Fong Law Group

Maximizing Social Security Survivor's Benefits 取得社會安全遺屬最大的利益 (中英對照)

Social Security survivor's benefits provide a safety net to widows and widowers. But to get the most out of the benefit, you need to know the right time to claim. 

While you can claim survivor's benefits as early as age 60, if you claim benefits before your full retirement age, your benefits will be permanently reduced. If you claim benefits at your full retirement age, you will receive 100 percent of your spouse's benefit or, if your spouse died before collecting benefits, 100 percent of what your spouse's benefit would have been at full retirement age. Unlike with retirement benefits, delaying survivor's benefits longer than your full retirement age will not increase the benefit. If you delay taking retirement benefits past your full retirement age, depending on when you were born your benefit will increase by 6 to 8 percent for every year that you delay up to age 70, in addition to any cost of living increases.

You cannot take both retirement benefits and survivor's benefits at the same time. When deciding which one to take, you need to compare the two benefits to see which is higher. In some cases, the decision is easy—one benefit is clearly much higher than the other. In other situations, the decision can be a little more complicated and you may want to take your survivor's benefit before switching to your retirement benefit. 

To determine the best strategy, you will need to look at your retirement benefit at your full retirement age as well as at age 70 and compare that to your survivor's benefit. If your retirement benefit at age 70 will be larger than your survivor's benefit, it may make sense to claim your survivor's benefit at your full retirement age. You can then let your retirement benefit continue to grow and switch to the retirement benefit at age 70. 

Example: A widow has the option of taking full retirement benefits of $2,000/month or survivor's benefits of $2,100/month. She can take the survivor's benefits and let her retirement benefits continue to grow. When she reaches age 70, her retirement benefit will be approximately $2,480/month, and she can switch to retirement benefits. Depending on the widow's life expectancy, this strategy may make sense even if the survivor's benefit is smaller than the retirement benefit to begin with. 

Keep in mind that divorced spouses are also entitled to survivor's benefits if they were married for at least 10 years. If you remarry before age 60, you are not entitled to survivor's benefits, but remarriage after age 60 does not affect benefits. In the case of remarriage, you may need to factor in the new spouse's spousal benefit when figuring out the best way to maximize benefits. 

社會安全遺屬福利為寡婦和鰥夫提供安全網。但是為了充分利用這些福利，您需要知道申請的正確時間。

雖然您可以在60歲之前申請遺屬福利，但如果您在退休年齡之前領取福利金，您的福利將永久地減少。如果您在完全退休年齡領取福利金，您將獲得配偶所有的福利，或者如果您的配偶在領取福利金之前去世，您將拿到配偶在完全退休時的全部福利。與退休福利不同，延遲申請遺屬福利的時間到完全退休年齡後並不會增加福利。如果您延遲領取您的退休福利到您的完全退休年齡後，根據您出生的時間，不包括每年生活指數的調整，您延遲到70歲時每年福利將增加6%至8%。

您不能同時享受退休福利和遺屬福利。在決定取哪一種時，您要比較一下兩種之中哪一種收益比較高。在某些情況下，很容易就可以決定 –其中 一個利益顯然比另一個好得多。在其他情況下，可能會稍微複雜一些，您可能希望先獲得遺屬福利，後才是退休福利。

要確定最佳策略，您需要查看您在完全退休年齡時和70歲時的退休福利，並將之與遺屬福利進行比較。如果您在70歲時的退休福利金額大於您的遺屬福利金，那麼在您的完全退休年齡申請您的遺屬福利可能更合理。然後，您可以讓您的退休福利金繼續增長，並在70歲時轉為退休福利。

示例：一名寡婦可以選擇每月2,000美元的全額退休福利或每月2,100美元的遺屬福利。她可以獲得遺屬福利同時讓她的退休福利金繼續增長。當她達到70歲時，她的退休福利將約為每月2,480美元，她可以轉為退休福利。根據寡婦的預期壽命，即使遺屬福利小於退休福利，這種策略也可能更合理。

請緊記，如果離婚配偶結婚超過10年，他們也有權享有遺屬福利。如果您在60歲之前再婚，您無權享有遺屬福利，但60歲以後再婚不會影響福利。在再婚的情況下，您可能需要考慮新配偶的配偶福利，同時找出最大利益的最佳方法。

How to Fight a Nursing Home Discharge 如何抵抗養老院強制住客出院 (中英對照)

Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but family members often accept the discharge without questioning it. Residents can fight back and challenge an unlawful discharge. 

According to federal law, a nursing home can discharge a resident only for the following reasons:

• The resident's health has improved
• The resident's needs cannot be met by the facility
• The health and safety of other residents is endangered
• The resident has not paid after receiving notice
• The facility stops operating

Unfortunately, sometimes nursing homes want to get rid of a resident for another reason--perhaps the resident is difficult, the resident's family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to "dump" the resident by transferring the resident to a hospital and then refusing to let the him or her back in.

