Dying without a will is unfortunately very common. If you die without a will, your property will likely go through a court process called probate and will ultimately be distributed according to Tennessee’s intestacy law. Here are some common events that may happen if you die intestate:
Your immediate next of kin, whoever they are, will likely inherit your property first. If you die intestate, everything goes to your next of kin. Your next of kin are the people who have the closest relation to you. Your children are first in line, along with your spouse if you are married at the time of your death. Otherwise, it’s your closest relatives. For example, say you die intestate without a spouse, children, or parents. Your next of kin could be your much younger half-sister or a cousin you’ve never met. Whoever fits the “closest living relative(s)” criteria will inherit everything after the estate pays your debts and taxes.
That son- or daughter-in-law you don’t like will get your property before that niece or nephew you do like. Marital property owned by your children is governed by the laws of the states they live in, not you. If they live in a communal property state, they’re sharing the inheritance, 50/50. While the laws are different in every state, property acquired during marriage by either spouse may be marital property, especially if it was used for the benefit of both spouses.
A little bit of money up for grabs can have a cooling effect on interfamilial relationships. In a perfect world, family members would all get along, never be jealous, and always do right by each other. This isn’t a perfect world. Intestacy law doesn’t take into account the relationships the deceased had with anyone or what the deceased orally promised to someone. Even if widowed Uncle Bob told you he wanted you to have his ’65 Thunderbird, without a will, the car is going to his son…who doesn’t even have a driver’s license. When families start fighting over estates, lawyers get a lot of money and the family gets a lot of heartaches, so it’s best to put your wishes in writing so everyone knows what is expected in advance and the Court has authority to enforce your wishes.
If you’ve recently lost a loved one who did not have a will and have questions about their estate’s administration, you should speak to a probate attorney for guidance. If you need assistance, we invite you to contact us to schedule a consultation.
Every family is different and has different needs. The family unit can be as simple as a married couple or as complex as a blended family with committed partners. Regardless of who makes up your family, you need to ensure that you have adequate legal protection for your partner and any children. This week we will discuss why legal documents like wills, trusts, and powers of attorney are appropriate for unmarried couples and why these documents are important to make sure your family comes first.
How do you plan to care for your life partner in Tennessee?
*One caveat before we discuss what you can do, let me say what you cannot do. You cannot disinherit your spouse. So if you are in a new relationship but still legally married to someone else, your options will be limited. To read more about this topic, click here.
Tennessee does not recognize common law marriage
Many people believe that even without a marriage certificate, couples who live together for a certain number of years and hold themselves out as spouses to the community become “common law married.” Only about ten U.S. states allow common law marriage, and if you meet the requirements for common law marriage in one of those states before moving to Tennessee then you may qualify to inherit from your partner as a spouse, but it would be an uphill battle if anyone challenged your right to inherit as a spouse. The better (and less expensive) option is to create an estate plan.
Siri: Contact a qualified estate planning attorney near me
Make it as official as you can
While there are some rights and privileges that you cannot achieve without the formality of marriage, we can re-create many spousal rights through an estate plan. An estate plan requires evaluating your family situation, your assets, and your wishes to develop legally binding documents that will meet your goals for decision-making during your lifetime and asset transfer upon death.
Most people don’t like to think about their own death or their partner’s, but this is essential to having a solid plan in place. Estate planning is a big part of my Nashville law practice, and here is what I recommend for families choosing to forgo the traditional contract of marriage:
Create appropriate Powers of Attorney in Tennessee
If you are in a committed relationship and trust your partner to make decisions for you, you should both create the appropriate powers of attorney. A Power of Attorney will allow your partner to have decision-making authority in an emergency situation if you are unable to do so. This can include medical and financial powers of attorney. Depending on your personal comfort level, your partner may also be authorized to act on your behalf and at your direction even if there is not an emergency, for example, if you were out of town for something that had to be done in person like a real estate closing.
Create a Will
When you die, your family of origin may feel entitled to an inheritance in favor of your life partner. Without a Will, Tennessee law is on their side. In order to protect the family you have created with your partner, you will need a properly executed Will. A Trust may also be appropriate depending on your situation.
Consider what will be important to your family of origin when you are gone. Will they be upset if you pass family heirlooms to your partner or children who are not legally related to them by blood? Are there significant assets that they expect will “stay in the family?” If so, and assuming it is safe to do so, I encourage you to discuss your wishes with your family of origin and see what provisions can be made for them. It is often easier for your loved ones to accept your wishes if they heard them directly from you, rather than reading them on paper when you are gone.
