Deaf, Proud, & Determined: Individuals in the Deaf Community Have Specific Estate Planning Needs
American Sign Language (ASL) is the primary language of the Deaf community and many other individuals who are hard of hearing. It is also used by some hearing people.
Among those is Phelan, Frantz, Ohlig & Wegbreit’s Gretchan Ohlig. Gretchan, a Partner at the firm, is the granddaughter of Deaf adults and her beloved grandparents were a huge presence in the years she was growing up.
“My mom’s parents were born deaf, and they had 3 hearing daughters,” says Gretchan. “ASL was my mom’s first language, and I grew up becoming a native user.”
Deaf, not Disabled
The Deaf Community is small and proud and does not perceive itself as “disabled.” Using the word disabled suggests the idea of “less than” and implies that the Deaf culture is lacking something. Removing that label eliminates any stigma that may be attached to it.
“In Deaf culture, Deafness is embraced. It is not considered an impairment,” says Gretchan. That sentiment echoes her philosophy. For people in the Deaf community, being Deaf is part of who they are. “They believe that there is nothing to be fixed,” Gretchan says.
Despite this pride and because of it, it is often necessary for hearing professionals who are fluent in ASL to serve members of the Deaf community by helping them fulfill their wishes in certain areas of life. Estate Planning is one of those areas.
“That is why it is such a privilege for me to help members of the Deaf community who turn to our firm for estate planning services,” Gretchan says.
Unique Legacy Requirements
She explains that within the Deaf community there is often fluidity in family connections. “Family lines are often blurred, and non-blood relatives are sometimes considered family.”
It is often important that an individual’s property stays within the community. That is why precise communication between Deaf individuals and their estate attorneys is imperative so that an estate plan that completely fulfills their needs is put in place.
“There can be no gray areas left to the attorney’s interpretation,” says Gretchan.
That help includes explaining complicated legal ideas to them in their language so they will feel confident in the plan we develop with and for them.
Understanding the perspective of Deaf adults is often difficult for hearing individuals because so much of their communication with one another depends upon their ability to hear. Still, some advocates speak about Deaf gain as a communication advantage afforded to those who must use means other than verbal language. The belief behind Deaf gain is that Deaf people have more meaningful and intentional connection because they cannot hear.
It is a wonderful way of looking at the world—one which Gretchan understands and respects because of the deep relationships she had with her grandparents.
With Gratitude to Pay It Forward
“They did so much for me when I was growing up,” she says. “Today I have an opportunity to give back and pay it forward through my work.”
That sense of service to our clients is what inspires our work at Phelan, Frantz, Ohlig & Wegbreit, LLC, and we are proud to be able to effectively assist individuals within the Deaf community who come to us for estate planning services.
Call us at 908-232- 2244 and experience the peace of mind of knowing we can help you create an estate plan customized to your specific wishes and unique needs.
What to Do With Your Cherished Home When You Die: It’s Not as Easy as You Think
The reality is that leaving your house to your kids when you die is not always what your heirs want you to do with it. Trust us. All you have to do is ask your kids.
If you’re like most clients, you come to our firm to talk estate planning, and your focus is typically your Will or Trust, your retirement plan beneficiaries, and the tax strategies that will allow your kids to get the most out of their inheritance. All too often a discussion about what will happen to your house—even your vacation house at the Jersey shore—gets left by the wayside. There’s a good chance your emotions run deep and that you have an intense attachment to your family home. Your assumption, therefore, is that your kids have the same connection to the house that you do.
Please think again. The two operative words here are emotions and assumption. Your home surely holds wonderful, rich memories. It is likely also your single largest holding and in today’s housing market, that may very well constitute a good amount of money and a substantial investment. Word to the wise. Emotion doesn’t work with decisions that are innately investments.
As for your assumptions…you’re first assumption is that everyone gets along. But if your kids argue now about who ate the frosted flakes, how are they going to get along when the stakes are higher? Suddenly they’ll be faced with decisions about upkeep and maintenance or renting the shore house. Decisions like that can fracture families.
As importantly, your assumptions don’t take into account the natural progression of family events. You’ve cut the apron strings and enabled your kids to chart their own course and flourish. A house may be an encumbrance that undercuts your children’s vision of their future. Keeping the family home, then, may end up being a curse rather than a blessing.
Examine your feelings
There’s no question that the emotional attachment you have to your house is understandable. You’ve created memories there. Your vision is to make it part of your legacy. You want your kids to have the opportunity to live there…to have their kids go to their school. Or, if it’s your shore house, you want them to enjoy memorable summer days together and then pass the house on to your grands, so that it will stay in the family forever.
As warming as that idea is, it has the potential of becoming an at all costs proposition: It doesn’t really account for life changes that your children or grandchildren may have one day. What if work takes them all over the country even around the globe? Plus, as they create their own families, the circle widens. It can even and likely will include in-laws. Before you know it, you have 15 people who can’t get along managing a house together. There are added risks such as divorce or, even worse, death. In in lieu of family harmony you may end up with in-fighting and discord.
