The A B Cs of Joint Bank Accounts

Joint Bank Accounts

One might think that the general topic of “bank account ownership” is easy to understand and that forms of bank account ownership are understood by the general public and by bankers. But mistakes are made all the time. To begin with, some accounts were set up by bankers and customers decades ago. The accounts were written out by hand. Some of them listed two names only, some of them listed two names as “Joint Tenants” and others listed two names as “Joint Tenants with right of survivorship.”

The above designations can cause problems when an owner dies or loses capacity.

It bears repeating that if you have a will, the will should address joint accounts. The usual clauses are a “true joint account clause” or an “account of convenience clause.” The former makes clear that your joint accounts were intended to go to the surviving joint tenant. The latter states that your joint accounts were intended as a convenience with the intention that the funds be added to your estate.

A person’s wishes can be thwarted during or after death. In a recent case the bank account was designated as “Joint”. The bank record did not say “with right of survivorship.” The daughter wanted to retain the funds. Her siblings challenged her. The Supreme Court agreed with her siblings. The decedent may have intended that her daughter receive the funds but she did not write “with right of survivorship.”

The moral of the story is: Check every account and be sure that your intention regarding ownership has been properly designated. This problem comes up regularly and it causes family feuds more often than you would think.

In a facetiously written 1998 Rhode Island case it was noted that there are two ways to start a civil action. To paraphrase: The first is to follow the statutory procedure for starting a case and the second was “by opening a joint bank account with right of survivorship. “


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Durable Power of Attorney in RI

Will your Durable Power of Attorney Work for You?

We often hear that “avoiding probate” is a good thing and in most cases the statement is true. The probate that is “avoided” is usually post-death probate. Many people use revocable and irrevocable trusts or joint-asset and “transfer on death” planning in such situations. But it is surprising how many people fail to have a Durable Power of Attorney prepared. It is even more surprising to see how many of the documents that are drafted cause confusion or simply don’t work in the manner intended by the “grantor” of the power. Here is a list of “do-s” and “don’ts”:

1. Do make your Power of Attorney “durable” so it will survive your incapacity.
2. Do nominate a sensible person as your “attorney-in-fact” and as a successor.
3. Do consider whether the power should be contingent on future events (“springing”) or immediate.
4. Do discuss protecting your assets after your incapacity from an attorney-in-fact who will not fulfill your ultimate estate goals.
5. Do read the power carefully before you sign it. If it does not make sense to you it probably won’t make sense to banks, financial institutions and others when it is used in the future.

1. Don’t nominate a person who has serious health issues or is older than you.
2. Don’t hold the document for more than five years without re-reading it and having an attorney review it. Things change!
3. Don’t confuse everyone by leaving joint attorneys-in-fact with unclear statements as to their respective powers or their separate powers.
4. Don’t place powers regarding medical decisions in your document if you have already designated another person to exercise those same powers in your “medical durable power of attorney”.
5. Don’t put the signing of this document off to the future. Dollar for dollar, it is the least costly way to “avoid probate” since it can avoid the necessity of a guardianship during your lifetime.”

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Ways to Help Your Parents or Spouse Discuss Long-Term Care Planning

This article was published on ElderLawAnswers.com and may have been included in our December newsletter. I thought it would be helpful for people as a starting place with regard to their elder parents and is worth reading if you missed it the first time!

Dad, Can We Talk? Answers to 9 Top Questions About Discussing Long-Term Care Planning

Last Updated: 7/27/2010 4:14:01 PM

Recently a reporter asked ElderLawAnswers founder and president, Harry S. Margolis, some questions for an article on talking with aging parents or other family members about sensitive issues such as wills, funeral arrangements, assisted living or medical treatment wishes. Here are the reporter's questions and Harry's answers.


1. At what point is it appropriate for grown children, spouses, caregivers or friends to attempt to discuss these issues with aging parents, relatives or friends?

The earlier the better, but every family is different, and raising these issues can be more or less uncomfortable depending on the family dynamics. Certainly, if there is an illness or medical emergency, that can serve as justification for beginning the discussion.


2. What's the best way to broach the subject?

Rather than focusing on the parent or other family member's current or possible future physical and mental decline, it often works better for the person starting the conversation to focus on his or her own concerns. She can say that she was meeting with her own estate planning attorney, which made her think about her parents situation. Or she can talk about how she is nervous about being able to care for her parents when and if the need comes up. Often parents won't take measures to protect themselves, but they never stop being parents and will respond to a call for help from a child.


3. Where's the best place to have such a discussion?

In the parent's home.


