Category: Financial Planning

ways to avoid a succession fight

Ways to Avoid a Succession Fight

Far too often businesses fail because there was not a plan in place to succeed the owner or CEO. There are ways to avoid a succession fight. A comprehensive succession plan is a set of legal guidelines to ensure an orderly transfer of financial control and executive responsibilities to a new generation of leaders. Index Fund Advisors’ recent article entitled “How to Avoid a Messy Succession Battle” suggests that you take a multi-prong approach to succession planning.

A business owner must identify the individual who has the skills to run a business. A succession plan can sometimes divide the leadership roles, with one person running the business and another in a senior role overseeing long-term development and planning.

Business owners also must consider their personal estate plans when devising a succession plan. Business owners need to be proactive about estate planning and succession planning. Ask an experienced estate planning attorney about both processes as ongoing strategies. That means you don’t create an estate plan or a succession plan and file it away until you want to retire. Circumstances can change, so you’ll probably periodically need to review it and make sure everything is up-to-date.

When multiple owners are involved, a succession plan should create rules and procedures for other owners who might want to hire friends and relatives for key positions. The company’s founders must consider what happens if an owner gets a divorce, suffers a disability, or declares personal bankruptcy. These types of situations can change the rules within a buy-sell agreement—the master document that details the rules between who gets what and how a company is organized in the future.

A succession plan can also state the rules for issues involving transferring of equity and/or shares of a company to family members. In addition to putting into writing exactly who can be a transferee and the amount of equity they’re allowed, business owners should use the succession planning process to address issues related to voting rights. A succession plan should also specify the financial terms at the time of an owner’s death or sudden exit.

While avoiding such a decision-making process might appeal to younger executives, delaying these decisions and processes creates more uncertainty in a company’s ongoing success.

Whatever the size of a business, any business owner needs to create a succession plan sooner rather than later. If you don’t, you may not be able to avoid a succession fight for the next generation of owners and employees. If you would like to learn more about business succession planning, please visit our previous posts. 

Reference: Index Fund Advisors (Nov. 22, 2021) “How to Avoid a Messy Succession Battle”

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Trust provides more Protection than TOD

Trust provides more Protection than TOD

Many people incorporate a TOD, or “Transfer on Death” into their financial plan, thinking it will be easier for their loved ones than creating a trust. However, a trust provides more protection than a TOD. The article “TOD Accounts Versus Revocable Trusts—Which Is Better?” from Kiplinger explains how it really works.

The TOD account allows the account owner to name a beneficiary on an account who receives funds when the account owner dies. The TOD is often used for stocks, brokerage accounts, bonds and other non-retirement accounts. A POD, or “Payable on Death,” account is usually used for bank assets—cash.

The chief goal of a TOD or POD is to avoid probate. The beneficiaries receive assets directly, bypassing probate, keeping the assets out of the estate and transferring them faster than through probate. The beneficiary contacts the financial institution with an original death certificate and proof of identity.  The assets are then distributed to the beneficiary. Banks and financial institutions can be a bit exacting about determining identity, but most people have the needed documents.

There are pitfalls. For one thing, the executor of the estate may be empowered by law to seek contributions from POD and TOD beneficiaries to pay for the expenses of administering an estate, estate and final income taxes and any debts or liabilities of the estate. If the beneficiaries do not contribute voluntarily, the executor (or estate administrator) may file a lawsuit against them, holding them personally responsible, to get their contributions.

If the beneficiary has already spent the money, or they are involved in a lawsuit or divorce, turning over the TOD or POD assets may get complicated. Other personal assets may be attached to make up for a shortfall.

If the beneficiary is receiving means-tested government benefits, as in the case of an individual with special needs, the TOD or POD assets may put their eligibility for those benefits at risk.

These and other complications make using a POD or TOD arrangement riskier than expected.

A trust provides a great deal more protection for the person creating the trust (grantor) and their beneficiaries than a TOD. If the grantor becomes incapacitated, trustees will be in place to manage assets for the grantor’s benefit. With a TOD or POD, a Power of Attorney would be needed to allow the other person to control of the assets. The same banks reluctant to hand over a POD/TOD are even more strict about Powers of Attorney, even denying POAs, if they feel the forms are out-of-date or don’t have the state’s required language.

