Although we would all like to believe that our family and loved ones will honor our wishes as expressed in our estate plan, contests are more common than you might think. Sometimes, a family member does not receive what they thought they would after a loved one passes away. To try to get what they think they are entitled to, they may file a lawsuit alleging that the person who made the will (the testator) or trust (the grantor) was not mentally competent to create it. There is a heightened risk that your estate planning documents will be challenged if you disinherit someone who ordinarily would have received money and property at your death or if you have been diagnosed with a medical condition that will slowly decrease your mental capacity. If a court finds that you did not have the mental capacity to sign your estate planning documents, the documents will be invalidated. Your money and property will be transferred to the people identified by state law, who may not be the individuals you would have chosen.

In most states, there is a legal presumption that people have capacity to create their estate planning documents and that they can transfer their property to whomever they would like. This means that the person challenging your plan has the burden of proving that you did not have capacity at the time your documents were signed. Nevertheless, there are some proactive steps you can take to provide evidence that you were competent when you created or updated your estate plan.

Get a doctor’s evaluation

As close in time to signing your estate planning documents as possible (optimally the same day), ask a doctor (preferably your primary doctor or a specialist in cognition such as a neurologist) to evaluate your mental capacity and document their opinion in writing. As your attorney, we can provide information to educate the doctor about the standards that must be met to have capacity to execute your estate planning documents. This will assist them in determining and documenting whether you have the necessary competency.

Make a gift

If you plan to disinherit or provide a proportionally smaller inheritance to a family member than they expect, consider making a gift to the family member close in time to when you sign your estate planning documents. If the family member accepts the gift and wants to keep it, they are admitting that you had the capacity to make the gift. If you had capacity to make the gift, you more than likely had capacity to sign your estate planning documents. This strategy will only work if your state’s rules regarding the capacity needed for making a gift and signing the will or trust that gives away your money and property are the same. If a higher level of capacity is needed to sign a will or trust than to make a gift, this strategy will not work for you.

Document the reasons for your decision

If you are disinheriting a child or other family member or providing an inheritance that may be less than they expect, tell your estate planning attorney the reasons for your decision. It may also be prudent to write down those reasons and record the names of other people you have told about your decision, such as friends or financial advisors. You can keep a copy of this document with your will, and it may be evidence of the rationale and deliberation underlying your decision. However, it is important that you not list these reasons in your will or trust to avoid further complications during the contest.

What Standards Must Be Met to Show Mental Competence?

Under state law, there is a certain level of understanding that you must have at the time you sign your estate planning documents. Even if you do not have the required level of mental competence before or after you sign your documents, if you are competent at the exact time you sign them, your documents will be valid. This is an important point because, for example, individuals who suffer from dementia may still be mentally competent when signing their estate planning documents if they have days of lucidity or times of day when they are more lucid.

Having the mental competence to sign your documents does not mean you must understand all the legal terminology that those documents contain, but rather, that you have a basic understanding of what you are doing when you sign. Depending upon your state’s law, there may be different standards for determining capacity depending upon the type of document you are signing.

At the end of the day, your estate plan is yours. You get to make your own decisions and leave your assets however you’d like to. Unfortunately, contests do happen and if you think this might impact your family, let us know! We are happy to help!

Give Us a Call

If you are concerned that someone may be dissatisfied with their inheritance and may attempt to challenge your plan, there are steps you can take to avoid lawsuits or conflicts after you pass away, including measures aimed at proving your mental competency at the time your estate plan was created. Please contact us at 614-429-1503, or you can email Courtney at courtney@lawdublin.com. So we can assist you in creating or updating your estate plan before serious competency issues arise.

The post <strong>Things You Can Do to Help Prove You Are Mentally Competent When Executing Your Estate Plan</strong> appeared first on Charles H. McClenaghan, LLC.

*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.

The post Estate Planning Issues for the Modern Family appeared first on Charles H. McClenaghan, LLC.

Recently, everyone has been talking about federal education loans and paying for school. Whether you’re paying back loans, trying to decide if you’re going to take them, or watching your ten year old twins play in the yard and wondering how the heck you’re going to afford two four year universities in eight years, it’s never to late to incorporate your education goals into your estate planning! If postsecondary education is in your family’s future, there are tools that we can include in your estate plan.

If this is on your mind, you’ve likely talked to your trusted financial advisor about your options. Unfortunately, many people forget that your estate planning can (and should) work together with your financial planning to ensure that all of your plans are aligned and will achieve your ultimate goals. If you’re reading this and thinking, “…Charles… I don’t HAVE a financial planner…” that’s not a problem! We can help direct you to someone that we trust and have worked with in the past.

