Guides on Prenuptial agreement

1. Clients often seek to manage and reduce legal risk, and rightly so. The cost of litigation - whether in the form of adverse judgments or simply the expenses that must be incurred to litigate a case - can bankrupt or severely impair the financial well-being of most individuals and businesses. 2. When discussing legal risk, clients often express concern about liability resulting from personal injuries others might sustain on the client's real property, liability from automobile or other accidents, or liability from contractual or related business dealings that somehow went wrong. These concerns are legitimate. A large amount of money is lost to adverse judgments in these types of cases, as well as from litigating these types of cases. 3. The enormity of such losses might explain why many people seek to manage risk through use of various complicated and fancy (not to mention, expensive) asset protection strategies. However, the truth of the matter is that the vast majority of people will never be involved in such high-stakes litigation and, therefore, do not need the (sometimes questionable) protection that might be provided by such strategies. 4. Simple (and usually less expensive) is often better than complex (and expensive). Such is the case here. 5. Statistically, most Texans are more likely to find themselves in divorce court, fighting over the division of marital assets, than in a civil court fighting over personal injury or contract damages. Thus, for most Texans it makes sense to focus, at least in the first instance, on the management of marital property. 6. A brief look at American marital property systems is necessary to better understand why Texas Divorce Courts pose such a great financial risk. 7. The marital property laws of all American states derive from two basic systems: the Common Law (aka: equitable distribution) system and the Community Property system. Generally speaking, in Common Law states, married couples decide whether - and which - assets that are acquired during marriage will be considered "marital property" or part of the "marital estate." Upon divorce, courts in Common Law states divide the marital estate in a manner determined by the court to be "equitable." Most states can be classified as Common Law marital property states. 8. The Community Property system, on the other hand, presumes that all property acquired during marriage (with certain limited exceptions) is marital property. Upon divorce, the marital estate - that is, all community property owned by the couple - is divided equally. The community property form of marital property, having been adopted from Spanish law, is found mostly in states located in the southwest and western areas of the country. 9. Texas statutes classify that state's system of marital property as being of the community property variety. Consistent with such a classification, all property acquired by Texans during marriage (again, with limited exceptions) is considered to be community property. 10. However, in sharp departure from the "classic" or "textbook" definition of Community Property, Texas law provides that: "In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Texas Family Code ? 7.001. 11. Neither Texas statutes nor Texas judicial opinions articulate any objective or other meaningful standard by which to determine whether the division of marital property in any particular case is "just and right," unjust and wrong, or somewhere in between. Apparently, "just and right" is, as the statute itself states, whatever "the court [that is, the trial judge] deems" it to be. 12. Thus, the statutory mandate that Texas marital property be divided in "a manner that the court deems "just and right" is, for all intents and purposes, an almost unrestrained legislative invitation for the trial judge to do whatever he or she wants to do. Indeed, what two or more judges consider "just and right" in a given situation might be vastly different. There is absolutely no legislative (or judicial) attempt to ensure, or even promote, the uniformity of Texas divisions of marital property, whether from Texas county to Texas county, or even between different courtrooms within any given Texas county. 13. Furthermore, it is important to note that judicial discretion to divide Texas marital property in "a manner that the court deems just and right" is not limited to divorce cases that allege "fault." So-called "no-fault" cases are equally susceptible to the whims of the trial judge. Thus, to the extent that a divorce litigant (or that litigant's attorney) can cast the other party in a "bad light" before the trial judge, or where the other litigant brings judicial disfavor upon himself or herself for whatever reason, a divorce case that ostensibly is a "no-fault" case can, as a practical matter, yield a property division that is based on considerations of fault or other wrongdoing. 14. In all fairness to Texas judges, most probably hold a sincere belief that their "just and right" property divisions are, well, just and right. The problem here is not most Texas judges; the problem is the Texas legislature. 