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Americans are, quite literally, getting buried in debt, with nearly half expecting to pass away with outstanding debts.¹ 

As a general rule, a person’s debts do not go away when they die. Some types of debt, such as federal student loans, are typically forgiven upon the debtor’s death, but private loans and cosigned accounts may still be owed after the debtor has passed away. State laws also play a factor in the postdeath debt settlement process. 

While nearly half of Americans think they will pass on their debts when they die, you can take proactive steps now to protect your loved ones from inheriting or becoming responsible for your debts. If you are an estate’s executor/personal representative or have been contacted by a debt collector about a deceased family member’s debt, you should understand your rights and obligations. 

One Nation, Under Debt

Debt is as old as civilization itself. Lending at interest can be traced back to ancient Mesopotamia and the use of promissory notes to facilitate trade. The United States has carried debt since its inception, borrowing money from domestic investors and the French government to fund the Revolutionary War.² 

Total consumer debt eclipsed $17 trillion in 2023, up from $15 trillion in 2021, according to credit reporting agency Experian.³ The largest and most common debts include 

• mortgages ($11.5 trillion in 2023),
• auto loans ($1.51 trillion),
• student loans ($1.47 trillion),
• credit cards ($1.07 trillion), and
• personal loans ($571 billion).⁴

The total average individual debt balance in 2023 was $104,215, up from $101,915 in 2022 and $96,371 in 2021.⁵ 

According to Debt.org, 73 percent of Americans die owing money.⁶ The average amount of debt they die with is nearly $62,000.⁷ 

What Happens to Your Debt when You Die

You are probably familiar with the expression “buried in debt.” It might hit close to home if you are like most Americans struggling to pay off existing loan balances. However, do you know what happens to your debt when you die? 

The answer depends on factors that include the type of debt and the state where you live. In most cases and most states, your loved ones are not stuck with your unpaid bills because creditors are paid only from the assets (e.g., a home, car, bank accounts, investment accounts) that are (i) part of your probate estate and go through a probate court or (ii) in your revocable living trust. 

If you do not leave behind enough assets in your probate estate and living trust to fully cover the debts owed, creditors may have to settle for what is available. There are some exceptions to the idea that surviving family members and other heirs are not on the hook for the debt, including 

• a person who cosigns on a loan;
• the spouse of a deceased person who lives in a state with community property laws (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin); and
• the spouse of a deceased person who lives in a state that requires a surviving spouse to pay certain healthcare expenses and other kinds of debt.

The rules governing when a surviving spouse is responsible for paying unpaid medical bills are complex and vary by state. It is important to work with an experienced estate or trust administration attorney to ensure that your affairs are wound up correctly.

Surviving spouses and adult children are frequently contacted by debt collectors attempting to collect on bills for the medical care of their deceased loved one, according to the Consumer Financial Protection Bureau. However, unless the survivor also agrees to the medical debt or is responsible under state law, they are generally not liable for the debt. 

Not All Debts Go Away at Death

Debts not inherited by a specific individual under the exceptions described above do not just disappear, except for debts that are dischargeable by death. 

For example, federal student loans, including Direct Subsidized Loans, Direct Unsubsidized Loans, Direct Consolidation Loans, Federal Family Education Loans, and Federal Perkins Loans, are usually discharged when the borrower dies, as long as the loan servicer receives proof of death.⁸ 

Private student loans are a different story. Some lenders of private (i.e., nonfederal) student loans offer a death discharge, although it is not the norm. They may come after the loan’s cosigner (if there is one) or the estate for repayment of the outstanding balance on the loan. 

Secured versus Unsecured Debt

Determining how and when to pay a debt after the debtor has passed away and who or what may owe the debt can depend on whether the debt is secured or unsecured. 

• Secured debt is backed by collateral (a tangible asset the lender can repossess or sell if the borrower does not pay back the debt). Common examples of secured debt are mortgages (secured by the real property) and car loans (secured by the vehicle). Secured debts are typically paid off before unsecured debts when a probate estate is settled during the probate process. If estate assets are insufficient to cover the secured debt, the lender can seize the collateral to recoup their losses. 

In rare cases and under select jurisdictions, legal protections may be available for surviving spouses who wish to remain in a primary residence subject to a creditor’s claim. These protections may delay or prevent foreclosure if the spouse cannot pay off the mortgage in full.

• Unsecured debt is not backed by collateral (that is, there is no specific asset backing the debt). Unsecured debt includes credit card debt and personal loans. 

Unsecured creditors have lower priority than secured creditors in probate. If the probate estate has enough funds, unsecured debts are paid off before any inheritance is distributed. However, if the estate lacks sufficient funds to satisfy all its debts, unsecured creditors are typically last in line for repayment and may not receive the full amount they are owed.

Funeral expenses also take priority over some creditor claims. Any state and federal taxes that the decedent owes, as well as probate estate administration expenses incurred during probate (e.g., legal and accounting fees), may also supersede creditors. 

Knowing which debts have priority over others in probate is the responsibility of the estate’s executor/personal representative. If the individual assigned this role in an estate plan does not follow state probate laws, they could be personally responsible for debts that should have been paid but were not because the executor did not pay creditors in the correct order.

