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Friday, August 26, 2011

MVP LAW GROUP – Estate Planning Q&A Forum, Friday, August 26th, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Power of Attorney

How does it work? How is it supposed to work?

Answer #1
A Power of Attorney (POA) is effective as soon as the Principal signs it, unless the Principal states that it is only to be effective upon the happening of some future event. A POA is one of the strongest legal documents that an individual can give to another person. A POA can be used to create new debts, buy or sell property, and deplete your bank account. It is important to remember that YOU will be held responsible for the acts of your agent. Thus, you must exercise great care in choosing your agent. A POA will be accepted as valid for most purposes. However, there are some actions that cannot be accomplished by using a POA because these actions are so personal in nature they cannot be delegated to another. In addition, some businesses require a power of attorney to be in a certain form or be recorded. For example, your bank may accept only a special power of attorney with the account number specifically listed. Whenever possible, you should check with the business before obtaining or using a power of attorney to be sure it will be accepted.
After being certain that the POA gives you the authority to do what you want to do, take the Power of Attorney (or a copy) to the third party. Explain to the third party that you are acting under the authority of the POA and are authorized to do this particular act. Some third parties may ask you to sign a form stating that you are acting properly. If it states something that you do not understand in your capacity as Agent for the Principal, you may wish to consult your attorney prior to signing it. The third party should accept the POA and allow you to act for the Principal. When acting as an Attorney-in-Fact, always make that clear when signing any document. The new Statutory Power of Attorney Act which took effect October 1, 2011 was created in order to assist individuals when presenting POAs to third parties, a standard form was drafted to be accepted across the board.


Question #2 - Trusts
What kind of protections can I get if I create a trust rather than a standard last will and testament?

Answer #2
A trust can give you:

•Control--by protecting your beneficiaries from fraud or mismanagement of your assets, especially in case of your disability or death.
•Continuity--by continuing to manage your assets appropriately if you encounter a life-changing event.
•Privacy--by keeping your affairs out of the public record. A will becomes a public record when it's filed with a probate court upon your death, so if you use just a will for estate planning, anyone can access it. However, almost with any trust, an experienced Estate Planner would recommend a pour-over will for the applicant to cover anything and everything not placed in the trust.
•Tax advantages--by distributing your assets in a way that minimizes your tax burden, or that of your beneficiaries.
There are many types of trusts, each designed to accomplish specific goals. Trusts can be great tools, but they're complex, so it's important to understand how they work and how to get started.


Question #3 – Advance Directive/Living Will/Health Care POA
My daughter insists that I draft the necessary documents to protect my wishes concerning my health before I die. From my understanding, I’m going to need a living will and health care power of attorney in order to explain my health care wishes to my family/friends/doctors, etc. Can you firm draft these documents for me?


Answer #3

The State of Maryland has combined the living will and health care power of attorney and uses the term “Advance Directive”. Our firm will be able to draft the advance directive for you.

Living Will - A living will allows you to leave instructions for your health care treatment. It usually provides specific directions about the course of treatment that is to be followed by health care providers and caregivers. A living will may be general or very specific, a specific living will may include information regarding an individual's desire for such services such as analgesia (pain relief), antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation.

Health Care Power of Attorney - A health care poa authorizes someone appointed by you to make decisions on your behalf concerning your health care when/if you are incapacitated.

Advance Directive –An advance directive is your life in your terms. It allows you to document your wishes concerning your health care. It is effective upon signature when signed in front of the required amount of witnesses.


Question #4 – Wills
Difference between a small estate and a regular estate.

Answer #4
Regular estate – the estate procedure for a decedent who owned probate assets with a gross value in excess of $30,000 (or $50,000 if the sole heir or legatee is the surviving spouse)

Small estate – the estate procedure for a decedent who owned probate assets with a gross value of $30,000 or less (or $50,000 or less if the sole heir or legatee is the surviving spouse)


Question #5 - Advance Directive/Living Will/Health Care POA
What can you plan for in your Living Will/Health Care POA?