4. Should you seek legal counsel first before initiating a talk?

Not necessarily. A legal consultation would help the children or other family members know what issues to discuss and some of the available options. But the ultimate goal should be for the elder to consult himself or herself with an attorney with elder law experience.


5. Should it be one-on-one or should family members, friends or those with specific expertise in an area be part of the discussion?

That has to be determined on a case-by-case basis. We always encourage transparency so that all family members are in the loop. However, scheduling can be difficult and too many people involved can be overwhelming. In addition, depending on the circumstances, elder care and planning issues can take several meetings to resolve. Different people may be involved in different meetings depending on the issues being discussed at each.


6. What if your parent, spouse, etc., refuses to talk about these issues? How do you overcome this?

Follow the advice above. If it's a parent, the child may have to be patient and wait until an opportunity arises to bring the subject up again. Ultimately, it may be impossible to get the parent to participate in any planning. If it's a spouse, this is also true. However, a spouse may be able to take some planning steps on his or her own.


7. What steps can you legally take to prevent an elderly person from driving if they refuse to hand over their license or keys?

This depends on the state. In some states there are provisions for letting the registry of motor vehicles know of problem drivers. Where family pressure doesn't stop a senior from driving and dementia exists, some of our clients have been successful in disabling vehicles if the senior does not have the capacity to get it fixed.

8. What steps can you legally take if an elderly person such as a parent or spouse refuses to take care of issues dealing with a will, housing, medical treatment or related areas?

It depends on the parent or spouse's mental capacity. If they are incompetent, it is possible to go to court to be appointed conservator or guardian and to take over decisionmaking in these areas. Unfortunately, this can be an expensive, time-consuming and cumbersome process. (For more on guardianship and conservatorship, click here.)


9. What can seniors do in advance, to avoid becoming embroiled with grown children, relatives, or friends over these issues.

Plan ahead. All seniors should sit down with an elder law attorney to discuss their goals, concerns and hopes and to develop a plan to reach the goals, address the concerns and give their hopes the opportunity to become realities.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Variable Annuities and Estate Planning in RI

Rhode Island Estate Planning

Did you know that there are Variable Annuities with optional riders that can provide you with principal and/or income guarantees that will allow you to participate in market gains, while protecting retirement income from market losses?

See your professional adviser to discuss this investment option and check with your estate attorney before signing any investment that might affect your estate.
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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Elder Law Mediation and Newport RI Estate Planning Attorney

Elder-law Mediation. When is is Useful?

As a mediator, I am often called into family disputes. Whether the disputes are between parents and children, between siblings or between the family and an agency, the solutions often require a full knowledge of estate planning, probate law and practice, Medicaid and Medicare law, Veteran’s benefits, estate and income tax law and a full knowledge of community resources. Without this knowledge, the solution reached in mediation may not be the best solution. Mediation with an elder-lawyer is the best method of resolving such disputes since the traditional forums for resolving these disputes (Probate Court or the Superior Court) are very expensive, slow and frustrating.

If you, your family or a client or friend are involved in such disputes, please call us at The Law Office of Jeremy W. Howe, Ltd., to discuss how mediation can work for you.

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Elder Law in RI

ANOTHER WAY TO “STAY ON TOP” OF ELDER-INFORMATION

We send out our monthly elder-law newsletter to keep you up to date on recent developments in the law. If you are interested in this material and also a Rhode Island resident or have “elders” in Rhode Island, you might also want to join the Senior Agenda Coalition of Rhode Island. Their website is: www.senioragendacoalitionri.org

William Flynn is the executive director and the group works very hard to educate the public regarding elder-issues including state and national events and deliberations that affect us all. For example, this week I received a copy of an article from the New York Times from October 1, 2009 (www.nytimes.com) discussing the impact of the recession on Medicaid and the problems that are likely to occur in 2010 when the stimulus money runs out. Unless things change dramatically in the near future, many states will be forced to cut benefits or provider payments.

The article states: “Medicaid is by definition, a counter-cyclical program. Demand for it is always highest at the time that (sic) states can least afford it because of slumping tax revenues.” My father often repeated the phrase: “A word to the wise is sufficient.” Monitor your local politicians closely (by joining Senior Agenda and other such groups) and consider long-term care insurance. Who knows what will be in place for us and our family members in the future?