In order to make sure that your companion receives any inheritance that you would like them to have, you will need to have a Will and make them a beneficiary of whatever share you would like them to receive. I encourage you to speak to your loved one about your resources and how they would be passed in three scenarios- (1) if you die first, (2) if they die first, (3) if you die together in a common accident. Particularly if you have kept your finances separate, think about how you would gain access to each other’s accounts, how long it would take, and how the family would support itself in the meantime.
POD accounts are an excellent way to pass on assets to your unmarried partner.
Add Beneficiary Designations to your accounts
Many types of accounts allow you to add beneficiary designations to them. The most familiar type is life insurance, but there are many others. If you have retirement accounts like IRAs and/or 401k accounts, look at adding your partner as the beneficiary to those funds when you pass. The same can be done with brokerage accounts and bank deposit accounts.
Rather than going through your “estate” as laid out in a Will, the financial institutions holding money for you will essentially cut a check to your beneficiary when they learn that you have died.
And finally….
Think about who depends on you?
You need to consider what might happen to your partner when you pass away. Similarly, how would you care for the family if they were to die or become disabled? How can you ensure that any serious long-term disruption to your family life is a bump in the road (at least financially speaking) and not a train going off the rails?
Whether you make significant earnings at your career or you make valuable contributions within the home or both, your family would be lost without you. That’s why it’s important to have a plan in place. If you are a Tennessee resident committed to helping your family, whether married or not, schedule a call with us to talk about how you can protect your family when they need it the most.
Many of our Nashville elder law clients wish to remain in their own homes for as long as possible. With the advances in medications, treatments, and home healthcare options, more people are able to stay in their own homes. Whether you are looking for a home healthcare provider in Middle Tennessee for yourself or a loved one, here are some great guidelines to follow:
1. Determine what level of care is needed.
The level of care that you need is the most important determination when you want to hire a home healthcare provider. This factor will affect many other decisions. For example, are you or your loved one dealing with a specific ailment? If so, it may be preferable to choose a provider or agency with experience in that field. Additionally, do you need round-the-clock care, someone to come a few hours a day, or something else entirely? There are adult day programs that can provide an outlet for social activities and certain therapies. Adult day programs can be used on their own or in conjunction with a home healthcare provider. You may wish to ask your elder lawyer for a list of possible facilities in the greater Nashville area or you can access statewide resources on the Tennessee Department of Human Services website.
2. Understand the difference between Home Healthcare and In-Home Care.
Home healthcare is provided to those recovering from surgery or hospitalization, or those needing continuous medical care. These services include skilled nursing care, physical therapy, occupational therapy, speech therapy, and administration of medication. In-home care on the other hand provides ongoing non-medical assistance following illness or surgery or for chronic disease or disability.
3. Decide if you want to hire someone on your own or if you want to go through an agency.
There are advantages and disadvantages to both options. If you choose to do it on your own, you will likely have more say in who will be providing the direct care, as well as what services he or she will provide, but you will be responsible for handling payroll and taxes. On the other hand, an agency will be able to screen applicants thoroughly and can handle payroll and other paperwork for you.
4. Ascertain how you will pay for the home healthcare services.
An experienced elder attorney can point you toward various resources, depending on your needs. You or your loved one may have long-term care insurance set up for just this situation, or you may be looking to Medicare, Veterans Administration, and/or TennCare/Medicaid to assist with the costs. Medicare will only pay for home healthcare, but not in-home care.
One step at a time
Deciding to hire a home healthcare provider in Middle Tennessee is a big job. Break things down into manageable objectives and avoid becoming overwhelmed. At any point in the process, an experienced estate planning and elder law attorney in the Nashville area will be able to offer practical advice and suggestions. If you are unsure about what to do consider scheduling an hour-long Strategy Session and get legal advice from our attorney. We also have a planning tool called the “Care and Savings Assessment”. We use this tool to help our clients qualify for TennCare.
Many people think that if they are married, their spouse will automatically inherit everything when they pass and so they don’t need a will. While there are some situations where a spouse does inherit everything, it is not the default under Tennessee law. In Tennessee, if you are married and have children, your spouse will share your probate estate with your children. I call this the S.A.K.S. method (Spouse and Kids Share). In other words, your spouse does not inherit everything automatically.
To clarify:
If you die without a will, Tennessee law dictates that the spouse and children split the estate.
However, I believe that everyone should create their own plan for distributing their assets after death, even if the state has an understandable default on how to do this. Here’s why:
Having a Will can make it easier for your family to go through probate.
Having a Last Will and Testament can be an important way to reduce any burden on your family after your death. In your Will, you decide not only who will inherit your estate but also key decisions like who will serve as Personal Representative (also known as the Executor) and whether you want to require or waive documents that are required by statutes. Having a Will is your chance to have a say in the probate of your estate before you die. The process can be much less complicated for your beneficiaries as well because you may decide to be even more specific about some of the more difficult decisions that need to be made.
