Tag: Scott A. Makuakane

  • Legal: Review Your Estate Plan Often

    As we turn the page from 2012 to 2013, it is not a bad time to focus on your Rule Book (the set of documents in which you lay out your estate plan) and make sure that the rules you have in place are still consistent with your wishes and your needs. How often you review your Rule Book is up to you, but it is important to appreciate that things change. As they do, your Rule Book can gradually become obsolete, and if you fail to update it, it may do more harm than good.

    What kinds of changes impact your estate plan?

    Changes in your health. Like it or not, your health will change over time, and the general trend will not be for the better. Your doctors can do a lot to keep you going, but they have not discovered the Fountain of Youth yet. If you ever lose the capacity to update your estate plan, your family may be stuck with a Rule Book that does not meet your needs, and there may be little that can be done about it, short of taking an expensive foray through the court system.

    Changes in your assets. Values go up, values go down. Those fluctuations can affect how your estate plan works. More importantly, it is important to take periodic stock of your assets and make sure they are all properly titled. If you have a revocable living trust, you probably should have all or most of your assets in the name of your trust. If you sell an asset that belongs to your trust, make sure the proceeds go into an account owned by your trust, and when the proceeds are reinvested, make sure the new assets are properly titled.

    Changes in your family situation. Any time your family experiences a marriage, a divorce, a birth, or a death, you should have a look at your Rule Book. Other changes might impact what you want to say in your Rule Book as well. Those changes might be good, such as a child heading off to college, or not so good, such as the discovery that a family member has a drug problem or a debt problem.

    Changes in the law. There have been some dramatic changes in the Federal and Hawai‘i estate tax laws over the past several years, and you can expect those kinds of changes to continue for the foreseeable future. Though the changes have caused uncertainty, they have also given rise to opportunities. Over the past two years, Hawai‘i laws relating to trusts and tenancy by the entirety have changed in some very positive ways that open the door to enhanced asset protection. Don’t miss out on what those new laws have to offer.

    If you review your Rule Book at least once per year, you will probably be able to stay on top of all of these changes and be able to make appro-priate updates to your estate plan.

    You should also sign a new durable power of attorney and advance health-care directive each year, even if there are no changes. The reason to update your power of attorney is that once it is more than a year old, many financial institutions will not honor it, and once it is five years old, nobody will honor it. The reason to update your advance directive is to force you to focus on it and make sure that it accurately reflects your wishes. It will not be called upon until you are unable to speak for yourself, so you need to get it right while you still have the capacity to do so.

     

    Scott Makuakane, Attorney at Law
    Specializing in estate planning and trust law.
    www.est8planning.com
    O‘ahu: 808-587-8227, Maui: 808-891-8881
    Email: maku@est8planning.com

    As we turn the page from 2012 to 2013, it is not a bad time to focus on your Rule Book (the set of documents in which you lay out your estate plan) and make sure that the rules you have in place are still consistent with your wishes and your needs. How often you…

  • Review Your Estate Plan Often

    As we turn the page from 2012 to 2013, it is not a bad time to focus on your Rule Book (the set of documents in which you lay out your estate plan) and make sure that the rules you have in place are still consistent with your wishes and your needs. How often you review your Rule Book is up to you, but it is important to appreciate that things change. As they do, your Rule Book can gradually become obsolete, and if you fail to update it, it may do more harm than good.

    WHAT KINDS OF CHANGES IMPACT YOUR ESTATE PLAN?

    Changes in your health. Like it or not, your health will change over time, and the general trend will not be for the better. Your doctors can do a lot to keep you going, but they have not discovered the Fountain of Youth yet. If you ever lose the capacity to update your estate plan, your family may be stuck with a Rule Book that does not meet your needs, and there may be little that can be done about it, short of taking an expensive foray through the court system.

    Changes in your assets. Values go up, values go down. Those fluctuations can affect how your estate plan works. More importantly, it is important to take periodic stock of your assets and make sure they are all properly titled. If you have a revocable living trust, you probably should have all or most of your assets in the name of your trust. If you sell an asset that belongs to your trust, make sure the proceeds go into an account owned by your trust, and when the proceeds are reinvested, make sure the new assets are properly titled.