How to Plan for Debt and Leave More Money for Your Loved Ones

“You can’t take it with you” applies to what you owe every bit as much as what you own. 

Your outstanding debt could create potential complications for loved ones. Your family may not personally get stuck with your unpaid bills; however, if you do not pay off your debts before you pass away, they may be forced to deal with debt collectors harassing or contacting them. Worse still, there may not be any money or property left to distribute to your loved ones in probate court or through the trust after everything has been liquidated to pay creditors. Here are some protections that your loved ones are afforded:

• State and federal law limits whom debt collectors are authorized to contact—and how they can contact them—to discuss outstanding debts. Spouses and other survivors should not automatically assume that they have to pay and should delay any conversation regarding payments of outstanding debts until they have discussed the specific circumstances with a lawyer. Collectors who go too far or provide misleading information can face potential consequences.
• When a beneficiary inherits a home, they also take possession of the home subject to any outstanding mortgage and are ultimately responsible for that debt. Anyone inheriting a home or other significant asset, such as a vehicle, with an outstanding loan balance must know their obligations to the lender. They may have to sell the house to pay off the mortgage or apply to transfer the mortgage to their name. In addition, individuals have the right to refuse a gift from an estate if they do not want or cannot afford it. In some cases, federal law will allow a decedent’s heirs to assume the mortgage on a property without triggering a due-on-sale clause, ensuring that the loan remains in place after the owner’s death.
• Every state has different laws and procedures surrounding debt repayment. Things can quickly get complicated, so it is best to work with a local estate or trust administration lawyer if there are any concerns about how unresolved debts could affect the surviving family.

Estate planning is about the legacy that you leave behind. If that legacy includes debt, an estate planning attorney can offer advice for getting it under control during your lifetime or help your family deal with the consequences of your debts after death. Call us if you need assistance planning for your debt or winding up a loved one’s affairs.

1. Myles Ma, SPFC, 46% of Americans expect to pass on debt to their loved ones when they die, Policygenius (Jan. 9, 2024), https://www.policygenius.com/life-insurance/2024-financial-planning-survey-passing-on-debt-after-death. ↩︎
2. FiscalData, https://fiscaldata.treasury.gov/americas-finance-guide/national-debt. ↩︎
3. Chris Horymski, Experian Study: Average U.S. Consumer Debt and Statistics, Experian (Feb. 14, 2024), https://www.experian.com/blogs/ask-experian/research/consumer-debt-study/#s3. ↩︎
4. Id. ↩︎
5. Id. ↩︎
6. Bill Fay, What Happens When People Die with Debt: Who Pays? (May 16, 2023), https://www.debt.org/family/people-are-dying-in-debt. ↩︎
7. Id. ↩︎
8. FederalStudentAid, https://studentaid.gov/manage-loans/forgiveness-cancellation/death. ↩︎

If you recently married or have been married for a while and have acquired additional money or property (or plan to), you have options regarding how your assets can be owned. Although joint ownership seems easy and convenient, it may not always work as well as you think it should, depending on the circumstances.

What Is Joint Ownership?

After getting married, some couples may choose to add each other to their existing bank accounts, brokerage accounts, and real estate (collectively called assets) as joint tenants with rights of survivorship (JTWROS). An asset owned as JTWROS is owned by at least two people, with each person having an equal right to the account or property. When one owner dies, the remaining owners automatically receive the deceased owner’s share. Going to probate court is not required for this transfer; it happens after a death certificate has been furnished to the appropriate party or recorded. For example, if a married couple owns a bank account as JTWROS and one spouse dies, the surviving spouse automatically becomes the sole owner of the account once the appropriate documentation has been provided. Although this scenario may seem like an easy solution to owning your assets and avoiding probate, there can be some pitfalls. 

Issues with Joint Ownership

When two people jointly own an asset, problems can arise, especially when a relationship is unstable, because neither person can unilaterally sell, lease, gift, or encumber (which includes refinancing a loan, among other things) the property without the other person’s consent or, possibly, without judicial intervention. Depending on state law, there may also be additional concerns when dealing with bank accounts; since both people usually have unrestricted access to the account, either person could potentially go to the bank and drain the account without the other’s consent. 

There are also issues with attempting to use JTWROS to avoid probate. When one spouse passes, the surviving spouse assumes sole control over the asset and can use or gift the asset during their life or gift it upon their death in any way they desire and may choose not to follow the deceased spouse’s wishes. This result is particularly risky when it comes to inherited or separate (nonmarital) property, such as a farm or ranch, that has been passed down through generations in the deceased’s spouse’s family. The deceased spouse may want the asset to be gifted to their own descendants after the survivor passes away, but the survivor can and may redirect the asset to someone else.

In a blended family, JTWROS may lead to the unintended consequence of a client disinheriting their children from a prior relationship. If everything is owned jointly by the couple, then when the first spouse dies, their children from a prior relationship will have no right to the jointly owned accounts and property because ownership automatically goes to the surviving spouse under the survivorship rights. 

A comprehensive estate plan that uses a trust to hold your assets can better control and protect such items. Whether due to creditor issues, incapacity, or death, the right estate plan will ensure that you and your spouse will be able to continue enjoying your assets as intended while minimizing potential taxes and court costs. 