Creating a trust with an experienced estate planning attorney allows you to plan for yourself and your beneficiaries. You can plan for incapacity and plan for the assets in your trust to be used as you wish. If you want your adult children to receive a certain amount of money at certain ages or stages of their lives, a trust can be created to do so. You can also leave money for multiple generations, protecting it from probate and taxes, while building a legacy. If you would like to read more about a TOD or POD, and how they work, please visit our previous posts. 

Reference: Kiplinger (Dec. 2, 2021) “TOD Accounts Versus Revocable Trusts—Which Is Better?”

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Estate of The Union Episode 12 is out now!

 

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Non-Grantor Trusts can be useful

Non-Grantor Trusts can be Useful

Yahoo News’ recent article entitled “How a Non-Grantor Trust Works” says that a grantor trust lets the grantor (the person creating the trust) maintain certain powers of the trust. No matter the scope of the powers involved, what’s unique about grantor trusts is their tax treatment—the trust grantor is responsible for paying income tax on the trust assets. Any income the trust generates or receives is taxable to the grantor, who reports it on their personal tax return. Non-Grantor Trusts can be useful in a number of situations.

A non-grantor trust is any trust that isn’t a grantor trust. As a result, they can’t revoke or change the terms of the trust or make changes to trust beneficiaries. This lack of control means that a non-grantor trust is treated as a separate tax entity. Therefore, the trust itself must pay taxes on any income that’s received and file a tax return. A non-grantor trust can offer certain tax benefits to the trust grantor: (i) the grantor wouldn’t have to pay tax on the trust income, which may be a benefit where the grantor prefers to assume no further financial responsibility for the trust or its assets; and (ii) there can be positive tax implications, if the trust beneficiaries are in a lower tax bracket than the grantor. When trust income is distributed to beneficiaries in a lower tax bracket, it may be taxed at a lower rate than it would if the grantor were being taxed.

Ask an experienced estate planning attorney about a non-grantor trust if you run a business, since the Qualified Business Income (QBI) deduction lets eligible taxpayers deduct up to 20% of qualified business income, as well as 20% of qualified real estate investment trust (REIT) dividends and qualified publicly traded partnership (PTP) income. If you own a business, and your income is above the allowed threshold to qualify for the QBI deduction, you could create a non-grantor trust as a work-around and divide the ownership of your business assets and its associated income. This may let you qualify for the QBI deduction.

However, there are some potential drawbacks with non-grantor trusts. Remember, the trust grantor lacks control of what happens with trust assets. It is also important to consider how any transactions between you as the grantor and the trust may be taxed. Certain interactions, including the movement of assets or income between the two, is taxable because you and the trust are two separate entities, which may mean taxes for one or the other.

In addition, an incomplete non-grantor (ING) trust is a type of trust that’s used for asset protection. It’s frequently used by those who live in states with high income tax rates or no state income tax. If you live in a state with high income tax rates, you could create an incomplete non-grantor trust and fund it using appreciated assets that have a low tax basis. If the trust is created in a state that has lower income tax rates or no state income tax, it may reduce the grantor’s tax bill when later selling those assets.

Incomplete non-grantor trusts can also allow you to transfer ownership of assets to the trust without paying gift tax. There are also the other tax benefits associated with non-grantor trusts.

Non-grantor trusts can be useful in a variety of circumstances. Ask an experienced estate planning attorney if one would be useful for your tax and estate planning situation. If you would like to learn more about trusts, please visit our previous posts.

Reference: Yahoo News (Nov. 9, 2021) “How a Non-Grantor Trust Works”

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Estate of The Union Episode 12 is out now!

 

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TOD and POD Accounts are ways to avoid Probate

TOD and POD Accounts are ways to avoid Probate

Kiplinger’s recent article entitled “TOD Accounts Versus Revocable Trusts – Which Is Better?” explains that a TOD account typically deals with distributing stocks, brokerage accounts or bonds to the named beneficiary, when the account holder dies. A POD account is similar to a TOD account. However, it handles a person’s bank assets (cash), not their securities. Both TOD and POD accounts are quick and simple ways to avoid probate.

