Careful estate planning may help avoid later conflicts and challenges among the beneficiaries and heirs of a person after their death. It is not always easy for a person to discuss these matters with adult children. While communicating with one’s children ahead of time and expressing wishes about distribution of assets may be the ideal way for an individual to handle the situation, realistically families don’t always follow this practice. Far too often after a parent passes away, the children end up challenging the parent’s decisions.

An experienced and knowledgeable estate planning and trust attorney can help an individual prepare for a discussion of their intentions with their children first before the trust agreement is drafted. A trust challenge can be a long and costly process delaying the distribution of assets to the beneficiaries and legal costs can ultimately reduce the value of the estate. Thus, it is a smart planning strategy for the individual to try and resolve any anticipated disputes prior to the creation of the trust. The chances of a beneficiary or heir challenging the trust after the decedent’s death can be reduced when all parties to the trust are aware of the parent’s intentions.

Of course, there may still be situations that arise after a parent’s death where family members may not agree on all financial decisions made by the trustee. A typical example of this is when the deceased parent’s house is the major asset of the estate, and it needs to be sold in order to distribute the sale proceeds to the children. Typically, the house is appraised and sold at market value depending on real estate market conditions. One or more beneficiaries may be unsatisfied with the proposed sales price or terms. However, choosing a trustee that has the beneficiary’s best interests at heart and has the mutual respect and trust of the beneficiaries will make a big difference in how the conflict gets resolved.

While many people prefer to appoint a surviving spouse or child as the trustee to administer the trust, the size of the estate and type of assets may require the selection of co-trustees, a neutral third party or a professional financial planner or trust manager to act as the trustee. Since every person’s financial situation is unique, the attorney will be able to guide the individual in choosing the best suited person or entity to act as trustee.

From a financial and practical sense, the best way for a parent to avoid major conflicts between their beneficiaries after their death is for the elderly parent to consult with an experienced estate and trust attorney who can help them sit down with their children and discuss their estate planning choices. This way everyone is aware of what to expect later and any concerns or disagreements can be addressed upfront. Even though it may be difficult or unpleasant for both parent and children to have such a conversation, everyone benefits in the end by avoiding conflicts, challenges and delays later when it comes time for the trustee to administer the trust and distribute the assets.

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

Yesterday, the Supreme Court heard oral argument in Hollingsworth v. Perry, the case concerning the validity of California’s Proposition 8.

A link to the audio and transcript of the oral argument is here.

The California Supreme Court had held marriage was a fundamental right for all couples in California, without regard to gender. Thus, same-sex marriage ensued in May 2008. In November of the same year, Proposition 8, which defined marriage as only between a man and a woman, effectively overturned the California Supreme Court’s decision.

Today, the Court hears oral argument in U.S. v. Windsor, the case concerning the validity of the Defense of Marriage Act (“DOMA”). DOMA provides that only a marriage between a man and a woman will be recognized by the federal government, among other provisions which are not directly at issue. In Windsor, a decedent woman had been married to another woman. Their marriage was not recognized for purposes of the federal estate tax marital deduction, resulting in a greater tax burden for the estate.

These cases have far-reaching implications for your same-sex client couples (current and future) and for the estate planning which you might do for them on a go-forward basis. Nine states and the District of Columbia currently allow same-sex marriage. In addition, some states recognize same-sex marriages validly created elsewhere. In whatever state you are located, these cases could have great impact on LGBT planning in your state.

If your state allows or recognizes same-sex marriage, Windsor could result in federal recognition of those marriages. Federal recognition would mean that planning for same-sex couples might be much the same as planning for traditional married couples. This would impact not only estate planning, but also elder law planning, and financial planning. Federal recognition would mean that both spouses’ assets would be considered for Medicaid purposes. It would also mean eligibility for Social Security Survivor benefits and a broad range of other federal benefits including the ability to file a joint tax return.

