Advance Medical Directives: You Have the Right to Decide, Don’t Wait Until It’s Too Late


Do you remember the unfortunate story of Terri Schiavo? In February 1990, Terri Schiavo, a Florida resident, suffered a heart attack that deprived her brain of oxygen for several minutes and caused brain damage.  Terri slipped into what doctors describe as a “persistent vegetative state,” which is an irreversible loss of consciousness.  Terri could no longer communicate with others, her movement was limited to minor reflexive nerve and muscle activity, and she could only survive with the assistance of an artificial feeding tube.  Terri was only 26 years old.

For several years, Terri’s husband and her parents requested that Terri be kept alive with an artificial feeding tube.  Initially, the family hoped that this would give Terri some time to recuperate from her injuries.  Unfortunately, by 1998, Terri had shown no signs of improvement, and her husband requested the removal of the feeding tube because he felt that Terri would not have wanted to continue to live in this condition.  Terri’s parents vehemently disagreed with the request to remove the feeding tube - they would not let go of the hope that Terri might improve.

The ensuing legal battle over Terri’s right to die consumed her loved ones and the court system.  For seven painful years, both parties fought to convince the courts that they knew best what Terri would have wanted in these circumstances.  The Florida courts consistently ruled in favor of Terri’s husband, but Terri’s parents wouldn’t give up - they appealed the courts’ decisions again, and again, and again.

No matter how you may feel about the moral and political issues that Terri’s case brings to the forefront, most people would agree that they would not want their loved ones to suffer the 15-year nightmare that Terri and her family experienced.  Fortunately, the means to plan for end-of-life medical decisions are available.

Legal Options That Can Prevent Family Turmoil

Terri Schiavo’s case highlights the fact that the elderly are not the only people at risk of becoming incapacitated and being compelled to face life and death medical decisions.  Moreover, all Americans have the legal right to make decisions about what kind of medical treatments or procedures they choose to have, or choose not to have, if death is imminent or if they are permanently unconscious and have no reasonable expectation of recovery.  Every state in the country has passed laws detailing how to exercise those rights.  In 1990, Florida law provided Terri the right to make a Living Will which would have allowed Terri to express her wishes to her family and to prevent the years of family turmoil and court involvement.

Unfortunately, Terri did not exercise her right to execute an Advance Medical Directive, Living Will, or Health Care Power of Attorney before her heart attack.  As a result, the Florida courts had no choice but to get involved in Terri’s personal affairs once her family could no longer agree on how to treat her condition.  The most important lesson from Terri's case is that every adult should create a proper legal document expressing his or her wishes regarding end-of-life medical care.
 
Maryland Health Care Law and Advance Medical Directives

The Maryland Health Care Decisions Act provides that any competent adult can make decisions regarding the provision of health care to that individual or the withholding or withdrawal of health care from that individual.  In Maryland, these decisions are expressed in writing through the use of an Advance Medical Directive.  An Advance Medical Directive typically consists of two parts. The first part is the “Appointment of Health Care Agent,” where you name the individual who will make health care decisions for you if you are unable to make those decisions yourself.  You should also name successors or back-up agents in the event your primary agent is unable or unwilling to serve as your agent.  The second part of your Advance Medical Directive is your “Living Will,” where you express your wishes concerning end-of-life medical treatment.
 
Planning Early is Critical

An Advance Medical Directive should be prepared by an attorney who understands the laws and issues involved and can customize a plan according to your wishes.  By being proactive, you give yourself the greatest chance that your wishes will be enforced.  Terri Schiavo could have spared her family years of bitterness, strife, and public disharmony if she has just taken the time to clearly and unequivocally express her wishes.  While her tragic end may have been impossible to avoid, Terri’s family would likely have been at peace had they known that Terri would have chosen to remove the feeding tube.  Maybe if Terri had made her voice heard, her family could have remained united in the face of their common tragedy.

With appropriate planning, you can guarantee that your family is not challenged with making difficult decisions while they are already confronting a traumatic situation.  Granted, it is difficult to face our own mortality and consider the inevitable.  But by addressing these issues head on and discussing them, you will alleviate potential crises and show your loved ones how much they mean to you.  The most important step you can take in creating any plan is to discuss your intentions with those who will be affected by it before the plan is needed.