That can be slow, expensive, public and possibly messy. Financial institutions offer TOD and POD at their discretion, but almost all major brokerage houses and investment houses now have these types of accounts, as well as most banks for standard bank accounts. Many even let you handle this online.

The big benefit of using a POD or TOD account is probate avoidance. As mentioned, TOD and POD accounts avoid the probate process, by naming a beneficiary or beneficiaries to inherit the asset directly when the account owner passes away. These accounts can distribute assets quickly and seamlessly to the intended beneficiary.

However, when someone passes away, there can be creditors, expenses of administering the decedent’s estate and taxes owed. The person or persons responsible for administering the decedent’s estate are typically empowered under the law to seek contributions from the POD and TOD beneficiaries to pay those liabilities. If the beneficiaries don’t contribute voluntarily, there may be no choice but to file a lawsuit to obtain the contributions. The beneficiary may also have spent those assets or have other circumstances, such as involvement in a lawsuit or a divorce. Consequently, these situations will complicate turning over those assets.

A trust lets you to plan for incapacity, and if the creator of the trust becomes incapacitated, a successor or co-trustee can assume management of the account for the benefit of the creator. With a POD or TOD account, a durable power of attorney would be required to have another person handle the account. Note that financial institutions can be reluctant to accept powers of attorney, if the documents are old or don’t have the appropriate language.

A trust allows you to plan for your beneficiaries, and if your beneficiaries are minors, have special needs, have creditor issues, or have mental health or substance abuse issues, trusts can hold and manage assets to protect those assets for the beneficiary’s use. Inheritances can also be managed over long periods of time with a trust.

Although in some cases POD and TOD accounts are ways to avoid probate, their limitations at addressing other issues can cause many individuals to opt for a revocable trust. Talk to an experienced estate planning attorney to see what’s best for you and your family. If you are interested in learning more about avoiding probate, please visit our previous posts.

Reference: Kiplinger (Dec. 2, 2021) “TOD Accounts Versus Revocable Trusts – Which Is Better?”

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Estate of The Union Episode 12 is out now!

 

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What is the purpose of an ILIT?

What is the Purpose of an ILIT?

What is the purpose of an ILIT? Life insurance falls into two categories: life insurance and death insurance. Life insurance is used to take advantage of the tax-free returns that qualifying insurance products enjoy under federal income tax laws. There is a death component. However, the main purpose is to serve as a tax-deferred investment vehicle. Death insurance is used to provide financial security for loved ones after the owner passes, with little or no regard for tax and investment benefits.

Using both types of life insurance in estate planning can be a complicated process, but the resulting financial security is well worth the effort, as reported in a recent article “Keeping an Eye on ILITs” from Financial Advisor.

The Irrevocable Life Insurance Trust is a somewhat complex trust structured under state trust law and tax strategies under federal income tax laws. ILITs have been tested in court cases, audits and private letter rulings, so an estate planning attorney can create an ILIT knowing it will serve its intended purpose.

Life insurance in an ILIT is owned outside of the estate and enhances the after-estate tax wealth for the surviving spouse and heirs. Because the trust is irrevocable, the transfer of ownership is permanent.

The annual insurance premium is typically paid by the insured to the ILIT, subject to “Crummey” withdrawal powers, named after a famous case, which gives named people the power to withdraw all or a portion of the contributed premium amounts within specified periods. The time frame depends on the trust—usually it’s 30 or 60 days, but sometimes it’s annually.

There are many nuances and details.  The ILIT lets an insured buy life insurance “outside of their estate” for estate tax purposes, lets the person treat insurance premiums as non-taxable gifts under the annual exclusion provisions and provides safety and security to the beneficiaries.

The ILIT is often used as part of a buy-sell agreement for privately held family businesses to make it possible for the business itself or business partners to buy out the equity of a deceased partner. The payment obligations may be funded by the proceeds from life insurance. In some cases, each partner buys a traditional insurance policy in an ILIT. The estate planning attorney working on a succession plan can provide advice on the most effective way to use the ILIT.