Answer #5
An Advance Directive normally involves these types of issues:
•Admission and/or Discharge from Hospital, Hospice, Nursing Home, or other medical facility;
•Request to Receive Protected Health Records as your Personal Representative under HIPAA;
•Withholding/WithdrawingLife-Prolonging Procedures;
•Withdrawing Food & Water (Artificially Administered Nutrition & Hydration);
•Palliative Care;
•Authorizing Organ, Tissue or Body Donation;
•Authorizing an Autopsy;
•Authorizing Disposition of Your Remains;
•Nominating a Guardian;
•Pregnancy (you may indicate whether or not you want Health Care directions carried out in the event of your pregnancy).
However, with an Advance Directive, you may specify your care for different situations, or if you wishes are simple, you may leave all decisions to your health care agent to act in your best interest.


Question #6 – Prenuptial Agreement
Should I get a prenuptial?

Answer #6
Prenuptial agreements used to be looked down upon; however, they now are becoming more acceptable in our society. You should consider entering into a prenuptial agreement if: (i) you have children from a previous marriage; (ii) you own significant amounts of property; (iii) have previously been married; (iv) have a salary over $100,000; or (v) own a business and/or family business. There are four main purposes of a prenuptial agreement: (1) to avoid costly litigation; (2) to protect family and/or business assets; (3) to protect against creditors; and (4) to give you assurance that marital property will be disposed of properly. If you do not have a prenuptial, the State of Maryland will divide the assets of the marital union based on an equitable distribution, equitable does not necessarily mean “equal,” in the event of a divorce.


Question #7 – Trusts
What exactly is a Testamentary trust?

Answer #7
A testamentary trust is created by a will. The will itself contains language that creates the trust and since a will does not become effective until death, the trust does not exist until death. Testamentary trusts are distinguished from inter vivos trusts which are created during the settlor's lifetime. In practical terms, testamentary trusts tend to be driven more by the needs of the beneficiaries (particularly infant beneficiaries) than by tax considerations, which are the usual considerations in inter vivos trusts. A testamentary trust provides a way for assets devolving to minor children to be protected until the children are capable of fending for themselves. The trustee is required to meet with the probate court regularly and prove that the trust is being handled in a responsible manner and in strict accordance with provisions of the will which created the trust. The trustee must be prepared to oversee the trust for its duration, which involves a considerable commitment in time, possible emotional attachment, and legal liability.


Question #8 – Post-marital Agreement
What is a Post-Marital Agreement?

Answer #8
A post-martial agreement is an agreement made between spouses after marriage. The post-martial agreement is similar to the pre-nuptial agreement; however, it is entered into after the marriage of the parties, and normally when circumstances have changed. It is a way for couples to legally resolve property distribution matters, divide debt, and provide for or deal with children. The agreement must be in writing and signed freely and voluntarily by both parties, with fair and reasonable terms free from fraud and duress to be enforceable in court. The agreement may provide specific financial benefits to ensure that if your spouse fails to live up to their end of the agreement, a court will enforce it.


Question #9 – Prenuptials
Should I have my own Attorney for my prenuptial agreement?

Answer #9
YES, absolutely. Each party to the marriage should seek independent counsel before entering into a prenuptial agreement so that there is full and frank disclosure, a full understanding of the rights, duties and responsibilities of the parties to the agreement, and to ensure that the agreement is free from duress and fraud. If one party seeks counsel and the other does not, and the terms of the agreement are unfavorable to one party, the entire agreement may be considered unenforceable in a court of law.


Question #10 - Wills
I am concerned about my grandmother’s competency. What are the requirements to make a Valid Will?

Answer #10
To make a will anywhere, the maker must be: At least 18 years old, of sound mind,free from duress, coercion; and able to completely understand the property they own, its value, and who they wish to leave it to upon their death.


MVP Law Group would like to thank everyone who contributed a question or comment.


Our next “Estate Planning Q & A Forum” is scheduled for Friday, September 9th, 2011!

Please remember to submit your questions/comments on our Website, Facebook or Twitter.

Monday, August 22, 2011

Next Estate Planning Q&A Forum - Friday, August 26, 2011

MVP Law Group is excited to announce the launch of our “Estate Planning Q & A Forum.” Every other Friday, we will post the 10 most frequently asked questions received during the week from our Facebook/Twitter followers and website visitors. We will answer those questions on our Estate Planning Blog.

Our next “Q & A Forum” will take place this Friday, August 26, 2011. Act now and submit your questions!