Finally, it is crucial to remember that even if you have a Will, Trust, or other end-of-life legal documents in place, if they have not been recently updated, changes in the law or your own views could prevent them from accomplishing your intended objectives.  An Advance Medical Directive is only one of several legal documents that every adult needs for an effective and complete estate plan.

David A. Lucas
is an Attorney in Miller, Miller & Canby’s Estates & Trusts and Business and Tax Practice Groups. David is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

David has focused his practice on helping families preserve their financial wealth and legacies for future generations through the use of Trusts, Wills, Powers of Attorney, Advance Medical Directives, Living Wills, and other estate planning strategies.

Contact David at 301-762-5212 to discuss your estate plan to take advantage of the laws available today and ensure flexibility for future changes. For more information on Miller, Miller & Canby’s Estates & Trusts Practice, click here.
 





New Maryland Legislation Caps Estate Tax Exemption at $5 Million Beginning January 1, 2019


A new law changes both the exemption allowed and rules permitting use of estate tax exemptions in the state of Maryland. For individuals dying in 2018, the Maryland estate tax exemption is $4 million - a $1 million increase from the 2017 Maryland estate tax exemption. This change was part of a 2014 law that incrementally increased the Maryland estate tax exemption each year until 2019, when the exemption was scheduled to match the federal applicable exclusion amount.

Federal Estate Tax Exclusion for 2019
As a result of the recently-enacted, sweeping federal tax reform known as the Tax Cuts and Jobs Act of 2017 (TCJA), the federal applicable estate tax exclusion amount is approximately $11.2 million for decedents dying in 2018. Under the federal law, the exclusion amount will adjust annually for inflation. It is estimated that the federal applicable estate tax exclusion amount will be approximately $11.4 million for decedents dying in 2019. Accordingly, under prior Maryland law, the Maryland estate tax exemption was scheduled to automatically jump from $4 million in 2018 to approximately $11.4 million starting January 1, 2019.

Maryland Estate Tax Exclusion for 2019
However, in early April 2018, new legislation was enacted in Maryland that will cap the amount exempt from Maryland estate tax at $5 million for people who die on or after January 1, 2019. This new law replaces the prior 2014 Maryland law that was scheduled to bring the Maryland estate tax exemption in line with the federal applicable exclusion amount in 2019. In addition, the new Maryland exemption amount will not adjust for inflation each year. So, the amount that a Maryland resident can transfer estate-tax free at death will remain frozen at $5 million until new legislation is passed in the future.

Portability Allowed in New Maryland Law
The new Maryland law also provides for “portability,” a rule permitting a surviving spouse to use, under certain circumstances, the portion of his or her deceased spouse’s unused Maryland estate tax exemption. While portability has been a permanent feature of the federal estate tax scheme for several years, this marks the first time that portability will be available in Maryland, making Maryland one of the few states that provide this relief to its citizens.

How the New Law Effects Estate Planning
Keep in mind that estate tax planning is only one aspect of a comprehensive estate plan. If your estate is not likely to be subject to federal estate tax or even Maryland estate tax under the new law, you should likely focus more on incapacity planning, asset and nursing home protection, guardianship of minor children, blended family issues, special needs children planning, business succession planning, and minimizing income taxes. Current estate plans may not have the intended consequences under the new rules, and no one should wait for a death to find out if they have a good estate plan.

David A. Lucas
is an Attorney in Miller, Miller & Canby’s Estates & Trusts and Business and Tax Practice Groups. David is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

David has focused his practice on helping families preserve their financial wealth and legacies for future generations through the use of Trusts, Wills, Powers of Attorney, Advance Medical Directives, Living Wills, and other estate planning strategies.

Contact David
to discuss your estate plan to take advantage of the laws available today and ensure flexibility for future changes. For more information on Miller, Miller & Canby’s Estates & Trusts Practice, click here.





Estate Planning Attorney David Lucas is a Featured Speaker on Trusts at NBI Estate Planning Seminar


The National Business Institute (NBI) is holding a two day conference on “Estate Planning A-Z” in Timonium, Maryland on May 9-10, 2018. The two-day comprehensive course is an ultimate guide to estate planning. From client intake through tax planning and business succession strategies, attendees will receive tips, sample forms and answers to the most pressing questions. The conference will also cover the latest knowledge on effective will and trust planning techniques.