Provision in a Revocable Living Trust

If you already have an existing revocable living trust, including a provision for the payment of your child’s or grandchild’s education expenses can be an easy way to help even if you pass away before the education is completed. Upon your passing, the money will be available to be used as you have directed. One benefit is that during your lifetime, you can change the trust provisions as often as you like. Additionally, you can determine how the money should be used. Your definition of education expenses can be as broad or as narrow as you want, and not all of the money in the trust has to be used for education expenses.

Revocable Education Trust

A revocable education trust provides substantial flexibility, as it allows you to set up a trust, act as a trustee, and make distributions for your chosen beneficiary’s education, but it can be revoked or revised if the funds are needed for other purposes or if the beneficiary does not attend college. It will not provide the tax benefits of other trusts or education plans, but it may be a better option if flexibility is a priority.

529 Plans

A 529 plan is a savings plan that provides tax advantages designed to encourage people to save for their child’s or grandchild’s future education costs. There are two types of 529 plans: prepaid tuition plans and education savings plans.

Prepaid Tuition Plan

A prepaid tuition plan allows you to purchase units or credits for your beneficiary’s future tuition and mandatory fees in advance at the current prices, helping to avoid paying the higher costs that likely will be charged in the future. These plans are usually available only for public and in-state colleges, cannot be used for room and board, and cannot be used to prepay tuition for elementary and secondary schools. If the beneficiary later decides to attend a private college or university, prepaid funds can be applied to tuition at most private postsecondary institutions.

Education Savings Plan

An education savings plan enables you to open investment accounts to save for any qualified higher education expenses. The funds can be used not only for tuition and fees, but also for college expenses such as room and board, computers, and software. This account can also be used to pay for education expenses at some international institutions. In addition, up to $10,000 can be used for elementary and secondary school tuition.

Impact on Financial Aid

It is important to note that setting aside money for a child’s or grandchild’s education expenses may impact the ability to qualify for need-based financial aid. The identity of the account owner impacts whether the account must be disclosed on the Free Application for Federal Student Aid (FAFSA) and the weight it will be given in the need-based calculation. Additionally, most types of trusts must be reported on the FAFSA as an asset of the beneficiary.

We Are Here to Help

Here at McClenaghan Law Group we work together with your financial team and can craft a plan that accomplishes all of your family’s education goals and sets them up for the best possible future. Call us today to set up a consultation or contact courtney@lawdublin.com to get scheduled!

The post Saving for School: Planning for Your Family’s Education appeared first on Charles H. McClenaghan, LLC.

Estate planning can be a very difficult process. While it is not a major surgery or spooky movie, making the decision to move forward with an estate plan requires us to face the fact that we will not live forever. This thought stops many people in their tracks. Others talk themselves out of seeing a qualified attorney to create an estate plan because of the following common myths.

Myth #1: Only the Rich Need an Estate Plan
When we hear about estate planning on the news or read about it on the internet, it is usually in regard to a wealthy businessperson or celebrity who had no estate plan, made an error in their estate plan, or has family members who are angry about the actual plan. Check out this post at the American Bar Association to see “Celebrities! They’re Just Like Us”… except they won’t be just like you, because you’re going to get your estate planning done! The topic catches people’s attention. Rich people have so much that, surely, they need an estate plan and can afford to have it done correctly. By comparison, when the average person thinks about their own planning needs, they assume that their possessions are not worth enough to necessitate an actual estate plan.

But this thinking could not be further from the truth. Estate planning is about more than just money. While proper planning allows you to determine who gets your money and property upon your death, the planning process also addresses what happens if you become incapacitated (unable to manage your own affairs) and someone has to make decisions on your behalf—a far more likely scenario. If you do not have an estate plan, the court will have to appoint someone to make your medical and financial decisions for you. The process can be very time-consuming, expensive, and public and can wreak havoc on a family if they disagree about who should be appointed and how decisions should be made.

Even if your means are modest, you should consider who gets your hard-earned savings when you die. If you have no plan, state law will decide who gets what, and many times, the government’s best guess as to what you would have wanted is contrary to your actual desires. But because you did not take the opportunity to formalize your wishes in an estate plan, the state has to step in. If you are interested in learning more about what that means, we are happy to direct you to a video that Attorney Phillip Haer released on the subject!

