is to protect your assets, beneficiaries cannot just take their inheritance out of the trust as they please. The trustee must follow the terms of the trust established by the trustor.
Minors & age clauses within trusts
People under the age of 18 legally cannot control their own money. A trust may be established for a minor beneficiary in order for them to have financial resources during their minority, but these resources are managed by the trustee according to the terms established by the trustor. For example, a trustor may include that their beneficiary receives a regular allowance from the trust.
However, turning 18 does not necessarily mean that the beneficiary will automatically have unlimited access to the trust. Many trustors include payout clauses that extend the trust for a certain amount of time after the beneficiary turns 18. The policy behind this is that, while an 18-year-old may legally be able to control money and property and enter into contracts, the late teenage and early adult years are still a very developmental stage of life. An 18-year-old very well may not have the maturity and money management skills required to handle a significant amount of assets. Age clauses allow for the beneficiary to continue receiving periodic funds from the trust, but provide another level of protection of the trustor’s assets until the beneficiary reaches an age of presumed maturity, usually when the beneficiary reaches their mid-20s.
Trusts for beneficiaries with special needs
These types of trusts are intended to provide for individuals with special needs while also allowing them to retain government benefits like social security or Medicaid. The Trustee will distribute funds from the trust as needed, or on a regular schedule, to take care of the special needs beneficiary’s living expenses and health care needs.
Do you have assets that need to be directed to a beneficiary in a specific manner?
The terms for receiving an inheritance are set when the trust is created
Overall, money moves from a trust only according to the terms set forth at the creation of the trust. This may mean a periodic payment to the beneficiary distributed by the trustee, lump-sum payment to the beneficiary at a certain age, or both. Assets cannot be removed from the trust unless the terms provide for it. To obtain assets from the trust that are not provided for within the terms of the trust, you likely will have to go to court.
In conclusion
When it comes to estate planning, there are many ways that you can distribute your assets according to your wishes. One of the most popular ways is to create a trust.
There are many types of trusts out there. A trust can be either revocable or irrevocable and it can have unique clauses for receiving an inheritance. Trusts are in many ways the opposite of a will. A will is used to distribute property after someone dies, while a trust is set up while someone is alive and involves giving up control over the assets.
Not sure if a trust is right for you? Discuss your financial and family situation with a qualified attorney first.
As a parent, you want your child to lead a happy and fulfilling life and have healthy marriages of their own. However, it is hard to ignore the possibility of divorce. No matter how much you may love your child’s spouse, your interest is always in protecting your child. So when estate planning, how can you ensure that your child’s inheritance will not be split with their spouse in a divorce?
Division of property in a divorce will depend upon whether the property is considered “separate property” or “marital property”.
What is the difference between separate and marital property? Separate property is the property that belonged to an individual before marriage. This can include monetary assets, cars, real estate, and sometimes even pets. Marital property, on the other hand, is the property that was acquired or shared during the marriage. So what happens if your child puts their inheritance into a joint bank account? To answer this, we need to discuss how Tennessee law views inheritance.
How does Tennessee view “inherited” property in a divorce?
In Tennessee, inherited money or property is generally considered to be separate property. This means that whether your child inherits before or during their marriage, the court will treat the inheritance as exclusively belonging to your child. They are not obligated to share it with their spouse. However, have you ever heard a long-married couple say “what’s mine is yours, what’s yours is mine?” Many couples treat property this way, which can work well unless the couple decides to separate. This brings me to a very important point:
If your child puts an inheritance into a joint banking account shared with their spouse, it would become marital property subject to division at divorce.
How can you ensure that your child’s inheritance will be divorce-proof, no matter how your child handles the inheritance?
One way to ensure the safety of your child’s inheritance is to set up a Family Trust. In general, a family trust is an estate planning tool that protects your family and your assets. A family trust is a three-party relationship between you (the Grantor), your child (the Beneficiary), and the person in charge of maintaining and distributing the assets in the trust (the Trustee). Through a Family Trust, you will be able to determine how and when your assets will be distributed by the Trustee to your Beneficiaries after your death.