Jeremy Howe
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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

IRA Beneficiary Restrictions

The Use of Special Beneficiary Restrictions in an IRA

We now have a new tool in our legal planning toolbox. In the past, when we have found that a client-owner of an IRA has concerns regarding a beneficiary with special needs or a beneficiary who is “financially challenged” or who lacks capacity due to minority or other reasons, we immediately thought of a trust as a method of controlling the future use of the gifted funds. Some financial companies have developed a new IRA product called a “special beneficiary restriction”. The owner can divide an IRA and name a transfer-on-death traditional beneficiary (or beneficiaries) and a special beneficiary with the restrictions on the gift.

A special beneficiary designation is not intended for a spouse. An owner can name WHO will receive the IRA at death, HOW the money is to be paid and WHEN the restriction will be lifted in accordance with some simple rules and guidelines.

For example, the IRA can pay the beneficiary a restricted amount equal to the beneficiary’s “required minimum distribution (RMD) until age 50. At age 50, the restriction terminates (or if the account drops below $10,000 the restriction is removed). The owner can also designate an earlier age than 50 to remove the restriction.

A caveat is that the special beneficiary may be restricted as to his or her access to the funds but has full control regarding investment decisions. This tool can save the cost of drafting a trust and the annual costs associated with maintaining a trust.

Whether or not a special beneficiary restriction is right for you as an IRA owner depends on many factors which need to be reviewed in some depth. If you wish to discuss gifting of an IRA via a trust or a special beneficiary designation please call us for an office visit or schedule an “elderlaw-housecall” and we will come to you.


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

RI Estate Tax Revision

I repeat: “Where is the Estate Tax Revision?”

In December I wondered in this newsletter whether our national legislators would pass legislation regarding Federal estate taxes. They did not. Where does this leave us? For the moment we estate planners and elder-lawyers are in limbo. If a client has already died in 2010 or if they die soon, there is no current estate tax. There is talk of remedial legislation that will be retroactive to January 1st. Wait till the litigators “get ahold of” that one!

For your information, there is some precedent that Congress can pass retroactive legislation in matters such as this (that affect the federal pocketbook) but we’ll wait and see. There is also talk that the current administration would like to give a “year off” from paying federal estate (and gift) taxes but it is hard to see how that is wise given the current national financial crisis. It would help very wealthy families and hurt less wealthy families who will pay capital gains taxes on inherited assets over $1.3 million dollars.

After 2010 the estate tax exemption will be one million dollars again and the estate tax rate will increase to 55%. That will affect many more families. Standard language found in many estate plans could leave spouses with nothing. It is important to you check with an elder law or estate planning attorney to make sure your estate plan does what you want it to do. Call us with any estate planning questions.

Jeremy Howe. Kristy Garside. Hilary Carlson. 841-5700

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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Probate and Estate Attorney in Newport RI

"'In this world nothing can be said to be certain, except death and taxes." ~ Benjamin Franklin

After death, if there is no trust to avoid probate, a “personal representative” known as an executor (will) or an administrator (no will) is appointed by the Probate Court to execute or administer the estate. One aspect of a personal representative’s duties is often overlooked or forgotten entirely causing delay and penalties to the estate and possible liability. It is the responsibility of the personal representative to see that all taxes are paid. This may mean: a final tax return for the decedent; income tax return(s) for the estate itself; and estate tax returns (State and Federal). In the case of smaller estates in Rhode Island where the decedent held an interest in real property, it is necessary to file documents proving that you owe no state taxes to clear the title to the estate.

The personal representative should consult with the attorney for the estate and a qualified accountant to determine the best valuation date for the assets of the estate. There are other important accounting and tax decisions to be made as well. For example, in some cases it is wise to “disclaim” bequests in order to avoid taxes. [With thanks to the KLR tax report (July 2009) for reminding me of this important topic]


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.

Elder Law Attorney Assists Client After Death of Loved One

 Testimonial for Attorney Hilary Carlson

After a Middletown, RI client's father passed away, he sought the assistance of The Law Office of Jeremy Howe, LTD.

Attorney Hilary Carlson handled the details of his father's estate and she later received this note from the client:

"Hilary - The day I met you, I was a mess. I was so upset about my dad and everything that I had to get done, and then you helped me out and I just started to feel better.

Thank you so much."


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The Law Offices of Jeremy W. Howe, LTD. are ElderLaw attorneys in Rhode Island who specialize in Wills and Trusts, Estate Planning, Guardianship, Probate, and Veterans Aid and Attendance Benefits.

They also are Newport Rhode Island Divorce Lawyers, Attorneys, Mediators, and Arbitrators providing services for Family Law issues such as Divorce, Child Custody and Visitation, Support, and Military Family Law. 

Call them today at 401-841-5700 or visit them on the web at http://www.CounselFirst.com.