Bottom Line

For all these reasons, it is important to consult with an estate planning professional to understand your options regarding the best approach to owning your assets. If you recently got married or are acquiring additional assets with your spouse, contact us right away to learn about your options.

Your wedding day was absolutely perfect. You and your spouse went on your honeymoon and had the time of your lives. Now you are back and can breathe a sigh of relief as the years ahead unfold before your eyes. Well, not so fast. With your honeymoon over, there are several things you should be mindful of to ensure that the legal and financial parts of your life properly reflect your newly married status.

What to Do After the Honeymoon

As you start living happily ever after, make sure to take care of these post-honeymoon to-dos during the first few weeks (or even days) after your wedding. This will help give you peace of mind so you can enjoy the memories of your wedding and honeymoon for years to come. The following checklist can serve as a reminder of some of the tasks to which you should give your immediate attention:

• Meet with a knowledgeable estate planning attorney to discuss creating a will or trust or updating your current one from before you got married.
• Read over and update your existing financial power of attorney or have one drafted.
• Review and update your medical directive documents (medical power of attorney, advance directive or living will, and HIPAA authorization form) and provide copies to the necessary doctors’ offices.
• Check and update beneficiary designations on any life insurance policies, 401(k)s, individual retirement accounts (IRAs), annuities, and other investment accounts.
• Seek advice from your tax preparer about whether you should adjust your withholdings to reflect your new marital status.
• If you do not already have coverage, obtain life insurance and designate a beneficiary and a contingent beneficiary.
• If you have moved or are planning to, update your address with your auto insurer, banks, employer, and anyone else who needs it.
• If desired, add your spouse to your group health and dental insurance policy.
• If you so choose, change ownership of real estate to reflect your marital status or add your new spouse as a joint owner.

In addition to the above, if you decide to legally change your name, notify the following institutions:

• schools
• employers
• department of motor vehicles or secretary of state
• creditors (including credit card companies) and debtors
• Social Security Administration
• passport office
• insurance agencies
• state taxing authorities
• telephone and utility companies
• banks and financial institutions
• government benefits offices

Contact an Experienced Estate Planning Attorney

We are here to guide you through the estate planning process and ensure that the financial and legal aspects of your life align with your new marital status. Contact us today to learn about how we can help you enjoy your wedded bliss with financial and legal security.

Getting married is a special time in your life; you may have a beautiful wedding, a fun reception (with a delicious cake and special gifts), and a romantic honeymoon. It is also the right time for you and your new spouse to plan for your future—for richer or for poorer, in sickness and in health.

Why You and Your New Spouse Need to Plan Your Estates

Why should you and your new spouse care about estate planning? Because everyone—young or old, married or single—deserves the peace of mind that comes from protecting themselves and their loved ones against life’s unexpected challenges. Unfortunately, many couples spend more time planning their honeymoon than they do planning the best way to protect and provide for each other through estate planning.

What Happens Without an Estate Plan?

Without an estate plan, if you become unable to manage your affairs due to illness or injury or you pass away, your new spouse could face unnecessary challenges and costs in administering your estate during an already difficult time. Estate planning is a powerful way to protect them from heartache and difficulty and make their journey forward easier. 

If you are alive but can no longer manage your own affairs (in other words, you become incapacitated) and do not have an estate plan:

• You will leave your spouse and the rest of your family in the dark. They will not know whom you would like to make decisions for you or how you would like your property and accounts (your assets) to be managed during your incapacity. This situation can lead to family conflict and damaged relationships as your loved ones each champion what they think you would have wanted regardless of whether they are correct.
• Your loved ones will face the burden of making tough decisions about what you would want for medical interventions, life-sustaining care, and the withdrawal of life support.
• The court and state law, not you, will decide who makes healthcare decisions for you if you are unable to make or communicate those decisions yourself.
• If you are your minor children’s only legal parent and you cannot take care of them because of your incapacity, a judge, not you, will decide who will take your place.
• In certain circumstances, the court may lock down access to your money and property so that even your spouse must get court permission before making financial moves or necessary expenditures.

If you pass away without an estate plan:

• Again, you will leave your spouse and loved ones in the dark—this time regarding whom you would want to wind down your affairs and whom you would like to inherit your assets.
• If you have not prepared a will to nominate a guardian for your minor children and you are their only legal parent, the court will be left to appoint a legal guardian based on state law and what the court deems is in the best interests of the child with no input from you.
• Assets that your loved ones receive at your death may be exposed to divorcing spouses, bankruptcy creditors, medical crisis creditors, predators, and frivolous lawsuits.
• Depending on state law, your spouse, children, and other family members may all be entitled to share in receiving your assets.
• Your beloved pet could end up in a shelter or euthanized if alternate arrangements cannot be made for their care.

What Should You Do?

We invite you and your new spouse to call our office to set up a meeting. We will walk you through how to protect each other, those you love, your beloved pets, and your hard-earned money and property so that things are easier for you and your families. We look forward to hearing from you.

Most people understand that having an estate plan benefits them and their loved ones. However, many individuals do not initiate the estate planning process because they do not fully understand the nuances of foundational estate planning tools such as a will and a trust and the full implications of dying without either in place. 

