EQUAL PROTECTION UNDER THE LAW

About two years ago I wrote a blog about Estate Planning for LGBT couples. I wrote it shortly after the Supreme Court decision that found DOMA to be unconstitutional. Today the Supreme Court issued an order written by Justice Anthony Kennedy legalizing gay marriage. Today there is no such thing as “gay” marriage. It’s just marriage. It’s an emotional day for the LGBT community and their families, friends and supporters.  I have a lot of thoughts and feelings I would like to express but I cannot say it any better than Justice Kennedy in his beautiful summary. Thank you Carolyn. Thank you SCOTUS.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.”

Carolyn and Vivian

Advertisements

New Year Resolutions

resolutions

Whats on your list? Losing weight? Quit smoking? Get a new job? Hitting the gym more often? Creating a budget? More time with the family? How about getting your estate plan in order?
I didn’t think so.
Estate planning is one of those things that no-one likes to think about either because you think you don’t need it (I am too young for that). Or you think it’s too complicated or expensive (I can’t afford doing this now, maybe later). Maybe I can counter these objections with some simple information.
Estate planning is not the same as financial planning. Part of creating a good financial plan is getting your estate plan completed but you can do one without the other.
If you own a home, own vehicles, have life insurance, have retirement plans, or have a bank account, you have an estate that should go to your family or loved ones after your death. It doesn’t matter if it’s worth $20,000 or $1,000,000. You should control who it goes to, when it goes to them and how it goes to them.
If you do nothing then anything left in your name at the time of your death will have to be conveyed by court order in a probate court. You won’t get to decide who gets what, because the state plan says it goes to your heirs. (So your brother who has “divorced” you and the family, gets the same amount as you’re sister who takes care of your kids).
A will does not protect you before you die. It doesn’t help you if you are disabled. A will doesn’t have any legal affect until someone files it with the probate court AFTER your death. Probate fees will be taken from your estate before your family gets it. Probate is costly. (In most cases more expensive than paying an attorney to do your estate plan) The process is lengthy and you have to hire an attorney. Also, its public, which means anyone can see how much you were worth and who you cut out. It’s best to avoid it.
You can title everything as joint tenants, or put beneficiary designations or transfer on death designations on your property. Most married couples already do this. If you’re single and add someone to title you’ve now made a gift of that asset to your joint tenant. It works as long as they don’t decide to cash in “their share” (which means they can empty out the bank account whenever they want). Beneficiary designations work too as long as all the beneficiaries agree. Partition suits cost a lot more than an estate plan.
A revocable trust is not complicated and not as expensive as going through probate. You create it, you manage it, if you’re disabled you are taken care of without a court proceeding. After you’re deceased your assets go to who you want, when you want, the way you want. And it’s private, quick and costs much less than probate.
I understand that this may be confusing and hard to talk about, which is why I meet with you at no cost to discuss your situation and help you decide what plan is best. Who knows what the future holds. Death is not exclusive to those over 80. Let me help you make this be the year to put this one behind you.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.  Information contained in this blog is not intended to provide any specific legal advice.  Reading this blog or leaving comments does not create an attorney client relationship. 

Reflections on my first year as an entrepreneur

Legal pic

August 4th marked the one year anniversary of opening my office. Seems like a good time to reflect on the first year.

I am sitting in a condo in Florida, working from the dining room table. As I sit here going through email and planning what I need to do over the next couple of hours I realized that this moment is a great reflection of my first year. Like most people, I have Destin 4been working somewhere since I was 16. That is 50 years of work history. All of those years I have spent working for a boss and a salary. There have been jobs that I loved and jobs that I hated. Some offered more freedom than others, along with more responsibility. Regardless of the job, I worked hard at each, having had the Pimentel work ethic ingrained into my psyche by my hard working mother. But all were jobs, working under or for someone else. I left my last job because it had lost its allure. One day I sat at my desk and looked at the pile of work ahead of me and thought, do I really want to do this for the next ten or twelve years. The answer was no. So I quit my job and started my life as an entrepreneur. As I start into my second year here are thoughts.

I spent my first year subleasing space from a title company, an arrangement that allowed me nice office space with access to conference rooms, kitchen, restrooms, etc. I’m now ready to venture out into a much larger office in a very cool loft space. The landlord occupies most of the building with a few other entrepreneurs on my floor. It has great ambience and just feels right. There is more risk in more space and initially more expense, since I’ll need new desks, chairs, conference table, etc. But you don’t grow without taking some risk. And it feels right.