Friday, August 12, 2011

MVP LAW GROUP – Estate Planning Q&A Forum, Friday, August 12th, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 - Wills
I am trying to determine whether I just need a simple will or if I should go with a trust and pour over will to protect my assets, can you tell me what the cutoff amount is in Maryland? Knowing this would definitely assist me in making a decision and moving forward.

Answer #1
Maryland Estate Tax
A Maryland estate tax return is required to be filed for every estate whose gross estate plus adjusted taxable gifts equals or exceeds $1,000,000. If your assets and net worth are less than $1,000,000, no return is required and a simple will may be sufficient. If a return is required, the tax rate is limited to 16% of the amount that the estate value exceeds $1,000,000.

*We recommend that you speak with a qualified Estate Planning Professional if your total assets and net worth equal or exceed $1,000,000.00 so that you can plan properly.


Question #2 - Wills
If I already have a will (executed many years ago) when should I update the will? I guess what I am asking is – are there any particular circumstances when you should update your will?

Answer #2
Yes, there are certain circumstances that if they were to occur, we recommend that you update your will. Those circumstances include the following: a significant increase or decrease in wealth; death of a beneficiary; children are now adults; guardian of children dies or circumstances surrounding relationship change; unexpected illness or injury of a beneficiary; marriage; divorce; the birth of a grandchild, etc.


Question #3 – Advance Directive/Living Will
What is the difference between death from a terminal condition, persistent vegetative state and end state condition? They provide all three scenarios on the form, when discussing with my daughter, we thought that they overlap, please explain.

Answer #3
The Advance Directive form provided by the Maryland Attorney General’s Office includes a very important section entitled, “Preference in case of Terminal Condition.” Within that section, the three situations as indicated above are listed and you are given three choices to make.

As Defined by the Maryland Attorney General’s Office:

A. Terminal Condition" means an incurable condition caused by injury, disease, or illness which, to a reasonable degree of medical certainty, makes death imminent and from which, despite the application of life-sustaining procedures, there can be no recovery.
B."Persistent Vegetative State" a condition caused by injury, disease, or illness:
- In which a Resident has suffered a loss of consciousness, exhibiting no behavioral evidence of self-awareness or awareness of surroundings in a learned manner other than reflex activity of muscles and nerves for low level conditioned response; and
- From which, after the passage of a medically appropriate period of time, it can be determined, to a reasonable degree of medical certainty that there can be no recovery.
C."End-Stage Condition" means an advanced, progressive, irreversible condition caused by injury, disease, or illness:
- That has caused severe and permanent deterioration indicated by incompetency and complete physical dependency; and
- For which, to a reasonable degree of medical certainty, treatment of the irreversible condition would be medically ineffective.


Question #4 – Wills – SPECIAL: Digital Assets
I have multiple digital assets – facebook, twitter, linked in, myspace accounts; gmail, Hotmail and yahoo email accounts; a Kodak picture gallery account and several registered domain names. I heard through some friends of mine that there are ways to include this information in my actual estate plan, like incorporated into my will or something like that. Can you explain this process/procedure?

Answer #4
You are absolutely correct. There are ways to make reference to your digital assets in your estate plan so that your digital assets upon your death are either terminated or forwarded to a beneficiary that you named prior to your death. MVP works with a company called Entrustet (www.entrustet.com) who has developed software that allows for you to list all of your digital assets and either provide a beneficiary that the asset will be forwarded to upon your death, or state that the account/asset should terminate upon your death. This list is then incorporated into your will by reference. The company listed above only provides the program to list your digital assets, you then would go meet with a qualified Estate Planning Professional to have this list incorporated into your will.


Question #5 - Trusts
When should a Lawyer’s services be utilized?

Answer #5
There are many self-help kits on the internet that allow individuals to prepare and plan their own trusts; however, as the creation of a trust is complex and expensive in nature, we recommend that you obtain the expertise of a licensed professional who has experience in the estate planning process. It is always better to have the assistance of an experienced attorney to guide you through the challenging process.


Question #6 – Power of Attorney
I am in the military – contract basis. I am being deployed back to Afghanistan here shortly. I want to give my best friend the authority to pay my bills, take care of my mortgage, and take care of any other financial business while I’m gone. Would the Statutory Power of Attorney be the best vehicle to carry out my desires?

