I read the Academy’s March 26 blog post entitled How Do You Deal with Grieving Clients? and immediately wished I had a magic wand that I could wave over every estate planning attorney so that they could be prepared for every grieving client they see in their office.

The truth is…. grief takes so many different forms that you can never be prepared.

My perspective might be somewhat unique, and in some ways, it’s probably a worst-case scenario perspective.

I do a lot of pro bono work with Hospice patients in our area. It’s truly a different calling as many know… it is hard and difficult because our clients and their families know they are dying. Working with our hospice clients is never easy and truthfully, it sucks!

These patients take top priority in my practice. The Hospice director, social workers, and my Hospice clients all have my cell number. I may get a call from the director or from a social worker in the middle of the night, “a patient has decided that they are dying, can you come and talk to them?”

Whether it is 3AM or 4PM, my staff knows that when one of these calls comes in, it is serious. Please interrupt a meeting. Hospice staff knows better than I when someone is close to death – I hope my other clients understand this, too.

I am not a trained Hospice volunteer because their job is too hard. In fact, my staff’s job is too hard. We lose every client/patient we work with. Some stay on longer than others and we are always happy when someone outlives Hospice. Usually, they do not. And that is okay. As a staff, we attend as many funerals as we can, we send plants and sympathy cards, but it is never enough.

So, why do it? Our clients are not going to be with us long but our hope is that we can be there for them if they need us and put their wishes into place. We hope that what we can provide is a listening ear, and whatever it is that the Hospice patients want – whether it be a will, a trust, a patient advocate, whatever. Sometimes, it’s just holding their hand when they die. For many, providing these simple things gives them peace of mind that allows them to die peacefully.

And I guess I have to say that I may never be hugely rich in dollar figures but what I have gained from this experience makes having a firm of my own worthwhile because I feel like I have made a difference in many families’ lives.

And that is hard to gauge in numbers.

Shelley J. White-Thomas is an estate planning and elder law attorney in Sault Sainte Marie, Michigan. She is a solo practitioner at the White-Thomas Law Firm, PLLC and has been a member of the Academy since 2011.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Are you a generalist or a specialist?

Chances are you “specialize” in a particular area of law. But unless you’re board certified, your state’s rules of ethics likely don’t allow you to call yourself a specialist.

Many lawyers focus on an area of practice where they can develop a certain level of expertise. It’s natural to gravitate toward a practice area that holds a special interest for you or that allows you to use your innate talents and abilities – or for which there’s a particularly high level of client demand.

Plus, focusing on a particular practice area makes it easier to develop the level of knowledge and experience you need to serve your clients with confidence and authority.

But here’s an interesting statistic: nationwide, fewer than 4% of attorneys are board certified.

If so many attorneys choose a specific practice area to focus on, why do so few take the next step and become board certified?

There are a couple of reasons.

First, board certification for attorneys is a relatively new concept.  Until fairly recently, the legal profession was a profession of generalists. Specialty certification of attorneys did not start until the 1970’s, and the ABA did not accredit the first attorney certification board – the National Board of Trial Advocacy – until 1993.

Second, and probably more significant, becoming board certified is difficult. It takes time and effort, and it can be expensive. To become board certified, an attorney must:

• Devote a large percentage of his or her legal practice to the area of law in question

• Have a substantial amount of experience in that area

• Maintain a substantial amount of continuing legal education credits in that area

• Submit to a peer review and recommendation process

• Pass a written examination

• Maintain a high degree of professionalism

• Meet additional requirements as determined by individual certification boards

Becoming board certified is not an easy process. But think about what it says to your clients when they see that designation after your name. It lets them know that you’re dedicated to your practice. You’re an expert in your field. You’re serious about taking care of your clients. You’re well-regarded by other lawyers. In short, it gives clients that added boost of confidence that they’re in good hands.

What do you think about board certification? Are you board certified? Has it made a difference in your practice?

Jennifer Price
Director, Member Services, Marketing & Recruiting
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Over the past three weeks, I’ve discussed a myriad of issues about which you need to know before making the decision to transfer real estate to a trust. I’ve looked at tax, insurance, and asset protection issues. I’ve explored concerns unique to irrevocable trusts and those unique to revocable trusts.