If your state does not allow or recognize same-sex marriage, Hollingsworth v. Perry could hold that there is a constitutional right for same-sex couples to marry in all states.

These changes could mean significant changes in planning for LGBT couples. You will want to be prepared.

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

Attorneys typically use professional headshots in their email and social media marketing campaigns. Headshots are great and they certainly have a place in your marketing collateral (with submissions for a prestigious award, for example). But a very strong case could be made for replacing professional headshots with a variety of candid photos in your email newsletters, digital marketing campaigns and on your firm’s Facebook page.

How so, you ask? Candid photos tend to be significantly more engaging and immeasurably more relatable than that 7-year-old headshot with the blue background that you’ve used every time a photograph was required since the day it was taken. Candid photographs typically portray you in the best light, at least from a perception perspective: they appear to capture and anthropomorphize honesty, approachability, affability, trustworthiness, reliability, character, personal connectivity, strength, wisdom, personality, and most importantly, your “humanness”.

As the majority of us abhor having our picture taken, it is natural if you outwardly groan and squirm at the idea of taking not just one headshot every decade, but multiple candid photos on a regular, consistent basis for use in your marketing materials. Don’t despair. The candid photo process can be a very painless, and often pleasurable, experience. Not to mention that it can be done by anyone, regardless of budget or photographic experience. Candid photos are essentially free, minus the 20 to 30 minutes it takes you and your designated photographer to set up and take the photos. Smart phones take great pictures these days so an investment in an expensive SLR digital camera and tripod is not necessary.

Here are six tips to help you take some highly engaging, quality and pain-free candid photos:

Elevate The Angle: Ask the photographer to take the photograph from a higher elevation than your head – always have him or her stand on a chair before taking the shot if you are standing, or hold the camera higher than his or her own head-level if you are sitting and he or she is standing. This will eliminate any double-chin issues that even the sveltest of us experience in eye-level photos and will make you look as fabulous as possible. Absolutely avoid taking photos from below eye-level.

Dress For Photographic Success: Digital photography tends to make fabric patterns swirl and twirl and become slightly psychedelic. Avoid wearing jackets, shirts or blouses that have broad or dark stripes, flowers, dots, blots or circles, paisleys, geometrics, and especially plaid. Make sure that whatever you wear will look appropriate if cropped at shoulder or waist height (an off-the-shoulder blouse or sweater will make you look naked if cropped at the collar bone, so leave those types of clothes for the social scene). Bright colors (blue, purple, pink, red, green) work exceptionally well for all skin types and also help to showcase a bit of personality; if you don’t want to wear a bright color, go for a dark neutral color (gray, black, brown, navy) rather than a white or pastel color. It doesn’t matter if you’re wearing the same clothes or not, but feel free to do a wardrobe change in the middle of your photo shoot if you wish.

Light It Up: If you need to bring in an extra floor lamp, desk light or other light to make the room brighter, don’t hesitate to do so. Try to avoid using the flash on your phone or camera if possible by adding ambient light to your photo shoot location. The most attractive lighting will subtly shine on your face from the above in the general direction your photographer faces you from. If your face is washed out in light, turn a light off. Try to have as much light from as many different sources around you as possible – this will make you look light and bright without washing you out, and will reduce unattractive shadowing on your face.

Shoot It Multiple Times: Take a dozen photos of the same or similar pose from multiple angles – have the photographer move the chair he or she is standing on a foot to the right and then a foot to the left. Turn your head without moving your body to look up to the photographer from each angle. If you are standing in your photo, try a few different poses each time the photographer moves to a new location: with your body straight on with arms by your sides in one photo, with your body slightly turned in another, turn your body the other way in another; cross your arms in one shot, place your hands on your hips in another, hold a briefcase or tablet in another, and adjust how you hold your head for each pose. You will likely be surprised at how a tiny change in your posture, combined with where the photographer is standing, may make on the lighting effects as well as the personality captured on “film”.