Here are three scenarios illustrating what will generally happen when you die, whether you pass away intestate (without a will or trust), with a will, or with a revocable living trust (sometimes referred to simply as a trust). For this discussion, let’s assume you have two children, but no spouse:

1. Intestate. If you die intestate, your accounts and property will go through a court process known as probate. The entire probate process is reflected in court records, so anyone can access information about what you owned, what you owed, and who will receive your money and property. However, because you have not legally specified who will receive your money and property, the probate court makes that determination using your state’s laws. Intestacy laws vary by state, but generally speaking, money and property go first to a surviving spouse, then to descendants (children or grandchildren), and then to parents, siblings, and siblings’ children, in that order, depending on who survives you.

Once the probate has been opened by an interested person (usually a family member, but maybe a creditor) and debts, taxes, and expenses have been taken care of, the court applies state law to determine where your remaining assets will go. 

• If your only heirs are your two children, state law will typically mandate dividing your money and property equally between your children.
• If your children are adults (at least 18 or 21 years old, depending on state law), they will receive their inheritance immediately with no strings or protections attached. 
• If your children are minors, the court will appoint a guardian or conservator (depending on the term used in your state for a person who manages money on behalf of a minor) to manage the money for your minor children until they become adults. When the children reach adulthood, they will receive their inheritance immediately with no strings or protections attached. The judge will also use state law to determine whom to appoint as guardian or conservator. This could be your ex-spouse or another closely related family member. 
• The court-supervised guardianship or conservatorship process can be time-consuming and costly. Most expenditures for the benefit of the children require a formal process that includes court filings and, ultimately, authorization by the court prior to acting. In most states, guardians or conservators and the attorney representing these parties can charge for their time, which can be substantial. 
• The court, not you, will decide who raises your minor children. The court will look to state law to see who has priority to be appointed as the guardian. This may be a person you would never have wanted raising your child. Because you do not have a will or other official document nominating a guardian, the judge will be able to assess the situation only according to the information they have at their disposal, which may be insufficient. However, if your children’s other legal parent is still living, they will most likely obtain sole custody of the children. 

The bottom line? Dying intestate results in state law and the court making many important decisions on your behalf—regardless of what your wishes might have been. In addition, public disclosure of the intimate details of your life (finances, debts, and who will receive your money and property) is guaranteed.

2. Will. If you die with a valid will, accounts and property in your sole name at your death will still go through the probate process. However, after creditors have been paid, the remaining accounts and property will go to whom you have named in your will, in whatever way you have directed, rather than in accordance with state law.

• If you want to leave your money and property to your children, you can name a trusted decision-maker to manage the funds and provide them to your children when needed or at stated ages. In many cases, this means creating a testamentary trust in your will and naming someone as trustee to manage the funds, allowing you to put restrictions in place to ensure that the money and property are used in a way that meets your wishes. Because these terms are in a legally enforceable will, the court will abide by your wishes.
• The same considerations hold true if you specify that you want to give money to a charity, your Aunt Betty, or your neighbor.
• Your will is also where you can nominate a guardian to raise your minor children. Note that the court will still need to approve the nomination, but this is your way to ensure that your wishes are considered when the court appoints a guardian. 

The bottom line? While a court oversees the process, having a will allows you to tell the court exactly how you want your affairs to be handled. However, a public probate process is still guaranteed.

3. Trust. For a trust to work properly, you need to change the title or beneficiary designation of all of your accounts and property to the trust’s name. Accounts and property owned by the trust are not subject to the probate process. One of the most important benefits of a trust is that the details and process of transferring accounts and property to the intended individuals are private. 

When the trust is initially created, you serve in a variety of roles. First, you are the trustmaker who creates the trust and transfers your accounts and property to it so that the trust becomes the new owner. You are also the trustee of the trust, which means that you are in charge of managing the trust’s accounts and property, making investment decisions, and distributing money to the beneficiaries. You are also a beneficiary. Although the trust is now the technical owner of the accounts and property, you are still able to benefit from them as you did when they were in your name. Because there may come a time when you are unable to manage the trust and the property it owns, whether because you are mentally unable or have passed away, you will name a trusted individual to step in as trustee when you can no longer act. This person is sometimes referred to as the successor trustee. They will then be responsible for managing the trust’s accounts and property and will be required to use the money and property for your (if you are still alive) and the other named beneficiaries’ benefit according to the terms you have provided in the trust agreement.

• One word of caution—to bypass probate, a trust must be properly funded. If you die owning any accounts or property in your sole name without a beneficiary designation, those items may have to go through the probate process to get to their appropriate new owner. 
• Funding a trust means that ownership of your accounts and property has been changed from your individual name to your trust’s name. It may also mean naming your trust as the beneficiary if you cannot change the ownership of the account or property, as with a retirement account.
• Think of your trust as a basket. Like putting apples into a basket, you must put your accounts and property into the trust for either to have real value or control.

Even if you have a trust, you should still have a will to ensure that any accounts or property inadvertently or intentionally left out of your trust are retitled (funded) in the name of the trust after your death. This special type of will, referred to as a pour-over will, directs that anything going through probate is to be given to the successor trustee of your trust, who will then manage the account or property as part of the trust. The pour-over will also allows you to name guardians for your minor children.

