Approximately one-third of Americans own a firearm, and many own more than one. Some may own dozens or even hundreds. Firearm Ownership is subject to many restrictions, and carries with it a significant element of risk, it is important to consider firearms as part of a comprehensive estate plan.

Why Should Clients Engage in Firearms and Gun Trust Planning?

What risks are involved in not engaging in firearms planning? A family member or other fiduciary may be otherwise responsible but know little about the client’s guns and be uninformed about the applicable laws. The guns could be improperly stored or cared for, given away or sold for less than market value, or even transferred illegally. The fiduciary could be exposed to civil or criminal liability, even for inadvertent violation of state or federal law.

Proper planning can help avoid these problems.

As estate planners, we are experts in the planning process—asking the right questions, considering the client’s unique circumstances, and producing solutions. In planning for firearms, we must also overlay the complex web of federal and state regulations.

As is the case with most other assets, there are several reasons to use a trust when planning for firearm ownership: privacy, ease of management in the event of incapacity, and avoidance of probate. While a conventional revocable living trust (RLT) can be used to own guns, for clients with larger collections or NFA weapons, a purpose-built gun trust is by far the best tool for the job.

What Exactly Is a Gun Trust?

There is no formal definition of a gun trust—virtually any valid RLT can own firearms. And gun trusts sold online or by gun dealers are often just RLTs with nothing firearms-specific about them.

However, to provide the optimum benefit to the client, a gun trust should be specifically tailored for the intended purpose: firearms ownership, management, and disposition. Special assets require special tools.

Possession and Transfer

Possession and transfer are important concepts when it comes to firearms, particularly NFA weapons. Both provide potential pitfalls for the unwary. While the definition of actual possession may be clear, constructive possession can be tricky. A person may have constructive possession if they can easily access a weapon. The following are examples of constructive possession:

• Knowing where a roommate’s or family member’s unsecured gun is in the house
• Having the key or knowing the combination to a family member’s or roommate’s gun safe

Constructive possession of any firearm by a prohibited person is a crime, as is constructive possession of an NFA weapon by anyone other than the registered owner or their legal representative (such as an executor or co-trustee). We don’t want our clients to be victims of the “accidental felony” (or any on purpose felony either, but that’s another blog topic altogether.)

The NFA defines transfer as “selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of” a firearm. Notice that this includes “loaning.” So if your client gives a friend their silencer to take to the range for a day, a felonious transfer has occurred, and the friend is in felonious possession.

In addition to criminal penalties, clients need to be aware of civil liability issues. If a client allows a prohibited person or nonauthorized user of an NFA weapon access to a gun and that person shoots someone, even accidently or in self-defense, the lawful gun owner could be found at fault based on negligent entrustment or a similar theory.

If you don’t have estate planning, or forgot to let your attorney know of this very tricky asset during your consultation, give us a call at 614-429-1053. We are happy to book a consultation and help you plan for your firearms today!

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*Spoilers ahead for this beloved show that ended in 2020!*

As the name suggests, ABC’s TV show Modern Family depicts the relationships and experiences between a modern, fictional, extended family. Throughout the course of the series, the show addresses many issues that families deal with each day. For a close-knit family such as this one, estate planning is crucial to ensure that everyone is protected when one of them dies or becomes disabled or incapacitated. We hope that examining some of the issues this family would need to address as they prepare for such circumstances will encourage you to consider how these issues impact your own family.

The Family’s Entrepreneurial Endeavors

Over the course of the series, there are a variety of businesses owned by members of the family. Whether it is a hobby, investment, or their nine-to-five job, these businesses require special consideration when planning for their future.

How are these businesses owned? Depending on the ownership structure (sole proprietorship, partnership, corporation, limited liability company), what happens to the business at the owner’s death may already be dictated by the business’s official documents. If not, there needs to be legally enforceable documentation in place to facilitate the transition.

Who should ultimately end up with the business? For business owners, it is very easy to get caught up in the day-to-day operations. However, it is important that you look to the future and proactively determine who should be in charge of your business. Just like Jay, if you want your child to continue your business, it is important that you have that discussion with them and pave the way for them to take over.

Should the business interest go directly to the next generation or be held for them? Depending on the age of the beneficiary, you may need to appoint someone to run the business until your child is sufficiently mature. Instead of relying on the state’s determination of when a child becomes an adult, you can provide specific instructions for when and how your child becomes involved in the business.