    Changes in your family situation. Any time your family experiences a marriage, a divorce, a birth, or a death, you should have a look at your Rule Book. Other changes might impact what you want to say in your Rule Book as well. Those changes might be good, such as a child heading off to college, or not so good, such as the discovery that a family member has a drug problem or a debt problem.

    Changes in the law. There have been some dramatic changes in the Federal and Hawai‘i estate tax laws over the past several years, and you can expect those kinds of changes to continue for the foreseeable future. Though the changes have caused uncertainty, they have also given rise to opportunities. Over the past two years, Hawai‘i laws relating to trusts and tenancy by the entirety have changed in some very positive ways that open the door to enhanced asset protection. Don’t miss out on what those new laws have to offer.

    If you review your Rule Book at least once per year, you will probably be able to stay on top of all of these changes and be able to make appropriate updates to your estate plan. You should also sign a new durable power of attorney and advance health-care directive each year, even if there are no changes. The reason to update your power of attorney is that once it is more than a year old, many financial institutions will not honor it, and once it is five years old, nobody will honor it. The reason to update your advance directive is to force you to focus on it and make sure that it accurately reflects your wishes. It will not be called upon until you are unable to speak for yourself, so you need to get it right while you still have the capacity to do so.

    Scott Makuakane, Attorney at Law
    Specializing in estate planning and trust law.

    www.est8planning.com
    O‘ahu: 808-587-8227, Maui: 808-891-8881
    Email: maku@est8planning.com

    As we turn the page from 2012 to 2013, it is not a bad time to focus on your Rule Book (the set of documents in which you lay out your estate plan) and make sure that the rules you have in place are still consistent with your wishes and your needs. How often you…

  • Queen’s Medical Center vs. Koga

    The Honolulu Star-Advertiser has featured several stories by reporter Dan Nakaso about the plight of Karen Okada. Karen is a 95-year-old woman who signed a “Death with Dignity Declaration” and a “Durable Power of Attorney for Health Care Instructions” back in 1998. Both documents purport to control “in all circumstances.”

    The Queen’s Medical Center has determined that Karen is essentially brain dead, or, in any event, has “permanently” lost the ability to participate in medical treatment decisions, and that the provisions of her Death with Dignity Declaration now require that her feeding tube be withdrawn.

    On the other hand, Karen’s healthcare agent, in consultation with doctors who are not associated with Queen’s, disagrees with the hospital’s physicians. What the agent knows, and the Queen’s physicians discount, is that just before she was hospitalized, Karen was conscious and able to interact meaningfully with her family and caregivers. During the time she has been at Queen’s with pneumonia, Karen has been unresponsive during examinations, but she has smiled at least twice at her adult grandchildren and nodded to her grandson in response to his question of whether she was able to breathe freely.

    The policy of Queen’s is to give precedence to an advance healthcare directive over a durable power of attorney in all events, and without inquiring into why a person may have signed contradictory documents. Accordingly, Queen’s sued Karen’s healthcare agent in order to get a court order forcing him to order that Karen’s feeding tube be removed.

    Since no one would want to be part of this kind of drama, what can you do to make your wishes clearly known so there will be no questions?

    1. If you do not have an advance health care directive, get one. Make sure your loved ones, including your children over the age of 18 have one too.

    2. Learn all you can about the options that can be written into your advance health care directive. These are not “one size fits all” documents. Your wishes may differ greatly from those of your friends and family members, and the document you sign should express your particular desires.

    3. If you have an advance health care directive that is more than 5 years old, there is a good chance that it will not accomplish what you think it will. Review it right away with your legal counsel. Make any appropriate changes and updates.

    4. If you want to give a trusted family member or friend the power to make health care decisions for you, make sure the power of attorney meshes well with any other instructions.

    5. Be sure to give your health care providers your permission to give your medical information to your family members or other trusted decision makers. Federal and state privacy laws restrict your doctor from talking with your health care agent unless you grant that permission.

    6. Review your advance health care directive periodically to make sure it accurately states your current wishes. Once per year is not too often.

    7. Make sure you have a mechanism in place for giving you access to your advance health care directive, no matter when or where an emergency might occur. Not all health problems happen at home, and if you have a crisis while you are traveling, you will need a way to make your health care documents accessible to your caregivers.