Myth #2: I Don’t Have to Plan Because My Spouse Will Get Everything

For many married couples, jointly owning property and bank accounts is common. If a couple owns accounts or property jointly or with a particular tenancy, when one spouse dies, the surviving spouse automatically becomes the sole owner. In many cases, married individuals prefer this outcome.

However, this approach can be dangerous. While it is convenient for money and property to pass automatically to a surviving spouse, outright distribution offers no protection. What happens if, after your spouse dies, you have a car accident and get sued? If the jointly owned money and property automatically become solely yours, they are available to creditors to satisfy any judgment against you.

In addition, what if, after you die, your spouse remarries? If the brokerage account you owned jointly becomes solely your spouse’s, they can now spend it all in any way they want with no consideration for either your wishes or the next generation. Your surviving spouse’s new spouse could buy a sports car with the money you intended to pass to your children. With blended families being common today, this scenario is a real concern for many people.

Estate planning does not mean that you have to disinherit your spouse. Rather, it means the two of you can sit down and proactively plan what happens to your joint property and accounts when either of you dies, ensuring that the survivor is provided for and that any remaining money and property are gifted in a way that is agreeable to both of you.

Myth #3: A Will Avoids Probate

Many people believe that, once they have created a will, whether drafted by an experienced attorney or by using a do-it-yourself solution or online form, they have avoided probate. Unfortunately, they are wrong.

While a will is an effective way to designate a person to wind up your affairs after you have passed, determine who will get your hard-earned savings and property, and, if necessary, appoint a guardian to care for your minor children, a will must be submitted to the probate court to begin the process of distributing your money and property. The level of the probate court’s involvement can vary depending on the circumstances, but because the will becomes a matter of public record, the process is not private. Planning with a trust is a better option for most families, but it’s important to have a consultation with an experienced attorney to help you determine your goals and create a plan to meet them.

Here at McClenaghan Law Group, we are here to answer any questions you may have about estate planning, the estate planning process, or probate. Together, we can craft a one-of-a-kind plan to ensure that you and your family are properly protected. Give our office a call or sent an email to courtney@lawdublin.com to get scheduled for a consultation!

The post Myths We Tell Ourselves about Estate Planning appeared first on Charles H. McClenaghan, LLC.

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!

The post Estate Planning Awareness Week: The Importance to You and Your Loved Ones of Having an Estate Plan appeared first on Charles H. McClenaghan, LLC.

Planning for four-legged loved ones (kids in fur coats) can be just as challenging as planning for two-legged loved ones (minor children). Clients typically ask, “Do I need a trust or a will to make sure my pets are cared for?” The answer, of course, is, “It depends.” 

Planning for pets presents a number of important considerations:

• How many pets do you have?
• What types of pets are they?
• Do they have any unique care requirements (e.g., health concerns, unusual behaviors, etc.) that require special planning?
• Where do you want the pets to live in the event of the your disability or death?
• What financial resources will be provided to ensure the pets are adequately provided for?
• Who will be responsible for providing daily care?
• Is there a short-term pet caregiver who can be responsible for the pets at a moment’s notice until the long-term pet caregiver can be notified?
• Who will act as the long-term pet caregiver?
• Are there alternates for both the short-term and long-term pet caregivers?
• Who will be responsible for the oversight and administration of the assets left for the benefit of the pets?

These are just a few of the questions to be answered when creating a plan for loved pets! Don’t leave anything to chance with the care of your furry friends. 

No two pet owners will have the same planning goals for their pets. One person might like the idea of their pets staying in their own home with a pet caregiver who will move in and live on the premises. They will remain in the same safe environment they have always been used to. Others may be comfortable with a new forever home for their pets. Some will prefer a sanctuary environment, where their pets will live among many other pets. These are just a few of the issues and concerns that a pet parent must consider when creating a plan that ensures loved pets will be properly cared for when their pet parent is unable to do so as the result of natural disaster, disability, or death.

As with planning for minor children, the first step in planning for loved pets goes beyond the legal design of a pet estate plan. The first step is to identify the people or organizations (pet caregivers) that will have physical custody of the pets and provide them with both short-term and long-term (lifetime) care. Before any of the financial and legal considerations are addressed, the pet parent must feel comfortable with their pet’s caregiver. For some, finding the right pet caregiver can be a challenge. 

When choosing a pet caregiver, some important factors to consider are the following:

• Is this person responsible and committed to caring for the loved pets for the rest of their lives?
• Does the person already have their own pets?
• Will the new pets cause issues for the pet caregiver’s existing pets?
• What plans does the pet caregiver have for their own pets if something happens to the caregiver?