Miller, Miller & Canby Estates & Trusts Attorney, David Lucas, will give a presentation on “Trusts 101”on the second day of the conference, May 10th. Mr. Lucas’ presentation will cover:

•    Types, Goals and Functions of Trusts;
•    Major Laws Governing Trust Creation and Administration;
•    Who are the Main Parties? Their Duties and Responsibilities to a Trust;
•    Revocable vs. Irrevocable Trusts;
•    Choosing Trust Status; and
•    Trust Funding Basics.

Who Should Attend?

•    Attorneys
•    Estate and Financial Planners
•    Trust Officers
•    Paralegals
•    Accountants
•    Tax Professionals

Click here for the NBI conference overview and to REGISTER.

Mr. Lucas
is an attorney in Miller, Miller & Canby’s Estates & Trusts and Business & Tax practice groups where he focuses his practice on Estate Planning, Trust and Estate Administration, Elder Law and Business Law. David is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

For more information about Miller, Miller & Canby’s Estates & Trusts and Business & Tax Practices, click here or contact David at 301-762-5212.
 





How Does Tax Reform Affect Your Estate Plan?


In December 2017, a sweeping tax reform bill, commonly known as the Tax Cuts and Jobs Act of 2017 (TCJA), was passed by Congress and signed into law by the President. The TCJA reduces individual and corporate tax rates, eliminates a host of deductions, enhances other breaks, and makes numerous other changes. But how does the TCJA affect your estate plan?  

One thing the TCJA did not do is repeal the federal gift and estate tax, as initially planned by the House of Representative’s version of the bill. Instead, the TCJA temporarily doubles the combined gift and estate tax exemption and the generation-skipping transfer (GST) tax exemption from $5 million to $10 million (adjusted for inflation after 2011). For 2018, the exemption is now $11.2 million per person ($22.4 million for a married couple). This doubled exemption will adjust for inflation each year and will remain in effect until December 31, 2025. If Congress doesn’t act before 2026, the law will sunset and the exemptions will revert to the $5 million level (indexed for inflation).


New Estate Planning Opportunities

These changes open considerable opportunities for people to remove assets from their taxable estates and permanently exempt future appreciation of those assets from estate, gift, and GST tax. For example, by using the increased exemption amount to make tax-free lifetime gifts, you can protect that wealth (and any future appreciation in value) from taxation in your estate, even if smaller exemptions are reinstated before death. Be aware though, that unlike assets transferred at death, lifetime gifts will not receive a stepped-up tax basis. This could cause an increase in income taxes on any gain realized by the recipient when they sell the gifted asset. It is therefore critical to weigh the potential estate tax savings against the potential income tax costs when considering this strategy.


Lifetime Gifting Strategy with 529 College Savings Plan

If you can benefit from a lifetime gifting strategy, then you may want to consider combining that strategy with a 529 college savings plan. The TCJA permanently expands the benefits of these plans, which now permit tax-free withdrawals for qualified elementary and secondary school expenses and not just higher-education expenses. Contributions to 529 plans are removed from your taxable estate even though you can change the beneficiaries at any time and even get your money back (Note: a penalty will be assessed for any non-qualified distributions).  And, you can combine 5 years’ worth of annual gift tax exclusions (currently $15,000 per year) into one year, so an individual could gift $75,000 to a 529 plan this year (or $150,000 for married couples) without triggering gift or GST tax or using any of your exemptions.


Dynasty Trust

It may also be an ideal time to establish a “Dynasty trust.” Significant amounts of wealth can grow and compound free of federal estate, gift, and GST tax with this type of irrevocable trust, providing tax-free benefits for your grandchildren and future generations. In Maryland and a few other states, a dynasty trust can last forever, but some states restrict the length of time these trusts can exist. Avoiding the GST tax is imperative as it imposes an additional 40% tax on transfers to grandchildren and others that skip a generation. Clearly, this tax will quickly erode large amounts of wealth. The key to avoiding the GST tax is to leverage your new, doubled GST tax exemption.

For example, let’s assume that you have not yet used any of your estate and gift tax exemptions and you transfer $10 million to a properly-crafted dynasty trust. There would be no gift tax because you are within your exemption amount. Now, the funds in the dynasty trust, and all future appreciation of those funds, are out of your taxable estate. Then, by allocating your GST tax exemption to your $10 million trust contribution, you can ensure that any distributions from the dynasty trust to your grandchildren (or subsequent generations) avoid GST tax. This is true even if the trust’s funds grow well beyond the exemption amount and even if the exemption amount is reduced in the future.