    8. Talk with your family about your wishes before a crisis arises. Make sure everybody is on the same page. If your decision makers indicate hesitation about carrying out your wishes, think about naming someone who will. Your assurance to your loved ones of how seriously you intend your instructions to be taken will give them the courage to carry them out.

    Knowledge is power. The more you know about advance health care directives, the more likely it will be that your wishes will be carried out.

    Scott Makuakane, Attorney at Law
    Specializing in estate planning and trust law.
    www.est8planning.com
    O‘ahu: 808-587-8227, Maui: 808-891-8881
    Email: maku@est8planning.com

    The Honolulu Star-Advertiser has featured several stories by reporter Dan Nakaso about the plight of Karen Okada. Karen is a 95-year-old woman who signed a “Death with Dignity Declaration” and a “Durable Power of Attorney for Health Care Instructions” back in 1998. Both documents purport to control “in all circumstances.” The Queen’s Medical Center has…

  • Planning for Incapacity

    In our lifetime, we have seen incredible advances in medical science. Think back 30 years. In 1982, a heart bypass operation was a really big deal. It meant weeks in the hospital and very risky surgery. Today, surgeons barely have to cut us open to reach into our bodies with instruments that enable them to do multiple bypass surgeries and have us out of the hospital in a matter of days. As a result of these kinds of advances, people in this country are living longer and longer. What we are finding, however, is that longer life does not necessarily mean improved quality of life.

    For a growing number of us, the chances of needing nursing home or other kinds of long term care are increasing. The average person in 2012 stands a 66% chance of being completely incapacitated for some period of time (which may or may not include a stay in a nursing home), and 25% of us will require long-term care. Planning for this eventuality is something we should all make a high priority.

    Figuring out how to finance long term care and choosing the right retirement community or nursing home involves an important set of issues that you should discuss with your financial planner, your insurance professional, and your other trusted advisors. A different, but related, set of issues arise in the legal arena.

    If you have not done this already, do not wait another day before you contact your attorney or find someone who can advise you about planning for the possibility of incapacity. The concerns break down into two categories: dealing with your person (making decisions about your medical care, your living situation, and when — if ever—to stop medical intervention), and dealing with your stuff (taking care of everything you own if you lose the ability to do it yourself).

    Both of these categories involve choosing and then legally empowering your hand-picked decision makers. Taking care of you and taking care of your stuff involve different issues, so think about whether to have the same people in charge of both. You may want one set of people or institutions to be your caretakers, and another set to be your trustees.

    At a bare minimum, you will probably want to have an Advance Health-Care Directive (AHCD), an authorization to your medical personnel to share your health information with your Health-Care Agents, and a Durable Power of Attorney (DPA). Depending on the complexity of your estate and your family situation, you may want to have other things in your estate planning toolkit, such as a will and a revocable living trust agreement.

    It is critical for you to learn your options and what kind of instructions you can give your loved ones in the event that you cannot speak for yourself. There are many good books, websites, and workshops available.

    Scott Makuakane, Attorney at Law
    Specializing in estate planning and trust law.

    www.est8planning.com
    O‘ahu: 808-587-8227, Maui: 808-891-8881
    Email: maku@est8planning.com

    In our lifetime, we have seen incredible advances in medical science. Think back 30 years. In 1982, a heart bypass operation was a really big deal. It meant weeks in the hospital and very risky surgery. Today, surgeons barely have to cut us open to reach into our bodies with instruments that enable them to…

  • Estate Plans Explained

    How Can I Be Sure My Family Won’t Fight After I’m Gone?

    Unfortunately, there is nothing you can do to guarantee that there will be no fighting among your loved ones after you are gone. There are plenty of difficult emotions to deal with after the passing of a loved one, and conflict can easily make matters much worse. Here are some steps you can take if you are concerned about whether you’ll be able to rest in peace.

    Encourage family to sit down and talk out their differences. This is central to the Hawaiian practice of ho‘oponopono. Very often, small offenses grow into large offenses if they are not resolved. Families are sometimes torn apart because problems fester, and then get aggravated by various tensions, and then hit the boiling point when a senior family member dies and is no longer there to keep the peace. Most of the estate-related litigation we see has nothing to do with the estate per se, yet it becomes the focus of battles. If you are aware of conflicts between your children, encourage resolution and forgiveness during your lifetime.