15. The Texas legislature has failed to give Texas trial court judges any objective or otherwise meaningful guidance on how to properly divide marital property. The result has been that each Texas trial judge that is tasked with making a "just and right" decision regarding the division of marital property has no choice but to apply his or her own values and ideas about how marital property should be divided in a given case. The result is - literally - "Legislating from the Bench" - not because all or any particular judge has decided to be a "judicial activist," but rather, because the Texas Legislature has failed to legislate. 16. Now for the good news. The Texas Legislature has allowed you to do what it has failed to do. Texas statutes affirmatively authorize and allow married couples to contract with each other on issues such as: specifying what property will (and will not) be considered marital property; whether and how marital property is to be divided; whether, in the event of divorce, one spouse may be made to pay the other spouse's attorney fees (in whole or in part), whether one spouse may be made to pay alimony to the other spouse (and if so, how much), and other important issues. 17. More good news. Marital property contracts are not just risk management tools that can be used in case of divorce. Such contracts are also extremely valuable asset protection tools for couples where, for example, one spouse is self-employed or who engages in a profession or occupation that exposes that spouse to significant levels of litigation risk from dealings with third parties. 18. Would you like to receive a copy of future blog posts by email? 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Select a Financial Planner A planner can outline for you better ways to handle your budget, cash flow, debts and investment programs. Check your Credit History Take a look at your credit reports and review your credit history. Don't assume your credit is good. Check with credit reporting bureaus and review their reports. This can be done without charge. Ask your financial planner how. It is a good idea to do this annually. Organize your Financial Documents Organize in files, and clearly label all your financial documents. Color code your files and get super organized. Create a master list with account numbers, contacts, balances, payments, debts and loans. Document Safe Deposit Boxes, get copies of titles for Real Estate and titles for Automobiles. Consider the following: Checking Accounts, Savings Accounts, Money Market Accounts, Certificates of Deposit (CDs), Bonds, Stock Certificates, Mutual Funds, Brokerage Accounts Retirement Documents Pension Plans, IRA, 401(k), Keogh, SEP, Social Security Benefits Agreements Have copies of any prenuptial agreements / marriage certificates. Estate Planning Documents This includes copies of: Trusts, Wills, Power of Attorney Work Related Documents If you are still working: Organize work related items: Tax Returns, Pay Stubs, Benefit Statements, Stock Options, Pensions/401(k)s/403(b)s, Bonuses, Health Insurance, Disability Insurance, Life Insurance Debts Do you know what your debts are? And the interest rates? Credit Card Bills, Personal Loans, Mortgage Documents, Automobile Loans Insurance Policies Do you know what insurance policies you have? Auto, Life, Umbrella, Homeowner's, Health, Disability, Long-Term Care Valuables Are you aware of and have documentation for other valuables? Jewelry, Precious Metals, Collectibles, Antiques

It Can Strengthen the Relationship In order for prenuptial agreements to work, you both have to be completely transparent with one other about your existing financial matters. This means fully disclosing your assets and your debts to one another. Get the difficult conversations out of the way as soon as possible. Trust us, the best time to talk about that maxed out credit card is not after the honeymoon. Avoiding Discussions About Financial Matters is a Start on the Wrong Foot Almost a third of divorces are the result of financial problems. We know you've heard this one before, so why not address this in advance? The more communicative you are in planning your future together, the more likely that future will be "till death do us part." Part of your prenup discussion may include discussions about marital roles and obligations of each partner. There is nothing unromantic about smart planning. You Acquired Property Before your Current Relationship One of the things that we have found is that many couples interested in a prenuptial agreement typically have acquired property prior to starting a relationship with their current partner. This is particularly true with people getting married a second time. Oftentimes, a couple may want to keep some of their property separate, especially if they have children from a previous relationship. The idea here is that couples would like to see their separate property, or even a certain percentage of it, used for the benefit of their children in the event of a sudden death or divorce. Divorce is Very Expensive Divorces are quite pricey and while we know that nothing can be further from your mind, the reality is that about 50% of marriages in the U.S. end up this way. Think of your prenuptial agreement as something of an "insurance policy" that will save you both a lot of pain and money by predetermining who gets what at a time when you