Archives for Succession Planning

Do I Need A Prenup?

Marriage is not just an emotional and physical union — it’s also a financial union. Although the discussions that go with a prenupial (or antenuptial) agreement may feel uncomfortable, it’s better to have these discussions at the beginning of a commitment than to be surprised later.  By bringing these conversations to the open and encouraging frank discussion of finances and the values they reflect, a prenup can actually help ensure a better foundation for the future your marriage.

YOU SHOULD CONSIDER HAVING A PRENUP IF YOU FALL INTO ANY OF THE FOLLOWING CATEGORIES:

  • You already have children and/or grandchildren from a previous marriage
  • You already own assets such as a home, stock or retirement funds
  • You own all or part of a business
  • You anticipate possibly receiving an inheritance
  • One of you is much wealthier than the other
  • One of you will be supporting the other through college
  • You have loved ones who need to be taken care of, such as elderly parents
  • You have or are pursuing a degree or license in a potentially lucrative profession such as medicine
  • You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

THINGS THAT CAN BE ACCOMPLISHED WITH A PRENUP

Keep finances separate:

  • Itemize assets and define what is separate and what is marital property
  • Define how future income will be allocated, will this be joint property
  • Define how future property acquisitions will be allocated, as joint or separate
  • Protect each other from debts accrued before or during marriage
  • Provide for children from prior marriages
  • Keep an inheritance separate
  • Define each of your rights if you were to divorce

Clarify responsibilities during the marriage:

  • whether to file joint or separate income tax returns and how to allocate income and tax deductions on separate tax returns
  • who will pay the household bills — and how
  • whether to have joint bank accounts and, if so, how to manage them
  • agreements about specific purchases or projects, such as buying a house together or starting up a business
  • how to handle credit card charges — for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
  • agreements to set aside money for savings
  • agreements for putting each other through college or professional school
  • whether you will provide for a surviving spouse — for example, in your estate plan or with life insurance coverage, and
  • how to settle any future disagreements — for example, you might agree to hire either a mediator or a private arbitrator.

WHAT ELSE YOU NEED

Complete Information:  The prenup negotiation process includes full disclosure of all financial assets and liabilities

Estate Plan: It is important for the contents of the prenuptial agreement to dovetail with your estate plan.  Marriage or remarriage is a time to review not only estate planning documents, but also investment accounts and titles to property to ensure that these are titled in a way that accurately reflects your intentions with regard to  ownership and succession planning.

Attorney:  In South Carolina, a prenuptial contract can alter significant legal rights that accrue as the result of marriage.  For this reason, the assistance of an attorney is essential.

If you would like to learn more, feel free to contact me for a consultation:

Elder Law is for Every Adult

Elder law is about more than old age. Elder law is about the planning and care that every person needs in order to be prepared for disability or illness.  Disability Planning 101:  Regardless of age, each of us must prepare for the worst.  “What are some of these needs,” you ask?  Every legal jurisdiction is different, and this article is not intended as specific legal advice.  Nevertheless, there are some common themes that everyone must think about if they want to ease the stress of some of  life’s worst case scenarios.

Peace of Mind

What is peace?  Is peace a thought that the affairs of the world are ordered and in place, as they ought to be?  Consider this excerpt from Pippa’s Song, published by Robert Browning in 1841.  The last two lines graced a linen wall hanging embroidered by my great grandmother:

Pisarro Hay Harvest wikimedia commons
Pissarro “Hay Harvest”  (Wikimedia commons)
“The year’s at the spring,
And day’s at the morn;
Morning’s at seven;
The hill-side’s dew-pearled;
The lark’s on the wing;
The snail’s on the thorn;
God’s in his Heaven –
All’s right with the world!”

To my way of thinking, part of having “peace” is to know that things are set up, as much as possible, so that our small world – our small sphere of influence where we live – is in the best order we can make of it.  This blog post is about making things “right with the world.”   What can we do that brings us more peace in our personal lives?