It is much easier on your family if you have an estate plan in place. A last will and testament will provide instructions on how to designate and divide assets between family members and friends. If you die intestate (without a will), then the state’s inheritance laws will determine who gets what.
Preparing an estate plan will cover situations that may arise after your passing
Have you considered what might happen if your spouse remarries? Are you aware that a future spouse can take an interest in a portion of your estate? Would you want part of your assets to go to a new spouse or to any children that they may have with that spouse? Do you have family or children that should benefit instead? There are many other factors to consider, but it’s important to discuss these things with your attorney when you create your estate plan.
A Will provides security for your spouse
If you are more concerned about your spouse inheriting from you than your children, you can plan for that too! The general rule in Tennessee is that the spouse would get no less than a third of the estate.
For example, if you are splitting the estate with two or more children, the spouse would get a third. If there is only one child, the spouse would get half.
What if you want to provide more? With a Will, you can designate that your spouse gets everything or only leave certain things to your children. Many spouses write “I love you” wills, where they inherit first from each other, and then their children only inherit when the second parent dies.
Use a Will to protect spousal inheritance from changes in family dynamics
Another consideration in making a Will is your family dynamic. Do you have children from different relationships throughout your life? Do you have concerns about how your children from those relationships will get along with your current spouse when it comes to your estate? It is important to consider how you want inheritances to be split. Your Will can dictate how your assets will be handled! You can also designate your preference for the guardian of any minor children in the event that both you and the other parent die.
Additionally, a Will provides provisions such as the appropriate age at which your children should take over responsibility for managing any inheritance. One primary concern many parents have is whether young adults will be mature enough to make sound judgments concerning any money they inherit. Your Will can establish a certain age at which young adults gain control of their inheritance, to ensure that it isn’t squandered when you would prefer it be used towards education or sound investments.
In short, your Last Will and Testament should be drafted so that your wishes regarding your family are honored.
A Will can safeguard your beneficiaries if they become disabled
Are any of your assets expected to go to a loved one who has a chronic medical condition? If so, you’ll want to consider that an inheritance could disqualify them from any means-tested government benefits that they may receive or be entitled to, which could be devastating if they are counting on that benefit. The most common examples of this are Supplemental Security Income (SSI) and TennCare (Medicaid). You’ll want to have a contingency plan in your estate plan to make sure that their benefits are secure and not at risk of being cut off due to an inheritance. You don’t want their government assistance to decrease just because you died! You definitely need a plan for that. Make sure to work with a qualified estate planning attorney so you can refrain from making errors with your family’s benefits.
If you want control over who can access your digital assets, you must make a Will
Many digital assets are governed by terms and conditions which are unlikely to specify who will take over your accounts when you die. Some providers, such as Facebook, permit you to designate someone as a “legacy contact.” However, not all companies are robust enough to provide this type of service. A Will protects your digital assets from falling into the wrong hands or being lost in digital space with no one able to claim them. Check out our blog post about how to create or change your Facebook “legacy contact” here.
In conclusion
These are just a few of the things that you’ll want to consider when making an estate plan. I want to encourage you to have a long discussion with your spouse about how your assets should be split when one of you dies. There shouldn’t be any surprises! I cannot stress the importance of knowing each other’s values and putting them in writing. It is crucial to have the outcome you desire. A failure to plan can end up in expensive court litigation. This is why we encourage everyone to speak with an experienced estate planning attorney about how they and their spouse can protect each other through proactive planning.
Are you ready to make your Will? Schedule a free initial call and make your plan with the Team at GALS!
TennCare will use estate recovery on TennCare payments for long-term care.
Long-term medical care is expensive – but where does the money come from?
This week I want to talk about TennCare Estate Recovery. Over the last few blog posts, we have gone over the benefits available to those who qualify medically and financially for TennCare Choices, Tennessee’s long-term care Medicaid program. We have also discussed how we can help our clients adjust their finances so that they can qualify. This week we want to discuss how TennCare recoups the cost of providing long-term care services.
TennCare rules can be confusing
A long time ago, my friend told me that her grandmother had to give away her house because she could not afford to pay for medical care and needed to qualify for Medicaid. This is really unfortunate! Her grandmother clearly didn’t understand the rules of Medicaid. Unfortunately, people like my friend’s grandmother get bad information about Medicaid, the services that are available, and the requirements to become eligible. I wish I could have told my friend’s Grandmother that she could have kept her house. This leads me to my main point…
TennCare will not take your house while you are living in it.