Multiple Generations of Blended Families

When determining who will receive their money and property, members of blended families must evaluate the bonds within their family. For instance, on several occasions, Jay refers to Manny as his son, and Manny spent many of his formative years living with his mother and Jay. On the other hand, although Dylan and Haley have two children together, Dylan also has children from his first marriage. Haley may not be that close to Dylan’s other children and may not want them to receive anything she owns individually (or what she may inherit from her parents). Because a stepchild has no legal right to their stepparent’s money and property, a legally enforceable last will and testament or trust needs to be put in place in order for a stepparent to leave anything to their stepchild at death.

Guides for the Next Generation

Within this extended family, there are a few minors who need guardians in the event both parents pass away. First, although Manny states that he wants to be Joe’s guardian in the event Gloria and Jay pass away, they need to name the person they want to be Joe’s guardian in their wills. However, the naming of an individual in a last will and testament or separate document is merely a nomination. This may not stop others from contesting the nomination. It may be wise for Jay and Gloria to have frank conversations with both of their families to avoid the possibility of a fight for guardianship and to prevent Joe from potentially being taken to a foreign country.

Lily and Rex are also minors who would need a guardian if their parents were to pass away. Without an appropriate estate plan, a fight between Cameron’s and Mitchell’s families is likely to occur. Although Lily spent much of her life around Mitchell’s family, by the end of the show, Lily and Rex are moving with their parents to Missouri and will be living closer to Cameron’s family. Rex will arguably grow up with a greater bond with Cameron’s family, which could lead to conflict between the Pritchett and Tucker families if a guardian for these two children is needed.

Lastly, Poppy and George would need guardians if their parents died. Haley and Dylan may not have a lot of money and property to plan for, but their precious children deserve at least basic planning, including naming a guardian and alternates. At the end of the show, although Haley and Dylan are no longer living with Phil and Claire, they are still living close by. However, Dylan’s mother Farah started appearing once Haley became pregnant. She may have a desire to raise the children should something happen to Haley and Dylan.

If you have minor children, it is important that you think about who you want to raise them if you cannot. Although no one will ever care for them as you would, it is important that you nominate someone in a last will and testament or separate writing (if your state allows for one). Although the court will still have to make the ultimate decision as to who will be the guardian, you can rest easier knowing that you have made your wishes clear. Also, by having conversations with your family members ahead of time, you may be able to reduce the possibility of fighting after your death if everyone understands your wishes.

Protecting the Surviving Spouse

All married couples face the question of what will happen at the first spouse’s death. Some couples, like Phil and Claire, have earned and accumulated most of what they have while they were married. It would be understandable for them to consider everything they own “theirs.” Both of them would likely want everything to go to the surviving spouse. However, when everything is given to a spouse outright, the hard-earned money and property is susceptible to creditors and predators. A naive and well-meaning person like Phil might become the victim of a scam artist and give large sums of money away based on a sad story. Alternatively, a successful woman like Claire could end up remarrying, and without proper planning, could accidentally disinherit Haley, Alex, and Luke by leaving everything to her new spouse. To protect what you leave to your surviving spouse, no matter if it is your first or third marriage, a qualified terminable interest trust can help. This type of trust can allow your surviving spouse to receive the income the trust generates at least annually, to withdraw principal for specific purposes such as health, education, maintenance, and support, while allowing you to determine what happens to any remaining money at your spouse’s death.

Determining How Much Everyone Gets

Within this blended family, there are many different options for who will receive an inheritance from each person. When preparing his estate plan, Jay will need to consider how he wants to divide everything he owns. In his immediate family, he has a spouse, two adult children from a previous marriage, a minor son, and an adult stepson. He also has five grandchildren and two great-grandchildren. He will need to decide who gets what, how much, and when. He will need to ask himself if it is better to give everything to Gloria (possibly in a trust) for her needs during her life with the remainder to go to Claire, Mitchell, and Joe at her death—or if Claire and Mitchell should receive their portion of the inheritance while Gloria is still alive. Should he provide for Joe or leave that up to Gloria if she survives him?

When considering what to leave to a surviving spouse, it is important to remember that in some jurisdictions, there is a minimum amount that must be given to a surviving spouse known as the elective share. Also, if you reside in a community property state, your spouse may be entitled to some of your money and property if it was acquired during your marriage. While someone might think that their surviving spouse will be able to support themselves without an inheritance, it is important to have this conversation ahead of time: without the proper documentation, a surviving spouse can unwind a plan if they have not been provided for in their deceased spouse’s estate plan and have not waived the right to their entitled minimum amount.