Office 2

I love that I can work from my dining room table, or the dining room table in a condo in Florida but I got very little sleep the week before Florida worried about things I had to do before I left, things I had to organize to work on while I was gone, what I was going to miss while I was gone, etc. When I worked for a boss it was easier to leave work behind when I left for vacation.

I love the freedom but worry about where my next client is coming from. When I am not working for a specific client I am out trying to find the next client. I’m still exploring activity that generates new clients and tweaking things that seem to work. I could expand my base of clients if I added other practice areas but I prefer to focus on the areas I know, the areas in which I want to practice which give me the ability to deliver quality legal service to my clients. Plus, I can decide who I want to take as a client. I want my clients to be a reflection of my business values.

I’ve become pretty adept at technology since I’m the IT technician, accounts receivable, research person, paralegal, cleaning crew and attorney. Actually I get a lot of help from my partner on the IT side, but the rest is really still me. I made a lot more money when I ran a title company for a large corporation. That job came with a nice salary, a car allowance, an expense account, a 401K, and health insurance. When real estate tanked, we had to slice people and offices every quarter. As we got smaller a greater percentage of our gross income was allocated to corporate overhead. Eventually the mother ship sucked us dry and we closed the St. Louis offices. The decisions may have made sense on a global scale but the politics of whom and how we cut people left a bitter taste.  I may never get back to the salary and benefits I had but I would not give up the independence to operate my business my way. I want to grow, add some staff so I don’t have to be the cleaning crew; I’m still ok with the rest of it. I want to be affiliated with business professionals whose practices are compatible with mine. I want to add several attorneys but only if they complement my practice and my values. Every year I am going to pull up this blog and reflect on the past year. I want to look back in ten years and feel a great sense of accomplishment for the service my firm offers and the work environment that we have created. Here’s to a great beginning and a successful year two.

Estate Planning For LGBT Couples

Estate planning 2

Fourteen years ago when I was a newly licensed Attorney, an associate that I worked with suggested that we target the Gay and Lesbian communities for our estate planning practice. We both believed that it was a community that desperately needed estate planning tools to protect their interests, more so than many straight couples who have the benefit of marriage to protect the surviving spouse. At the time we were both straight, each married with several children and didn’t know the first thing about how to approach the Gay and Lesbian community. Like many good ideas it fell by the wayside and we moved on to a more traditional practice. Fast forward fourteen years, I am now divorced, have “come out” and am now in a relationship with a woman. No it’s not the associate; she is still straight and happily married to her husband.

So now I have come full circle and would like to target same-sex couples. The landscape certainly has changed. If you google estate planning for same sex couples you will find a myriad of websites, blogs, books etc. What once seemed Avant garde is now almost conventional. Although we’ve come a long way, we still have a long way to go.

Edith Windsor and Thea Spyer
Let’s start with equal protection under the law, a basic tenet of our system of laws. Many states have passed laws allowing same-sex marriage. DOMA treated married couples from one class differently than married couples of a different class, a clear violation of the constitution’s equal protection clause. On June 26 the Supreme Court found DOMA to be unconstitutional. The result is that same-sex couples who are legally married under state law now have the same rights and protections provided by the federal system that straight married couples receive. This will affect Social security benefits, federal estate tax deductions and a number of other federal benefits. But under our federal system the federal government defers to states to determine the validity of marriage. In one state you may have to be 16 years old to marry, while in another 18 may be the age. In one state you may need a blood test while in others that requirement no longer exists. States do differ on some rules. However, the norm is for all states to recognize a valid marriage from one state to another. If you get married in Kansas you are still married in Missouri. Not so with same-sex couples. So if you are a same-sex married couple in Rhode Island and then move to Missouri, you are no longer married in the eyes of Missouri. And there is no clear understanding as to whether you will remain a married person in the eyes of the Federal government for purposes of receiving federal benefits once you leave the state where you were married. Wow, the only other time that we had this kind of mess was when we had miscegenation laws that forbid marriage between black and white couples. An interracial couple married in Washington D.C. travelled to Virginia to visit family and the husband was sentenced to one year in prison for violating Virginia law. The Supreme Court overturned these laws in 1967. It’s hard not to see a parallel with the current state of marriage.