Other Estate Planning Considerations

Keep this in mind though: estate, gift, and GST tax planning is only one aspect of estate planning. Given that some pundits are predicting that the TCJA has reduced the number of U.S. estates subject to estate tax from approximately 5,000 to 2,000, most families should likely focus more on non-estate tax issues, like incapacity planning, asset and nursing home protection, guardianship of minor children, blended family issues, special needs children planning, business succession planning, and minimizing income taxes.

In fact, it may be preferable to engage in strategies to reduce income tax now and then transfer those savings to your beneficiaries at death with as little transfer tax as possible. This can be done in a variety of ways, including, but not limited to:

  •  Shifting income to someone else: make a lifetime gift of an asset that produces a lot of income to a trust that distributes the taxable income to a beneficiary that is in a lower tax bracket;

  • Charitable giving: contribute more to charity. The TCJA increases the adjusted gross income limitation for deductions of cash donations to public charities from 50% to 60%; and

  • Delaying capital gains taxation: make a gift of an asset that has already appreciated and that you want to sell to a charitable remainder trust (CRT). A sale by the CRT avoids immediate capital gains taxation. 100% of the proceeds of the sale are then reinvested. Distributions from the CRT each year will be taxed to the beneficiary, but may avoid income taxation at top rates.

The TCJA is perhaps the most significant tax legislation in over 30 years. Continued review and experience with the Act will unquestionably reveal numerous new planning opportunities in the coming months and years. Don’t fall into the trap that you don’t need a well-crafted estate plan because of the increased federal estate, gift, and GST tax exemption. Current estate plans may not have the intended consequences under the new rules, and no one should wait for a death to find out if they have a good estate plan.

David A. Lucas is an Attorney in Miller, Miller & Canby’s Estates & Trusts and Business and Tax Practice Groups. David is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

David has focused his practice on helping families preserve their financial wealth and legacies for future generations through the use of Trusts, Wills, Powers of Attorney, Advance Medical Directives, Living Wills, and other estate planning strategies.

Contact David
to discuss your estate plan to take advantage of the laws available today and ensure flexibility for future changes. For more information on Miller, Miller & Canby’s Estates & Trusts Practice, click here.





MM&C Welcomes New Estate Planning Attorney David Lucas


Miller, Miller & Canby is pleased to welcome David A. Lucas to the Estates & Trusts and Business & Tax Practices, where he will focus his practice on Estate Planning, Trust and Administration, Elder Law and Business Law.

“Miller, Miller & Canby’s Estates & Trusts and Business & Tax, Elder Law and Business Law practices have served families and businesses throughout Maryland and Washington, DC for decades,” said Robert E. Gough, Managing Shareholder for the firm. “We are very pleased to welcome David. His extensive private practice experience in estate and legacy planning, asset protection planning, retirement and business planning services will strengthen and expand our capabilities in these important disciplines.”

Mr. Lucas
is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

Prior to joining Miller, Miller & Canby, Mr. Lucas was in private practice for 14 years. He began his legal career by serving as a Law Clerk to The Honorable Dennis M. McHugh of the Montgomery County Circuit Court in Rockville, Maryland. After his clerkship, he worked for a general practice firm, where he gained practical experience in a variety of disciplines, including civil litigation, employment law, workers’ compensation, administrative law, family law, estate planning, and business formation. Since 2006, Mr. Lucas has focused his practice on helping families preserve their financial wealth and legacies for future generations through the use of Trusts, Wills, Powers of Attorney, Advance Medical Directives, Living Wills, and other estate planning strategies.

Mr. Lucas is licensed to practice law in Maryland and the District of Columbia and is admitted to practice before the respective local and federal courts. He is a member of the Maryland State Bar Association, the District of Columbia Bar Association, and the Montgomery County Bar Association. He earned a B.A. in Sociology from The Catholic University of America in Washington, D.C. and earned his Juris Doctorate, cum laude, from The Catholic University of America’s Columbus School of Law.

Click the download button below to view the firm's formal press release. For more information about Miller, Miller & Canby’s Estates & Trusts and Business & Tax Practices, click here or contact David at 301-762-5212.
 