The bottom line? A trust allows you to maintain control of your accounts and property through your chosen trustee, avoid probate, and leave specific instructions so that your children are cared for—without receiving a lump sum of money at an age where they are more likely to squander it or have it seized from them by potential creditors or predators.

Do not let the will-versus-trust controversy slow you down. Having any plan in place is often better than the one the state has created for you. Call our office today; we will put together an estate plan that works for you and your loved ones—whether it be a will, a trust, or both.

The Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) was enacted to provide guidelines to the healthcare industry for protecting patient information and preserving privacy. This is usually a nonissue for minors because parents, as legal guardians, generally have access to their children’s medical information, make most of their medical decisions, and pay the expenses.

However, once an individual turns 18, they are no longer a minor but a legal adult. Hospitals and doctors’ offices must safeguard the young adult’s information from everyone, including their parents or legal guardians, to comply with HIPAA law. While it makes sense that a legal adult would be in charge of their own medical information, this can pose some problems for young adults. Many 18-year-olds are still in high school, live at home, and have their expenses paid for by their parents. Although they are considered legal adults, their day-to-day lives look more like those of a child.

Young adults should consider executing the required documentation to ensure their parents or other trusted individuals can access their medical records and discuss their medical care with their healthcare providers. This is accomplished through a HIPAA authorization form. With this form, the young adult can designate any individual(s) as an authorized recipient of their medical information. Executing this document can be incredibly helpful if there is a question about the young adult’s care, especially while the parent is paying the corresponding medical bill. It is important to note that although someone may be listed as an authorized recipient of the medical information, this form does not give the named individual the authority to make medical decisions on the young adult’s behalf.

A properly executed HIPAA authorization form can also be beneficial if the young adult ends up in the hospital. Because hospitals do not want to be fined for violating HIPAA, most will err on the side of caution and refrain from disclosing any information to family members without properly executed documentation. Without access to their child’s medical information and the ability to talk with medical personnel, parents can feel out of the loop, and doctors may miss important family medical information.

Because the young adult is now in charge of their information, they get to choose whom they name as an authorized recipient. While it may make sense for them to include their parents, the young adult is not required to name them.

As a companion to the HIPAA authorization form, it is also important for the young adult to consider having a medical power of attorney prepared so that someone will have the authority to make medical decisions on the young adult’s behalf if they are unable to make their own medical decisions or communicate their medical wishes. Without this tool, the family may need to go to court to have someone appointed to make crucial medical decisions. The appointee will be based on the state’s law, not the young adult’s wishes. Depending on family dynamics, this court appointment could create conflict between family members. Also, this process takes time, costs money, and could potentially divulge the young adult’s medical information to anyone who is in the courtroom or wants to look up the court records.

If you or someone you know has recently turned 18 or needs a HIPAA authorization form, please give us a call. We are here to protect you and your family through all the major milestones in life.

Being an adult comes with freedom and responsibility. You can now make important decisions on your own without consulting your parents or guardians. While this may feel incredibly liberating, it is not without some scary moments. As an adult, you are in charge of yourself. If you cannot act on your own behalf, there is no one who can automatically step in for you—not even your parents or guardians. You need to legally appoint decision-makers for your medical, legal, and financial matters. As you embark on adulthood, address these two important questions to ensure that you are protected if you need someone to step in for you.

How Will Your Medical Decisions Be Made?

Medical decisions tend to be among the most personal decisions a person makes. You can name an agent (in some states referred to as a patient advocate) to make these decisions in certain circumstances. You legally appoint this person through a tool called a medical power of attorney. You may need someone to step in for you if you are unable to make your own medical decisions or communicate those decisions. If you are under anesthesia, you may need someone to make a quick decision about your care, even if you otherwise would have the ability to make those decisions. In this instance, you cannot communicate your wishes and a decision needs to be made. Note that communication can include more than just speaking. For example, if you can blink once for yes and twice for no, you may be able to retain the right to make your own medical decisions because you can communicate your wishes. 

In addition to a medical power of attorney, it can be helpful to have two additional tools in the medical arena. First, an advance directive or living will (if legally recognized in your state) allows you to memorialize your wishes concerning your end-of-life care, such as whether you want to receive life support if you are in a vegetative state or have a terminal condition and no probable chance of recovery. In addition, having a Health Insurance Portability and Accountability Act (HIPAA) authorization form on record with your medical professionals ensures that those you know and trust can access your medical information (for example, picking up test results or receiving an update on your condition). Although the HIPAA authorization form will give them access to information, these individuals will not have any decision-making authority unless you appoint them as your patient advocate in your medical power of attorney. Ensuring that everyone has access to this information may at least help alleviate or reduce the tensions between your chosen patient advocate and your loved ones.

Naming a patient advocate and at least two backups is important in case your first choice is unable or unwilling to make medical decisions for you. When selecting someone to undertake this important job, choose someone you trust. The person you pick will be making life-or-death decisions on your behalf. You need to choose someone who will abide by your wishes. The type of medical treatment you receive and your end-of-life wishes are personal to you, and others might not agree if they were in the same situation. It is very important that you let your chosen decision-makers know your wishes so that they can follow through with them. Lastly, due to the immediacy of some medical emergencies, choosing a patient advocate who can respond quickly is key. 