If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident's bed for a certain number of days (usually about a week). Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.

In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.

If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state long-term care ombudsman. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home. You can also require the resident's doctor to sign off on the discharge. Contact your elder law attorney to find out the best steps to take. 

老人在養老院定居下來後，當被告知要離開可能會造成很大的打擊。養老院在迫令住宿者離開之前必須遵循某些程序，但家人經常接受開除而不會質疑。住宿者可以反駁並挑戰非法開除。

根據聯邦法律，養老院只能出於以下原因開除住宿者：

• 住宿者的健康狀況有所改善
• 設施無法滿足住宿者的需求
• 其他住宿者的健康和安全受到威脅
• 住宿者在收到通知後未付款
• 設施停止運作

不幸的是，有時養老院想要擺脫住宿者是另有原因的。也許是住宿者很難應付或是住宿者的家人很難應付，或住宿者有醫療補助。在這種情況下，療養院可能不遵循正確的程序，或者可能試圖把住宿者轉到醫院然後拒絕讓他們回來。

如果養老院將住宿者轉移到醫院，州法律可能要求養老院為住宿者保留床位一定日子（通常約一周）。在轉移住宿者之前，養老院必須告知住宿者其床位保留政策。如果住宿者自付，他可能需要支付保留床位的費用，但如果住宿者有醫療補助，醫療補助將支付住宿費。此外，如果住宿者有醫療補助，而床位保留期已過，養老院必須重新安排首個可用床位給住宿者。

此外，如果沒有恰當的通知和計劃，養老院不能開除住宿者。一般而言，養老院必須在出院前的30天發出書面通知，但在緊急情況下允許更短的通知。即使病人被送往醫院，如果養老院計劃不重新接納住宿者，也仍需要做好適當的出院計劃。出院計劃必須確保住宿者有一個安全的地方，最好是靠近他的家人，並概述住宿者出院後會得到的照顧。

如果養老院拒絕重新接納住宿者或堅持讓住宿者出院，住宿者可以向州的長期護理監察專員提出申訴。住宿者應在收到出院通知後或被拒絕入住養老院後儘快提出上訴。您還可以要求得到住院醫生簽字才出院。聯繫您的老人法律師，了解最佳步驟。

Transfer on Death Deeds in California-What You Need To Know 加州的死亡契約轉讓 – 有什麼需要知道 (中英對照)

A new law that became effective January 1, 2016 creates a Revocable Transfer on Death Deed (“TOD”) as a way for California residents to transfer residential property to name beneficiaries, effective upon death.  Only the following types of property are covered by a TOD deed:

1. A single-family home or condominium unit
2. A single-family residence on agricultural property of 40 acres or less or
3. A residence with no more than four residential dwelling units.

The biggest advantage of a TOD Deed is that it can avoid probate.  Also, the preparation and recording of the TOD deed is relatively fast and simple.  A TOD Deed can be revoked at any time during the lifetime of the grantor.  A TOD Deed should simplify the transfer process at death, as long as the deed is not voided by a drafting error.  

The TOD Deed is not suitable for everyone because it has many limitations.  First, even if you have a TOD Deed, your property will still be subject to probate if your beneficiary predeceases you and you do not have an alternate estate plan. However, if you have a trust, your trust can specify that if the beneficiary predecease you, the property will go to the beneficiary’s children or other people whom you designated.  Second, If your beneficiary is a minor when you die, the court will appoint a custodian to take over the control and management of the property until the child reaches legal age and only then will the child own the property outright.  This process many incur legal and court fees.  However, if you have a trust , your trust can designate a custodian, making court’s involvement unnecessary, thereby saving of a lot of money.  Third, if you have more than one beneficiaries and if one of them die, the deceased beneficiary’s interest will automatically pass to the other named beneficiary.  If you have a trust, you can specify if a beneficiary dies, the beneficiary’s interest will pass to his children, not to the beneficiaries.  Fourth, if you have more than one beneficiaries and if you want uneven distribution of property to your beneficiaries, then you should not use a TOD deed because a TOD deed cannot achieve it.  The beneficiaries on the TOD deed will split the property evenly. 

A big disadvantage of a TOD Deed is that a TOD Deed is void if at the time of death, the property is held as joint tenancy.  If a married couple own a house as joint tenants, if both the husband and the wife executes a TOD deed, both TOD deeds are void.  That will create a big problem.  If the wife executes a TOD deed and name her son as the beneficiary.  If the wife dies first, the TOD deed is void because the property is held in joint tenancy.  After the wife dies, the husband will own the entire property through joint tenancy.  If the husband remarries, he add the new spouse’s name to the property and can even transfer the house to the new spouse.  If the marriage is a second marriage and each spouse has children from a previous marriage, the issue is even more complicated.  Assuming each spouse execute a TOD deed designating their own children as the beneficiaries.  If one spouse dies first, the other spouse will own the entire property.  That spouse can give away to his or her own children and entirely cut off the deceased spouse’s children. 