Phil and Claire will need to take a look at their own family situation and determine how their money and property are to be divided up among their children and grandchildren. They have three children who are very different and most likely would have very different needs. Haley, the mother of two, may benefit from receiving a larger share since she has two children to support. Alternatively, Phil and Claire could choose to set aside a sum of money specifically for their grandchildren. Alex may not need an inheritance given her education and employment opportunities. Luke, on the other hand, may need more financial assistance. A sum of money could be held in a trust for him, with restrictions to ensure that he is properly provided for, gets an education, and is able to invest in good business ideas while protecting him and his inheritance from bad business decisions.

For many families across the country, not just the fictitious ones on television, an estate plan is a great way to make sure that you, your loved ones, and your hard-earned money are protected. We are committed to working with families of all shapes and sizes to craft a plan that is as unique and modern as you and your family are.

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Why should you have an estate plan?

An estate plan can provide significant peace of mind by ensuring that your money and property are protected, plans are in place in the event you become ill, and your accounts and property pass down according to your wishes.

What key elements of an estate plan should you consider?

• Do you have a last will and testament or a trust? If you do not have these important documents, state law will determine who will inherit your property—and it may not occur in the way you would have chosen. In addition, someone appointed by the court, instead of a trusted person of your choosing, will be in charge of caring for any children or pets and winding up your affairs. Spelling out your wishes in a will or trust will also prevent unnecessary confusion, anxiety, and expense for your loved ones when you are gone.

• Are the proper powers of attorney in place? A financial power of attorney designates an individual to make financial and property decisions (e.g., opening a bank account, signing a deed, getting your mail, etc.) should you become unable to handle your own affairs. A medical power of attorney designates a person you trust to make medical decisions for you when you are otherwise unable to speak for yourself.
• Ensure that you have an advance directive, also called a living will, which memorializes your wishes concerning your end-of-life care, such as whether you want to receive life support if you are in a vegetative state or have a terminal condition.

• Do you have insurance? If you become incapacitated (unable to manage your own affairs) or die, it is important for your family or loved ones to have information about your insurance (such as life, health, disability, long-term care, etc.) so they can file any necessary claims. Having the right amount of coverage is also important in case you become ill or die, leaving behind loved ones who rely on your financial support.

• Compile a list of all of your accounts and other important information that may be needed to manage your accounts and property while you are incapacitated or to settle your affairs after you are gone. Keep this information in a safe place and share the location only with trusted family members or other loved ones. This list should include at least the following information:
  • bank and investment accounts
  • titles to vehicles and homes
  • credit card accounts or loans
  • digital accounts (such as Facebook, LinkedIn, and Twitter) and passwords
  • Social Security card, passport, and birth certificate

• A list of legal, financial, and medical professionals who have performed services for you is also important. The list should include their contact information so your loved ones can easily reach them in the event you or they need the professional’s help. You should also have HIPAA authorizations in place with medical professionals to ensure that your loved ones can obtain needed information.

How can you encourage your loved ones to create an estate plan?

Estate Planning Awareness Week is a great opportunity, not only to take steps to make sure your own estate plan is in place, but also to talk to your loved ones, especially elderly parents, about creating an estate plan. Estate planning is often a difficult topic to broach because it brings the unpleasant topics of aging and death to the forefront of our minds. Here are a few tips to help you start the conversation.

• Be sensitive to your loved ones’ feelings. Put yourself in their shoes and keep in mind that few people are eager to dwell on the subject of their own death. One way to begin the conversation is to talk first about the need to plan for an illness and to provide instructions in the event they become too ill to communicate with doctors or handle financial matters for themselves. The conversation can then progress naturally to the importance of having an estate plan that will transfer their money and property in the way that they wish, provide for the care of any dependents or pets, and minimize any taxes, court costs, and legal fees. Communicate that you are not trying to control their decisions but only want to ensure that their own wishes regarding their medical care and property are known—and that all of their instructions are in writing to guarantee that they are carried out.
• Involve others in the conversation. If you are planning to speak to your parents about the need for an estate plan, try to include any siblings in the discussion to avoid giving the impression that you are attempting to influence or control your parents’ choices. You and your siblings should emphasize to your parents that none of you is asking about what you will inherit, but rather just want to make sure that their wishes are carried out if they become ill or pass away.
• Consult an estate planning attorney. An experienced estate planning attorney can help you and your loved ones create an estate plan tailored to meet each of your unique needs and carry out your wishes, or they can assist with updating an existing estate plan. We can provide each person with guidance and information about the options available to them. Further, we can help each of you put a plan in place that will prevent unnecessary stress, legal expenses, and taxes, as well as uneven inheritances, disputes among loved ones, and delays in passing life savings on to them. In addition, the guidance we offer will give you and your loved ones the peace of mind that comes with knowing that plans are in place for your care if any of you become ill and that your wishes will be honored when you pass away.