Keep It Clean: De-clutter your surroundings before staging your photo shoot. If you sit at your desk, tidy it up and put paperwork, pens, and other distracting items away prior to shooting. If you are standing, be sure you stand in an area that has very few visual distractions in the background, or, if there is a lot of “stuff” behind you (such as a bookcase or reception area), ask the photographer to use the “portrait” feature on the camera to have the background blurred while keeping your face in focus. Avoid standing directly in front of a wall (particularly if using a flash) or risk having a dark shadow directly behind you that makes your head look particularly large as wall shadows often appear like an extension of hair and are difficult to “edit” out.

Take It Outside: Consider taking one or two photos outdoors – your photographer can stand on a bench, on a staircase above where you are standing, or on a chair that you’ve taken with you for the photo shoot. Outdoor photos in front of your office building, in the nearby park, by your firm’s office sign and other locations out in nature are highly engaging (we tend to gravitate toward images that include plants, trees, flowers and other natural elements). Natural lighting is also frequently the most attractive for photographs, particularly on sunny days.

By following the above tips, your candid shots may turn out even better than professional headshots and will certainly have more applicability in your marketing efforts. Rather than having one photo that you use over and over again, develop a series of candid photos that you can manipulate and utilize in multiple ways – on your website, in banner ads for your newsletter, as profile pictures on articles you pen, as a personalized greeting in email messages, in your print marketing collateral, and on your firm’s Facebook page.

Becca Fieler is an Online Marketing Specialist for BizActions, a Thomson Reuters Business, serving as a strategic partner in the planning and implementation of electronic communication and marketing initiatives. She develops and oversees comprehensive programs that present marketing strategies and solutions to diverse audiences, including attorneys, accountants, banks and credit unions, human resource companies and other professional service providers.

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

I started using Evernote and I’m so stoked.

I have it on my laptop, my iPad, and my iPhone. I haven’t gone crazy inventing folders or tags because the search is so amazing. I have the Skitch and also a food app that goes with it so that all of my recipes are in Evernote and can be sorted and search easily.

The other Evernote app I *love* is the CLIPPER app that allows me to clip whatever I have been looking at online and put the entire page into whatever folder I want to store it.

My favorite folder is the READ LATER folder. All the blogs, articles or sales oriented emails that I want to peruse at my leisure…. I click ONE LITTLE EVERNOTE BUTTON in my Outlook and send it directly into that folder.

That folder has turned into my “morning paper.”

I do have a “Travel” folder for airplane or hotel reservation info that has been very handy, as well as a “Project” folder with sub-folders for active projects, forms, reports, etc.

It’s great to be able to email from Evernote or better yet, send ACCESS to a particular folder to someone else at the office if I want them being able to check in and add to, edit or update project or other info I’m storing there.

I must confess I did upgrade to the pay version and a New Year’s Resolution I made (the resolution is alive and well so far), is to really figure out the capabilities of the program.

What are some features that everyone else is using? I know I’ve just hit the tip of this iceberg, so please share!

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

Grantor trusts are a thing of beauty (well, for a tax geek, anyway). All of the income of a grantor trust is taxed to the grantor of the trust, even if it is distributed to the beneficiaries. A non-grantor trust, by comparison, is taxed to the trust itself or to the beneficiaries (if there are distributions carrying out “distributable net income”). The result is that a trust could be set up for which the income tax liability is that of the grantor. Of course, this makes sense in the case of a revocable trust. But, even irrevocable trusts may be created as grantor trusts.

For now, at least, it is possible to draft a trust so that it is irrevocable and out of the taxable estate for estate tax purposes, yet taxed to the grantor for income tax purposes. (Sometimes such a trust is confusingly referred to as a “defective grantor trust.”) Such a trust provides extra bang for the transfer-tax buck. Let’s look at an example to see the reason.