are not angry at one other. Assurance for Your Children Second and third marriages are increasingly a common occurrence in the U.S.. In some cases, children may feel their new step-parent will not honor the same inheritance wishes of their biological parent. A prenuptial agreement sets clear guidelines regarding what a spouse is entitled to, while ensuring your children's peace of mind that they will be taken care of. Financial Independence You're single, you work hard, and you're probably used to managing your finances. However, during the course of a marriage, you are likely to share certain financial responsibilities together. If maintaining a certain level of financial independence is important to you, a prenup can help set those parameters for you. One way to do that is to outline your obligations to each other and define where the lines are in terms of maintaining your own earnings. Protection from Creditors Maybe your partner attempts a business that ultimately fails, or maybe your partner brings a lot of debt to the relationship. Things happen, and we get that. A prenuptial agreement can often protect your finances from creditors. This allows one partner to step up and help maintain your relationship while the other bounces back. Planning your Life in Advance There is nothing wrong with that. By outlining specifics about your future together, a prenuptial agreement gives you a roadmap to keep you both on track. It makes you think things through. It also brings the tough decisions to the forefront of your relationship to make sure they don't trip you both up later. Keeping a Business on Track Do you have a business partner or some other significant business interest? A prenuptial agreement can help keep that business intact in the event of an untimely death. That does not mean that your spouse cannot or should not benefit from your hard work, but your agreement will help clarify issues surrounding ownership of the business. Spousal support You could end up living a long time, but only be married for a number of years. Should that relationship end in divorce, you could be on the hook for a lifetime of support even if your relationship did not last as long. An agreement could alleviate this and mitigate these obligations.

Issuance of a Marriage License A ceremonial marriage in Texas requires the filing of a license and a ceremony conducted by a person authorized to conduct such a ceremony. A marriage license is valid for 30 days. However, because of the 72-hour waiting period required by Section 2.204 of the Texas Family Code, there is only a 27-day ''window'' for the marriage ceremony to take place prior to the expiration of the license. The window to seek an annulment of a marriage performed during the 72 hour waiting period is almost as narrow: within 30 days after the ceremony (see Texas Family Code Section 6.110). Missing the Window of Opportunity In the event a ceremony is conducted after the license expires, section 2.207 allows for a penalty to be assessed against the person who conducted the ceremony. No information is available evidencing the implementation of such a fine. Rationale for the Three Day Wait The 72 hour waiting period after obtaining a license ostensibly was enacted to prevent couples from marrying in haste without thinking about the impact of making such a commitment. Real history here: suburban justices of the peace lobbied for the change due to the fact that the J.P.'s were besieged by requests to perform marriage ceremonies during their very busy dockets. By mandating that applicants wait patiently for 72 hours before marrying, the bulk of applicants began to look elsewhere for an authority to "marry" them, rather than looking to a J.P. at the Courthouse. Loophole The statute permits a ''waiver'' of the three day waiting period. Presumably a ''waiver'' is less difficult to obtain than securing an ''order'' to the same effect. As a theoretical incentive to encourage couples to obtain premarital counseling, the 72 hour waiting period is waived for those who complete a course meeting the requirements of section 2.013. In addition, most District Court Judges have a form that facilitates the granting of a waiver of the three day wait, based on proper request. Equal Protection Discrimination in conducting the ceremony based on race, religion, or national origin is prohibited by Texas Family Code Section 2.2005. However, notably missing from the anti-discrimination list is discrimination based on sex. In 2003, the Texas Legislature confirmed that the omission was intentional by enacting Section 6.204. Sadly, this provision provided in Subsection (b) that "A marriage between persons of the same sex or a civil union is contrary to the public policy of this State and is void in this State." This provision will be one of many revisited and revised by the Texas Family Code drafting committee, and then effectuated by our Legislature. Recognition of ALL Marriages In Obergefell v. Hodges, the United States Supreme Court has finally spoken by clearly holding that the Fourteenth Amendment and Due Process Clause of the U.S. Constitution require states to issue licenses and recognize marriages between two people of the same sex. 576 U.S. (2015), 2015 WL 2473451 (U.S. June 26, 2015).