How Will Your Financial and Legal Affairs Be Managed When You Cannot Act?

As an adult, you are in charge of all decisions impacting your life. You are in charge of signing your own checks, entering into contracts, paying your bills, obtaining a job, and more. But if you are unable to transact business, whether it is because you are out of town or were in an accident and are now unable to communicate, someone may need to step in to ensure that various facets of your life continue uninterrupted. No one (not even your parents or guardians) can legally step in for you under any circumstances without your prior consent or without a court order. 

For these types of matters, you need to name an agent under a financial power of attorney. This trusted individual will be responsible for taking financial actions on your behalf, such as purchasing life insurance or withdrawing money from your bank account to cover your expenses. The scope of your agent’s authority is determined by the type of financial power of attorney that is prepared. The power can be as limited or as broad as you like. You can specify that your agent can act on your behalf only for certain matters (limited financial power of attorney) or can do almost anything you could do for yourself (general financial power of attorney). Another important consideration for a financial power of attorney is the specific time when your agent can act. You can have your agent act either immediately or, as permitted in some states, only after you have been deemed unable to manage your affairs. The process for making this determination can be outlined in the document. In addition, you will need to ensure that the financial power of attorney is durable so that your agent’s authority can continue even if you become unable to manage your own affairs (incapacitated).

Naming your agent under a financial power of attorney is a crucial step in protecting yourself and your future. As with a medical power of attorney, you want to ensure that you name someone as your agent along with backups. Because this person could be handling your money and signing documents on your behalf, it is important that you trust them. Depending on the circumstances and the availability of electronic signatures and virtual meetings, it may not be crucial that your chosen agent lives close to you. However, you will want to ensure that this person has the time to carry out the necessary tasks and duties.

We Are Here to Help

We understand that you are beginning a new phase in your life. You are coming into your own and are now tasked with making important decisions that could impact the rest of your life. Let us help by crafting a unique estate plan for you so you can rest assured that you are protected from whatever life may throw at you. Call us to schedule a consultation.

Why You Should Include Estate Planning in the Preparation

You have likely been preparing for weeks to get your new college student off to school. It is exhilarating, and your heart may be bursting at the seams. You are probably prouder than words can express but also afraid. How can you ensure your child is safe at their new home away from home? A new matching sheet set for their dorm room does not seem like enough, does it? So, what else can you do? While this is probably not on your to-do list, bringing your child to a local estate planning attorney can make all the difference.

Although your child has graduated from high school and reached adulthood, they may still want you by their side if they get sick. However, medical care decisions are legally theirs alone after they turn 18. If they were to become unconscious after a serious accident, you could not authorize medical care or make decisions about a treatment plan without first going to court. The court process would delay your ability to advocate for your child, and your appointment as guardian would ultimately be up to the judge.

We do not want to worry you unnecessarily, but the unfortunate reality is that a significant number of people between 18 and 25 years old wind up in hospitals every year, and their parents are often kept out of the loop when it comes to making critical decisions.

Therefore, most experienced estate planning practitioners recommend that everyone over the age of 18 have a basic estate plan that includes a will, a financial power of attorney, and medical directives that allow someone they trust to act on their behalf if they are unable to advocate for themselves or make medical decisions. While it is important that your child have the proper tools to ensure that their wishes are known and that trusted people will act on their behalf, they can choose whomever they want to fill these roles. These important roles do not have to be given to you.

Here are some things to take care of before you drop your child off at college:

• FERPA release. The Family Educational Rights and Privacy Act (FERPA) is designed to protect college students’ privacy, but it can leave parents locked out in an emergency. A properly worded release, signed by your child, allows school officials to talk with you and release your child’s records to you.
• HIPAA authorization. The Health Insurance Portability and Accountability Act (HIPAA) seeks to protect patients’ privacy. Consider having your child sign an authorization form just in case so that doctors can talk to you about your child’s condition, care, and treatment.
• Durable financial power of attorney. This legal document allows you to take care of your child’s checking or savings accounts, bills, and other finances if your child is unable to—whether due to illness or location (for example, if the school is on the other side of the country or abroad).
• Medical power of attorney. Like the financial power of attorney, this document allows you to handle medical decisions for your child if your child is unable to do so.
• Advance directive or living will. This tool allows your child to state their wishes regarding end-of-life care. Although we hope this tool is unnecessary, it provides the medical decision-maker with additional information to help them make the right decisions on your child’s behalf.
• Will. At first glance, this may seem a little silly for the average, often broke, college kid. However, most young adults do have property or accounts they may want to plan for if something were to happen to them. For example, according to Dashlane, a company that offers secure, online password managers and digital wallets, a typical email account is tied to 130 or more online accounts, each potentially with their own usernames and passwords. Does your child have thoughts about who should manage their social media and email accounts? Do they want someone to receive valuable gaming accounts? Or do they want all their apps and accounts closed at their passing? 

We have been helping families attain peace of mind for years. Contact us today to protect your new college student and your family.

Congratulations! You are now legally an adult. Although you may not feel any different, from a legal standpoint, a great deal has changed.