John had a taxable estate and wanted to remove as much as possible from his estate. He set up two trusts, Trust A and Trust B. He contributed $1 million to each trust. Trust A is drafted as a grantor trust, Trust B is drafted as a non-grantor trust. Each trust has $50,000 of income each year. With Trust A, the income is taxed to the grantor, increasing his tax bill by $20,000. Trust B pays its own taxes from the trust corpus. The result is that Trust A can grow at 5% per year, while Trust B grows at only 3% per year, on an after-tax basis. After 20 years, Trust A would have $2.65 million, while Trust B would have only $1.81 million. (The payment of tax by the grantor is not considered an additional gift.)

The opportunity to have the best of both worlds with a grantor trust may be coming to an end. The administration would like legislation to align grantor trust rules and estate tax rules. In other words, if Treasury has its way, all grantor trusts would be included in the taxable estate of the grantor.

While such a change would not be welcome, estate planning attorneys and their clients would be well to make hay while the sun shines. While you can, use this tool that the administration recognizes is too good a deal for the taxpayer. If you draft a trust as a grantor trust, you may want to consider using a provision that allows an independent trust protector or special co-trustee to toggle off the grantor trust status, just in case Treasury gets its way.

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 Academy is often known for its innovative practice building systems and cutting edge software. However, another unique characteristic of Academy membership is our annual Continuing Legal Education (CLE) requirement. The Academy holds its legal education requirement for membership to a very high standard. Not only are our members cutting edge in their businesses, they are focused in keeping their education current and specific to their practice areas.

State bar CLE requirements vary state to state and can often be in any area of law, not necessarily specific to the attorneys’ core practice area, especially if that attorney practices in a variety of areas. That is where our membership is different. One of the foundation standards of Academy membership has been our long-standing 36-hour annual CLE requirement. Each calendar year, Academy attorneys are required to submit a minimum of 36 hours of CLE specifically in the practice areas of estate planning, tax planning, probate law and/or elder law, including guardianships and Medicaid planning. This requirement can be obtained by attending live courses and self-study courses conducted by approved Continuing Legal Education providers, as well as by teaching courses and publishing books or articles on the required topic areas.

Once an attorney’s submitted hours are reviewed and approved for meeting the requirement, our public attorney listing is updated with “Academy CLE Requirement Met” for that attorney. If the attorney did not submit enough approved hours, the attorney listing will reflect “Academy CLE Requirement Not Met.”

Estate and tax laws continuously change. On top of that, estate planning encompasses a number of complex laws and requires knowledge of many critical areas. So it is important for families looking for an estate planning attorney to seek out those attorneys whose practices not only focus primarily on estate and tax planning, but to also select an attorney who also places a high priority on continuing their legal education specifically in their chosen field. The education ensures Academy Members have the most current tax and estate planning knowledge possible, which we feel in turn, provides the client with the best possible advice available.

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

The Wall Street Journal reported on a move from Jacoby & Meyers to break into the “Do It Yourself” (DIY) marketplace. As we all know, the DIY industry is all around us.

This is an interesting move for Jacoby & Meyers, which bills itself as “America’s most familiar law firm.” The leading firm is about to become even more familiar to people across the country, as its venture into the DIY industry was made possible by a partnership with USLegal Forms, Inc. (which boasts the SEO-friendly domain name legalforms.com). The USLegal Forms, Inc. database currently offers access to 85,000 legal forms to make the drafting process easier and more efficient.

As Jacoby & Meyers enters the field as a competitor to LegalZoom.com, Inc., they seem to be positioning themselves as DIY combined with expert attorney services, if wanted. While LegalZoom.com currently houses one of the largest online legal forms databases, making it an easy-to-use platform for non-lawyers to bypass hefty attorney fees to draft wills, real estate leases and other common forms, it offers only secondary services for those who need legal opinions. LegalZoom.com’s attorney database is available for only a monthly fee, and though it connects users to company-vetted lawyers, it does not provide an in-house legal team to help walk people through the intricacies of the law. Jacoby & Meyers may attempt to fill this gap through its partnership with LegalForms.com.