Buyout Agreements Many LLC owners neglect to create buyout agreements, but buyout provisions are critical when you co-own an LLC with other members. A buyout, or buy-sell, agreement states what will happen when one member wants to leave the company, or worse, dies, goes bankrupt, or gets divorced. Most LLC's should create a buyout agreement. The few exceptions include a business that has one owner, married owners, or parent/child owners. What Is a Buyout, or Buy-Sell, Agreement? Contrary to popular belief, buy-sell agreements are not about buying and selling companies. Instead, they are binding contracts between co-owners of a business that govern what will happen when an owner wants to leave or a new owner wants to join. A buyout agreement is an important part of LLC ownership because it regulates who can buy a member's interest and establishes a predetermined price for ownership interests. Because of this confusion over terminology, we will use the term "buyout agreement" from here on. A buyout agreement controls the following business decisions: o Can a departing member force the other members or the LLC to buy him or her out? o Who can buy a departing member's share of the business? (This may include outsiders or be limited to other LLC members.) o What is the price or value of ownership for a member's interest in the LLC? o What are the terms of payment for a withdrawing member's interest? o What other events can trigger a buyout? A buyout agreement is a sort of "prenuptial agreement" between you and your co-owners: If your happy union doesn't last, the buyout agreement spells out, in advance, what will happen to the business you own together. What Events Are Covered Under a Buyout Agreement? Typically, the events that trigger the buyout of a member's interest under a buyout agreement are: o a member's retirement or resignation; o an attractive offer from an outsider to purchase a member's interest in the company; o a divorce settlement in which a member's ex-spouse stands to receive a membership interest in the company (which the ex-spouse must sell any acquired interest back to the company); o the foreclosure of a debt secured by a membership interest; o the loss of a license; o the retirement of a member; o the personal bankruptcy of a member (which can initiate an automatic sale of the member's interest back to the company); or o the disability, death, or incapacity of a member. Buyout Options and Forced Sales When ownership interests change, a buyout agreement can not only give the LLC the right to purchase the departing member's interest, it can also include terms that force the LLC to buy a departing member's interest. Option to Purchase an Owner's Interest: This option gives the LLC and its members the right to buy back an ownership interest from a member, a member's family, or the member's estate within a certain time and according to a predetermined price. This option, for instance, can be used to buy an interest from the estate of a deceased member, from a member that retires or quits, or from a member that becomes disabled. Right to Force a Sale: This provision gives a member that decides to leave or retire the right to force the company to buy their interest. The LLC or its members must buy the interest within a certain time and at a predetermined price if the departing member or the member's family makes a request. Why You Need a Buyout Agreement It's a huge mistake to ignore the fact that sooner or later your circumstances will change. Here's how the buyout agreement can help in several situations. A member leaves. The odds are good that a member will want to leave the company before the other members are ready to sell or close the business down. Without a buyout agreement, the LLC might be automatically dissolved when one member leaves, forcing the assets to be sold and divided among the LLC members. If the other members wish to continue the business, there are no rules determining in advance whether and how departing members will be bought out, or for how much. This can lead to serious personal and business discord -- perhaps even court battles and the loss of the business. A new member wants to join. A buyout agreement also places controls on who can buy a membership interest in the company and how new members can join your ranks. Without this provision, another member could sell his or her share to someone you would rather not be in business with, i.e., the buyout agreement can establish preset guidelines for handling changes in ownership and can prevent unwanted buyers from obtaining an interest in the company. Encourages a discussion of expectations. In addition to avoiding potential problems in the future, writing a buyout agreement has a very real immediate benefit: It will force you and the other members of your ownership team to talk about your hopes and expectations for the business. This type of honest, open communication will put your LLC on the right track from the very start. Creating a Buyout Agreement A buyout agreement can consist of several clauses in your written operating agreement or it can be a separate agreement that stands on its own. To create one, you can either use a self-help resource or see a lawyer -- or both.