For one thing, we need to be proactive about doing things to make this happen.  Mother Theresa said, “Do your work as if everything depends on it, then leave the rest to God.” This post is about doing your work as if everything depends on it.  Namely, do you know what will happen to your property, and to your affairs, if something were to happen to you today?

I want to urge you to create and maintain the legal documents you need to make things “right with the world” as far as your legal affairs are concerned.

People immediately think of their  will.  Do you have one?   Under Title 62 of the S.C. Probate Code (which may or may not be similar to the probate code where you live),  what happens to your estate depends on who survives you.  Do you have a spouse, children, or parents?  The law allocates a division of assets based on who your survivors are. (For instance, if you leave a spouse or children, your parents receive nothing even if they were dependent upon you for support. If you leave children, they receive half even if you’d prefer for your spouse to receive the entire amount.)

Generally speaking, it’s best if you state what you want by leaving a will.  This just eliminates doubts about what you might have wanted.  If there’s something in particular that you want a person to have, that also needs to be designated specifically, but with flexibility and bearing in mind that the asset may be gone by the time you pass away. If there’s an unrelated person or a charity you want to receive something from your estate, the only way to ensure that (other than giving it to them personally) is through a will. While a will doesn’t have to be complicated or expensive, it is important that it be done right. For this reason, I would recommend having a lawyer draft it for you.

In terms of planning for the future, there are a couple of other documents which probably are equally, if not more, important, than a will.   Do you know what these are?   Health Care Power of Attorney, Durable Power of Attorney, Trust Documents, Life Insurance designations, Retirement Account beneficiary designations, Bank Account ownership designations, to name some.

For an example of how important these documents are, have you considered:  What would happen to you, personally, if something were to happen where you could not speak for yourself or make decisions on your own behalf? Who would make decisions about your medical care or how you should be treated? The document governing this is called a Health Care Power of Attorney. Everyone needs one. Any one of us, no matter how healthy, could be in a car crash tomorrow and need this document to ensure that our values are known and followed. (Alternative documents are known as “advance directives” or “living will,” are not quite the same things and an attorney can explain the differences to you.)

What would happen to your business matters if you were in an accident and couldn’t manage your own affairs? Who would get your mail? Who would pay the bills? Who would check on some suspicious credit card transaction? The document giving some agent power to act on your behalf when you can’t do so is called a Durable Power of Attorney. Everyone needs one.

Who would become owner of your bank account?  If person A is authorized to sign on your bank account, do you mean for that person to own the entire account at the time of your death?  If not (for example, if you have two children and you want them both to share the proceeds equally, not just the one who has signature authority), then you need to set up the paperwork to reflect your wishes.

These are just some of many documents everyone should consider having. Anyone who is divorced with children and considering remarriage should think about having a prenuptial agreement drawn up. A “prenup” can settle any potential property division questions many years before issues even surface. Anyone with young children should consider designating a guardian and trustee for those children in the event of parental disability. Anyone with a business should have a business succession plan, and a partnership or close corporation should have buyout provisions.

Lawyers don’t just sue people. They help ordinary people make arrangements that help their lives run more smoothly when the going gets tough. I encourage people to get a “legal checkup” every few years just to make sure they have everything they need.

Notice: this is not legal advice. It is a suggestion that you seek legal advice concerning these issues.   Because my goal is to help people manage their affairs in such a way that they stay out of court, I do offer a service of “Legal Checkup” to help you sort out these issues.  If you are interested in a one or two hour consultation in my office for a legal checkup, please email an inquiry to PeaceWrkr@gmail.com

Elder Mediation in South Carolina

If you are wondering whether Elder Mediation can help your family, you are probably asking the question because your family is having some challenges or disagreements involving issues related to an elder or a vulnerable adult, or a probate matter.  If your family is having such conflict, it is always worthwhile to at least consider mediation.   

You may wonder, “What is Elder Mediation,” and even, “What is Mediation?!”  Please take three minutes here to learn more.  Then, if you are interested in exploring in more detail, please call 803-414-0185 for a phone consultation, or submit a question by filling out the contact form on this web site.  Read More

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