Archives for February 2010

Estate Planning

The plans for one’s estate and the passage of real and personal property to the next generation involves several very personal decisions, not the least of which is to minimize any estate tax liability. In the current economic climate, it is reasonable to expect that effective in 2010 any estate valued in excess of $1,000,000 may be subjected to an estate tax with a minimum rate of 45%. There are several legal means for avoiding some or all of those taxes. However, each method requires careful consideration and may not be appropriate for every case.
Beyond estate tax considerations, the distribution of property to family members, churches, charities and the like and the perpetuation, at least for the next generation, of a family business, are each decisions of a more personal nature. Many estates may not have tax ramifications but nonetheless will involve distribution issues. Beyond the use of a simple will, individuals often find that a trust, either prepared as a living or “inter vivos” trust or as an element of the will itself, is the best method for accomplishing the goals of an estate plan. Depending upon the complexities of any trust as well as the sophistication and business experience of other family members, the trustee of any trust may be either a family member, a close friend, or, if need be, a trust department of a local bank in which the individual has confidence.
Depending upon the circumstances of each individual, estate planning may also involve planning for the potential need for nursing home and other medical care as well as the necessity for Medicaid and Medicare Assistance. The laws surrounding those matters are complex and ever changing. Consistent herewith, an estate plan should also address circumstances when, during one’s life, possibly as the result of an accident or unanticipated illness, the individual is unable to either care for himself or herself or is otherwise unable to communicate his or her wishes regarding future medical care. To address those concerns a durable power of attorney as well as the appointment of a patient advocate – sometimes referred to as a living will – are appropriate. In such cases, the involvement by all family members in the development of an appropriate estate plan may avoid unanticipated adverse consequences, not the least of which are disputes that may cause unintended rifts in future family relationships.

A carefully developed estate plan is specifically tailored to accomplish the directives and needs of an individual or family, and can have a substantial impact on the protection of wealth. As the timing of an incapacity, death, or other triggering event can never be predicted, it is important to take a proactive approach in consulting an experienced legal professional and implementing a plan.

Boilerplate

It is often customary to use a pre-printed “standard” form contract that includes,usually in fine print, provisions that are not actually negotiated but essential to the contract such as time and general conditions for closing or mandating binding arbitration, provisions referred to as “boilerplate.” Black’s Law Dictionary (7th Ed. 1999) defines such as “Fixed or standardized contractual language that the proposing party views as relatively nonnegotiable.” Boilerplate provisions are generally given effect as written as may have substantial consequences not understood or appreciated at the outset. An example is the standard merger clause: “This contract represents the parties complete and final agreement and supersedes all informal understandings and oral agreements relating to the subject matter of the contract.” If the executed contract does not fully incorporate the several items orally discussed and presumably negotiated, it may be next to impossible to convince a court that it should recognize and enforce any of those oral “agreements.” Even the simplest contract may have built in unforeseen consequences through “boilerplate” and legal interpretation and evaluation before execution may avoid or limit those consequences.