Another use for the ILIT is for wealthy families with illiquid assets, like an art collection or a large real estate portfolio. An ILIT holding a life insurance policy with a death benefit lets the beneficiaries use the proceeds to pay estate tax liabilities, without dipping into their own or the estate’s assets. The investment returns of the ILIT increase the policy owner’s wealth substantially, without increasing their taxable estate. Your estate planning attorney will help you understand the purpose of an ILIT, and how it may benefit your overall estate planning strategy. If you would like to learn more about ILITs, and other types of trusts, please visit our previous posts.

Reference: Financial Advisor (December 1, 2021) “Keeping an Eye on ILITs”

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Estate of The Union Episode 12 is out now!

 

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holidays are a good time to have a family meeting

Holidays are a good time for a Family Meeting

Kiplinger’s recent article entitled “Someone Needs to Know Where Your Money Is” recommends that families talk about money with an elderly parent. The holidays are a good time for a family meeting. If it’s really too late, you should know where to find the following:

Get the most recent tax return. This will have the name and contact information of the accountant who prepared the tax return. The tax return will also document income. If you find the income, you can find the assets. The reason is that earned interest, dividends, pension income and withdrawals from retirement accounts will be reported on the tax return. You should also call his or her employer’s human resources department to see if there’s a company life insurance benefit or 401(k) balance.

When a senior is admitted to the hospital, their health can sometimes deteriorate quickly. It’s one example of how everyone needs to have their estate plan updated and make sure their financial affairs are in order at all times. Someone must know all of the financial details and how to access the money, life insurance and other important documents. Here are some actions to consider taking now to ensure this situation doesn’t occur with you or a family member.

Collect key financial documents. During the family meeting, ask your parents to collect copies of the following documents:

  • Their wills;
  • Any trusts;
  • Their financial power of attorney;
  • All bank and brokerage account information;
  • Social Security statements;
  • Their website log-ins for any financial assets and insurance policies;
  • A list of beneficiaries for IRAs, annuities and life insurance policies;
  • A list of any other assets and debts; and
  • Their most recent tax returns.

As you begin gathering these documents, the most crucial one to help uncover current assets is the tax return. It can help describe the parent’s assets and the income they have from pensions, annuities, real estate investments, business interests and Social Security. A Schedule B is filed to report the interest and dividends received each tax year. If you’re unable to locate any paper statements or log-in information to financial websites to track down an asset, ask the tax preparer for a copy of the 1099 form for each asset, so you will know which company to contact.

Make certain key documents are signed. These are a will, financial power of attorney, health care power of attorney and any trust documents. Put these in a safe place, along with a copy of the Social Security card, birth and marriage certificates. You should also provide copies and access to files to people who serve as professional advisers, such as attorneys, accountants, financial planners and insurance agents. In addition, share contents of this collection with your parent’s executor, financial and health care agent and/or another relative who lives nearby. With everyone gathered together, the holidays are a good time to have a family meeting and make sure everyone is on the same page. If you would like to learn more about planning for elderly loved ones, please visit our previous posts. 

Reference: Kiplinger (Nov. 1, 2021) “Someone Needs to Know Where Your Money Is”

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Estate of The Union Episode 12 is out now!

 

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avoid major retirement regrets

Avoid Major Retirement Regrets

A 2019 survey by Global Atlantic Financial Group, which sells annuities, asked more than 4,000 Americans, pre-retirees and retirees, about their retirement savings. Of those surveyed, 55% said they had regrets. Let’s look at how you can avoid major retirement regrets. The top three were that they:

  • Did not save enough.
  • Relied too much on Social Security.
  • Did not pay down debt before retiring.

However, you can avoid some of this remorse, by taking steps now.