With the abundance of issues to consider when funding real property into a trust, I thought I’d devote one final blog post to a checklist of five additional items to consider before making a final transfer.

Due on Sale Clauses: Due on sale clauses are ubiquitous in loans. However, the Garn-St. Germain Act, 12 USC § 1701 (j)-3, and the corresponding regulations prevent a lender from calling a loan due when a borrower transfers residential real estate of less than five dwelling units to a revocable trust. The act only applies when the transfer is to a living trust of which the borrower is and remains the beneficiary. It does not apply to irrevocable trusts, where the borrower is not a beneficiary.

Even if your client’s transfer is protected under Garn-St. Germain, you’ll want to notify the lender of the transfer, and be prepared to remind the lender of the terms of the Act and the regulations.

If your client’s transfer does not fall under the protection of the Act, be sure to obtain written permission from the lender prior to transfer.

Restrictions on Transfer: Be sure to investigate whether there are any restrictions on the transfer of the property that must be removed or renegotiated.

Administrative Charges: What additional costs will your client incur upon funding real estate into a trust? Will banks, title insurance companies, or other organizations charge to provide necessary services?

Condominiums and Other Multi-Unit Properties: It is imperative that you obtain, review, and comply with the terms of the association’s governing rules.

Foreign Properties: The transfer of foreign real estate into a trust can have consequences which we, as American lawyers, cannot anticipate.

For example, in some Caribbean nations, transferring real property to a revocable living trust can result in hefty stamp duties. Waiting to transfer the same property at the owner’s death may result in little, if any, duty.

Therefore, NEVER attempt to transfer real estate located outside the United States into a trust without first consulting counsel from that jurisdiction.

There you have it – a four-blog overview of the issues to consider before funding real estate into a trust!

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

The relatively recent ability to provide very high-tech, expensive medical procedures to pets raises interesting questions for pet owners, veterinarians, and ethicists alike:

• Can we justify spending tens of thousands of dollars on a bone marrow transplant or chemotherapy for our dog or cat?

• Can we ethically own a pet if we are unwilling or unable to spend these sums on its care?

• Are we failing our pet if we decide not to “do everything” for it — and if the answer is “no” — can we avoid feeling guilty about it?

• What are our responsibilities to our pet vis à vis extending its life and/or preventing its suffering?

• Can we separate our own emotional desire for our pet to live longer from what may or may not be best for our pet?

A recent New York Times article highlights many of these ethical questions and also offers six opinions on the topic of end-of-life pet care. I found it thought-provoking and useful in two ways.

First, the article can be a useful resource for your clients if they are faced with a decision about caring for a seriously ill pet. It’s a series of short, accessible pieces.

Second, I found that shifting my own lens to think about medical care in the context of animals was a good exercise. Most of the questions above are the same ones we confront about high-tech treatments for ourselves and our loved ones. At some level, just the act of thinking about these questions in terms of animals forces us to compare and contrast these notions with our thoughts about human medical treatment. So while the answers to the questions above may – or may not – be different for our pets than for the humans in our lives, the thought process itself may actually help clients clarify their views about their personal health care decisions, as well. It did mine.

Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), the largest advance directives registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

The social media revolution is in full swing, and it seems like everyone has joined in – from middle school kids to grandparents.

From a lawyer’s perspective, the pervasiveness of social media is great news. Facebook, LinkedIn, Twitter, and a host of other social media sites are proving to be excellent resources for professionals who want to connect with current and prospective clients. But jumping into the fray can be a little daunting at first.