It’s important to understand that emotion and assumption can take you down a rocky road when you’re making decisions today that will impact your children long-term. Even though it may be difficult, try to step out of the emotion and think more pragmatically. Discuss the idea of leaving a house to your kids with your estate planning attorney. She can illustrate some worst-case scenarios that, guaranteed, are far different than the vision of the ongoing family unity you see in your mind’s eye. You may not want to hear what your attorney has to say, but the dose of reality can help you give up emotion for more pragmatic thinking.
Have those important family conversations
Estate planning isn’t, after all, one sided. This is especially true when leaving a house to your kids and all the responsibility that comes with it. Just as you discuss financial matters such as who in the family will be your Power of Attorney or Healthcare Proxy, have a frank discussion about whether they can envision themselves living or vacationing in that house. Make them understand that you want and need them to be forthright. Steel yourself against potential disappointment and be willing to let go of the motivation to have them inherit the house. Without some outside-the-box thinking on your part, it could end up as an inheritance at any and all costs. Their honesty now about the vision they have for their lives going forward may initially sting, but it’s a good preventive for problems in the future.
Create happiness. Prevent messes
Sometimes we are unable to convince clients that leaving a house to their kids may not be prudent. In these instances, creating a Will or Trust that provides a degree of flexibility for a potential sale or buyout is a viable second option. On the one hand, the parent’s hopes and intentions are honored. On the other, their kids, grandkids, even nieces or nephews who may be beneficiaries can take comfort in knowing they have an out—have the ability to make decisions that will work for them—if sharing the family home or even managing it alone does not come together smoothly.
Flexible documents include language that delineates how to get somebody out of the property if the situation doesn’t work and how to unwind the inheritance by selling the property. The language of these documents:
- Allows for someone to be bought out outright
- Sets forth wording that eliminates the need for decisions to be unanimous
- Identifies sale triggers (e.g., one individual can’t pay their proportionate share of expenses)
A dollar versus fair market value
So, is the buyout for a dollar or is it to real market value? That’s a question that can and does come up. The answer to that question is unequivocally always fair market value. Anything different or less, and it’s a gift that could subsequently interfere with their estate planning and how they distribute their assets to their loved ones. It comes down to the fact is that if they have an ownership interest in the house anything drastically short of fair market value is gifting. That’s a massive issue, especially right now with the proposals in Congress that could significantly bring about estate tax reform.
One last salve
There are plenty of situations in which the moment the Will is read, one of the kids says they clearly have no interest in the property. In this situation, as long as all the beneficiaries agree, the law will allow for there to be a distribution in lieu of the house. This means that the sibling who doesn’t want the property gets other assets from the estate and the other two siblings get the house. In other words, a clause can be written into the document that gives flexibility to the final distribution. And again, that distribution must be made in alignment with fair market value of the property at the time of distribution.
Rational decisions are key at any juncture
The image of your children having a “What was my dad thinking?!” reaction to your Will is far from pleasant. Being well-thought out from the get-go is one way to avoid it.
Discuss these matters with your family and your estate attorney as you develop your estate plan. Make certain reason trumps pure emotion. Work with your estate attorney to include flexible language. These actions are among the ways to steer clear of the mess of family discord.
At Phelan, Frantz, Ohlig, & Wegbreit, LLC, we know how much your loved ones matter to you. They matter to us, too.
Call us at 908-232-2244 and cover all the bases to ensure your legacy will bond your family, not divide it.
ESTATE PLANNING DURING COVID-19: ADAPTING TO THE TIMES
More People Get Onboard With Estate Planning During COVID-19
The corona virus (COVID-19) has changed lives in ways we’ve never experienced or even imagined before. In short order, we’ve been required to stay home, practice social distancing and take diligent safety and health precautions as recommended by the Centers for Disease Control and Prevention to flatten the curve and prevent the spread of this highly contagious disease.
Heightened awareness regarding the importance of estate planning during this time is one silver lining that may result from the dark cloud of this devastating pandemic. In response to the critical need for conversations about existing estate plans or the creation of a concrete plan, trust and estate attorneys have been forced to recreate the way in which they consult with clients. Attorneys have been finding creative and safe ways to confront the logistical obstacles posed by the legal formality that accompanies the execution of estate planning documents.
An abundance of calls and inquiries
We have been struck by an increase in calls from individuals inquiring about estate planning. Understandably, these calls are taking on a much different tone. In the past, when people came to the office to discuss their estate plan, it was clear the conversations were theoretical—a talk about something hopefully very far off. Now, whether a caller is young, old or middle-aged, the tone is heavier. Rather than checking another item off their to-do lists, the indiscriminate nature of COVID-19 has forced us all to focus more on our own mortality. Offering a safe and open space for clients to have these conversations and provide some peace of mind is important to the lawyers at Phelan, Frantz, Ohlig & Wegbreit.