Never take for granted a person’s willingness to serve. Life happens fast. Even the best-intentioned people can experience life changes that prevent them from fulfilling their responsibility. It is always good practice to have one or more back-up caregivers.

There are numerous choices when planning for pets. Some pet parents choose to leave a fixed sum of money and their pet to a trusted pet caregiver. This choice is the riskiest because there is no way to ensure the funds will be used for the proper care of the pet. Others will want more certainty and may elect to create a trust for the lifetime care of their pets. Each choice has its pros and cons. An option with immediate access to the resources might be ideal. The probate process can result in significant delays that can have disastrous results for loved pets. 

Planning for loved pets does not mean merely considering what will happen when the pet parent dies. Clients will also want to have a plan for the pets if the pet parent becomes disabled or in the event of a natural disaster. What will happen to the pets if a pet parent ends up in a nursing home or an assisted living facility that does not accept pets? Who can provide for the pets if a natural disaster prevents pet parents from returning home or taking their pets with them in an evacuation? The role of short-term pet caregivers and pet sitters cannot be underestimated in these circumstances.  

Pet parents should consider maintaining a notebook for their loved pets that contains all the important details, including, but not limited to, the pet’s name, description (including picture), age, health, special instructions for care, behavioral information, veterinary information, short-term pet caregivers, and long-term pet caregivers. If the information is needed in an emergency, the notebook will be available and up to date with critical information, and we can use the information inside to prepare your estate planning documents that will help ensure your pet is cared for, even if you’re not able to do it.

We are more than happy to discuss estate planning for your pet(s)! Here at McClenaghan Law Group, we have experience creating pet trusts that are simple, complex, and every level in between. Whether you have a whole farm, or just one bow-wow, call us today at 614-429-1053 to schedule a consultation!

The post Pet Planning 101 appeared first on Charles H. McClenaghan, LLC.

As a small business owner who puts in long hours to build your enterprise, it can sometimes feel like there is no separation between your personal and professional lives. You are probably willing to make this sacrifice to build a company that reflects your values and vision. But without a comprehensive asset protection strategy, everything you worked so hard to build could be lost if you are forced to pay money due to a claim or lawsuit against your business.

The best time to put asset protection strategies into place is before the need for asset protection arises. You can implement some of these strategies at your business’ inception. Other measures need to be consistently followed to maximally protect your personal assets.

Choice of Business Entity

There are certain business types out there that limit your personal liability. When a creditor goes after these types of entities for payment of a debt or lawsuit judgment, typically only business assets may be pursued. This is not true for other business entities. The owners of these business types can be held personally liable if the business owes money. If you’re not sure which entity is right for you and your business, set up an appointment to talk with us about it!

Maintaining Business Protocols

Choosing the right business entity is an important first step, but if certain protocols are not followed, a business entity could lose its liability protection, exposing the assets of its individual owners to claims made against the business.

“Piercing the Corporate Veil” is a very important concept for small businesses. Depositing a check in the wrong place or using the wrong card might seem like a small accident and a regular part of operating a business, but it can have very serious consequences that you aren’t prepared for.

Similarly, partners in a limited partnership are generally not permitted to play an active role in managing the day-to-day affairs of the business. If they do, a court may treat the partnership as a general partnership, resulting in the loss of its limited liability protection.

Something that all businesses can do to maintain personal asset protection is to keep company affairs separate from their personal affairs. This includes having separate personal and business bank accounts and never commingling the two, titling all business properties in the business’s name, and using the company name on business contracts and correspondence. In short, follow the law to the letter and draw a clear line between your personal and business finances to preserve your liability protection.

Estate Planning

A trust established for the express purpose of asset protection is another possibility. Here at McClenaghan Law Group, we work with clients daily to prepare estate planning documents that reflect their wishes and help them avoid probate. However, estate planning isn’t just to make sure that your home, heirlooms, and hard earned money goes where you want – it’s also to help you run and protect your businesses! There are laws that govern how much a trustee can be involved in a business, but by carefully constructing an estate plan that considers your business goals, you can make a comprehensive protection plan that covers everything you care about/

Do not wait to put asset protection measures in place to avoid devastating losses. Choosing a business entity that walls off your personal assets, maintaining formalities and separation between your business and personal affairs, purchasing insurance, taking advantage of exemptions, and creating trusts are a few of the asset protection strategies we recommend to our clients. Here at McClenaghan Law Group, our attorneys can help you explore these and other strategies and assist you with implementing an asset protection plan that best fits your personal and professional needs.