Furthermore, the TOD Deed offers no protection from the Grantor’s creditors including Medi-Cal Estate Recovery.  Because the TOD Deed offers no protection from creditors, the beneficiary may end up with nothing if the debts of the Grantor are larger than the worth of the property.  Because there are unsatisfied creditor’s claims against the property transferred via TOD Deed, some title companies are not willing to issue title issuance to the beneficiary until three years after the Grantor’s death.  Although the TOD law was written to minimize the use of attorneys, because of the specificity of the form, a consumer may unwittingly void the transfer because of an error in the completion of the form. 

There is a sunset date on the TOD Deed.  As stated above, the use of TOD deeds is relatively new, and they are not allowed in all states. California has undertaken a five-year trial period for TOD deeds. According to the California legislation, the use of TOD deeds will expire on December 31, 2020.

Because of the disadvantages outlined above, particularly concerns regarding joint tenancy, community property, transfers to minors, and capacity to revoke, some estate planners believe that transfer on death deeds should only be used as a last resort unless there is insufficient time to prepare proper estate documents.  You should consult an estate planning attorney whether the use of the TOD Deed is suitable for your family.

一個在2016年1月1日生效的新法規制定了可撤銷的死亡契約轉讓 Transfer on Death Deed (TOD) 。這是一種加州居民把物業轉移給指定受益人的一種方式，轉讓在去世時便生效。 TOD契約僅涵蓋以下類型的物業：

1.單戶住宅或公寓單位

2.單戶住宅在佔地40英畝或以下的農業地

3.不超過四個單位的住宅。

TOD契約的最大優點是可以避免遺囑認證。此外，TOD契約所需的準備和記錄相對快速和簡單。 TOD契約可於成立人有生之年隨時撤銷。 TOD契約應可簡化去世時的轉移過程，只要契約沒有因草擬錯誤而失效。

TOD 契約並不適合所有人，因為它有很多限制。首先，即使您有TOD契約，如果您的受益人比您先去世而您並沒有後備資產計劃，您的財產仍將要通過遺囑認證。但是，如果您有信託，您的信託可以指定如果如果您的受益人比您先去世，財產將將由受益人的子女或您指定的其他人來繼承。第二，如果您的受益人在您去世時未成年，法院將指定一名監護人來控制和管理該財產，直至您的受益人達到法定年齡才能完全擁有該財產。這個過程產生許多法律和法庭費用。但是, 如果您有一個信託, 您的信託可以指定一個監護人而不需法院的介入, 從而省掉大筆費用。第三，如果您有超過一位受益人並且如果其中一人去世，則已故受益人的利益將自動轉移給另一個指定的受益人。如果您有信託，您可以指定把去世受益人的利益轉移給他的子女，而不是另一位受益人。第四，如果您有超過一個受益人，並且您希望把財產不均地分配給您的受益人，那麼您不應該使用TOD契約，因為TOD契約無法做到。 TOD契約只能將財產平均分配給您的受益人。

TOD契約的一大缺點是如果在去世時, 財產以聯權共有 (Joint Tenancy) 方式持有, 那麼, TOD契約便無效。如果已婚夫婦聯權共有房子，而如果丈夫和妻子都執行了TOD契約，兩份TOD契約均屬無效。這將產生一個大問題。如果妻子執行TOD契約並將其兒子命名為受益人。如果妻子先去世，TOD便契約無效，因為該房子是聯權共有的。妻子去世後，丈夫將通過聯權共有擁有整個房子。如果丈夫再婚的話，他可以將新配偶的名字加入物業中，甚至可以將房子轉讓給新配偶。如果這是第二次婚姻，而夫婦各人都有跟前配偶所生的子女，那麼這個問題就更加複雜了。假設夫婦各自執行TOD契約，指定了他們自己的子女為受益人。如果其中一方先去世，在生配偶將擁有整個房子。在生配偶可以把房產送給自己的子女，並完全把已故配偶的子女排除。

此外，TOD契約不會為成立人提供債權人的保護，包括白卡資產追討。由於TOD契約不提供債權人的保護，如果成立人的債務比房子的價值大，受益人可能最終什麼也得不到。如果通過TOD契約轉移的物業有未曾償還的債務，一些產權保險公司會不願意向受益人發放產權証明書，要等到成立人去世後三年才發放。雖然TOD法是為了盡量減少使用律師而編寫的，但由於表格的特性，消費者可能會因為表格填寫錯誤而無意中使轉讓失效。

TOD契約有一個日落條款。如上所述，TOD契約的使用相對較新，並且不是所有州都能使用。加州為TOD契約進行為期五年的試用期。根據加州的法律，TOD契約的使用將於2020年12月31日到期。

因上述缺點，尤其是關於聯權共有，共同財產，轉移到未成年人和撤銷能力的問題，一些資產規劃律師認為，除非沒有足夠時間準備適當的資產文件，死亡契約的轉移只應作為最後一招。您應該向資產規劃律師諮詢TOD契約是否適合您的家庭使用。

What's a Health Care Proxy and Why Do I Need One? 什麼是醫療授權書，為什麼我需要這份文件？(中英對照)

If you become incapacitated, who will make your medical decisions? A health care proxy allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out, and it is especially important to have a health care proxy if you and your family may disagree about treatment. Without a health care proxy, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so.