  1. Failing to save enough. A recent survey found that 62% of respondents were confident about their current financial health. However, when people looked ahead to their retirement finances, that changed. Part of the issue is planning. Only 18% of the Fidelity survey respondents had a financial plan for retirement. Without planning, it’s hard to know if you have enough saved. See how much you’ll be spending in retirement. Go through your expenses and increase your savings. The most common financial surprises for retirees are inflation and unexpected medical costs.
  2. Depending too much on Social Security. Rather than looking at Social Security as your main source of income in retirement, view it as one of several legs of a stool. Social Security isn’t designed to provide all the necessities of life. It is supplemental. It is not intended to be replacement income. Your planning should include other resources, including:
  • Tax-advantaged retirement plans
  • Pensions
  • Taxable investment accounts
  • Personal savings
  • A health savings account
  • Income from businesses or properties.
  1. Not paying off debt before you retire. For retirees on fixed incomes, debt makes it difficult to really enjoy retirement. Therefore, retire any debt you have before you stop working. You should systematically focus on one debt at a time, while making minimum payments on other debts. Get started by targeting the debt with the highest interest, or perhaps the one with the smallest balance. The goal is to be debt-free in retirement, so your financial resources can go toward helping you enjoy life. However, you shouldn’t concentrate too much on paying down debt and overlooking your retirement savings.

The best way to avoid major retirement regrets is planning. Start now and evaluate your situation. Then develop a retirement roadmap that helps you get from today to tomorrow. If you would like to learn more about retirement planning, please visit our previous posts.

Reference: Money Talks News (Oct. 13, 2019) “The 3 Biggest Regrets of Retirees — and How to Avoid Them”

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Estate of The Union Episode 11-Millennials’ Mysteries Uncovered!

 

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When should You Consult an Elder Law Attorney?

When should You Consult an Elder Law Attorney?

Elder law attorneys assist seniors or their family caregivers with legal issues and planning that related to the aging process. These attorneys frequently help with tax planning, disability planning, probate and administration of an estate, nursing home placement and many other legal issues. When should you consult an elder law attorney?

Forbes’ recent article entitled “Hiring an Elder Law Attorney,” explains that elder law attorneys are specialists who work with seniors or caregivers of aging family members on legal matters that older adults face as they age. Many specialize in Medicaid planning to help protect a person’s financial assets, when they have Alzheimer’s disease or another debilitating illness that may require long-term care. They can also usually draft estate documents, including a durable power of attorney for health and medical needs, and even a trust for an adult child with special needs.

As you get older, there are legal issues you, your spouse or your family caregivers face. These issues can also change. For instance, you should have powers of attorney for financial and health needs, in case you or your spouse become incapacitated. You might also need an elder law attorney to help transfer assets, if you or your spouse move into a nursing home to avoid spending your life savings on long-term care.

Elder law attorneys can help with a long list of legal matters seniors frequently face, including the following:

  • Preservation and transfer of assets
  • Accessing health care in a nursing home or other managed care environment and long-term care placements
  • Estate and disability planning
  • Medicare, Social Security and disability claims and appeals
  • Supplemental insurance and long-term health insurance claims and appeals
  • Elder abuse and fraud recovery
  • Conservatorships and guardianships
  • Housing discrimination and home equity conversions
  • Health and mental health law.

The matters listed above are all issues that should motivate you to consult an elder law attorney. Certified Elder Law attorney Melissa Donovan at The Wiewel Law Firm can help! If you would like to learn more about elder law, please visit our previous posts. 

Reference: Forbes (Oct. 4, 2021) “Hiring an Elder Law Attorney”

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Estate of The Union Episode 11-Millennials’ Mysteries Uncovered!

 

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What a will can and cannot do

What a Will Can and Cannot Do

Everyone needs a will. A last will and testament is how an executor is named to manage your estate, how a guardian is named to care for any minor children and how you give directions for distribution of property. However, not all property passes via your will. You’ll want to know what a will can and cannot do, as well as how assets are distributed outside of a will. This was the topic of “The Legal Limits of Your Will” from AARP Magazine.

Retirement and Pension Accounts

The beneficiaries named on retirement accounts, including 401(k)s, pensions, and IRAs, receive these assets directly. Some states have laws about requiring spouses to receive some or all assets. However, if you don’t keep these beneficiary names updated, the wrong person may receive the asset, like it or not. Don’t expect anyone to willingly give up a surprise windfall. If a primary beneficiary has died and no contingency beneficiary was named, the recipient may also be determined by default terms, which may not be what you have in mind.