Estate planning 1
So now I’m back to Estate planning and same-sex couples. Same-sex couples in our state do not have the same protections under the law to inherit property from their partner; they do not get the benefit of tax laws that protect them from federal or state estate taxes when one spouse dies; they do not get state law protection as tenants by the entirety for their real property and so on and so on. The work around for now is to protect yourself, contractually.

  • Create a trust so that you protect each other during periods of disability and your assets remain with your partner after you die.
  • Enter into an agreement as to how you will hold property.
  • Create a Health Care Directive naming your partner as your spokesperson when you can’t make those decisions.
  • Name your partner as your attorney in fact to make financial decisions if you become incapacitated.
  • Name your partner as the guardian of your person and of your minor children.

Gay couple

A spouse has all of these rights but until the law changes you need to ensure that your partner has the same rights.  Too many couples put off planning because they think it’s too hard, too complicated or too expensive.  You can’t afford to put this off.  In my practice my initial consultation is free. It’s important to find a professional who understands and respects the unique needs of an LGBT couple and who will help you protect you and your partner.

 

 

 

 

For the record: I am not providing any specific legal advice in this blog. You are welcome to leave a comment but please do not send any confidential information in your comments. Any contact through this blog does not create an attorney client relationship. If you need to discuss a specific matter please contact me by phone or email.

We can do your Social Media for you so you don’t have to!

She does a great job. I’m an attorney, not a computer whiz. It’s tough to keep up with this stuff. Carolyn is a whiz at this.

Clarity Street

Social Media signs

As you probably all ready know setting up your social media and even more importantly managing it daily/Weekly is a cumbersome task.  There are nuances and best practices to get the best result, but that is not the business you are in, you have your own business to run and now you need a social media plan to continue to build your brand and drive impressions and new customers.

More and more we meet people who know they need to do it simply do not have or refuse to make the time, that is where we come in.social media no time

Clarity Street Social Media Services are designed to meet all those needs.  Our Services include, initial set up of Social Media Pages, Profiles and Accounts including Company information, Photos, Contact information.  We make sure you have the right look and that your profile is complete.

Next we offer the Social Media Pulse…

View original post 490 more words

Celebrity Estate Planning Mistakes

I recently ran across an article on CNBC about mistakes made by James Gandolfini in his estate plan. It’s pretty easy to second guess or assume that he was misled or misinformed when he set up his estate plan in this way. We’ll probably never know since his attorney isn’t going to violate privilege and tell us what happened. Who knows, maybe he just avoided making decisions until later. We all think we have time to get things done. I find that many people just don’t want to deal with it because they think it’s too hard, too confusing or too expensive. Estate planning isn’t anything mysterious. More importantly, it’s not just about tax planning. And it really isn’t all that complicated either, not once you understand some basic principles. Estate planning should cover these five things. How do I…

1. Provide support and financial stability for me and my loved ones if I become disabled.
2. Avoid confusion and misunderstanding between family members so they clearly understand my wishes.
3. Preserve my estate and pass it on to who I want, when I want, the way I want.
4. Minimize taxes and expenses.
5. Protect my family’s privacy.

Sometimes attorneys and other advisors get caught up in the tax planning and cost savings when the most important things to you is protecting your family and getting the right things to the right people at the right time with the right management. You shouldn’t hesitate to tell your advisors when they begin to lose that perspective.

I found these examples of bad estate planning by some pretty famous celebrities. Either they didn’t plan or maybe they had bad or ineffective advice. In any event, their heirs and beneficiaries lost a good chunk of their estate to litigation, taxes, probate and other expenses.

 

James Gandolfini’s will: A case study on what not to do

James Gandolfini 1

Here’s the link to this Soprano’s story

http://www.cnbc.com/id/100910985

Jimi Hendrix: The Cost of Doing Nothing

Jimmy Hendrix 2

Guitar great Jimi Hendrix died without a will in 1970, setting up a family fight that would end up in court more than 30 years later. His father, Al, cut Jimi’s brother out of the estate and left the Hendrix legacy in control of Al’s adopted daughter, Janie, from his second marriage. And even though Al had built an $80 million business called Experience Hendrix, he reportedly still did not complete Jimi’s grave site. Someone Jimi barely knew controls his legacy. That’s one Foxey Lady.