When you were a minor (under age 18), your parents were your legal guardians responsible for making all your decisions. Now that you are an adult, their legal authority over you is limited, if not completely nonexistent. While this newfound freedom may sound exciting, consider the following:

• Who can access your medical information? As a legal adult, you are protected by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). This means that medical professionals can disclose your private medical information only to those individuals you have authorized. If you want your parents to continue having access to this information, you will need to prepare a HIPAA authorization form appointing your parents, or anyone else you designate, as an authorized recipient.
• Whom do you want to make your medical decisions? When you were a minor, your parents generally had the authority to make medical decisions on your behalf. Now that you are an adult, you must formally give them this authority if you want them to continue being able to make medical decisions for you. However, as an adult, you can provide authority for them to make medical decisions for you only if you are unable to communicate or make medical decisions for yourself. You do not have to give your parents this authority. If there is someone else whom you want to make these decisions when you cannot, you are free to name those people instead. You can give them this authority by preparing a medical power of attorney. Not only can you name someone to act on your behalf (an agent), but you can also provide some general guidelines regarding your healthcare wishes.
• Who can handle your financial decisions? Now that you are an adult and your parents cannot take care of your legal or financial affairs, having a durable financial power of attorney in place may also be helpful. Until now, if you needed a parent to withdraw from a bank account or sign something on your behalf, there was no need for any additional steps because they were your legal guardian. However, to allow them to continue engaging in these same tasks, you must grant them the authority through a durable financial power of attorney. Just like with your medical decisions, you do not have to give your parents this authority. You are free to choose whomever you want.
• Who will wind up your affairs when you die? You just turned 18, not 98, but now is a good time to begin adopting some responsible habits and consider what will happen to your money and property when you pass away. You may think you have no assets, but you actually do. For example, in this digital age, each one of your social media accounts is considered an asset. What will happen to these accounts when you pass away? You likely also have tangible personal property (e.g., personal items, collectibles, jewelry), which might have more sentimental than financial value. A will or trust allows you to give what you have to whom you want in the manner you want, no matter the monetary value.

Now that you are an adult, it is time to start thinking and planning for the future like one. The first step is to meet with an experienced estate planning attorney. We are here to help you navigate this next chapter in your life and ensure you are protected.

In an estate plan, life insurance can be used as a source of immediate liquidity for beneficiaries by offering a tax-free, lump-sum payment upon the insured’s death. 

About half of Americans have a life insurance policy. The primary reason people purchase life insurance is to fund burial and other final expenses. However, a policy can help pay for much more, such as replacing lost income, paying off debts, equalizing inheritances, and funding a trust. 

Most life insurance policies provide flexibility in how the death benefit is paid, but policies do not actually pay out in every situation. If you have life insurance policy coverage, you need to understand the scenarios that can nullify it to ensure that your loved ones receive the financial protection the policy is intended to provide. 

How Life Insurance Works

The following key players are involved in a life insurance policy:

• The policyholder is the person who owns the policy and pays the premiums.
• The insured person is the person whose life is covered by the policy.
• The beneficiary is the person or entity designated to receive the death benefit when the insured person dies. The beneficiary can be an individual, a trust, a charity, or a combination of multiple beneficiaries.

The insured person may or may not be the same person as the policyholder.

Life insurance is a contract between the policyholder and an insurance company (the insurer) in which the insurer agrees to pay a death benefit to designated beneficiaries upon the insured’s death in exchange for regular premium payments.

Types of Policies

The three main types of life insurance are permanent life, term life, and employer-provided life insurance. 

• Term life insurance offers coverage for a specific period of time (term), with a death benefit paid out only if the insured dies within that time frame. 
• Permanent life insurance provides coverage for the insured’s entire lifetime and builds cash value over time, typically with higher premiums than term life insurance. There are two main types of permanent life insurance: whole life and universal life. 
• Employer-provided life insurance is a policy offered by an employer to their employees and paid for by the employer. The employer is the policyholder, and the employee is the insured. In many cases, the death benefit will be paid only if the insured is still working for the employer on the date of their death.

Payout Structures

Life insurance is usually paid out as a single lump sum, in installments over time, or through a life insurance annuity. The payment options available depend on the terms of the individual policy and the issuing insurance company. Some permanent life insurance policies also allow the policyholder to access cash value through withdrawals or loans while the insured is alive.

• Lump sum. The most common payout method is a lump-sum benefit paid to the beneficiary in a single payment. 
• Installments. The death benefit is distributed in regular payments over a set period.
• Life annuity. The death benefit is used to purchase an annuity, providing a stream of income to the beneficiary for a specified duration.

Life Insurance and Taxes

Beneficiaries generally receive a life insurance payout tax-free, although there are some cases when a death benefit is taxable. 

For example, if the payout is set up to be made in installments rather than in a lump sum, the principal is not taxed but any interest that accrues is taxable. The death benefit may also be subject to estate taxes if the total estate value exceeds the estate tax threshold and the insured person was also the policyholder. 

The Importance of Designating the Right Primary and Contingent Beneficiaries

One major benefit of having life insurance with a designated beneficiary as part of an estate plan is that the death proceeds bypass the court-supervised probate process. 

However, the death benefit can unintentionally go to the estate in the following situations: 

• The policyholder fails to designate beneficiaries.
• Named beneficiaries predecease the insured. 
• Beneficiaries cannot or will not accept the death benefit. 