In general, a health care proxy takes effect only when you require medical treatment and a physician determines that you are unable to communicate your wishes concerning treatment. How this works exactly can depend on the laws of the particular state and the terms of the health care proxy itself. If you later become able to express your own wishes, you will be listened to and the health care proxy will have no effect.

If you are interested in drawing up a health care proxy document, contact your attorney.

當你失去能力時，誰會為你作出醫療上的決定？醫療授權書允許您指定某人來為您作出醫療上的決定。這將確保您的醫療指示得以執行，尤其是如果您和您的家人對治療的方式有不同的看法，那麼醫療授權書尤為重要。如果沒有醫療授權書，您的醫生可能會為您提供一些您不想接受的治療。

一般而言，醫療授權書僅在您需要治療並且醫生確定您無法表達您的治療意願時才生效。這完全取決於特定的州的法律和醫療授權本身的條款。如果您以後能夠表達自己的意願，您的意願會被聽取，而醫療授權書將不起作用。

如果您有興趣制定醫療授權書，請跟資產規劃律師聯繫。

If You Haven’t Been Regularly Reviewing Your Estate Plan, Start When You Hit 60 如果您沒有定期審查您的資產計劃，請由60歲開始 (中英對照)

How frequently you should review your estate plan depends on how old you are and whether there has been a significant change in your circumstances. If you are over age 60 and you haven't updated your estate plan in many decades, it's almost certain that you need to update your documents. After that, you should review your plan every five years or so. But if you're younger, you don't need to do so nearly as often.

Age

Here are a few age ranges and what they mean in terms of estate planning:

18-30   Everyone needs a durable power of attorney, health care proxy and HIPAA release so that they have people they choose to step in and make decisions for them in the event of incapacity.

30-40   Once you begin accumulating assets, get married, and have children, it's important to create an estate plan to care for your loved ones in the event of your death. It also can't hurt to update your durable power of attorney, health care proxy and HIPAA release, since the people you may have appointed at 18 (your parents?) may not be the people you want in these roles at 35.

40-60   Unless there's been a change in your circumstances, and assuming you've set a good plan in place during your 30s, you probably don't need to review your estate plan during your 40s and 50s.

60-70   Once you've hit your 60s, it's time to take a look. Your children are probably grown. You may have grandchildren. And, hopefully, you've accumulated some wealth. The people you appointed to step in in the event of incapacity when you were 35 may not be in a position to assist when you're 65. You may have retired or are contemplating doing so. And, unfortunately, the chances of disability or death increase with every year.

70+   Now it's time to review your plan every three years or so. Changes happen -- to your health and that of your loved ones, to the tax laws, to the programs supporting long-term care or disability care. It's important to have a plan in place and to adjust it as circumstances change.

Change in Circumstances

While the timeline above outlines when you should review and perhaps update your estate plan, it needs to be supplemented by the following potential changes in circumstances that would warrant a review of your plan to see if it still meets your goals and needs:

• Marriage. You're likely to want your assets to go to your spouse and to name him or her to be your agent in the event of incapacity.
• Divorce. Likewise, if you get divorced, you probably won't want your assets to go to your ex-spouse or to rely upon him or her to step in if you were to become incapacitated.
• Children. Once you have children, you'll want to provide for them and to name someone to step in as guardian in the event of your death or incapacity and that of their other parent, if any. Generally, once you have a plan in place you do not have to update it unless you have more children.
• Disability. If you or someone who would inherit from you becomes disabled, you will need to plan to protect and manage your assets, whether for yourself or for your beneficiaries.
• Wealth. If you accumulate sufficient assets to exceed the thresholds for state and federal estate taxes -- $11.4 million federally -- you may want to plan to reduce or eliminate such taxes.
• Moving. If you move to a new state or country, it will be important to have your estate plan reviewed to make sure it works in the new jurisdiction.

In short, until you reach age 60 or 70, reviewing your estate plan every five years probably is overkill. But do so whenever you have a change in circumstances such as those listed above. If you're over 60 and haven't updated your estate plan in many years, now's the time. Then, having a review every five years is definitely a good rule of thumb.