Answer #6
As provided on the first page of the MD Statutory Power of Attorney - The powers granted by the principal in the Statutory document are broad and sweeping. The power of attorney authorizes another person to make decisions concerning your property for you. Your agent will be able to make decisions and act with respect to your property (including your money) whether or not you are able to act for yourself. You should select someone you trust to serve as your agent. Unless you specify otherwise, generally the agent’s authority will continue until you die or revoke the power of attorney or the agent resigns or is unable to act for you. You need not grant all of the powers listed below. If you choose to grant less than all of the listed powers, you may instead use a Maryland Statutory Form Limited Power of Attorney and mark on that Maryland Statutory Form Limited Power of Attorney which powers you intend to delegate to your attorney-in-fact (the Agent) and which you do not want the Agent to exercise. The power of attorney becomes effective immediately unless you state otherwise in the Special Instructions.

*We recommend that you speak with a qualified Estate Planning Professional to ensure that you give only the power/authority you wish to your best friend to carry out your financial matters in your best interest.


Question #7 – Power of Attorney
What types of things can a POA cover?

Answer #7A POA can cover a wide variety of things, mainly dealings with property and finances. The principal may give the agent the authority to act in their behalf in regards to the following types of transactions:
• Real property transactions
• Tangible personal property transactions
• Stock & Bond transactions
• Commodity & option transactions
• Banking & other Financial institution transactions
• Business operating transactions
• Insurance & Annuity transactions
• Estate, trust & other beneficiary transactions
• Claims & Litigation
• Personal & Family Maintenance
• Benefits from Social Security, Medicare, Medicaid, or other Government programs or Military service
• Retirement plan transactions
• Tax matters


Question #8 - Trusts
What property can be transferred to a Trust?

Answer #8
Several types of property may be transferred to a Trust, and we can assist you through this process as a different method may be required for each type of property. The following types of property can be effectively transferred to a Trust:
• Personal property
• Automobiles
• Real Estate
• Bank Accounts
• Registered Stocks & Bonds
• Life Insurance
• Retirement Plans


Question #9 – Advance Directive/Living Will
Should I indicate/have a provision in my Will that provides my plans for my burial or in my Advance Directive or in both?

Answer #9
Considering that your Will - will not be seen until after your death, it would make sense to include any information concerning your funeral arrangements in your Advance Directive. If you do include information concerning your burial in your Advance Directive, you should also discuss these plans in detail with your immediate family members so that your wishes are known and carried out.


Question #10 - Wills
I don’t have much, but I don’t want what I do have going to any of my family members. I never married, don’t have any kids and I’ve worked very hard for what I do have. What would happen if I don’t set up a will? Can I give everything to a charity?

Answer #10
The Intestate Succession laws as provided by the Register of Wills for Maryland provides given your circumstances that the following will occur if you die without a will:
1. Parents of the decedent divide entire estate or surviving parent takes all;
2. Brothers/sisters of the decedent without heirs listed above-brothers and sisters divide estate equally (share of deceased sibling goes to their issue-nieces and nephews of the decedent);
3. Grandparents without other heirs listed above-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details);
4. Great-grandparent without other heirs listed above-great-grandparents divide entire estate or, if deceased, to their issue (see applicable law for details);
5. Step-children-if there are no heirs listed above;
6. No living heirs or step-children-If decedent was a recipient of long-term care benefits under the Maryland Medical Assistance Program at time of death, net estate is paid to Department of Health and Mental Hygiene. Otherwise, the net estate is paid to the Board of Education.

If you do not want your assets going to your family members, you may in fact give everything to a charity by making that designation in your will.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Estate Planning Q & A Forum” is scheduled for Friday, August 26th, 2011!

Please remember to submit your questions/comments on our Website, Facebook or Twitter.

Thursday, August 4, 2011

Estate Planning - Q&A Forum launches Friday, August 12, 2011

MVP Law Group is excited to announce the launch of our “Estate Planning Q & A Forum.” Every other Friday, we will post the 10 most frequently asked questions received during the week from our Facebook/Twitter followers and website visitors. We will answer those questions on our Estate Planning Blog.

Our first “Q & A Forum” will take place Friday, August 12, 2011. Act now and submit your questions!