In an era where the legal industry is constantly shifting toward a digital landscape, it is no wonder that a law firm would try to capitalize on such a big business. LegalZoom.com has shown there is a DIY marketplace. Another company created the industry years ago. Nolo Press began publishing DIY books back in 1971. The LegalZoom.com, and now Jacoby & Meyers iteration is no surprise. This is a true demonstration of innovation in legal services, an industry that is currently in the midst of a major overhaul.

As human beings, we learn to adapt to our surroundings. While there may be some people who assert that the legal field is in crisis, I prefer a more positive view of the future. We are learning to adapt to a changing landscape, and just as a large firm such as Jacoby & Meyers can grow into the digital age by entering the legal forms industry, every lawyer has the opportunity to adapt his or her practice to reap the benefits of technological innovation. In addition, the real opportunity is providing solutions that technology can never replace!

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

It is said that a Will only “speaks at death.” In this digital age, there is a way that you can literally “speak at death,” if that is your wish.

In the past, I’ve blogged about digital assets and their protection on more than one occasion. On those occasions, I’ve blogged about putting powers in your traditional estate planning documents which grant your fiduciaries powers to deal with your digital assets. However, in this blog, I’d like to discuss something a little different.

“If I Die” is the (amusingly optimistic) title of an application for Facebook. It lets you leave a message at your death. You can leave a video or text message. So, you could literally “speak” from the grave. http://ifidie.net/ In the application, you pick several trusted “friends” on Facebook to be your “trustees.” If three trustees confirm that your death has occurred, your message is sent.

The service is similar to http://LegacyLocker.com, http://AssetLock.net, and http://DeathSwitch.com, only in the Facebook-specific context. Each service works slightly differently, but is simultaneously similar. Each has a free basic service and has more sophisticated pay services. Most of the services of this type allow you to select trusted individuals who report and verify your death. DeathSwitch relies on verification by you. It checks back with you periodically to see if you are dead. The service sends you an email. If no return email is received within a period of time set by you or after a number of attempts (set by you), you are presumed dead. With all of the services, upon the assumption of death, your set of instructions is carried out. It might be to deliver your video to your beneficiaries. It might be to deliver passwords to your fiduciaries. Or it might be to remind your friends that they need to feed your pets. You could have one service provide a number to a fiduciary. Another service could specify that the number they are receiving is that of a numbered Swiss bank account. Yet another service could identify that bank and provide contact information. The only limitation is your imagination.

While this sort of service does not replace traditional estate planning documents like Wills, Trusts, and Powers of Attorney, they could relay important information to loved ones expediently.

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

As an attorney, you have particular potential to help folks think and talk about their health care goals and wishes. This makes you in synch with National Healthcare Decisions Day (NHDD), a grassroots initiative now in its 6^th year which encourages people to do just this. (April 16, the day after tax day, is designated as it’s in keeping with Ben Franklin’s adage that nothing is certain “except death and taxes.”)

National Healthcare Decisions Day (NHDD)

Given your busy schedule, here are some straightforward things to choose from to help others focus just a bit on advance care planning. Some are purely altruistic. Others have marketing potential built in.

1. Lead by example: Create or update your own advance directive. Talk with your family about your wishes if you haven’t. (Talking about theirs, too, is even better!)

2. Take your staff’s pulse. Have your staff take a quick, anonymous survey of whether they’ve done any thinking about their wishes or completed an advance directive and why or why not. For a short survey, email me. (Your staff may be a good barometer of what your clients are thinking.)

3. Encourage your staff to do basic advance care planning. Facilitate an informal conversation among staff about their own questions and their wishes. Maybe bring in lunch to help spur the talking. Have advance directive forms available and have a witnessing party when they sign.