您應該多久審查一次您的資產計劃是取決於您的年紀以及您的狀況是否發生了重大變化。如果您年滿60歲並且幾十年來都沒有更新您的資產計劃，那幾乎可以肯定您需要更新您的文件。之後，您應該每五年左右檢查一次您的計劃。但如果你還年輕，你不需要經常這樣做。

年齡

以下是幾個年齡範圍及其在資產規劃方面的意義：

18-30每個人都需要財務授權書，醫療授權書和釋放醫療記錄同意書(HIPAA)，這樣在他們無行為能力的情況下便可由他們所選的人介入並為他們做出決定。

30-40一旦你開始積累資產，結婚生子，製定資產計劃是重要的，以便在你去世時仍能照顧你的家人。更新您的財務授權書，醫療授權書和釋放醫療記錄同意書(HIPAA)也百利而無一害，因為你在18歲時任命的人（你的父母？）到您35歲時可能不是你想要任命的人。

40-60 除非你的情況發生了變化，並假設你在30多歲時制定了一個很好的計劃，那你可能不需在40多歲和50多歲時審查你的資產計劃。

60-70  一旦你到了60歲，是時候看一看了。你的子女可能都已長大了。你可能有孫子。而且，希望你已經積累了一定的財富。在你35歲時您所指定的人在您沒有能力的情況下介入可能無法在你65歲時提供幫助。你可能已經退休或正在考慮退休。而且，遺憾的是，殘疾或死亡的可能性每年都在增加。

70+  現在是時候每三年審查一次你的計劃了。變化發生了 -- 您跟您家人的健康, 稅法，長期護理支援方案或殘疾護理計劃。制定計劃並隨著環境變化進行調整是非常重要。

環境變化

雖然上面的時間表概述了您應該何時審核並且可能更新您的資產計劃，但需要通過以下潛在的環境變化來補充，以便審核您的計劃，看它是否仍然符合您的目標和需求：

• 婚姻。您可能希望將您的資產轉給您的配偶，並在無行為能力時將其命名為您的代理人。
• 離婚。同樣，如果你離婚，你可能不希望把你的資產給你的前配偶或如果你變得無能為力時他們會成為您的代理人。
• 子女。一旦你有了子女，你便會想供應給他們，並且在你去世時或喪失工作能力時可以指定某人作為監護人。通常來說，一旦您制定了計劃，您無需更新計劃除非您有更多子女。
• 喪失能力。如果您或您的繼承人失去行為能力，您需要計劃來保護和管理您的資產，不管是為您自己還是為您的受益人。
• 財富。如果您積累足夠的資產以超過州和聯邦遺產稅的門檻 - 聯邦政府1140萬美元 - 您可能希望減少或消除此稅收。
• 遷移。如果您搬到別的州或國家，檢查您的資產計劃是重要的，以確保它在新的司法管轄區下仍然有效。

簡而言之，在您到60歲或70歲之前，每五年審查一次您的資產計劃可能就是矯枉過正。但是，只要你的環境發生了以上列出的變化，便要這樣做。如果您已年滿60歲並且多年沒有更新您的資產計劃，那麼現在是時候了。然後，每五年進行一次審查絕對是一個很好的經驗準則。

Medicare Beneficiaries Need to Know the Difference Between a Wellness Visit and a Physical

Medicare covers preventative care services, including an annual wellness visit. But confusing a wellness visit with a physical could be very costly. 

As part of the Affordable Care Act, Medicare beneficiaries receive a free annual wellness visit. At this visit, your doctor, nurse practitioner or physician assistant will generally do the following: 

• Ask you to fill out a health risk assessment questionnaire 
• Update your medical history and current prescriptions
• Measure your height, weight, blood pressure and body mass index
• Provide personalized health advice 
• Create a screening schedule for the next 5 to 10 years
• Screen for cognitive issues

You do not have to pay a deductible for this visit. You may also receive other free preventative services, such as a flu shot. 

The confusion arises when a Medicare beneficiary requests an "annual physical" instead of an "annual wellness visit." During a physical, a doctor may do other tests that are outside of an annual wellness visit, such as check vital signs, perform lung or abdominal exams, test your reflexes, or order urine and blood samples. These services are not offered for free and Medicare beneficiaries will have to pay co-pays and deductibles when they receive a physical. Kaiser Health News recently related the story of a Medicare recipient who had what she assumed was a free physical only to get a $400 bill from her doctor’s office.

Adding to the confusion is that when you first enroll, Medicare covers a "welcome to Medicare" visit with your doctor. To avoid co-pays and deductibles, you need to schedule it within the first 12 months of enrolling in Medicare Part B. The visit covers the same things as the annual wellness visit, but it also covers screenings and flu shots, a vision test, review of risk for depression, the option of creating advance directives, and a written plan, letting you know which screenings, shots, and other preventative services you should get. 