McClenaghan Law Group is dedicated to making sure you can trust your Estate Plan, call our office or email courtney@lawdublin.com to set up an appointment today!

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How A Pet Trust Works
At its most basic level, a pet trust lays out instructions on how a pet should be cared for after its owner passes away or becomes incapacitated.

First, select a trustee. Once you set up the trust, you must name a trustee. A trustee is chosen to manage the trust’s funds and oversees the caretaker’s compensation for caring for the animal. The trustee holds cash or other assets for the benefit of your pets. Funds held in the trust are used to pay for the pet’s care and related expenses. Expenses include routine vet check-ups, emergency vet care, grooming costs, feeding and boarding costs, and more.

Next, choose the caregiver. A caretaker is usually chosen to be responsible for the pet’s day-to-day care. Funds are allocated to the trust to pay for various expenses such as food, veterinary care, and recreation. Make sure the caretaker you choose has adequate housing, time, and experience to look after the animal. To avoid trouble down the road, it is important to sit down and talk to the caretaker to make sure they want the job and discuss the responsibilities with them. Select at least two caregivers in case their circumstances change during your pet’s life.

Finally, as another level of protection, a client can also choose to appoint an enforcer, who oversees the trustee. An enforcer enforces the provisions of the trust against the trustee.

It is important to properly identify pet beneficiaries. Your pets can be identified by microchips, photos, licenses, or even by class. Next, set out a detailed list of care instructions. Include information about your pet’s standard living of care. This can entail the frequency of vet and grooming visits, food preferences, sleeping arrangements, and exercise. In your pet trust you can require inspections of the pet by the trustee. You may choose to determine what would trigger the pet being removed from the caregiver to the alternative caregiver. Finally, consider when to terminate your pet’s medical care when faced with a terminal illness. You may make the decision to terminate a joint decision shared by the vet, the trustee, and the caregiver. It is important to state how your companion will be handled upon passing.

There are a few different factors to consider when determining the number of funds to allocate for a pet’s care. Species, length of lifespan and whether or not the animal has, or may need, special medical care, are usually the biggest defining factors. For example, animals such as macaws, parrots, and snakes may require more significant funds due to longer lifespans, than say dogs or cats. Also, certain types of dog breeds like American bulldogs and German shepherds may need more funding due to their predisposition to health issues like hip dysplasia and respiratory problems.Once the animal passes away, the remaining funds can then redistribute to the living beneficiaries or organization such as a charity.

When a Pet Trust may be Needed

Pet trusts may be suitable for clients who have brought previously owned pets into their marriage, or if one spouse simply doesn’t share the same affinity for a pet. In the event that one spouse passes away and is concerned their surviving spouse may be unable or unwilling to care for the animal adequately, a pet trust can ensure the deceased owner’s wishes. This option also provides financial and logistical relief for the living spouse, as they will not have to worry about their spouse’s pet after they are gone.

Creating a pet trust is like creating any other type of trust. An estate planning attorney can help with drafting the trust document itself. Make sure that your estate planning attorney, the trustee, and your pet’s designated caregiver receive a copy so that your wishes can be followed. Consult with one of our experienced attorneys today by scheduling an appointment at (614) 452-9724.

The information presented here has been prepared by Charles H. McClenaghan, LLC, for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Charles H. McClenaghan, LLC, enters in to a written engagement agreement with a specific client for a specific legal matter.

LEGAL NOTICE:  THIS MESSAGE IS AN ADVERTISEMENT AND SOLICITATION.

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Estate planning provides for the transfer of your assets through a will or a trust. These traditional estate planning documents do not specifically mention digital assets, despite the fact that almost everyone now has at least some digital assets. This traditional estate plan formula has worked for decades to transfer the assets of a decedent down to his or her heirs and beneficiaries. However, in the wake of the digital age, these instructions and documents may not be enough to transfer all of your digital assets.

It has become the norm to store financial records in smartphones, computers, or the cloud, and to conduct financial transactions electronically. It is likely that you will need to take additional steps during your lifetime to ensure that the digital assets of your estate make it to the beneficiaries that you choose.  Passwords, data encryption, criminal laws, and data privacy laws can present challenges for anyone other than the original owner to gain access to their digital assets. Family photos and videos could be lost forever, social media accounts could stay online long after you’ve passed, and your heirs may not receive all the money that you’d like to see come their way.

What is digital estate planning?

Basically, digital estate planning entails the process of cataloging, organizing and planning for the disposition of one’s digital assets after death. Accounting for digital property in your estate plan has become essential. Fortunately, it’s relatively simple to do. To begin preparing for the transfer of your digital assets, keep a thorough list of your digital assets and update it frequently; review the terms of service of your providers for procedures to backup and transfer those assets; and discuss your options for the transfer of these.