MM&C Estate Planning Attorneys to Give Seminar on Wills & Trusts for National Business Institute


Glenn Anderson and Helen Whelan of Miller, Miller & Canby’s Trusts & Estates Practice Group will be speaking at the National Business Institute’s CLE Program on Tuesday, October 18.  Titled “Wills & Trusts: Mistakes to Avoid”, their talk will focus on how to prevent and correct estate planning mistakes. It’s designed for attorneys, accountants, estate and financial planners, trust officers and paralegals. Among other topics, the program will include information on correcting errors in will drafting, trust administration and trust structure documents. It will highlight the differences between wills and revocable living trusts, and will also delve into legal ethics. Practical tips for understanding and anticipating client needs, as well as finding the right balance between broad and restrictive trust language will also be explored. For more information or to register for the program, which will be held in Frederick, MD, click here.

Glenn Anderson leads the firm’s Business & Tax and Estates & Trusts Practice Groups.  As both a CPA and apracticing attorney, he has developed a recognized expertise in estate planning with an emphasis on tax law and business succession planning. 

Helen Whelan is a Principal in the firm’s Estates & Trusts Practice Group, and is also a CPA and practicing attorney. She has earned a recognized expertise in estate planning with an emphasis in Elder Law (special needs for the elderly and disabled) and is also certified by the Department of Veterans Affairs to counsel clients with respect to veterans’ benefits.

Miller, Miller & Canby has assisted clients with estate planning for 70 years.  Please feel free to contact Glenn or Helen at 301-762-5212 for estates & trusts and elder law planning needs.  View more information about Miller, Miller & Canby's Elder Law and Estates & Trusts practice by clicking here.
 





Valuation Discount for Gift & Estate Tax Planning May Be Ending;Take Advantage of Current Tax Law


A popular technique used by some business owners to reduce estate taxes and facilitate business succession planning may soon be closing.  On August 2, 2016, the IRS issued proposed regulations which, if adopted, would substantially reduce the ability of business owners to achieve certain valuation discounts on the transfers of minority interests in family owned businesses for gift and estate tax purposes.  As the proposed regulations must go through a 90-day public comment period, and will not go into effect until 30 days after being finalized, these changes will not likely take effect until early 2017.  That creates an excellent planning opportunity now until the end of the year to take advantage of the existing law before potential changes take effect.

Current Business Valuation Law Benefit for Estate & Gift Tax Planning

Under current law, the value of a fractional share in a business is not as a mere fraction of the value of the whole business, but factors in certain discounts that a neutral third-party buyer would normally require.  For example, a buyer would generally expect a discount to compensate that buyer for lack of control of the business if receiving less than a controlling interest.  In addition, that buyer would also want a discount for the lack of marketability of a fractional interest if there were restrictions on his or her ability to sell that interest.  Depending on the facts and circumstances, these discounts could be as much as fifty (50%) percent of the proportionate part of the business.  For purposes of simplicity, I will use a 50% discount in my example below.

Assume I own a one hundred (100%) percent ownership interest in a business which as a whole is worth $10 million. That interest is worth $10 million.  However, if a majority vote in interest (more than fifty percent (50%)) is needed to approve any action in the business, and that no interest in the business can be transferred without the consent of a majority vote in interest a neutral third-party buyer would expect discounts for anything less than a controlling interest.

 If I gift a twenty-four (24%) percent in the business to each of my three children and retain the remaining twenty-eight percent (28%), none of us will have control of the business and none of us will be able to make any further transfers of interest without consent (one of my three children will need to vote with me on any issue to reach a majority interest). Based on the lack of control and substantial restrictions on transfer, the interest owned by each of my three children is not worth $2.4 million, but rather is worth $1.2 million. Further, the interest that I have retained is not worth $2.8 million, but rather is worth $1.4 million.

I have therefore gifted seventy-two (72%) of the business to my children utilizing only $3.6 million dollars of my gift tax exclusion and the value of the interest retained by me is now worth only $1.4 million dollars.  Instead of having a $10 million taxable estate on my death with a marginal federal tax rate as high as forty (40%) percent and a marginal Maryland estate tax rate as high as sixteen (16%) percent, I would now have a federal estate below the $5 million dollar exemption and may have a Maryland estate below the applicable exemption amount (which is currently $2 million and will be gradually increased to $5 million dollars (indexed for inflation) by 2019).  I have therefore avoided the federal and Maryland estate taxes involved in passing my business down to my children.

Take Advantage of Current Tax Planning Opportunity Before 2017

The IRS proposal, if adopted in its current form, would make it more difficult for owners of family businesses to utilize these types of valuation discounts as part of their business planning/estate planning strategies.  