In the divorce context, a Family Trust is a great option because the property is held by the Trustee. This means that on paper, the property from the Trustee will not technically belong to your child. So in the event of a divorce, a court will not consider the assets from the trust for division. Family Trusts are generally flexible and easy to set up, and they are even cost-effective. Of course, if a Family Trust is not right for you, your estate planning attorney will be able to provide alternate options to achieve the same goal!
Do you need a family trust to protect your children’s inheritance?
Of course, nobody wants to believe that their child’s marriage will end in divorce. However, estate planning is all about considering life’s “what if” questions. In the end, setting up a trust for your family will allow you and your child the confidence that their inheritance is safe.
To learn more about trusts and other estate planning tools that Elder Law Attorneys in Tennessee use, follow us on Facebook or Instagram!
There are many ways that seniors are preyed upon by scammers. Some ways are more common than others. In each instance, a scammer seeks to gain control of the elderly person’s finances or property for their own benefit. However, in order to stop fraud, it’s important to know the specifics. The following post will discuss how to help your aging parents avoid scams and fraud.
Educate Seniors About Suspicious Phone Calls
Swindlers often cold-call seniors to get personal information. Here are a few common phone scams you can look out for:
Sweepstakes scams
Inform your elder to be suspicious of phone calls stating that they have “won” a sweepstakes. These scams will try to get the senior to provide bank account information for direct deposit. They may also try to convince the senior to send a check to pay for the taxes on their “winnings”.
Grandchild scams
In this scam, an elder will receive a call from someone stating that they are a grandchild who is in trouble and in need of help. When the senior answers the phone they will hear something like this: “Grandma, it’s me… please don’t tell my parents.” The caller will then claim they are out of town and need to be wired money to make bail or to pay for travel expenses. Have a discussion with your loved ones about what to do if they receive a phone call like this. Many families create a “code word” for everyone to use. If the scammer doesn’t know the code word, then they are not who they say they are. A code word is a quick and effective way to vet emergency phone calls.
Voter registration scams
The voter registration scam is when someone calls about registering the elder to vote, asking for their address, birthday, Social Security Number, or a password or PIN code.
Healthcare scams
An elder may get a call offering discounts on health insurance or a call from someone claiming they work for the government and need a Medicare number or Social Security Number to issue a new card.
How to Help Seniors Avoid Being Scammed on the Telephone
We cannot stress how important it is to encourage seniors to never give out their personal information to strangersover the phone. Even if the people on the phone are claiming to be friends or loved ones!This is one of the best ways you can help your seniors avoid getting scammed. If your loved one is getting an exorbitant amount of phone calls from people they don’t know, consider asking them if you can change the settings on their phone to only allow notifications from numbers already found in their contacts.
If you suspect your aging parent has already been a victim of a fraud crime, report it to the National Elder Fraud Hotline 833–FRAUD–11. This hotline is a free resource created by the U.S. Department of Justice (DOJ), Office for Victims of Crime for people to report fraud against anyone age 60 or older.
Help Aging Parents Avoid Scams by Talking Openly About Finances
Ask your aging parents if they would consider allowing you to join them on their next visit to financial advisors, accountants, attorneys, and other important service providers. If you are welcome to join them, you will have a unique opportunity to prove to the providers your relationship and good intentions towards the senior. If the service provider believes that you have the senior’s best interest at heart, they may contact you when and if they believe something suspicious is going on with your loved one’s accounts.
We must warn you that becoming too involved in a loved one’s financial life may create the appearance of undue influence. It is important to help keep loved ones from being exploited, but you also don’t want to find yourself the subject of a lawsuit claiming that you are the one committing financial exploitation. Please be careful in how you approach discussing finances with the seniors in your life.
Stay Up to Date on Changes Made to Their Estate Plan
Check to see if a non-relative has been included as a representative or beneficiary, or if any relatives have been cut out of the estate plan since the last time you reviewed it. There may be perfectly reasonable explanations for these changes. However, they could also indicate that someone is trying to manipulate your loved one.