Divorce litigation Divorce can sometimes be messy, making litigation complicated. An experienced attorney with a good record at negotiating divorce litigation can help you get through it. Child custody disputes Both parents should have equal rights to the children, but there are circumstances that come up that make this difficult or detrimental to the children. Child support negotiations Many states have algorithms that they use to calculate how much one spouse will pay the other spouse for child support. Of course, there are always exceptions that need to be taken into account. Alimony and spousal support When one spouse has come to depend on the other or has become accustomed to a certain lifestyle, they can be awarded alimony. Stay-at-home parents have spent their time at home with the children and may choose to continue to do this, so alimony can be a beneficial way to continue to be there for the children after getting divorced. Post-divorce modifications After the divorce is finalized, you may find that the child custody plans need to be modified, that you need to reconsider the grandparents' visitation rights for the children, or you need more child or spousal support. Prenuptial agreements The idea of a prenup may make you feel like you're dooming your marriage to fail, but it can also be very helpful in learning about each other. It can protect your financial assets and prevent complicated disputes if you do end up getting divorced down the road. Since statistics show that the majority of marriages end in divorce, it may be wise to ensure that you won't be trapped in legal battles if it happens.

This video covers some of the most important estate planning considerations for couples in Utah with children from a prior relationship. Topics include prenuptial agreements, spousal elective shares, and the need to consult an expert.

First Step: Is the Country of Origin a Signatory of the Apostille Convention? Let's assume you have a document issued or authenticated by a foreign government or court (for instance, a judgment, a foreign will, a marriage certificate or a prenuptial agreement) and you wish to rely on, or enforce, this document in legal proceedings in the United States. As a first step, you need to find out whether the country of origin is a member (signatory) of the so-called Den Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. This international treaty that was signed by the US government in 1961, and it thus became "Supreme Law of the Land" (US Constitution, Art. IV, Clause 2), and takes preference even over federal law. It is important to note that the treaty also supersedes any inconsistent provisions of state law. The treaty abolishes the cumbersome, frustratingly slow and also expensive requirement of "legalization," but only for signatory states. If your document was issued in/by a signatory state of the treaty, and if it is an eligible document (e.g., a court document, an administrative document (e.g. civil status document such as a marriage certificate, or a notarial act), you are in luck. As a rule, most western countries are members of the convention. Second step: Obtain the Necessary Certifications in the Country of Origin If the country of origin is a treaty member, you must first obtain an official copy or original of whatever document you wish to use in the US. Such copy must usually be obtained at the court or agency or person (for instance, a notary) who executed or certified the original document. The next step is crucial: You must then obtain the necessary "apostille" under the above-mentioned convention. An "apostille" has nothing to do with preaching the gospel. It is simply a (second) certification which basically states that whoever issued the original document, is really who he or she says (e.g. a judge or notary), and has the authority so make such a statement or act; it also certifies the issuing official's signature. The apostille has ten (10) paragraphs and it is usually issued in the language of the country of origin (although it does not have to be). It is very important that the format prescribed by the convention is strictly followed. An apostille has the following 10 parts: 1. Country ... [e.g. Austria] 2. This public document has been signed by [e.g. Franz Schmidt] 3. acting in the capacity of [e.g. notary public, judge or government official] 4. bears the seal/stamp of [e.g. a notary or court] 5. Certified at [ e.g. Vienna] the ...6. [e.g. 16th Apr.2014] by ... 