There is also uncertainty with an upcoming November election.  Democratic presidential candidate, Hillary Clinton, has indicated that if elected she would work towards changing the gift and estate tax laws back to the way they existed in 2009.  At that time, the estate tax exclusion was only $3.5 million per person, the gift tax exclusion was only $1 million per person, and the marginal federal gift/estate tax rate was 45%.  Republican presidential candidate, Donald Trump, has indicated that he does not support these proposals.

In this time of uncertainty, the one thing we can be certain of is that a planning opportunity exists now to take advantage of the existing law before potential changes could take effect in 2017.  Contact Glenn Anderson at 301-762-5212  to take advantage of this tax planning opportunity.

Miller, Miller & Canby has assisted clients with business law, tax planning and estates & trusts for 70 years. Glenn Anderson leads the Business & Tax and Estates & Trusts practice groups at Miller, Miller & Canby.  As both a CPA and a practicing attorney, he has developed a recognized expertise in taxation law.

Please feel free to contact Glenn or any of the business & tax planning attorneys at Miller, Miller & Canby to take advantage of current business succession planning tax law and other tax planning needs.  View more information about Miller, Miller & Canby's Business & Tax practice by clicking here.  View more information about Miller, Miller & Canby's Elder Law and Estates & Trusts practice by clicking here.
 





Changes Coming in Veterans' Benefits for 2016


2016 will be bringing numerous changes to both process and eligibility with respect to levels of benefits for which veterans may apply.

Miller, Miller & Canby attorney, Helen M. Whelan is accredited by the Department of Veterans Affairs to advise veterans and their families on financial benefits for which they may qualify.

Applying for benefits is often a long and difficult process. Because many VA laws are complex, it is helpful to have guidance in navigating through the regulations and the steps involved. Helen will advise you on the levels of financial benefits for which you may qualify and we strive to make the claims process easier so you can focus on providing for your family and successfully navigating your future.

Not only does Helen outline the steps necessary to qualify for benefits and assist in the process, she also helps with putting together a subsequent strategy. There are specific instances where counsel is helpful in implementing long-term planning.  For example, it may be advantageous to move assets into a trust as part of a detailed financial plan. 

For more information about our Veterans' Benefits practice, please click here.  If you or a family member needs guidance regarding benefits, please contact Helen Whelan.  

Helen M. Whelan
is a principal with Miller, Miller & Canby and concentrates her practice in Veterans Benefits, Elder Law, Estate and Tax Planning and Trust & Estate Administration. She is licensed to practice law in Maryland, the District of Columbia and West Virginia and is also a CPA with a Masters’ Degree in Taxation.





Take Advantage of Gun Trusts Before Regulatory Changes Take Place in July 2016


What is a Gun Trust?

A Gun Trust is a trust created specifically to own firearms in compliance with the National Firearms Act (NFA) and specific state and local laws.  The purposes of a Gun Trust are several fold:  it reduces the red tape necessary to acquire certain firearms, it allows the beneficiaries to use and enjoy the firearms, and it avoids the difficulties of transferring firearms on the death of a primary beneficiary.

If an individual wishes to acquire certain firearms, federal law requires that he or she must be fingerprinted, have background checks performed, and have the Chief Law Enforcement Officer (CLEO) in the individual’s jurisdiction sign off on the necessary paperwork and send to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).  This red tape is not only burdensome, but in many jurisdictions, CLEO’s simply refuse to sign off on the necessary paperwork.  These requirements currently only apply to individuals and not to entities.

Why Create a Gun Trust?

By creating a proper Gun Trust, the trust itself (an entity) can own the firearms thus avoiding much of the red tape that an individual would go through.  If drafted properly, a Gun Trust can avoid a transfer upon the death of a primary beneficiary (as the trust itself continues to own the firearms).

Gun Trusts have been gaining in popularity.  According to the ATF, the Bureau received over 235,000 NFA applications in 2014.  The rise in the use of Gun Trusts has caused the ATF to adopt a new regulation (27 CFR Part 479 Docket No. ATF 41F; AG Order No. 3608-2016) which will require Gun Trusts to comply with the same requirements as individuals on the transfer of certain firearms occurring after July 13, 2016.  This means that transfers into Gun Trusts after July 13, 2016 will require fingerprints, background checks, and CLEO approval.