To avoid receiving a bill for an annual visit, when you contact your doctor's office to schedule the appointment, be sure to request an "annual wellness visit" instead of asking for a "physical." The difference in wording can save you hundreds of dollars. In addition, some Medicare Advantage plans offer a free annual physical, so check with your plan if you are enrolled in one before scheduling. 

What are Some Common Mistakes in Titling Real Property?

“Unlike personal property, real property–such as real estate or automobiles–is titled to convey ownership.”

Title to real property must be transferred, when the asset is sold and must be cleared (free of liens or encumbrances) for the transfer to occur. Unlike other real property assets, real estate ownership can take several forms. Each of these forms has implications on how ownership can be transferred and can affect how they can be financed, improved or used as collateral.

Investopedia’s article, “5 Common Methods of Holding Titles on Real Property,” looks at the ways in which to hold title to real estate property.

Joint Tenancy. This is when two or more people hold title to real estate jointly, with equal rights to enjoy the property during their lives. When one dies, their rights of ownership pass to the surviving tenant(s). The parties in the ownership need not be married or related, but any financing or use of the property for financial gain must be approved by all parties and cannot be transferred by will after one passes. Another disadvantage is that a creditor with a legal judgment to collect a debt from one of the owners, can also petition the court to divide the property and force a sale in order to collect on the judgment.

Tenancy In Common. In this situation, two or more persons hold title to real estate jointly with equal rights to enjoy the property during their lives. However, unlike joint tenancy, tenants in common hold title individually for their respective part of the property and can dispose of or encumber as they chose. Ownership can be willed to other parties, and in the event of death, ownership will transfer to that owner's heirs undivided. An owner can use the wealth created by their portion of the property, as collateral for financial transactions, and creditors can place liens only against one owner's specific portion of the property. Any liens must be cleared for a total transfer of ownership to take place.

Tenants by Entirety. This can only be used, when the owners are legally married. This is ownership in real estate under the assumption that the couple is one person for legal purposes. The title transfers to the other in entirety, if one of the couple dies. The advantage is that no legal action is required at the death of a spouse. There’s no need for a will, and probate or other legal action isn't necessary. Conveyance of the property must be done in total, and the property can’t be subdivided. In the case of divorce, the property converts to a tenancy in common, and one owner can transfer ownership of their respective part of the property to whomever they want.

Sole Ownership. This is ownership by an individual or entity legally capable of holding title. The main advantage to holding title as a sole owner, is the ease with which transactions can be accomplished, since no other party needs to authorize the transaction. The disadvantage is the potential for legal issues regarding the transfer of ownership, if the sole owner dies or become incapacitated. Unless there’s a will, the transfer of ownership upon death can be an issue.

Community Property. This form of ownership is by husband and wife during their marriage for property they intend to own together. Under community property, either spouse has the right to dispose of one half of the property or will it to another party. Anyone who’s lived with another person as a common-law spouse and doesn't specifically change title to the property as sole ownership (which is legally transacted with approval by the significant other) takes the risk of having to share ownership of the property, in the absence of a legal marriage.

Community Property With the Right of Survivorship. This is a way for married couples to hold title to property. However, it is only available in Arizona, California, Nevada, Texas, and Wisconsin. It lets one spouse's interest in community-property assets pass probate-free to the surviving spouse, in the event of death.

Entities other than individuals can hold title to real estate in its entirety. Ownership in real estate can be done as a corporation. The legal entity is a company owned by shareholders but regarded under the law as having an existence separate from those shareholders. Real estate can also be owned as a partnership, which is an association of two or more people to carry on business for profit as co-owners. Real estate also can be owned by a trust. These legal entities own the properties and are managed by a trustee on behalf of the beneficiaries. There are many benefits, such as managerial influence, financial and legal liability and tax considerations.

Reference: Investopedia (April 10, 2018) “5 Common Methods of Holding Titles on Real Property”

What Are Some Good Tips for Business Succession Planning in The Internet Age? 在這互聯網時代，有什麼好提議給商業繼任計劃？ (中英對照)

“Many business owners build their businesses hoping that they will continue to generate income for their heirs, after they pass away. However, businesses often die or lose significant value when the owner dies.”

When considering how to make sure your business continues to thrive, it’s important to remember that if you do nothing, your business already has a default plan in place: if no additional planning is done, your business is an asset of your estate and will be subject to probate.

Forbes’ article, “Business Succession Planning In The Internet Age,” says that there are four issues with this default plan. First, it can take years for a court to probate your estate. In that time, your business can dry up, when probate is finalized. Next, if you do not have an estate plan, your heirs may fight over who will inherit the business. Whoever inherits the business under the state’s intestate succession laws may also not be the best person to make sure your business will continue to grow and be successful. Finally, if you have co-owners, they might not like your heirs and could get into disputes with the new owners that harm the business.

There are two legal tools to look at when reviewing your options: a buy-sell agreement and good estate planning.