7. [e.g. the president of the court] 8. No ... [e.g. 1234/2015] 9. Seal/stamp ... [of the authority giving the apostille] 10. Signature. Third Step: Obtain Certified Translations The document must be translated by a licensed translator, preferably in the United States (although this can also be done overseas.) It must be certified and an affidavit by the translator, stating his or her credentials and that the translation is accurate, is usually required. I strongly recommend to also have the apostille text translated. That is not necessary, but preferable, as some clerks or agencies will initially reject any "untranslated" document. Fourth Step: Use the certified document (it now bears two - 2- seals) AND the official translation i See above. What if the Country of Origin is not a Member of the Convention? In this case, you need to adhere to the ancient and cumbersome process of "Legalization." I will write a separate legal guide for this time consuming and complicated procedure. Alternatives Certain official acts can also be done by the US embassy or US consulate overseas. For instance, a US consular official can notarize signatures and take oaths and affirmations in a foreign country. Then, no apostille is required as the consular official is a US official. Important A document so authenticated can be used in US courts. That does not mean you won't encounter additional difficulties. For instance, a US court could choose not to enforce a foreign prenuptial agreement because it finds it unfair, a foreign could be contested due to alleged lack of capacity of the testator, and so on. The above described procedure basically "transforms" a foreign document into a domestic document. That is all it does. New Law Note: Because of the new CPLR Sec. 2106(b), the process for certain documents has been much simplified. I will write a separate guide in connection with this new rule.

1. ORIGINAL SIGNATURES This problem comes up a surprising number of times. Some clients feel the need to make photocopy after photocopy of their documents, and without dedicating the proper amount of care, the originals get lost or misplaced. Many times when an estate plan is reviewed, there will not be a complete plan to review. This almost always necessitates a re-drafting of the plan. 2. QUALITY CONTROL A second set of eyes can only help and clarify matters. Your existing plan may have very well been drafted with quite a bit of care, but there is always the possibility of an oversight, mistake, misinterpretation, omission, or misunderstanding. These inconsistencies not only happen in the drafting of the documents, but also in the communication with the attorney. We review your plan to ascertain whether your attorney understood your wishes, and if such is adequately reflected in your final plan. 3. TRUSTEES AND OTHER FIDUCIARIES We discuss your trustees, agents, and other fiduciaries and review what these individuals are responsible for. We discuss whether, in our professional opinion, the circumstances surrounding these individuals allow them to act within their designated roles. Further, we discuss, given the totality of the circumstances, whether you still prefer the designated individuals to act in these roles. 4. TRUSTEE AUTHORITY A vast majority of estate plans significantly lack in the granting of the necessary authorities to the successor trustees. The economy and the way of doing business and interacting with financial institutions and other third parties has changed drastically over the past few years. If you were to become unexpectedly incapacitated within the next year or so, we seek to determine whether your trustee has the power and authority to not only buy and sell investments and open and close bank accounts, but also to handle all of the other potentially complex issues that may arise. We have come across many situations where successor trustees are unable to adequately handle the affairs of the trust creator due to ambiguous or inadequate language specifying the necessary authority. 5. TRUSTEE ROLE AND RESPONSIBILITY Another vital area where many trusts are inadequate is in the legal specification of some of the responsibilities of the successor trustees. Acting trustees tend to focus on what they are required to do. The problem is many trusts fail to specify such. Although the successor trustee is under certain legal obligations, there are other practices which would be very beneficial for a trustee to be aware of. What sort of records need to be kept, and with whom the information is shared, along with the various reporting requirements of the trustee should all be clearly specified in one's trust. We review your trust to ensure such requirements are adequately explained. 6. BENEFICIARY DESIGNATIONS Are your listed beneficiaries the same beneficiaries you would currently like to receive distribution of your estate? Have there been changes in their circumstances or your relationship with them that would cause you to consider adjustments? Are there specific gifts that are no longer needed? Have any of your beneficiaries become incapacitated or deceased? Are the alternate beneficiaries listed still up to date? Who your beneficiaries are is a very important element of your estate plan, and should be reviewed and discussed with an attorney. 