Concerned about the upcoming regulatory change, many gun owners are now creating Gun Trusts and are transferring their firearms into one or more Gun Trusts prior to July of 2016.  While the next several months present an excellent planning opportunity to establish a Gun Trust and transfer firearms into that trust before the regulatory change takes effect, care must be taken in establishing a proper Gun Trust.  

Many people have tried to use garden variety revocable trusts (also known as living trusts) or have obtained forms over the internet.  Keep in mind that a copy of the executed Gun Trust must be submitted to the ATF along with the transfer application and the Gun Trust needs to comply with federal law as well as applicable state and local law.  Many generic revocable trusts and internet forms do not meet these requirements.    

The law firm of Miller, Miller and Canby has been assisting clients with their estate planning needs for 70 years.  Our estate planning attorneys continuously take continuing legal education courses to stay on top of new developments in this area of law, including the regulatory changes concerning Gun Trusts.  Glenn Anderson heads the Trusts and Estates Practice Group at Miller, Miller & Canby and has recently completed several continuing legal education courses on Gun Trusts.  Contact Glenn Anderson here.





The “What, Why and How” of Advance Medical Directives


Advance Medical Directives are familiar to most of us. As written statements that detail a person’s wishes regarding medical treatment, they are prepared to ensure those wishes will be carried out if he or she becomes incapacitated and incapable of communicating them.

Most of us understand that it will be important to prepare these documents at some point in our lives. By thinking ahead, we can spare our loved ones the unnecessary stress of having to make difficult decisions on our behalf.

In Miller, Miller & Canby's estate planning law practice (planning for the management and transfer of a person’s assets with an emphasis on minimizing applicable taxes) and our elder law practice (planning for a person’s disability with an emphasis Medicaid, VA benefits, and long-term care issues) we typically see clients come in to plan these documents because one of two things has happened. The client's parents may have had no instructions in place and, as a result, the client experienced firsthand the anxiety of having to make difficult decisions, and would want to spare loved ones the same fate.  On the other hand, the client may have experienced peace of mind in a situation where instructions were prepared and, therefore, wants to ensure the same positive experience for loved ones.

Equally as important as creating the Advanced Medical Directive is planning for what to do after the paperwork is prepared. Where should the directive be stored? If the directive is prepared, but cannot be accessed or found at the appropriate time, it might as well not exist. Unfortunately, this happens more often than it should.

You’ve Prepared the Directive…What’s Next?
Clients will want to provide copies of their Advance Medical Directive to their doctors and to the person designated to make the medical decisions for them (or let their agent know where the original is located).  If your preference is for your children or other loved ones not to see the Advance Medical Directive ahead of time, as it might cause unnecessary stress, they should at least know that you have one and where to find it or the attorney who prepared it in the event it does become necessary to access the documents.   Your attorney may also retain a duplicate of the original for you.  There are also programs that allow for storing the Advance Medical Directive in the cloud so it may be accessed by any medical personnel universally.  

Advance Medical Directives can be drafted to give clients a choice: (i) do they want to give the agent flexibility, e.g. the ability to do something different than stated in the document, in the event something "unforeseeable" occurs and the agent believes it is in the principal's best interests, or (ii) do they want to stipulate that the agent simply follow the instructions as set forth.  Most of the time, clients will know whether or not their agent is likely to follow their instructions and choose accordingly. The document can be revoked orally or in writing, which allows you to make changes if desired.

Thinking Beyond the Advance Medical Directive
The Advance Medical Directive is only one of the documents that should be in place when planning for disability or incapacity.  There are additional documents that are equally important, such as a Financial Power of Attorney.  But the Advance Medical Directive and Financial Power of Attorney both terminate in the event of death...which is why it is also necessary to plan for how your estate will be distributed when you pass away.

The bottom line is…it is always better to plan than to allow fate (or someone who ultimately may not make the decisions you would want) to make decisions for you and spare your loved ones any additional anxiety during what is already an extremely difficult time.

For more information about the preparation and planning of Advance Medical Directives, please contact Helen Whelan.  To learn more about Miller, Miller & Canby’s Estates & Trusts and Elder Law practice click here.

Helen Whelan is a principal with Miller, Miller & Canby and concentrates her practice in Elder Law, Estate and Tax Planning and Trust & Estate Administration. She is licensed to practice law in Maryland, the District of Columbia and West Virginia and is also a CPA with a Masters’ Degree in Taxation.

May is National Elder Law Month.  Learn more about this fast-growing area of the law here.

 





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