However, TennCare estate recovery allows TennCare to get reimbursed for any funds that they spent on behalf of someone after that person dies. In other words, the state will eventually try to get reimbursed for the money they spent on your long-term care.
According to current TennCare rules, a single person can own a house that is worth up to $603,000, or land with a house worth over $603,000, without any concern about being ineligible for TennCare due to their home. However, you will want to talk to your attorney and financial advisor about how you may be able to continue to pay the costs of maintaining a home if you are in skilled nursing care.
How and when does TennCare get reimbursed for your long-term care?
For most of us, TennCare is not going to take your home even if you are living in a facility. Concern about your real estate should arise if you were hoping to pass your real estate to your family when you die. While TennCare will not try to get repaid for their expenditures during your lifetime, they will seek reimbursement after you pass away.
For example…
Roberta has a home worth $250,000 and no other assets. She was in a skilled nursing facility for two years and received TennCare services for which they paid $125,000. After Roberta passes away, her estate will be expected to pay $125,000 back to TennCare before the family receives any money. Since there is a house worth $250,000, the family would be expected to sell that house and give half the proceeds to the state. This process is called estate recovery.
Work with a probate attorney to resolve an estate recovery claim.
Is there any way we can keep the house in the family?
Estate recovery is something that TennCare takes seriously, and will go to great lengths to make sure that they are properly reimbursed. However, they will not take your home while you are living in it.
I want to be clear: A loved one receiving TennCare benefits while alive does not mean that Tennessee will later attempt to collect the money from YOU. The debt is not yours. If you have a loved one who passes away while on TennCare, your probate attorney will work with you to resolve that estate recovery claim so that TennCare can get reimbursed for any funds they spent on behalf of the deceased.
You can find more information through the Estate Recovery division here.
If you have a family member that was on TennCare or needs to get on TennCare, contact us at 615-846-6201. We’re here to help!
Many people have sufficient income to maintain a regular lifestyle but are unable to afford the high cost of long-term care. With the average cost of long-term care around $7,000.00 a month, it is incredibly difficult for most families to afford it, even more so after retirement. That’s why it’s a good idea to plan for qualifying for TennCare, also known as Medicaid.
Evaluate and restructure your assets to qualify for TennCare
It’s worthwhile to know how to qualify for TennCare
As we discussed in our blog last week, there are certain criteria you need to meet to be eligible for TennCare. As an elder law attorney, one of my jobs is to help families get their loved ones qualified for TennCare while maintaining resources available for the rest of the household.
One of the ways that we do this is by restructuring a family’s assets. We do this by turning resources that are countable for TennCare purposes into items that TennCare does not count as part of its eligibility assessment
This process is known in the elder law community as a spend-down. The goal of the spend-down is to make you or your loved one eligible for TennCare as far as your assets are concerned. If you are overqualified for income-based criteria, we can use a special type of trust called a Qualified Income Trust, or a Miller Trust, to reduce your income. The goal of a spend-down is to maintain the quality of life for all family members including those who need long-term care.
Bob might benefit from purchasing a quality mobility device
What is a “spend-down”?
For example…
Bob needs to go into long-term care. Bob is eligible based on his income. He makes $2,000.00 a month of social security retirement income. Bob also has a house, a car, and $50,000.00 in the bank. Bob is widowed and his children are adults.
We need to do something with at least $48,000.00 from Bob’s bank account in order to make him eligible for TennCare. His house and his car are not countable for TennCare purposes in most cases. What can we do?
Make improvements to his home that would improve his quality of life and access to the things that he needed in the home. This might include:
Grab bars in the shower or hallway.
A ramp into the main entrances.
Paving the driveway or expanding it closer to the door
Widening doors
Buy some things for Bob that his Medicare did not cover, such as:
Hearing aids
Dentures
Eyeglasses
Top of the line mobility devices
There may be other things that would improve Bob’s quality of life. There are things we can spend money on or convert into income. I am also going to suggest to everyone that they use the money to make arrangements for end-of-life needs if they have not done so already. Since at some point Bob’s children will need to make arrangements for his burial or cremation, paying for it now from his excess funds is a great way to make those funds unavailable for TennCare purposes and meet a future need.
Bob has peace of mind because he has plans in place for long-term care
Bob might want a Care and Savings Assessment
It’s not easy getting approved for TennCare / Medicaid, and we know it! That’s why we offer help in planning your steps to qualify. It doesn’t matter what your starting point is, we’re here to help you navigate the process with one goal: get our clients the quality of care that they need. Contact us if you would like to make plans for qualifying for TennCare.