One of the biggest challenges when you’re first venturing into the world of social media, particularly in your capacity as a professional, is to figure out what to talk about. Here are three tips to get you started:

1. Social Media is Not the Place for Shameless Self Promotion. This isn’t a replacement for a yellow pages ad, nor is it a virtual billboard. Social media is about interacting with people – you’re stepping into an ongoing conversation. So, talk a little about yourself. Offer useful information. And then, listen to what other people are saying and respond to them. Remember, Social Media is much like a cocktail party where people interact on topics interesting to the small group. You would never intrude in one of those gatherings with an advertisement about yourself or your firm. Provide interesting information and they will naturally gravitate to you and be interested to learn more about what you do.
2. Let People Know You Have a Life Outside the Office. You do have a life outside the office, don’t you? Good! Tell your clients a little about yourself, and let them get to know you as the well-rounded person you are. Are you an avid runner? Do you love to volunteer at your local animal shelter? Talk about it. Better still, go a step further and post pictures or video of yourself doing the things you love to do.
3. Don’t Forget to Link. If you find an interesting article from someone else’s website, post the link. Remember, the purpose of social media is to start and maintain conversations. Similarly, when you talk about your law firm, be sure to post a link to your latest blog post or to an interesting article or video on your website.

If you’ve been a little shy about mixing social media with your professional life, maybe now is the time to try these tips and join the conversation.

Robert Armstrong
President and Co-Founder
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Over the past two weeks, I’ve looked at the insurance, tax, and asset protection considerations involved in transferring real estate into a trust.

This week, I’ll touch on funding issues unique to irrevocable trusts, as well as those unique to revocable trusts.

Irrevocable Trusts

Typically, there are two categories of issues to consider when deciding whether to transfer real estate into an irrevocable trust. Both stem from the fact that, under normal circumstances, the purpose of these transfers is to get the value of the property out of the grantor’s estate for estate tax purposes.

• Transfer Tax Issues: In order to get the property out of the grantor’s estate, the grantor needs to make a completed gift to the irrevocable trust. This usually means filing a gift tax return. Also, beware of the grantor retaining too much control over the disposition of the property once in the trust, such as a sprinkling power – this could cause the property to be included in the grantor’s estate. (See IRC § 2038).

• Income Tax Issues: Assuming the gift into the trust is complete and the property is not included in the grantor’s estate, there will be no step-up in the property’s basis when the grantor dies. Think carefully about the loss of this step-up in basis before deciding to transfer real estate into an irrevocable trust. This is a very fact-intensive decision. For example, if the property is a vacation home which the client intends to stay in the family for generations, the basis may make little difference. Essentially, the present value (at the decedent’s death) of the future capital gains tax should be compared with the presumed estate tax savings.

Revocable Trusts

When deciding whether to fund property into a revocable trust, you should take into account the impact of any property agreement on the transfer into the trust.

Once your clients’ real estate is funded into the trust, will it be tenancy in common property, community property, or some other form of property? If community property is available in your jurisdiction, it is typically the best option (assuming your clients are a married couple, of course).

Community property qualifies for a step-up in basis on the entire property at the death of the first spouse, not just the decedent’s half. Tenancy in common property, on the other hand, only qualifies for a step-up in basis only on the half included in the predeceasing spouse’s estate.

Believe it or not, there are still a few more issues to think about when funding real estate into a trust. Next week, I’ll have a bonus blog for you with several additional considerations of which you’ll want to be aware before deciding to make a transfer.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

It’s appropriate this blog post is appearing on April 16, National Healthcare Decisions Day. The initiative is designed to encourage individuals to prepare and discuss their advance medical directives. Advance directives enable families to know what kind of care is desired, should a loved one become ill and not be able to communicate.

Studies indicate 73% of Americans would prefer to die at home, but up to 50% die in hospital settings. It takes courage and determination to carry out a loved one’s wishes for end-of-life care. Knowing what those wishes are and discussing them is the first step.

If a family member says he or she wants to die at home, I recommend the following books for those caring for a dying loved one. The links in the titles (in color) take you directly to the corresponding Amazon.com page.

Coming Home: A Practical and Compassionate Guide to Caring for a Dying Loved One by Deborah Duda

Coming Home provides end-of-life care guidance that helps the reader acknowledge feelings of fear and guilt, and transform them with love. It provides helpful resources and practical information on preparing the home, talking openly about dying, legal and medical considerations, and how to be with someone in their final days. The book was first published in 1981 and the fourth edition came out in 2010.

The Last Gifts: Creative Ways to Be with the Dying by Jillian Brasch, OTR

The Last Gifts shares 17 first-hand accounts by an occupational therapist in a hospice program and her work with dying patients. Jillian Brasch details ways to help family be present and comfortable and help the dying patient to meet their final goals. Written for anyone in the vicinity of a dying person, this award-winning book is practical and insightful, with a direct simplicity that makes it entertaining and easy to read.