Life Insurance Policies.

The beneficiary designations on an insurance policy determine who will receive proceeds upon your death. Laws vary by state, so check with an estate planning attorney to learn what would happen if you died without updating life insurance policies. A simpler strategy is to create a list of all of your financial accounts, determine how they are distributed and update names as necessary.

Note there are exceptions to all rules. If your divorce agreement includes a provision naming your ex as the sole beneficiary, you may not have an option to make a change.

Financial Accounts

Adding another person to your bank account through various means—Payable on Death (POD), Transfer on Death (TOD), or Joint Tenancy with Right of Survivorship (JTWROS)—may generally override a will, but may not be acceptable for all accounts, or to all financial institutions. There are unanticipated consequences of transferring assets this way, including the simplest: once transferred, assets are immediately vulnerable to creditors, divorce proceedings, etc.

Trusts

Trusts are used in estate planning to remove assets from a personal estate and place them in safekeeping for beneficiaries. Once the assets are properly transferred into the trust, their distribution and use are defined by the trust document. The flexibility and variety of trusts makes this a key estate planning tool, regardless of the value of the assets in the estate.

Take the time to sit down with an experienced estate planning attorney who help you understand the limitations of what a will can and cannot do. If you would like to read more about wills and how they are structured, please visit our previous posts. 

Reference: AARP Magazine (Sep. 29, 2021) “The Legal Limits of Your Will”

The Estate of The Union Episode 10

 

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providing financial security to your heirs

Providing Financial Security to your Heirs

AARP’s recent article “6 Ways to Pass Wealth to Your Heirs” says that providing financial security to your heirs after you’re gone is a goal you can reach in a number of ways.

Lets’ look at a few common options, along with their pluses and minuses:

  1. 401(k)s and IRAs. These grow tax-free while you’re alive and will continue tax-free growth after your beneficiaries inherit them. Certain heirs, such as spouses and people with disabilities, can hold these accounts over their lifetime. Withdrawals from Roth IRAs and Roth 401(k)s are nearly always tax-free. However, other heirs not in those categories have to empty these accounts within 10 years.
  2. Taxable accounts. Heirs now get a nice tax break on investments that have grown in value over time. Say that years ago you bought stock for $300 that now trades for $3,000. If you sold it now, you’d owe taxes on $2,700 in capital gains. However, if your son inherited the stock when it was trading at $3,000 and sold it at that price, he’d owe no taxes on the sale. However, note that the Biden administration has proposed limiting the amount of investment capital gains free from taxes in this situation, which could impact wealthier families.
  3. Your home. If you own a home, it’ll typically be the most valuable non-financial asset in your estate. Heirs might not have to pay capital gains tax on it, if they sell it. However, use caution: whoever inherits the home will have to cover large expenses, such as upkeep and taxes.
  4. Term life insurance. This can be a great tool for loved ones who depend on your income or rely on your unpaid caregiving. You can get a lot of coverage for very little money. However, if you purchase plain-vanilla term insurance and don’t die while the policy is in force, you don’t get the money back.
  5. Whole life insurance. These policies provide a guaranteed death benefit for heirs and a cash-value component you can access for emergencies, long-term care, or other needs. However, these policies are more expensive than term insurance.
  6. Annuities. A joint-and-survivor annuity guarantees the survivor (your spouse, perhaps) a steady stream of income for life. Annuities with a death benefit can provide a lump sum for a beneficiary. However, while you’re alive, annual fees for variable annuities can be high, limiting potential returns. Moreover, cashing in your annuity for a lump sum may be expensive or impossible.

Bonus Tip. Discuss your plans with your children sooner rather than later, especially if you are leaving them different amounts or giving a large sum to a favorite cause, so you have time to explain your rationale. Work with an estate planning attorney who can help structure your planning to ensure you are providing financial security to your heirs. If you would like to learn more about estate planning and managing generational wealth, please visit our previous posts. 

Reference: AARP (Sep. 9, 2021) “6 Ways to Pass Wealth to Your Heirs”

The Estate of The Union Episode 10

 

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact The Wiewel Law Firm to schedule a complimentary consultation.
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