Quite simply, TennCare is Tennessee’s Medicaid program. While the name “TennCare” has the word “care” in it, it is NOT Medicare. In order to further clarify the difference between the terms “Medicaid” and “Medicare,” you need to remember that we use “Medicare” to “care” for our elders and “Medicaid” to “aid” those, of any age, in need. Essentially TennCare is Tennessee’s brand of Medicaid. Hopefully, that little trick will help you remember the differences between each program.
Who qualifies for TennCare?
Now that you are familiar with the difference between Medicare and Medicaid, let’s discuss who qualifies for TennCare (Medicaid).
There are three qualification criteria that you must meet in order to obtain Medicaid/TennCare.
1. Medical qualification –There is a special medical test that applicants must pass in order to qualify. Usually, a care facility will handle this piece of the Medicaid application.
2. Asset qualification – A TennCare applicant who is single can only have $2,000.00 in assets before they are eligible for TennCare. Vehicles and real estate are usually exempt from the count of assets. A “Care and Savings Assessment” is a good place to start if the applicant needs help with figuring out what they have in assets and what options are available to make excess assets “non-countable” for TennCare purposes.
3. Income qualification – A TennCare applicant can only receive $2,382.00 per month (as of 2021) in order to receive TennCare. If an applicant has more than this amount in income, an attorney can resolve it through what is called a Miller Trust or a Qualified Income Trust.
Long-term care is very expensive
Why should I be concerned about long-term care services?
Unless you are a millionaire or multi-millionaire, TennCare eligibility and designation could have a major impact on your finances and your family. While you may not need TennCare now, you will want to plan as if you will need it in the future. As you may have heard us say before “we hope for the best, and plan for the worst.” Having a plan is an effective way to ensure that you will have long-term care coverage when you need it. This isn’t to say that you won’t find yourself needing TennCare much sooner than expected. When this happens we call it “TennCare Crisis Planning”.
Knowing your options makes all the difference
I don’t know where to start!
The biggest obstacle to TennCare planning is determining what to do with your assets and income; especially if there is excess in any category. There are a lot of rules and potential pitfalls that you need to look out for. Fortunately, we have some great financial planning and legal resources that can help our clients. If you have an immediate need for TennCare or want to plan for TennCare we can supply the client with what we call a “Care and Savings Assessment”. It’s a wonderful tool that helps people effectively navigate through their options.
How do we help our estate planning clients with TennCare planning?
For our estate planning clients, we like to take into consideration the possibility that you may need TennCare in the future.
For example, it is our priority to set up our client estate plans to make sure that TennCare is accessible if it is ever needed. As with many government organizations, Medicaid has lots of rules to follow and many people find that they did not know what rules they were supposed to be following until it was too late! Fortunately for our clients, we know the rules and can help you plan in advance of ever needing to apply for TennCare to cover medical care. Additionally, we create documents that make sure that someone can apply for Tenncare on your behalf. This is useful if you become incapacitated in the future.
How do we help our Conservatorship clients with TennCare?
Many of our conservatorship clients are caregivers for a loved one who requires skilled nursing to keep them safe. The average cost for this type of care is about $7,000.00 per month or more. There is usually a large gap between monthly income and fees. Our firm can navigate the TennCare application process and assure that the appropriate language is in the conservatorship order paperwork with the court so that the client may obtain the appropriate benefits for their loved one.
How do we help clients with TennCare Crisis planning?
For those who have never considered the cost of long-term care until they or a loved one need to enter a nursing facility, the cost of care is likely to come as a shock- and an unaffordable, but necessary, expense. This is when we can step in with what we call “crisis planning,” meaning that you need a plan and you need a plan now.
In these cases, we are able to look at the household financial situation of the person needing skilled care, as well as the family situation overall, and come up with a plan for how to best use existing resources and get them qualified for TennCare benefits to pay for the nursing home bills. This process called our “Care and Savings Assessment”, is one of the most rewarding things that we do! It allows us to help people get the care that they need while still providing a quality of life for themselves and their families.
If you are concerned about accessing TennCare benefits for long-term care, contact our office for a complimentary initial call using our online calendar here.
For the past year and a half, I have done almost all of my holiday gift shopping online. Which is great- until I need to return something. For those of you who read the blog and our newsletter, you know I love to share my life hacks, so I wanted to introduce you to my favorite new local business, noted. Thanks to entrepreneur Alexis Jones, I’ve been able to return items on a tight deadline and clear out items I’ve had in a donation pile for far too long, without even leaving my house!