Dying the RIGHT Way: A System of Caregiving & Planning for Families by Janice Louise Long

While the title lacks appeal, Dying the RIGHT Way provides a lot of good information. The book draws upon the author’s experiences caring for her parents during their final four years. It is a guide for keeping elders or others requiring long-term care healthy as long as possible. The caregiving information includes tips, forms, checklists, and questions to ask. It also provides guidance for funeral planning and steps toward settling an estate.

The Needs of the Dying: A Guide for Bringing Hope, Comfort, and Love to Life’s Final Chapter by David Kessler

The Needs of the Dying uses comforting and touching stories to provide information that helps meet the needs of families and a dying loved one. David Kessler, a student and coauthor with Elisabeth Kübler-Ross, identifies key areas of concern for the dying: the need to be treated as a living human being, the need for hope, expressing emotions, participating in care, the need for honesty, spirituality and to be free of physical pain.

Any of these books can foster the conversations we need to have with our families on National Healthcare Decisions Day – or any other day, for that matter.

Gail Rubin is a Certified Celebrant who brings light to a dark subject and helps get funeral planning conversations started. Her book, A Good Goodbye: Funeral Planning for Those Who Don’t Plan to Die, has won multiple awards. Learn more at www.AGoodGoodbye.com. Gail is an ongoing contributor to the Academy blog. Contact: 505-265-7215 or email Gail@AGoodGoodbye.com.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

How seriously does your law firm take social media?

ALM Legal Intelligence recently conducted an online survey with 179 lawyers and law firm administrators, querying them about their social media habits. The survey results seem to indicate that the legal industry is starting to catch on to the power of social media.

But there were two responses I found particularly interesting.

• Over half of the law firms questioned reported that blogging and other social media brought them leads on new matters. Forty-one percent said social media generated between $5,000 and $200,000 in new business.

• Almost half of the law firms surveyed said that the biggest obstacle to expanding their use of social media was “lack of time.”

What?! There seems to be some sort of disconnect here.

Social media is coming into its own as a reliable source of new business for law firms…yet almost half of firms just can’t seem to find the time to have their attorneys blog a little more, keep their Facebook pages up-to-date, or otherwise gain the online visibility they need to attract the new business that’s waiting out there?

It seems to me the firms that “don’t have the time” for social media, haven’t fully grasped its power – or the ways in which their clients are living their lives.

Consider this excerpt from a recent GigaOm article:

Today the Internet is how we do (almost) everything. Our phone calls are made using Skype. We video chat over Google Hangouts, and we communicate via Facebook, Twitter and iMessage.  

Twitter is the new Associated Press. Vimeo is our PBS, and YouTube and Hulu are the new broadcast networks. Amazon is the mall and iTunes is our Virgin Megastore. Pandora is our radio and Spotify is our jukebox.

Before long, attorneys who fail to use social media as just another way to communicate with clients and prospects are going to find themselves with limited reach and limited influence.

What do you think? Is social media a high enough priority that you make time for it? Or is it one of those things that waits until you get around to it?

Remember the old saying about three types of people: those who make it happen, those who watch it happen and those that say, “What happened?”

Sanford M. Fisch
CEO & Co-Founder
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Last week, I discussed how the transfer of real estate into a trust could trigger issues regarding Homeowner’s Insurance and Title Insurance. There are many other issues to consider. This week, I’ll look at tax and asset protection considerations.

Taxes

• Capital Gains Tax: Transferring a residence to a grantor trust (like a revocable trust) does not interfere with the grantor’s $250,000 (or $500,000 for joint returns) capital gains exclusion, provided the property otherwise qualifies.

• Deductions: After property is transferred to a grantor trust, the grantor can continue to claim deductions for mortgage interest and property taxes paid by the trust.

• Property Tax: Some states offer a homestead exemption that serves to reduce property taxes for homeowners. This exemption can be very valuable. If your state offers this exemption, check to be sure that transferring a residence to a trust does not interfere with the exemption. Also, think about how property tax reassessment works in your state. Some jurisdictions don’t have periodic reassessment of property taxes—only a reassessment upon the transfer of the property. If the property has appreciated in value, make sure that transfer to the trust will not trigger property tax reassessment.