A Buy-Sell Agreement. This is a contract between the co-owners of a company that addresses a variety of business-changing events, such as when an owner dies. Rather than the deceased owner’s equity being a part of the assets distributed during probate, the buy-sell agreement can include an agreed-upon amount that will be paid to the estate, in exchange for the business repurchasing the equity. The purchase is often financed with a life insurance policy on each owner of the business.

Estate Planning. Instead of allowing your business to be subject to probate, a business owner can work with an estate planning attorney to make the business an asset of the owner’s trust.

With either option, be sure you note the important digital assets for the continued operation of your business. Your business’s digital assets may include customer lists, intellectual property and creative products. It is important to remember these tips on considering your digital assets:

1. Understand the policies that impact your tools. Review your software provider’s policies on what happens if your company needs to name a new point of contact, pay bills differently, or be transferred to a different company, in case the unexpected happens.
2. Security and redundancy. A company’s success requires owners and employees to keep proprietary information and client information secure. However, the concern for safety must be balanced with redundancy that considers which people will have access to digital assets and an understanding of what to do with them, if the owner or main management team is unable to tend to business as usual.
3. Add digital assets in legal documents. Include an inventory of digital assets in your buy-sell agreement or estate plan. Be specific about who should get access to digital assets.

Creating a detailed plan as to who should have access to your business’s digital assets in case of your incapacitation or death, is an important part of succession planning.

Reference: Forbes (April 8, 2019) “Business Succession Planning In The Internet Age”

“許多商人成立他們的企業是希望能在他們去世後繼續為他們的繼承人製造收入。可是，當企業主去世時，企業往往會倒閉或失去價值。＂

在考慮如何確保您的業務可繼續蓬勃發展時，更重要的是要緊記如果您什麼都不做，有人已經為您的企業做了一個預設的計劃：如果沒有做好額外的計劃，您的業務就是您的資產，將需通過遺囑認證。

Forbes的文章“Business Succession Planning In The Internet Age,”說到，此預設計劃存在四個問題。首先，法院可能需要數年時間來審理您的遺產。到了那個時候，當遺囑認證敲定時，您的企業可能已不存在。接著，如果您沒有資產計劃，您的繼承人可能會因誰將繼承該企業而爭吵。根據州的無遺囑繼承法，　繼承業務的人可能不是一個使業務持續發展並取得成功的最佳人選。最後，如果您有合夥人，他們可能不喜歡您的繼承人，並可能與新業主發生爭執而有損業務。

在審視您的選擇時，有兩種法律工具可考慮：買賣協議和良好的資產規劃。

買賣協議。這是公司合夥人之間所簽的合同，該合同涉及各種業務變化，例如企業主去世時。買賣協議不是將去世的企業主的權益作為遺囑認證期間分配資產的一部分，而是將商定金額支付給遺產，以換取回購過世合夥人的股權。回購通常由企業的各業主的人壽保險來提供資金。

資產規劃。企業主可與資產規劃律師合作，將企業資產變成企業主的信託的資產，以避免企業資產通過遺囑認證。

無論選擇哪種方式，請務必記下重要的數碼資產，以便繼續經營您的業務。您企業的數碼資產可能包括客戶名單，知識產權和創意產品。在考慮您的數碼資產時，需要緊記一些技巧：

1.了解影響工具的政策。如果您的公司需要指定新的聯繫人，以不同的方式支付賬單或轉移到別的公司，以防意想不到的事情發生，請查看您的軟件供應商的政策。

2.安全和過多。公司的成功是有賴企業主和員工保護專有信息和客戶資料的安全。但是，如果企業主或主要管理團隊無法照常營運，那麼對安全的關注必須包括考慮哪些人可以取得數碼資產以及了解如何處理這些資產。

3.在法律文件中加入數碼資產。在您的買賣協議或資產計劃中包含數碼資產清單。具體說明誰可取得數碼資產的權限。

制定周詳的計劃，確定在您失去能力或去世後誰可取得您企業的數碼資產的權限，這是繼任計劃的重要部分。

參考: Forbes (April 8, 2019) “Business Succession Planning In The Internet Age”

The Big Problem with Do-It-Yourself Wills

“These documents could save money but can lay estate planning traps.”

An estate planning attorney would much rather not see a family undergoing unnecessary stress and expenses. Do-it-yourself wills and on-line wills very often create problems for families, as reported in Next Avenue’s aptly-named article “The Problems With Do-It-Yourself Online Wills.”

The article reports that one DIY estate planning service had three different “packages” that consisted of the same document, just with different names. Those packages were also missing a key estate planning document that the average person would not know to ask about. Even attorneys who do not practice estate planning law, know to work with an estate planning attorney for their wills.

For those with complex financial and personal lives, a DIY service may not be able to address the estate planning issues. If you have over a certain level of assets, do you want to risk making a costly blunder that would easily be prevented by working with a skilled professional?