4. Offer clients tools to help them talk to their families. The Conversation Project’s Starter Kit includes great ideas for how to open the conversation, along with guidance for talking with their doctor. To introduce a little levity, try suggesting a special deck of cards to spur the conversation. The best ones I’ve found are Heart2Hearts and Go Wish (also has an online version).

5. Pass this post on to your colleagues via the listserv of your bar association or estate planning council.

6. Engage one member of the media. Contact one health reporter from your local newspaper or TV station and offer yourself as an expert for a story. (The NHDD website has a media kit.)  Or, submit an article or op-ed to your local paper (use the NHDD standard template, or contact me for one specifically designed for estate planning and elder law attorneys).

7. Reach out to one religious leader in your community (perhaps your own, if relevant). Use the email template in the list of NHDD Tools. Provide links to: the Conversation Project to help parishioners/congregants get started; your state’s online advance directive form; and to the Faith Leader’s Initiative of the Coalition to Transform Advanced Care (C-TAC).

Let me know if I can be of any assistance.

Randi J. Siegel,MBA, is the President of DocuBank(docubank.com), the largest advance directives registry in the U.S., which ensures that the emergency information and healthcare directives of its 200,000 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. A member of the Center for Advocacy for the Rights and Interests of the Elderly, the International Society of Advance Care Planning, and the Coalition to Transform Advanced Care, she is active in health education and public engagement related to advance care planning and advance directives and serves as Pennsylvania liaison to the National Healthcare Decisions Day initiative. 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

With 1 Billion unique users worldwide, there’s no disputing that Facebook can have huge marketing potential for your firm. However, as with any type of marketing, your efforts will only be effective if you follow best practices.  Growing your fan base will be easier if you avoid these common mistakes:

• Publish only self-promotional content
  

Promoting your own content is a great idea. Promoting ONLY your own content is not. The real value of social media is in the sharing of content and ideas, so make sure you’re sharing other content that your fans will be interested in. Not only will your fans find your page more interesting, but you’ll be establishing yourself as an industry authority.

• Publish text-only posts
  

Continuously posting only regular text updates will get boring fast, so mix it up. Post different types of content on your page – upload photos and videos, post links to interesting and valuable content, issue invitations to upcoming seminars.

• Automate all of your activity
  

Social media management tools such as Hootsuite and Buffer can make implementing a social media marketing plan much easier. However, avoid publishing all of your content through these third part apps.

Some studies suggest that posts that are automatically published via one of these tools have a lower Edgerank, which is an algorithm developed by Facebook to determine what’s displayed on the News Feed.

More importantly, you should be publishing timely content and responding individually to fans, something that’s difficult to do if you’re scheduling everything in advance using an automated tool.

• Never include a call to action
  

One of the easiest ways to engage your fans is to ask them a question. In fact, studies show that when you post an update and ask a question at the end, people are almost 50% more likely to interact with your content.

Asking a question isn’t the only way to encourage interaction with your content. Ask your fans to caption a photo, fill in the blank, or “like” if they agree with you.

• Only consider your fan growth
  

Watching the number of Likes on your page skyrocket is exciting, but it’s not the most important measure of your page’s success. Engagement is a much more significant metric.

Having more fans is useless if they never engage with your page. It’s much more valuable to have fewer fans that are regularly commenting, liking, and sharing your content. When those fans do engage with your content, their friends see your updates in their newsfeeds, so you have the potential to reach a wider audience.

• Don’t promote your Facebook page
  

What’s the point of developing a great page and posting valuable content if no one ever sees it? Encourage prospects to visit and like your page by making it easy for them to find it. Include a link to your Facebook page:

- on your website and blog

- in your email signature

- on your business card

- on all of your other social media platforms, including YouTube, Twitter, & LinkedIn

With a small amount of effort, Facebook can be a powerful marketing tool. Have you increased your engagement with your customers and prospects on Facebook? What strategies worked best for you?

Rita Chaires
SEO and Social Media Manager
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
www.aaepa.com