    Explain your estate plan. Include explanations for any gifts that may be misinterpreted or resented. Most of the time, we want to treat our children equally, but that does not necessarily mean giving each of them the same amount of assets when we die. If you helped one child buy a house and helped another put his children through expensive private schools, you may want to give your other children bigger shares upon your death. Providing some kind of explanation for this can head off hard feelings.

    Ask your estate planning attorney to include an in “terrorem” clause in your will and trust. As you might guess from the name, it is intended to strike terror into the heart of anyone who might be inclined to contest your estate plan. The clause can be as detailed as you like, but at a minimum, you might want to say that if anyone questions your competency or the validity of your estate plan after you are gone, they had better prove their case in court, because otherwise they will receive nothing from your estate. This kind of language can discourage many problems, but it still does not guarantee that no one will call your bluff.

    Acquaint your children with your estate plan. Make sure they understand that you are not giving up your right to change your plan in the future, but are simply giving them an idea of how your estate plan may look upon your death. Whatever you do, don’t use the explanation as an opportunity for manipulation. You may have heard the story about the lady who privately told each of her children, “When I’m gone, you’re going to get the house.” She hoped to assure that her children would treat her well during her lifetime. You can imagine what happened when she died and her children found out that the house went to Mom’s favorite charity. The biggest beneficiaries of that estate plan were the lawyers who represented the charity and each of the children.

    Most of the time, estates pass from generation to generation without conflict or hard feelings, but the subject deserves some thought if you have reason to believe that your loved ones will not see eye to eye.

    SCOTT MAKUAKANE, Attorney at Law of Est8Planning Counsel LLLC, specializing in estate planning and trust law.

    Honolulu: (808) 587-8227 | Maui: (808) 891-8881 | Email: maku@est8planning.com

    www.est8planning.com

    How Can I Be Sure My Family Won’t Fight After I’m Gone? Unfortunately, there is nothing you can do to guarantee that there will be no fighting among your loved ones after you are gone. There are plenty of difficult emotions to deal with after the passing of a loved one, and conflict can easily…

  • Who’s on First?

    The humor behind the classic comedy routine, Who’s on first?, comes from the fact that the speakers are using identical terms to mean different things. Yet they both pretend not to recognize the problem. The language of estate planning can raise problems for the uninitiated, and the problems may not be funny at all. The vocabulary of estate planning is very precise, and a seemingly innocuous slip of the tongue can make a world of difference.

    A good example is the term “estate.” What does it mean? Does it mean land, as in “real estate,” or what passes by way of my Will, as in “probate estate,” or does it mean what is subjected to “estate tax” after I am gone? It can mean a wide variety of things, depending on the context and the adjectives that surround it.

    Because the word “estate” is central to estate planning, here is a brief glossary of the most common uses of the term.

    An “estate” can be land, or just an interest in land. An example of an interest in land is a life estate. A life estate gives the owner the right to use the land for the life tenant’s lifetime, but then the estate terminates and the land goes to the remaindermen (a person who inherits or is entitled to inherit property upon the termination of the former estate owner).

    Probate estate is whatever you own at death that will pass by way of your Last Will and Testament. It might include such things as land, bank accounts, cars and jewelry.

    But wait! How come an estate tax return covers not only a person’s probate estate, but also things that have nothing to do with the persaon’s probate estate — like life insurance policies, retirement accounts, jointly-owned assets and trust assets? That is because your estate for estate tax purposes includes just about everything you own or control at the moment of your death. However, with the right estate planning, you can have a lot of control over assets that are not included in your estate for estate tax purposes.

    For example, assets (sometimes called a trust estate) that you own and control as the trustee of a trust may or may not be part of your taxable estate, just depending on the words in the trust agreement that say what you can do with the trust estate. Choosing the right words is critical.

    You can see how proper estate planning requires careful attention to detail and precise use of language. Helpful legal information at www.hawaiilaw.tv. You also can find elder care information by clicking here.