With the holiday gift giving season upon us, no doubt there will be a flurry of returns soon. Noted, returns with heart stands by its name and agreed to share some ideas that your gift recipients won’t want to return. But in case you do need to make a return, say goodbye to those post-holiday return lines, misplaced gift receipts, and lack of time. Create a way to make this holiday season a success for you and all those around you by scheduling your return with noted.
-April
It’s Beginning to Look Like Return Season – A Holiday Gift Giving Guide for 2021
Christmas shopping is right around the corner, and that is just another way of saying “yikes!” Just kidding! I’m not saying that Christmas shopping is exactly bad. We all know Black Friday is its own fun experience. What I’m bashing is gift receipts, return policies, and disappointed looks from family and friends.
When I was in elementary school, there was a holiday gift shop at school with gifts ranging from $1 to $5, and I WISH we could bring that back. However, that is not an option.
With the holiday season approaching, everyone works to find that oh-so-perfect gift for the people around them and sometimes we’ll come up a little short. I figured now’s the time to enlighten y’all on some alternative ways to shop for others without the stress! Not to mention avoiding those crazy Black Friday hours AND lines.
This the season for gift giving and giving back to the community. Photo by Annie Spratt on Unsplash
Holiday Gift Card Galore
You see the word gift card and immediately want to shut me down. Give me a chance to explain. Please. No, gift cards are not a cop-out. Over the years, it has become a thing that if you give a monetary card, that one barely knows them or is playing it safe. Hello? If you pick the store that you KNOW an individual loves most, how is that something to be upset about?
For the last 6-7 years, my grandma has given us a can of pringles (family tradition for 15+years) then hand selects a gift card tailored to each grandkids taste. This can range from Target to Fandango, and even car washes!
Just as much thought and effort go into this as hand picking a wrapped present. This is a gift that genuinely can make anyone around you feel loved and understood, as long as effort still goes into it. Do not just gift everyone a Walmart one and call it a day. Take a bit of time to think it through. Not to mention, you can purchase gift cards online and eliminate in-person shopping altogether. Plus, the pressure to go out to busy stores and drive through the snow hunting for weeks straight is eliminated.
A gift card almost guarantees that the person gifted the card will be able to find the perfect thing they want. Expect a joyful thank you note following the holidays sharing with you what they purchased. You know the expression. Think smarter, not harder.
Gift a Dinner Date this Holiday Season
A personal favorite of mine during the holidays is giving the gift of a meal. To be honest with y’all, I enjoy gifting more than receiving because the awkward “oh thank you” after receiving an underwhelming gift is really hard for me to fake. I cannot imagine how hard it is for others when you miss the nail.
That is why I started to treat those in my life to a meal out. No one is ever going to turn down a meal. To make sure the meal happens, I usually include a card and a couple restaurant options. This is not just a short-term present but an experience. You can share the season with someone who means something to you. The whole shebang. Pick up the person you gifted. Dress for the occasion and make sure they understand money is no option. (If you are the one being gifted this, maybe don’t order lobster). Encourage them to order a cocktail or a glass of wine, and especially dessert!
Okay, so return season, right? This is a gift that is IMPOSSIBLE to give back. Sure, I suppose the gift receiver could not follow through so YOU need to be intentional about this meal. A flawless way to avoid the uncomfortable gift received vibe, do not overlook a nice meal, and a way to steer clear of return season.
Support a family owned restaurant and gift a relaxing evening to someone you love! Photo by Zoe on Unsplash
Full Family Fun
Gift cards and dinner dates work great for those one-on-one scenarios, but what about a couple options for the whole family. My parents often gifted us one gift from Santa that we would share. One year it was the Wii, and another year a BB gun. This year, my mom called me and asked what I would be doing in the afternoon on December 26th. She did not give me any details, but she planned something for my whole family to go out and do. It is an experience!
Nashville has so many activities in the area that are not only family geared, but also an affordable price for a family gift. A few that come to mind include, a tour of the Grand Ole Opry, Music City Hall of Fame, and The Nashville Zoo, which I made an effort to see when I came to town last May.
Find a day over the kid’s holiday break, to pull everyone away from their electronics, toys, and the television. Load them into the van and keep it all a surprise! Spend the morning or afternoon exploring a new part of town or a store they love. End the outing with a family favorite ice cream shop! If it’s still cold out, hit up a place with the best hot chocolate with whipped cream and chocolate sauce on top.
Not every gift has to be unwrapped, so this is a great way to show the family the memories are priceless. There is excitement in unwrapping gifts, so if you want to let the kids know in advance the trip they are going on, here’s a tip. Print a picture of where you are taking them or a receipt. Fold it up into tiny pieces and place it in a box. Wrap the box up with holiday paper after that! Repeat the process until you are convinced it will take them long enough to open it up. Yeah, this is a bit silly, but it keeps the present unwrapping fun intact.