Asset Protection

• Tenancy by the Entirety. In some states, property held in “tenancy by the entirety” is given an extra level of protection from creditors. Few states will allow property to maintain its “tenancy by the entirety” status in a trust. In most states, transferring such property to a trust destroys the tenancy by the entirety protection. Prior to transferring tenancy by the entirety property to a trust, consider:

1. Your state’s rules for allowing a trust to hold property in tenancy by the entirety, and

2. Whether any loss of asset protection is worth the advantages offered by funding the property into the trust.

• Bankruptcy. Debtors’ homes are given preferential treatment under bankruptcy law. This is called the “debtor’s homestead exemption.” This exemption varies from state to state. For example, a Florida resident can protect his or her home – no matter the value – from creditors in bankruptcy. In other states the exemption may be limited to $100,000 or less. In some states, however, transferring a home to a trust means losing the homestead exemption in bankruptcy. If bankruptcy is a possibility, it is imperative to know your state’s bankruptcy law before deciding whether to fund the home into a trust.

Amazingly, there are still more issues to look at! Next week, we’ll look at a number of additional concerns you’ll want to be aware of before you transfer real estate to a trust.

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com

Today is exactly one week before National Healthcare Decisions Day (NHDD), April 16. The sole purpose of this grassroots initiative (now in its 5th year) is to encourage folks to do their own advance care planning.

I’ve blogged here previously about ways you can use NHDD to help both your firm and your community (see Do Well by Doing Good and Put April 16 On Your Marketing Calendar).

This year to honor NHDD, I recommend we all lead by example. In other words, let’s start closer to home — with ourselves, our families, and our staff.

• Complete an advance directive.
  Think you’re the only attorney in this field who doesn’t have one? Not so; you’re in surprisingly good company! But it’s time to practice what we preach. If you don’t have your advance directive yet, just do it. We all urge clients to create these documents because they’re so important, and it’s time we take our own advice!

• Make sure your immediate family all have advance directives.
  I’ve talked with two estate planning attorneys who have personally experienced the HIPAA Horror Story: when their children were hospitalized while away at college, the emergency staff refused to tell each of them anything about their child by phone without a HIPAA Release (neither “young adult” child had one). It’s a parent’s nightmare. Yet, it’s easily preventable. As an attorney, you have the document access necessary to easily protect your family. Make sure that your spouse/significant other, your grown children, and your young adult children over 18 have all signed at least a HCPOA and a HIPAA Release.

• Protect your staff.
  As you know, your clients appreciate that you got them to create their advance directives by automatically including them in your planning. Sometimes, your staff needs the same kind of push — to create the vital documents that they, too, might rather avoid thinking about. You’re in a unique position to help them protect themselves. Completing their own advance directives is also a good way for your staff to understand more about your firm’s services and to have a taste of your clients’ experience. Some firms actually strongly encourage all staff members to create their estate plans (courtesy of the firm) for this reason.

• Review existing directives.
  So you, your family, your staff – everyone – has an advance directive. Great! But it’s not enough to just have them. They need to be kept relevant. Your firm has its own schedule of review for your clients’ documents; why not for yours, as well? Consider reviewing documents for yourself, family, and staff on the same schedule as your firm’s client review cycle. Additionally, Charlie Sabatino, J.D., Director of the ABA’s Commission on Law and Aging, suggests these “5 D’s” as triggers for review of the advance directive: Death of a family member or friend; Divorce; a significant Decline in one’s condition; a new Diagnosis; and each new Decade.

• Talk to Loved Ones about Your Wishes
  I’ve blogged about this many times before: this step is just as important as writing directives. Talk about your wishes with your family once a year. NHDD (April 16) is a good time – it gives you a reason and place to begin the discussion. Thanksgiving can be an even better time, especially if most of your extended family is together. Regardless of the day you choose, let’s make sure we all talk about our wishes, and encourage others to do the same.

Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), the largest advance directives registry in the U.S., which ensures that the healthcare directives of its 190,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com