7. DISTRIBUTION STRATEGIES Beyond the scope of this list is an entire world of strategy relating to how one's estate can be distributed. Whether the distributions are made outright to your beneficiaries or structured over time, the exact manner should be reviewed and determined if still relevant. Furthermore, are certain contingencies provided for such as distributions for medical and similar emergencies prior to normal distributions? Getting to know your beneficiaries and their current circumstances allows us to dictate whether further discussion is needed. 8. A/B PROVISION An extremely popular strategy to implement into trust creation, which has since become quite outdated, is the A/B Trust. An A/B Trust requires that a significant amount of trust administration and accounting occur after the death of the first spouse. This is a legal requirement which, if ignored, could result in significant legal liability exposure for the surviving spouse. The driving purpose behind A/B Trusts is to minimize or completely eliminate Estate Tax exposure. Given the recent significant changes in the Estate Tax, such drastic measures are hardly ever needed. Furthermore, given recent case law, and the emergence of a "discretionary" A/B Trust, the traditional A/B Trust is all but obsolete, and if ignored, could also result in thousands of dollars of unnecessary expenses for the surviving spouse. It should be noted that A/B Trusts still play an important role in some specific situations, such as in blended families with beneficiaries that need protection. Whether you have an A/B Trust, and the feasibility of altering such provisions or re-creating the trust are always discussed. 9. PORTABILITY Recent changes in the law allow spouses to take full advantage of each other's tax exclusions, which was only previously available through relatively complex trusts which require a significant amount of administration and expense to maintain. In reviewing your trust, we analyze how that new portability laws affect the structure of your trust and overall plan. 10. OTHER ESTATE TAX ISSUES Although the Estate Tax exclusion is much higher than it has been in the past (thus dramatically decreasing the number of people affected by the tax), it is absolutely imperative that a thorough analysis is conducted to ensure that no unnecessary taxes are paid by one's estate. Many strategies exist to address a potential Estate Tax problem, and certain care should also be given to the make-up of your assets to ensure the Estate Tax does not become a future problem. 11. UPDATED HEALTH CARE DIRECTIVES This portion of one's estate plan is based off of laws that change more often and more dramatically than any other laws. Older health care directives have a seven-year expiration, while more recent directives may be not be subject to a relatively recent major overhaul in applicable legislation. While most of these changes should only result in certain provisions being outdated, in some situations the entire directive could be obsolete. 12. HIPAA AUTHORIZATION Recent federal laws relating to health insurance and medical care focus on patient privacy, and adequate measures need to be implemented to ensure that your agents have the necessary access to your medical records upon your incapacity. Most pressing is your agent's ability to adequately show financial institutions and other third parties that you are incapacitated thus necessitating (and allowing) your agent's action. Also important is the ability of the individual charged with making medical decisions on your behalf to access all of the information necessary to make informed decisions. Most estate plans do not have a HIPAA Authorization, and such should certainly be addressed. 13. MARITAL / JOINT OWNERSHIP PROPERTY AGREEMENTS Whenever a marital or joint-ownership relationship is involved in one's estate, adequate agreements need to be in place. This is the one element to a complete estate plan that we see missing the most. How are assets treated if they are the separate property of one spouse? What about assets that are community property of both spouses, but are normally accessed and managed by only one spouse? What if a client owns property jointly with a third party? All of these issues need to be reviewed to determine whether additional clarification is needed. 14. OTHER COROLLARY DOCUMENTS A well-rounded estate plan will have a set of various corollary documents and tools that serve to support the primary, main documents. Depending on the individual circumstances, some of these documents could be absolutely essential and integral to an overall plan. For example, the existence of a pre-nuptial agreement, prior marital relationships, and other legal obligations require additional clarification to ensure there are no problems with the administration of your trust, powers of attorney, or other core documents. 15. BASIC FUNDING A trust is only as effective as it is properly funded. Everything from your art, clothes, jewelry, and furniture to your bank accounts, investments, business interests, and real estate all need to be properly transferred into your trust, or otherwise properly accounted for. We review all your assets and review the funding status of each to ensure your trust will avoid probate and will function as anticipated. 