Think of it this way: there are some people who can have their taxes done online, because they receive simple tax forms from their employer. If there’s a mistake, the IRS sends a letter and they may have to pay a penalty or pay the taxes that were not paid properly. Simple, right?

If your estate plan doesn’t work, you’ll never know. However, your loved ones will, and they’ll be the ones to have to make things right.

Good estate planning is all about expressing our wishes. The documents that are prepared and the process of decisions about our wishes accomplish a number of tasks:

• Avoids court intervention in your family’s life,
• Reduces administrative confusion, and
• Reduces or eliminates unnecessary fees and delays.

The four basic planning documents are: a will, power of attorney for financial matters, an advance health care directive and if needed, a trust. If you expect to use any of these through a DIY website, expect to use a “fill in the blank” approach. Remember that every state has its own laws governing probate. Are you sure that the forms you are filling out are acceptable in your state?

Other DIY sites have some documents, but only if you purchase a high-end package. Others offer attorney consultations, but some consider an attorney consultation to be a series of questions and answers through an online app with pre-written responses, and not a real attorney.

The problem with DIY wills, is that we don’t know what we don’t know. We may know who we would like to receive our assets, but not what our state law requires to make that happen. Case law about estate distribution and probate is not something an average person knows. That’s why it makes more sense to speak with an experienced estate planning attorney. They will be able to create an estate plan based on knowledge and skills, that come about only after practicing in this area of law.

Reference: Next Avenue (March 29, 2019) “The Problems With Do-It-Yourself Online Wills.”

Lee Radziwill Leaves Estate to Daughter and Nothing for Caroline Kennedy and Daughter-in Law Carole Radziwill

“Lee Bouvier Radziwill's Last Will and Testament shows that her lone surviving child, Anna Christina 'Tina' Radziwill, will inherit her estimated $50 million estate.”

International socialite Lee Bouvier Radziwill, sister of the late First Lady Jacqueline Kennedy Onassis, has left her entire estate to her only living child, Anna Christina Radziwill. Neither of her nieces, Caroline Kennedy or her widowed daughter-in-law Carole DiFalco Radziwill, were given anything in the will, according to the Daily Mail’s exclusive article “Lee Bouvier Radziwill's Last Will and Testament shows that her lone surviving child, Anna Christina 'Tina' Radziwill, will inherit her estimated $50 million estate.”

It’s quite a contrast to Jackie Kennedy Onassis’ will, who generously instructed that each of Lee’s children were to be given $500,000. However, the relationship between the ex-princess and her daughter-in-law Carole allegedly waxed and waned, after her son Anthony’s death from cancer. Lee herself was said to be hard pressed for cash, because of an extremely extravagant lifestyle. However, her own mother had set up a trust for her benefit decades ago.

Radziwill’s last will and testament was signed on Sep. 20, 2018, less than five months before she passed away. She died at age 85 of apparent natural causes in her apartment in New York City.

Her daughter-in-law, Carole DiFalco Radziwill, had appeared on “The Real Housewives of New York City.”

Because her son Anthony predeceased his mother, her will stated that she has one child, named Christina. She directed her executors to sell her New York City co-op apartment as soon after her death as may be practicable and to dispose of the proceeds, as part of her estate. She split her time between New York City and Paris, where she kept an apartment that was sold in 2017.

Throughout her high-profile life, Lee would reportedly turn to her sister Jackie and ask for funds to finance her lavish lifestyle. In response, Jackie did not leave any money for her sister in her own will, explaining simply that she had provided for her sister during her lifetime.

Lee was married to three men, who left her substantial funds. The last was Herbert Ross, a wealthy director and producer. However, in her own will, light is shed on a trust set up for her by her mother, Janet Lee Auchincloss, a leading member of American society in Newport RI, and Washington, D.C. The trust was created in 1975, an agreement between Jackie as grantor and Lee and the U.S. Trust Company of New York as trustees and revealed that Christina becomes the beneficiary of this and any other trusts that are in her and her mother’s name. The value of the trust was not revealed.

The executor of Lee’s wills are two friends, one who lives in Cornwall CT and another who lives in Harding Township, NJ.

Lee’s relationship with her daughter-in-law received a nice grace note, when Carole wrote about her mother-in-law and said that even though her husband was gone and there were no grandchildren, which often bonds in-laws, Lee always introduced her as her daughter-in-law, and even after long absences, she never wavered.

Ironically, the first item in her estate states that all debts and funeral expenses be paid as soon as practicable, and that no extraordinary means or special accounting loopholes be taken to avoid paying any death taxes. That’s an interesting comment from someone who was blessed with wealth, glamour and connections, but never had enough money to fund her own lifestyle.

Reference: Daily Mail (March 29, 2019) “Lee Bouvier Radziwill's Last Will and Testament shows that her lone surviving child, Anna Christina 'Tina' Radziwill, will inherit her estimated $50 million estate.”