Ask Your Senior About Caretakers or Sudden “Best Friends“
Has a non-relative, long-time friend, or neighbor started spending a lot of time with your loved one? Do they suddenly have a new “best friend” or someone who takes care of them at home?
These developments could be a sign that someone is trying to work their way into an elder’s life in order to exploit them, financially or otherwise. It might seem innocent enough (and even generous!) for a new friend to “hang out” with an elder and take care of their medical and financial needs. But because of the potential for abuse, we recommend hiring caregivers through a reputable agency. Obtain reviews and make sure they have the proper licensure and training.
Making new friends and meeting people is fine, and even encouraged to minimize the isolation that many older adults face. However, it’s important to communicate with your loved ones to make sure they are not giving un-vetted people undue control over their life.
Investigate Sudden Missing Items or Extravagant New Purchases
It is important to talk with your elderly loved ones about finances so that, if they consent, you can regularly review their statements and stay up to date on other financial developments. One easy way to do this is to have the senior grant you view-only access to their bank accounts. You may also consider a paid subscription monitoring app such as EverSafe or LifeLock. These companies provide constant monitoring for any unusual activity on the accounts. This makes preventing suspicious transactions much easier.
Make sure to ask questions about weird financial transactions. Have there been any large cash transfers? Vehicles suddenly missing or new ones showing up unexpectedly? Heirloom household items that have disappeared? Fancy or expensive new gadgets showing up that are out of character for your loved one to buy? This can indicate that someone has convinced the elder to give them assets or that they have duped the elder into buying something they don’t need.
Recruit Friends, Family, Social Groups, and Neighbors to Keep a Watchful Eye on Your Senior
Keep an open dialogue with neighbors, friends, and advisors who are connected with your aging loved ones. The more people you have looking out, the less likely it is that someone can take advantage of them without your knowledge. Elder abuse is less likely when a senior has a variety of people checking in on them.
A Strong Estate Plan Can Help Aging Parents Avoid Scams
Finally, encourage your aging parents to meet privately with an experienced Elder Law Attorney to determine what they can do to protect themselves from bad actors. Having a legal document in place naming a trusted advisor, or agent, to help handle finances can protect them. An experienced Elder Law Attorney also knows what questions to ask and the warning signs to look for in suspected elder exploitation.
Other Ways You Can Help Aging Parents Avoid Scams
The main point you should take away is that it’s important to have an open dialogue with your aging parents about the variety of scam tactics out there. Send your loved ones this article about how to protect themselves. It has a lot of great tips that can be implemented right away.
Do you want help creating a Financial Power of Attorney or other legal support? Give us a call. You can schedule your free 15-minute Initial Call online. It’s easy! We are here to help.
Elder fraud and financial exploitation have become an epidemic. As a Nashville elder law attorney, I am seeing more than ever before, con artists and family members alike taking advantage of their elderly relatives, friends, or neighbors. The numbers have only gotten worse with the Covid-19 pandemic and a larger aging population.
The best defense against elder fraud is having caring friends or family with the senior’s best interests at heart. But those friends and family can only prevent elder fraud if they know how to spot it.
What is Elder Fraud?
Broadly defined, elder fraud is when someone improperly (or illegally) uses or steals a vulnerable senior’s assets. Every state has a different definition of “elder fraud” or “financial exploitation” of an elderly person. In Tennessee, financial exploitation of elders or other vulnerable adults can be prosecuted under criminal and civil laws. Edler fraud is a form of Elder Abuse.
The 3 Common Financial Scams that Victimize Seniors
A recent survey identified the three most common scenarios of financial exploitation:
Theft or diversion of funds or property by family members.
Diversion of funds or property by caregivers.
Financial scams perpetrated by strangers.
In the two most common scenarios of financial exploitation, the fraud is committed by someone who knows the elderly person. Most people think of fraud as emails from Nigerian princes or telephone scams. In reality, however, financial exploitation is commonly perpetrated by family and friends.