If any of these topics interest you, please give us a call to set up an appointment! You can reach us by telephone ta 614-429-1053 or by emailing courtney@lawdublin.com

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No one should rely on an old, out-of-date Trust or Last Will and Testament (Will) as the foundation of their estate plan. In our“Don’t Set-it-And-Forget-It” Blog Post, we talked about how important estate planning updates are. Many life events, even small ones, can change your estate plan. Restatements, Amendments, and Codicils can be used to update your estate plan. We are very familiar with those words here at McClenaghan Law Group, but we know that you might need some more information before you’re ready to decide which one is right for you. Keep reading to learn more about these different options!

Trust Updates: Restatements v. Trust Amendments

The two options to modify your trust are Restatements and Trust Amendments. Restatements are just what they sound like; you are stating your entire trust again with some updates! Trust amendments are similar, but simply remove and replace the specific sections you would like to change. How do you know which one of these to ask for? Well, you just ask your attorney! (insert laughter) Okay, jokes aside, there are a few factors that can help you determine which option makes the most sense. Generally, if you’re making one or two changes, an Amendment would be sufficient. If you want numerous or comprehensive changes, it would be best to consider a Restatement to your trust. Restatements are also helpful when you have existing amendments that you would like to condense into your restatement. Amendments only change a part or parts of the revocable living trust but the rest of the provisions in the original document remain in effect.

Will Updates: Codicils

Codicils are used to make small changes to a Last Will and Testament or Pour-Over Will. The codicil only changes a part of the Will but the rest of the provisions in the original document will remain in effect (similar to a trust amendment). If you want to make major changes to this document, it may be better for you to have a new Will created instead of trying to amend your existing one. This helps ensure that you have the most control and that your wishes are clearly being expressed. We don’t want any confusion when it comes to your Last Will and Testament! If you choose to have the Will redrafted, this becomes your new controlling document and the existing Will is no longer in effect.

When it is time for you to have your estate planning documents updated, give us a call! Remember that there is no one-size-fits-all option for estate planning, so it is best to include your attorney in the process. Call us at 614-429-1053 to book a consultation, or email courtney@lawdublin.com to get scheduled today!

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Family dynamics can change drastically when one member passes away. Particularly if a surviving spouse remarries! The question of what happens to the family home can make the unique relationship between the children and the new spouse even more complicated. If done correctly, setting up a Right of Occupancy trust can help you avoid these complications. Right of Occupancy might be a good decision for your family even if you’ve not remarried but you have a specific beneficiary that you would like to continue living in your home.

What is a Right of Occupancy?

A Right of Occupancy allows the client to designate a beneficiary to live at a property, even after they pass. It can also provide for the expenses to maintain the property. When setting up a Right of Occupancy, you can choose how long the arrangement will last. This can be a designated period or until the beneficiary passes away or leaves the property.

Right of Occupancy v. Life Estate

The most major difference between a Right of Occupancy and a life estate is that the beneficiary of a life estate can sell or transfer their interest in the Property. With a Right of Occupancy, the ownership interest remains within the trust. The beneficiary has the right to stay in the home for a predetermined amount of time or until they move or pass away. As with anything, there are drawbacks to a Right of Occupancy. Owning real estate comes with certain tax benefits and some states have homestead provisions that limit how much a home’s property tax can increase each year. Those benefits may not be available when the property is held in a Right of Occupancy trust.

Things to Consider

When considering if a Right of Occupancy provision is right for you, remember that the beneficiary typically must occupy the home or property to retain the right. The beneficiary also does not have an ownership interest that can be sold or transferred to another individual. You will also have to decide whether the trustee or beneficiary will pay the utilities. The client can also select who is responsible for paying the mortgage (if there is still one on the home or property), property tax, home insurance, and the maintenance of caring for the house/property costs. When the client passes away it may create a different dynamic in the family. By stating the client’s wishes for the property, it can reduce conflict among the trustee, beneficiary, and the property’s ultimate heirs (remainder beneficiaries) if the client plans to offer a Right of Occupancy. Unfortunately, this may not eliminate all conflict; for example, other beneficiaries may be frustrated by the Right of Occupancy provision because they believe that they could sell the home for a larger inheritance instead of allowing the occupant to continue living there. Similarly, heirs might feel disappointed or angry that one beneficiary is allowed to remain in the home while the others do not have the option to live there after your passing.

If you are still interested in the idea of a Right of Occupancy, please give our office a call to discuss updating your trust or creating an estate plan to reflect this wish. You may schedule a consultation by emailing Courtney@LawDublin.com or calling the office at 614-582-2875!

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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.

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