Why is this important?

Without proper planning, the asset or portions of the asset may not be transferred to those beneficiaries as you intended. Second, failing to properly plan for the transfer of digital assets can create losses to your estate financially and to your heirs emotionally.  For example, if you receive only digital statements for your bank or brokerage accounts, your estate representative may not be aware of the existence of these financial accounts, even though they can be easily transferred by visiting the brick-and-mortar location. Providing a list of the digital assets, including these financial accounts, will alert your estate representatives to their existence and location.

What can you do now?

There are several steps that you can take now to prepare for your digital assets to be properly transferred at your death. Start by creating a list of your digital assets, their respective passwords, and location in which each is stored. If your digital assets are social media accounts such as Google email or Facebook, make sure to review the terms of service for the instructions of restrictions regarding the transfer of the asset. Next, determine who should receive each of your digital assets that are transferable.

Once the above is completed, you should save the assets stored on your computer into something tangible such as an external hard drive in a secure place. Unlike other assets, it is possible to make multiple copies of digital assets and leave the digital assets to more than one beneficiary. Make sure to let your family members or friends know how to access your list. Finally, work with an estate planning attorney to update your wills, powers of attorney, and any revocable trusts.  They should include language giving lawful consent for providers to access the digital assets to the appropriate people.

If your estate plan doesn’t account for digital assets properly, your heirs may not have access to them. Talk with your attorney about the steps you can take now, and check in regularly, to update your estate plan to accommodate any changes in the law or in your digital property. Consult with one of our experienced attorneys today by scheduling an appointment at (614) 452-9724. We look forward to working with you!

The information presented here has been prepared by Charles H. McClenaghan, LLC, for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Charles H. McClenaghan, LLC, enters in to a written engagement agreement with a specific client for a specific legal matter.

LEGAL NOTICE:  THIS MESSAGE IS AN ADVERTISEMENT AND SOLICITATION.

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The best time to plan your estate is now. Individuals put off estate planning because they think they don’t own enough, they’re not old enough, they’re busy, think they have plenty of time, or they just don’t want to think about it. Believe it or not, you have an estate. Your estate consists of everything you own when you die, including your car, jewelry, home, other real estate, checking and savings accounts, investments, life insurance, furniture, retirement plans, etc. If you die without a will or living trust, state law will determine how most of your belongings are distributed, and the result may not be what you would want. By forming an estate plan, you can protect your assets and family’s interest in the manner you want to.

No matter how large or how modest, everyone has an estate and something in common—you can’t take it with you when you die. Estate planning should always be done with your goals and objectives in mind.

What are the type of questions you should be thinking about?

If you are incompetent or unable to make decisions, who will call the shots?

Who gets what when you are gone?

Trust…Will… Both? What makes sense for you?

If you have a surviving spouse, does it all go to your spouse?

Who will take care of your children and pets?

Do you want to plan for your elderly parents?

How can I plan for future grandchildren directly rather than have them receive their parent’s share of my estate?

What can estate planning accomplish? What CAN you control?

• Reduce Estate Taxes
• Protect your family’s privacy by preventing your will from becoming a public record
• Avoid a Mess
  • Avoid Probate
  • Reduce stress for your loved ones
• Protect your spouse, children, and pets
• Choose a guardian and an inheritance manager for minor children
• Protect your children’s inheritance who may need future protection from creditors or possible divorce
• Provide for children and family members with special needs
• Protect assets from creditors
• Protect assets from ending up with unintended beneficiaries
• For children, control the time, amount, and conditions for when they receive their inheritance
• Provide enough cash to meet expenses and prevent the forced sale of assets
• Include instructions for your care if you become disabled before you die
• Eliminate family messes when you are gone
• Control all your assets while you are alive and healthy
• Choose who will have the control and make health care decisions for you in the event of your incapacity

Don’t be caught off-guard and unprepared when incapacity or death happens. What you put in writing now can always be changed later. In fact, this is how estate planning should be done as your life progresses. Another benefit from estate planning is having a peace of mind and knowing you have a properly prepared plan in place- A plan that contains your personal instructions and will protect your family. This is one of the most thoughtful and considerate things you can do for yourself and for those you love. Don’t wait – start or update your estate plan today!

Becca Hamilton is a Law Clerk at Charles H. McClenaghan.  To read more about our firm, please visit www.lawdublin.com.

The information presented here has been prepared by Charles H. McClenaghan, LLC for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Charles H. McClenaghan, LLC enters in to a written engagement agreement with a specific client for a specific legal matter.

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