Another common misconception is that adults are only susceptible to elder fraud if they have a condition that can affect memory and reasoning skills. According to the Alzheimer’s Association, 15-20% of elders 65 and older have some type of mild cognitive impairment. But it is important to recognize that any senior can fall victim to elder fraud, and many do.
How Can I Help a Senior Avoid Being Scammed?
There are a number of things you can do to help prevent your loved one from being taken advantage of. Start by educating them on the tell-tale signs of elder fraud and how to protect themselves.
Most importantly, if you are concerned that a loved one is being targeted by a financial predator or a loved one with bad intentions, you should seek help as soon as possible. That may mean calling the police, your loved one’s attorney, and in some cases, even the FBI.
As an Elder Law Attorney in Nashville, I am here to guide you through any of the issues that you may be facing. To schedule an appointment, simply call schedule a free 15-minute Initial Call and we’ll see if we can provide you with some guidance on what to do to help you avoid common scams that victimize seniors.
When one spouse wants to disinherit the other, but they are still married, it can be a complicated process. In most cases, disinheriting a spouse is only possible if you have a valid prenuptial agreement or if you are divorced.
Let’s illustrate this with an example:
Jack and Jill have been married for five years, and have one child together. Their house was purchased by Jill before they were married, and Jack’s name was never added to the deed.
Jill recently discovered that Jack is cheating on her with the Instacart shopper. She and Jack are now separated and have started the divorce process, but she wants to make sure that if she dies before the divorce is final that Jack won’t get anything from her.
What can Jill do?
Jill can disinherit her spouse after the divorce
Unfortunately, Jill cannot disinherit Jack until she files for divorce. Tennessee law does not allow you to disinherit your spouse- even if you write a will that says that! My advice is to get divorced as quickly as possible. Unless divorced, Jack is entitled to his share.
The good news is that once divorce papers have been filed, there will be an automatic injunction that specifies that the pair no longer have spousal rights on the property through marriage. This is primarily to protect things like bank accounts, real estate, relationships with the children, and health insurance coverage. However, all that does is prevent money from being spent by either spouse outside of regular expenses. Jill won’t be able to do anything, like estate planning, until after the divorce has been settled or through special permission from a judge.
In the meantime, there are still a few steps Jill can take:
Utilize her prenuptial agreement
Jack and Jill signed a prenuptial agreement prior to their marriage. In it, they waived the right to inherit from each other. All Jill needs to do now is to rewrite her will to specifically omit Jack.
Divide assets into separate trusts
Jill can establish a trust under her name and place the house in it. Since Jack’s name isn’t on the deed or on the trust, he has no right to the house if Jill were to pass before the divorce is finalized.
Rewrite her will
Jill can rewrite her will so that Jack only gets what he is entitled to by law, called his elective share. In Tennessee, spouses are entitled to a homestead allowance, a year of support, and elective share. The elective share amount depends on how long you are married.
Hire a family law attorney
The divorce will go much quicker with the help of a family law attorney.
Jill can get a jump start on planning her estate.
Finally, if Jill is preparing for a divorce, she can take advantage of all the legal documents at her fingertips and get a head start on creating the estate plan she desires. Once her divorce decree is finalized, she can meet with her lawyer and sign the document to make it valid.
Are you getting a divorce and want to start over with your own will and estate plan in Tennessee? Are you looking for a referral to a family law attorney? Let us know! We are happy to help you make plans for your new life. Not sure where to start? Give us a call. We offer a complimentary 15-minute call to see if we are the right fit for you and your situation. You can schedule your call by clicking here.
Many people think that if they are married, their spouse will automatically inherit everything when they pass and so they don’t need a will. While there are some situations where a spouse does inherit everything, it is not the default under Tennessee law. In Tennessee, if you are married and have children, your spouse will share your probate estate with your children. I call this the S.A.K.S. method (Spouse and Kids Share). In other words, your spouse does not inherit everything automatically.
To clarify:
If you die without a will, Tennessee law dictates that the spouse and children split the estate.
However, I believe that everyone should create their own plan for distributing their assets after death, even if the state has an understandable default on how to do this. Here’s why:
Having a Will can make it easier for your family to go through probate.