    SCOTT MAKUAKANE, Attorney at Law of Est8Planning Counsel LLLC, specializing in estate planning and trust law.
    Honolulu: (808) 587-8227 | Maui: (808) 891-8881 | Email: maku@est8planning.com
    www.est8planning.com

    The humor behind the classic comedy routine, Who’s on first?, comes from the fact that the speakers are using identical terms to mean different things. Yet they both pretend not to recognize the problem. The language of estate planning can raise problems for the uninitiated, and the problems may not be funny at all. The…

  • Legal: Transfer Tax Ideas for 2012

    This year, many of us will be focusing on two things - the shrinking federal estate and gift tax “coupon” and the radical jump in transfer tax rates. The “coupon” is the amount that the Internal Revenue Code allows you to give away without having to pay gift taxes during your lifetime or estate taxes after you are gone. “Transfer taxes” include gift taxes, estate taxes and taxes on generation-skipping transfers. A generation-skipping transfer is a transfer by or gift or at death to someone who is two or more generations younger than the transferor.

    The Code grants each one of us a $5.12 million coupon for gifts made, or people who die, in 2012. In other words, the first $5.12 million given away this year can pass tax free. As of January 1, 2013, however, the Code says that the coupon shrinks to $1 million. At the same time, the federal transfer tax rate goes from 35% to 55%. Clearly, we are scheduled for a huge tax increase. The only thing that will avert it is an act of Congress by the end of the year.

    If you have an estate worth more than $1 million and you are not fond of paying taxes, you should consider some gifting strategies for 2012 - preferably strategies that will put you in no worse position whether the scheduled tax increase kicks in or not. Here are some ideas.

    Name a charity as beneficiary of your IRA. The bad thing about traditional IRAs is that if you die owning them, your beneficiaries may have to pay both income and estate taxes on anything they receive from your accounts. To avoid this double taxation, you can name one or more charities to receive some or all of your retirement plan benefits, and that way you can save some taxes and send money where you think it will help the most.

    Make annual exclusion gifts. The Code allows each of us to make tax-free gifts of up to $13,000 worth of assets, per transferee, per year. Thus, you can give each of your children, grandchildren, or other beneficiaries $13,000 worth of assets each and every year without even having to let the IRS know about those gifts. It is not hard to imagine how a coordinated gifting program could reduce or eliminate estate taxes for even fairly substantial estates. Every tax-free gift reduces the amount that will be subject to estate tax later on.

    Make qualified transfers. Another form of tax-free gift is the “qualified transfer.” This is where you pay school tuition or medical expenses on behalf of a child, grandchild or other loved one. As long as you pay the tuition directly to the school, or pay the medical bill directly to the provider, these gifts are completely ignored for gift tax purposes – and you can make them on top of your annual exclusion gifts.

    This article just scratches the surface of planning possibilities for 2012, so you should talk with your trusted advisors soon if you think it makes sense to give away some of your wealth during your lifetime.

    For more information about Scott and his law firm, Est8Planning Counsel LLLC, visit www.est8planning.com.

    This year, many of us will be focusing on two things - the shrinking federal estate and gift tax “coupon” and the radical jump in transfer tax rates. The “coupon” is the amount that the Internal Revenue Code allows you to give away without having to pay gift taxes during your lifetime or estate taxes after you…

  • The Future of Estate Tax

    You have spent a lifetime of earning, saving and investing — and paying income and capital gains taxes all the way along. So you may wonder why our government feels entitled to tax the value of everything that’s left when you die. The sad fact is, however, that the IRS and the State of Hawai‘i are going to want a piece of your estate.

    In fairness to our government, the estate tax law currently provides sizable exclusions from the estate tax. Hawai‘i allows the first $3.5 million of your estate to pass tax free, and the U.S. is a bit more “generous.” The Federal exclusion is $5 million for 2011, and it will be adjusted for inflation (presumably upward) in 2012, so that it will be some number in excess of $5 million. Ok, since many of us don’t own house multi-million homes, you may think you’re safe … but read on.

    What the exclusions mean is that if a Hawai‘i resident dies in 2011 or 2012 with an estate valued at no more than $3.5 million, there will be no Federal or Hawai‘i estate tax. If the estate is worth between $3.5 million and $5 million, there will be Hawai‘i estate tax, but no Federal estate tax. Once the estate exceeds $5 million, both Hawai‘i and the IRS will take a bite out of the estate.