The Most Wonderful Time of the Year
The holiday season is like no other. Birthdays are one thing but gifting in December is on a whole other level. The pressure of giving correctly is never-ending. The possibilities of a gift card, dinner dates, and an experience are simple ways to clean up that fear. None of these are things anyone would ever want to return!
Heading into the month of December, we wanted to focus on the idea of gifting. While in our line of work, we often think of gifting in terms of taxes or inheritance, but there are so many other ways to leave gifts to those in your life. We asked our colleague Alyssa at Purple Fox Legal to share with us some of the “gifts that keep on giving” through intellectual property law, which is her focus. If Alyssa’s post helps you or you have questions about your copyrights or trademarks, reach out to her at [email protected] or 629-248-3310. -April
Owning the copyright to a song is an amazing accomplishment!
Professional creatives, like songwriters and musicians, pour endless amounts of time, energy, and passion into their craft. They spend months perfecting each project, and years carrying the pride of a job well done. And, for many, this hard work continues to live long after they do.
This is where estate planning comes in. Proper estate planning guarantees that your legacy will be managed according to your standards, even when you’re not around to do so. The process names the people and organizations that can lay claim to your assets, and protects your work with red tape and safety nets. It is a critical step in any songwriter’s life.
Knowing the importance of something, and understanding how to do it are two separate matters. In this article, we’re introducing musicians and songwriters (like you!) to the most basic steps of estate planning. We’re covering the top five important tips for songwriters planning their estate.
1. Understand how property is transferred through estate planning
Comprehensive estate planning is crucial for ensuring that all property is transferred to its intended parties. While most estate plans will easily transfer common assets, like cash, vehicles, and real estate, professional songwriters also need to consider protecting their intellectual property. Intellectual property, like copyright, is incredibly important for you to continue providing a stream of income that can flow for generations.
To truly understand estate planning, songwriters must understand what an estate actually is. In layman’s terms, an estate is a portfolio that includes all property (tangible and intangible) accumulated throughout an individual’s lifetime. After your passing, all of your property, assets, and funds will become the property of the estate.
Once you pass on, all of your estate planning goes into action. The executor, or person responsible for carrying out the probate process, will distribute your property through a complex legal procedure. Your final wishes and requests will be followed, typically passed down in the form of a will. A judge will direct your executor to follow state regulations to transfer your assets and distribute your property.
Create a paper trail! Protect your songs by properly registering them with the Copyright Office.
2. Register your copyrights and maintain copies of every contract associated with them
Copyright registration is paramount in the songwriter’s estate plan. Registering your copyrights will ensure that they are protected for up to 70 years after the author’s death. But, songwriters and musicians should recognize that each song they produce carries two copyrights. It’s not only the sound recording and “master” copyright that matters but the musical composition must also be protected. This includes the lyrics and underlying music.
To add another layer of complexity, copyright protection doesn’t end with registration. A consistent and cohesive record should be kept of all contracts associated with your copyright. This will help clarify the copyrights owned by the estate itself.
Remember: A notice to the Copyright Office is also required each time a copyright changes ownership. If copyrights are not included in the estate, they cannot be distributed to heirs. Filing with the Copyright Office is so important because it creates a public chain of custody and lowers the likelihood of litigation after your death.
3. Add beneficiaries to your performance rights organizations and mechanical rights organizations
When it comes to copyright law, registration grants the owner a number of different legal rights. In fact, the US Copyright Act provides six unique and exclusive rights for each copyright. And, each registration lasts long past the life of the author.
Because of this, every songwriter should consider adding potential beneficiaries to transfer control of these six unique protections. Including intended beneficiaries during the estate planning process can prevent expensive litigation after your death. But first, each beneficiary must be added to a musician’s Performance Rights
Organization (PRO) and Mechanical Rights Organization (MRO), in addition to creating a will.
Most musicians are familiar with and registered with both a PRO and MRO. PROs are responsible for administering performance licenses, collecting licensing fees, and distributing these fees. They handle music that is publicly broadcasted on the radio or the Internet, in television shows, or out in public. MROs, on the other hand, collect mechanical royalties. They reserve a fee each time your song is played.
Accurate, updated information is required in both your PRO and MRO accounts. Adding beneficiaries to them cannot be recommended enough.
4. Be aware of the deadline for recapturing copyrights
When a copyright is created and then assigned to someone else, the original author is afforded an opportunity for a second bite of the apple. This means that original authors can elect to recapture copyright ownership by filing a specific notice with the US Copyright Office. It’s important to know that there is a limited period of time before the termination goes into effect.