Having a Last Will and Testament can be an important way to reduce any burden on your family after your death. In your Will, you decide not only who will inherit your estate but also key decisions like who will serve as Personal Representative (also known as the Executor) and whether you want to require or waive documents that are required by statutes. Having a Will is your chance to have a say in the probate of your estate before you die. The process can be much less complicated for your beneficiaries as well because you may decide to be even more specific about some of the more difficult decisions that need to be made.
It is much easier on your family if you have an estate plan in place. A last will and testament will provide instructions on how to designate and divide assets between family members and friends. If you die intestate (without a will), then the state’s inheritance laws will determine who gets what.
Preparing an estate plan will cover situations that may arise after your passing
Have you considered what might happen if your spouse remarries? Are you aware that a future spouse can take an interest in a portion of your estate? Would you want part of your assets to go to a new spouse or to any children that they may have with that spouse? Do you have family or children that should benefit instead? There are many other factors to consider, but it’s important to discuss these things with your attorney when you create your estate plan.
A Will provides security for your spouse
If you are more concerned about your spouse inheriting from you than your children, you can plan for that too! The general rule in Tennessee is that the spouse would get no less than a third of the estate.
For example, if you are splitting the estate with two or more children, the spouse would get a third. If there is only one child, the spouse would get half.
What if you want to provide more? With a Will, you can designate that your spouse gets everything or only leave certain things to your children. Many spouses write “I love you” wills, where they inherit first from each other, and then their children only inherit when the second parent dies.
Use a Will to protect spousal inheritance from changes in family dynamics
Another consideration in making a Will is your family dynamic. Do you have children from different relationships throughout your life? Do you have concerns about how your children from those relationships will get along with your current spouse when it comes to your estate? It is important to consider how you want inheritances to be split. Your Will can dictate how your assets will be handled! You can also designate your preference for the guardian of any minor children in the event that both you and the other parent die.
Additionally, a Will provides provisions such as the appropriate age at which your children should take over responsibility for managing any inheritance. One primary concern many parents have is whether young adults will be mature enough to make sound judgments concerning any money they inherit. Your Will can establish a certain age at which young adults gain control of their inheritance, to ensure that it isn’t squandered when you would prefer it be used towards education or sound investments.
In short, your Last Will and Testament should be drafted so that your wishes regarding your family are honored.
A Will can safeguard your beneficiaries if they become disabled
Are any of your assets expected to go to a loved one who has a chronic medical condition? If so, you’ll want to consider that an inheritance could disqualify them from any means-tested government benefits that they may receive or be entitled to, which could be devastating if they are counting on that benefit. The most common examples of this are Supplemental Security Income (SSI) and TennCare (Medicaid). You’ll want to have a contingency plan in your estate plan to make sure that their benefits are secure and not at risk of being cut off due to an inheritance. You don’t want their government assistance to decrease just because you died! You definitely need a plan for that. Make sure to work with a qualified estate planning attorney so you can refrain from making errors with your family’s benefits.
If you want control over who can access your digital assets, you must make a Will
Many digital assets are governed by terms and conditions which are unlikely to specify who will take over your accounts when you die. Some providers, such as Facebook, permit you to designate someone as a “legacy contact.” However, not all companies are robust enough to provide this type of service. A Will protects your digital assets from falling into the wrong hands or being lost in digital space with no one able to claim them. Check out our blog post about how to create or change your Facebook “legacy contact” here.
In conclusion
These are just a few of the things that you’ll want to consider when making an estate plan. I want to encourage you to have a long discussion with your spouse about how your assets should be split when one of you dies. There shouldn’t be any surprises! I cannot stress the importance of knowing each other’s values and putting them in writing. It is crucial to have the outcome you desire. A failure to plan can end up in expensive court litigation. This is why we encourage everyone to speak with an experienced estate planning attorney about how they and their spouse can protect each other through proactive planning.
Are you ready to make your Will? Schedule a free initial call and make your plan with the Team at GALS!