    The Hawai‘i tax is charged at effective rates that begin at 9.6% for estates that exceed $3.5 million, and they range up to 16% for estates worth in excess of $10,040,000. The Federal rate is currently a flat 35%.

    But then a funny thing happens in 2013. The Hawai‘i rules are currently set to stay the same, but the Federal rules are scheduled to change radically. In 2013, the Federal exclusion will drop from $5 million to $1 million, and the tax rate will soar from 35% to 55%. RED ALERT! A $5 million exclusion means most of us are safe from Federal estate tax, but a $1 million exclusion means that most of us who own a house and have a retirement plan and some life insurance need to be concerned about what will be left for our loved ones after the tax man takes his piece.

    In the midst of all of this, the winds of legislative change are swirling. Among other changes, the Hawai‘i legislature is considering whether the Hawai‘i exclusion should match the Federal exclusion (whatever it happens to be at the time), and Congress is considering whether to set the exclusion at $3.5 million (at least until the next round of changes).

    At this point, the only thing we can be sure of is that we can’t be sure of what the rules are going to be in two years. This makes planning difficult, but not impossible. The uncertainty highlights the fact that we have to stay on top of our estate plans and make sure that they stay current with changes in the law so our loved ones don’t end up paying tax that could have been avoided.

    If you have not updated your estate plan within the past year, it is time for you to consult your estate planning advisors to make sure your plan will work as intended. Even if your plan is current as of now, beware that imminent changes to the law may make it obsolete in the very near future.

    You have spent a lifetime of earning, saving and investing — and paying income and capital gains taxes all the way along. So you may wonder why our government feels entitled to tax the value of everything that’s left when you die. The sad fact is, however, that the IRS and the State of Hawai‘i…

  • How to Hire a Caregiver

    If you are hiring a caregiver for yourself or another loved one, you may be tempted to try to make the process as simple as possible by treating the caregiver as a “private contractor.” You tell the person, “I will pay you so much an hour, and you deal with the IRS and the State when it comes time to pay taxes.” After all, taking on the responsibilities of withholding taxes (and then paying the taxing authorities), buying Worker’s Compensation insurance, paying Social Security and Medicare tax, and all the rest, may seem daunting if you have never done it before. Be aware, however, that the IRS and the State will probably take the position that the caregiver is an employee, that you are an employer, and that all of the legal obligations that attach to those labels apply to your situation.

    IRS Publication 926 gives very helpful guidance to those hiring household employees, including caregivers. You would do well to go through that publication and consider all of the questions it poses, several of which might never occur to you. For example, can your prospective caregiver legally work in the U.S.? How do you verify that, and what records must you keep to prove that you satisfied your obligation to verify the caregiver’s status? On that subject, you can find all of the information and forms you will need at the U.S. Citizenship and Immigration Services website, www.uscis.gov.

    Depending on your budget and the number of caregivers you need, it may make sense to look into local employment or caregiver agencies. This simplifies your job. You can contract with the agency, and the agency will be the caregiver’s employer and will deal with all of the details of being an employer. You will pay a premium for this kind of service, but the agency’s experience and employment expertise may make the extra cost seem like a bargain.

    Another set of issues arises if you opt to be the employer of a caregiver, and then your employee is injured on the job. If you have made sure to carry the right kinds of insurance, you will be fine. However, the consequences of failing to do so can be financially disastrous. An agency will probably carry Worker’s Compensation insurance, but you should be sure to talk with your personal insurance professional to find out if there is anything else you should do to protect yourself through your homeowner’s and umbrella policies.

    The bottom line is that you should not hire a caregiver without addressing your legal responsibilities and potential liabilities. Ask your trusted advisors — your CPA, your lawyer and your insurance professional — for guidance, and check out the resources cited above. You will be glad you did.

     

    If you are hiring a caregiver for yourself or another loved one, you may be tempted to try to make the process as simple as possible by treating the caregiver as a “private contractor.” You tell the person, “I will pay you so much an hour, and you deal with the IRS and the State…