For many songwriters, recapture is available as early as 35 years after publication.
Not all gifts come from a store! What will you do with your art?
5. Write down how you want your property to be transferred before creating a will
A valid and effective will is just one step in the estate planning process, but it may be the most important one. A will dictates exactly where your assets will go after your death, including the methods of transfer and the terms you expect. Anything in a will is subject to probate court though, which is why it shouldn’t be the only document in your estate plan. Wills serve best when used as a safety net for any assets not covered in your other estate planning documents.
Final Thoughts
When it comes to estate planning and managing your assets, age should never be a factor. Songwriters with assets should always be protected. Just look at Kurt Cobain and Selena Quintanilla, who didn’t have wills when they died. Their lack of an estate plan created a whirlwind of legal problems for their families.
Creating a will can be overwhelming The process to get there can be overwhelming though, but having help from an experienced attorney can make the process seamless for you and your family.
Last week I provided a handy list of preventative measures to help you avoid financial scams. But what do you do about the tricky people in your life who want to take your money? Half of all abuse comes from someone the victim knows. This means friends, paid caregivers, and professionals you depend on. While I’m not advocating for you to be untrusting of those around you, I am telling you that it’s important to pay attention to the red flags.
You should ask yourself: Is there anyone in my network that might want to take my money or anyone that “feels” that I owe them money? Here’s a list of the red flags to look out for:
Is your new friend really a friend?
Do I have new friends who are overly helpful?
Look out for the con artist. These tricksters will use coercion, flattery and manipulation. How can this happen to you? I’ll paint you a picture:
Let’s say you have recently met someone who is really interested in helping you around the house or with errands. Your new friend is charming and really interested in knowing you and being around you. Over time you start to trust this person and maybe even depend on them for your day-to-day activities. In the end, you do things you wouldn’t normally do such as gift-giving, especially after they tell you about all of the difficulties in their life. How nice of you to just “give” your low-mileage car to that nice new friend of yours! You think your new friend is being helpful. Nope! They are grooming you to take advantage of your kindness.
Is anyone resentful or angry about helping me?
Pay attention to those who are resentful or angry about any requests to help out with caregiving. This is the type who feels that they are “owed” something for their efforts. This mentality leads to all kinds of abuse such as abandonment, starvation, denial of care, physical harm or threats to place you in a nursing home. Additionally, the abuser may steal your money, pay for things with your credit, take your valuables, or make you sign things you don’t agree with or understand.
Am I my caretaker’s golden goose?
There are people out there who are really down on their luck and are desperate enough to hold you hostage in exchange for caretaking. Unfortunately these caretakers see you as a golden goose and have no problem using caretaking on a quid pro quo basis.
Have you ever read the book “Misery”? The story is of a woman who discovers that her favorite author has crushed his leg in an accident. She “cares” for him but ultimately holds him hostage, afraid for his life, unless he writes a novel for her. This horror novel is an extreme example of an abuser who holds their victim hostage. While the story is far-fetched, it’s not usual for us to rely on our friends and families for certain things during different times of our lives. An abusive caregiver could hold you hostage or tie their efforts to what you can do for them in ways that aren’t appropriate. It’s clear to see how you can easily lose control of your finances in these circumstances.
Beware the unethical professional who wants to work with you “exclusively”.
Do my hired professionals really have my interests at heart?
Beware professionals who are unethical. While most professionals will be honest with you, unfortunately we can’t say the same about everyone out there. Some “sketchy” professionals will intentionally confuse older adults in order to take advantage of them. These professionals could be your banker, accountant, financial advisor, doctor, or even lawyer (yes, we know the jokes too!). It could be anyone who has a professional relationship with you. These criminals are more than happy to help you line their pockets via forgery, lying, coercion, and misrepresentation.
On the September 24, 2021 episode of the true crime podcast Criminal episode “Family Money,” journalist Phoebe Judge investigates the case of two bankers who siphoned off millions of dollars from their grandmother after she entrusted them with her accounts. Because she trusted them and they also held a formal relationship as her bankers, they were able to move money out of her accounts and make investments that only benefited themselves- not her. This situation demonstrates how all three of our situations listed can work together, especially for people who you think would NEVER take advantage of you. And for most people that’s the case. But it never hurts to have a second or third set of eyes on things if it seems like something might be amiss.
Most people truly want to help. Trust your gut!
In conclusion
I know these are scary things to think about, and we generally don’t want to frighten our readers, but planning is important. And in this day and age, where so many scammers are out there not only online, but also those who may be coming into your home, it’s important to have a plan to protect yourself. If you need help creating a plan to protect yourself or a loved one, click here to schedule a call with us.