16. QUALIFIED RETIREMENT ACCOUNT FUNDING Qualified retirement accounts, particularly IRAs have very unique estate planning implications. There is conflicting advice circulating regarding whether one should name their trust as the beneficiary of their qualified retirement accounts or whether individual beneficiaries should be named directly on the account. This decision carries with it asset protection ramifications, significant tax disparity, and drastically different distributions. All of these issues need to be discussed to ensure the best possible overall situation given your retirement assets and your specific goals. 17. UKKESTAD FUNDING DOCUMENT A very recent California case has allowed any trust creator to integrate a "catch-all" funding document which, although not a replacement for adequate funding, can prevent any estate from having to go through probate, even if there is a catastrophic flaw with the underlying trust. The Ukkestad case is the most recent "game changer" in trust law, and the resulting advantages should be properly integrated into any estate plan. 18. REAL ESTATE TITLING / TITLE INTEGRITY For many, it is common knowledge that all real estate needs to be titled in the name of the trust. However, in practice it is extremely common to encounter problems in this area. Nearly every time a piece of property is re-financed, the title is transferred out of the trust and rarely transferred back in. Furthermore, a title issue prior to transferring the property into the trust could compromise the ability of the trust to avoid probate. We do a thorough review of the chain of title to all your real estate to ensure proper funding. 19. PROPERTY TAXES Taxes associated with real estate are much more complex than most realize. Sure it is common to understand your basic rights (e.g., parent-child reassessment exclusion), but such tax exclusions are very technical in nature and a single word improperly used in your plan could result in tens of thousands of dollars of unnecessary taxes or fees that could easily be avoided. Unfortunately we see problems in this area quite a bit, and we review and discuss if any minor adjustments could prevent this from happening to you. 20. LIFE INSURANCE AND NON-TRUST PLANNING A trust is a very powerful document, and has many advantages when heavily relied upon. However, there are circumstances, both legal and of personal preference, which require the trust to work in accordance with other estate planning vehicles such as life insurance, other trusts, partnership agreements, charitable foundations, etc. We discuss each of those items and review how they interface with your plan to ensure that the overall plan is working properly. 21. PRELIMINARY TRUST ADMINISTRATION TASKS A well-drafted estate plan should withstand the test of time, and be able to function properly at any time as well as it did on the day it was created. There are certain circumstance (not very common) that would necessitate an additional document or two to be signed or an affidavit declared to, in order to ensure proper continuity of the trust. If there has been a death of a successor trustee, one of the creators of the trust, or if a beneficiary has passed away, there may need to be some slight adjustments, and we can discuss those with you. 22. CHANGED CIRCUMSTANCES OF ALL PARTIES After discussing the specific issues of the various elements of your estate plan, we will have a general discussion of the circumstances of all the parties involved. Have there been any marriages or divorces? Deaths? Births? Graduations? Has anyone moved? Retired? Begun a new career? Although it may not seem like many of these have effects on your estate plan, they most certainly do. We will have this discussion with you and note any concerns that we see as a potential point of further discussion. 23. IMPROVED LANGUAGE AND TECHNIQUE Although the basic laws affecting most estate plans are relatively stable over time, there is a constant flow of local and national cases which affect how we strategize, advise, and draft planning documents. Even well-structured documents can be improved over time, and we will discuss these changes in detail with you. The analogy I use most often is that of a classic car: one can look at a beautifully restored classic car and appreciate its aesthetics and quality, but it should also be considered that safety features such as seat belts, air bags, and anti-lock brakes have dramatically improved the functionality of cars since then. 24. OVERALL ESTATE PLAN UNDERSTANDING Last, we make sure every client we meet with has the knowledge and resources to understand and become familiar with exactly how their estate plan functions. We spend quite a bit of time explaining and educating you in the clear and concise manner that all of our clients appreciate.