This is why it is essential to name primary and backup beneficiaries and carefully consider whom you name for these roles.

Even if the policyholder names beneficiaries, the death proceeds may still become the subject of a probate court proceeding if the designated beneficiaries include minor children or adults who lack mental capacity. Because such individuals cannot legally own assets (property or accounts), a judge may have to appoint someone to manage the death benefit until the beneficiary becomes an adult or can manage it themselves. So even if a beneficiary is designated on a life insurance policy, it is important to consider who that beneficiary is and what the legal consequences of passing assets on to them would be.

What Life Insurance Can Be Used For

A life insurance beneficiary can use the money however they want. It is generally received tax-free, without restrictions on how it can be spent. Even special types of life insurance, such as final expense insurance that is meant to help pay for funeral and burial expenses, can generally be used for any purpose by beneficiaries. 

However, you also can set up your estate plan to guarantee that life insurance proceeds are used for a specific purpose. You can do so by naming a trust as the life insurance beneficiary and listing those specific instructions in the trust document.

Life insurance can also be used for the following purposes: 

• Pay off mortgages and other debts. Life insurance proceeds can be used to pay off the remaining balance on your mortgage, a credit card or personal loan, or other outstanding debt. 
• Fund a trust for your minor child. Minors are not eligible to receive life insurance funds directly. Instead, the money can be directed to a trust that benefits them and is overseen by a trustee. The trust can cover future needs like education costs and living expenses. 
• Fund a special needs trust. This type of trust is often established for the benefit of a disabled child or individual and funded through a life insurance policy. It can be structured so that the trust pays only for qualified expenses that do not impact eligibility for means-tested government benefits, such as Medicaid. 
• Fund a trust for your surviving spouse. Proceeds from a life insurance policy can also be placed in a trust that benefits your surviving spouse. The death benefit can replace your lost earnings and provide your spouse with financial support. 
• Equalize inheritances. You may wish to leave an equal value of money and property to each of your children. If you have property that cannot be easily divided, you can give it to one child and name your other child as the beneficiary of a life insurance policy of a substantially equal amount. 
• Ensure business continuity and succession plans. For business owners, a life insurance policy can fund a buy-sell agreement to pay for your share of the business at your death so there is a smooth ownership transition and business continuity.
• Cover estate taxes and settlement costs. Few estates are subject to the federal estate tax due to the current high exemption amounts. However, you might owe income taxes when you die, and some states have their own estate tax and an inheritance tax. There may also be probate fees and court costs. Life insurance proceeds can provide liquidity to pay these taxes and fees without having to sell or liquidate other accounts and property. 

In addition, life insurance proceeds can be designated for a certain purpose, including a spousal or child support obligation. Like death benefit proceeds that support a minor child or beneficiary with special needs, death benefits with a directed purpose are best handled through the establishment of a trust. 

Why Life Insurance May Not Pay Out

Life insurance is a contract that comes with terms and conditions. Some conditions, called exclusions, allow the insurer to deny payment to beneficiaries when the insured dies. The following are common life insurance policy exclusions: 

• Expired policy. Term life insurance will not pay out past the policy’s stated term. It may be possible to renew and extend the policy term, however. 
• Leaving a job. Employer or group life insurance is usually dependent on employment, so coverage ends when an employee leaves their job. 
• Risky activities. The insurance company may be able to deny a death benefit if the insured died while taking part in risky activities such as skydiving, rock climbing, and scuba diving that are specifically excluded in the policy contract. Certain jobs, such as logging, offshore oil work, and law enforcement, may also fall under this category. 
• Illegal activities. An insured’s death that occurs while they are engaging in an illegal activity or committing a crime is usually an excludable event. 
• Suicide. Life insurance generally covers death by suicide, but most policies have a “suicide clause” that exempts suicide occurring in the policy’s first two years or a different time frame as defined in the contract. 
• Murder. Murder, like suicide, is generally not excluded from life insurance coverage. However, if a beneficiary murders the insured, they will not receive the death benefit; it passes instead to contingent beneficiaries. 
• Substance abuse. A policy may exclude deaths resulting from drug or alcohol abuse, including overdose deaths. 
• Lying on the application. Life insurance companies decide whether to issue a policy and how much to charge based on the information the insured provides. Not providing accurate information constitutes a material misrepresentation—and insurance fraud—that can allow an insurer to rescind coverage. 

Importantly, an insurance company might provide coverage to individuals who engage in risky behaviors or have a high-risk health status (e.g., alcohol and drug use, a family health history of disease, or a diagnosed medical condition) but may charge them higher premiums. Lying about this information on an application could lead to a denial of benefits. 

Also, exclusions can change over time according to changing norms. For example, insurers historically excluded aviation accidents from coverage, but this is no longer common practice since private aircraft are now much safer. It is crucial to review the fine print of an insurance policy and understand its exclusions and key terms. 

An estate planning attorney can provide guidance about how to integrate life insurance into your plan in a way that meets your financial and legacy goals, whether those goals are to fund trusts with life insurance proceeds, cover estate and income taxes, fund a buy-sell agreement, or provide overall estate liquidity and financial peace of mind. Schedule a consultation to learn more.