 

 

Michael Jackson: Failing to Finish What You Start

Michael Jackson

Michael Jackson created a trust, but never fully funded it, defeating a primary purpose of having a trust. This led to public family fights in probate court. For the record, a trust is designed to keep your affairs private. A probate case is public. I doubt that the very private Michael Jackson wanted a very public airing of his family’s disputes over his estate. The courtroom “Thriller isn’t over yet.  The fight continues four years after his death.

 

 

Jerry Garcia: Failing to plan

Jerry Garcia

Jerry Garcia, the lead guitarist and singer for the Grateful Dead thought he would live much longer than he did. As USA Today reported, “Even before Jerry’s ashes had been scattered in the Ganges, his estate was being picked over like a yard sale. Current and past wives, jilted lovers, family members, his acupuncturist, car dealer and personal trainer all were jockeying for a piece of the multimillion dollar spoils. One claim against Garcia’s estate was even filed by a guy who said he spent time ‘babysitting’ the rock star during a drug binge.” What a long strange trip it’s been, for his heirs.  Jerry’s failure to plan left one big mess.

 

 

Elvis Presley: Used a will and failed to avoid probate and estate taxes

Elvis and family

Elvis Presley thought he didn’t need to worry about the estate settlement costs. When he died he left an estate worth more than $10 million, but only $3 million went to his daughter, Lisa. A full 70% got sucked away through probate expenses and estate taxes. Needless to say, Elvis would have been All Shook Up if he knew that he could have easily avoided the loss with some simple planning.

WHY DOES MY ATTORNEY ANSWER MY QUESTIONS WITH “IT DEPENDS”?

Every couple of weeks or so I get some version of the following phone calls:

Hi, my Realtor gave me your name. I’m having a problem with water in the basement and the Seller didn’t tell me anything about it.  Can I sue them?  I explain that I would have to review the contract, the seller’s disclosure, the inspection report etc., before I can tell and then I explain my fees and engagement agreement.  20 minutes later he is still trying to get an answer from me on whether or not he should sue.    

Then there is the person who calls me because he wants to leave his house to his kids and doesn’t want them to have to go through that probate thing so can I tell him how to do that.  I explain that there are a few ways to do that but would really need to review his estate before I know what the best course for him to take is. He says, well I went on the internet and found one of those trusts that I can do online, should I do that?   My response, sure you can do that but you can expect to get what you pay for.  I am in the middle of a lawsuit right now because my client’s relative bought a do-it-yourself trust online.

Expecting free advice is like expecting a mechanic to tell you how to use his brake machine to fix your car, or asking a Realtor to run comps for your house so you can do a FSBO.  Once again, you get what you pay for, incomplete information, or information that you don’t fully understand. For the record, the suit is costing much more than a trust would have.

Before I became a lawyer I used to make fun of the typical lawyer answer to every question… “it depends”.  What I’ve learned is that it really does depend.  It depends on the facts of your situation and the application of the law to your facts.  An attorney gets paid to apply the law to your set of facts to get the best result for your particular situation.  I am a counselor and attorney at law. I spend an equal amount of time advising and counseling my clients on how to set up their estate plan, what business entity is best for their business, how to minimize risk and protect their assets.  I think sometimes people forget the counseling, advising side and believe that they are paying for just the documents or just the representation with other parties.  It may seem like you are simply asking a quick question but it almost never ends with one question. 

Another issue is that once I answer your question, or look over your Trust or tell you how to deal with the Seller who didn’t disclose a defect, then I may have crossed over into a client relationship with you. If you use that information incorrectly then I could be responsible for the end result.  This is not to say I won’t answer some general questions or lay out some possible scenarios.  But I try to avoid getting pulled into giving advice until I have a full understanding of the facts in the context of your situation, and you have signed an engagement agreement that specifies the scope of work, my fees and the terms of how we will work together.  

I usually work for a set fee on estate planning, creating a business entity or creating documents for a real estate transaction.  I also work on an hourly basis for other services.  I am always happy to meet with someone without charge to discuss their situation.  After the initial meeting, I can provide specifics about the work I will provide and how I will charge for my services.  So next time I answer with, it depends, please remember that I am trying to get you the best possible result, and a quick easy answer is usually not going to help you.