Business, but not as usual: Technology is key
In most instances, the key estate planning documents are the Will, which controls the proper disposition of assets at death, and the Durable Power of Attorney and Advance Directive/Health Care Proxy, both of which enable others to make financial and medical decisions for us if we are not able to do so. Technology has become a powerful force in how attorneys and clients get the planning process under way and, sometimes, in facilitating the execution of final documents.
For the planning piece, most lawyers are using video conferencing technology to facilitate conversations between clients and counsel so that the appropriate documents may be crafted. More ingenuity is required when it comes to signing the documents. This is so because under New Jersey law, Wills are only valid if executed in the presence of two witnesses. Further, they are only “self-proving” if a notary (third-party) notarizes the signatures of the person making the Will and the witnesses. POAs and Health Care Proxies similarly must be witnessed (only one) and notarized.
New places to execute documents
Under normal circumstances, witnesses preferably are not “interested parties” – beneficiaries or fiduciaries – of the estate for which a document is being executed. Conditions caused by the pandemic, however, may limit the options available to those signing documents.
Face-to-face signings may still occur – most typically in law office parking lots with gloves and masks intact, each participant using separate pens and exercising proper distancing but within sight and sound range of the person (the testator) signing their Will and for whom it is being prepared. Once signed, documents can be witnessed, notarized and collated by staff who have remained at a safe distance. Porches or window-separated settings provide alternate and acceptable locations.
Earlier this month, Governor Phil Murphy signed into law a bill that permits remote notarization effective immediately. This provision eases the need for face-to-face meetings for document execution and allows estate planning attorneys a greater degree of flexibility to accommodate the health and safety concerns of their clients.
It’s fair to say that both clients and attorneys are finding that these alternate ways of doing things are cumbersome, if only because they are so different and, right now, feel unnatural. But it’s the best clients and attorneys can do to avoid delays at this time.
Not easy but necessary
Important as it is, estate planning is always a delicate subject. These days the discomfort associated with the topic is ten-fold. The anxiety being experienced by everyone is legitimate and as professionals, spouses, parents, and sons and daughters, we have these same worries.
Regardless of whether legal interactions by Zoom or in parking lots becomes the new norm, we will continue, as always, to make our clients’ needs a priority. We remain focused on our clients’ safety during this difficult time and are committed to being a partner who will listen and assist.
At Phelan, Frantz, Ohlig & Weqbreit, LLC, we will carefully listen to your unique family circumstances and, as always be responsive, and intuitive in handling the difficult questions that you have regarding your estate planning during COVID-19 or anytime. Please call us at 908.232.2244 to learn how we can assist you in crafting your Will and important accompanying documents that best fit your wishes and needs.
RECIPE FOR A TRUST
You’ve decided you want to set up a trust but telling your attorney that you need a ‘trust’ is like telling a baker that you need a ‘cake’ – it leads to a cascade of questions: What’s the occasion? What ingredients do you want in the cake? Do you want to share it with lots of people or only a few? How much do you want to spend? Are there any food allergies to consider? In short, just like there are different kinds of cakes for different occasions, there are dozens of different types of trusts for different purposes. To cook up your custom trust, an experienced estate planning attorney will explore all these questions with you.
WHAT’S THE OCCASION?
There are a variety of reasons clients may want a trust:
- Assets held by a trust do not need to be probated under a Will, allowing beneficiaries to receive assets more quickly.
- To protect assets from creditors or exes in the event of a divorce.
- In order to avoid the need for an executor to be appointed by the court.
- To “gift” assets in order to save on death taxes or qualify for government benefits at a later date.
This is in no means an exhaustive list, but a few examples of the occasions an individual may seek to establish a trust.
WHAT INGREDIENTS DO YOU WANT IN THE CAKE?
Trusts can own almost any asset, including cash and real estate. Trusts also can be the beneficiary or owner of a life insurance policy or the beneficiary on an IRA or 401K. The implications of a trust owning each of these assets varies, so it is critical to discuss your plans in this regard with an attorney and accountant before making a move. It also is important to discuss the “amount” of ingredients you want to put into the trust. Depending on the type of trust, your ability to manage or access assets put into it can be limited, so it may not make sense to transfer all of your assets into a trust.
DO YOU WANT TO SHARE IT WITH LOTS OF PEOPLE OR ONLY A FEW?
Like a Will, a trust should set forth how the assets held in it will be distributed to beneficiaries upon your death. A trust is even more flexible than a Will, however, in the sense that it also may provide for the provision of income or assets during an individual’s life.
HOW MUCH DO YOU WANT TO SPEND?
Creating and maintaining the formalities of a trust can be costly. In some cases, a trust may become a tax paying entity, which means that an annual income tax return should be filed. In addition, the individuals responsible for implementing the trust – the trustees – are entitled to a commission based on the value of the assets held by it and any income made by those assets.
ARE THERE ANY FOOD ALLERGIES TO CONSIDER?
In many ways, this question can be the most critical. Trusts frequently are created to protect and grow assets for those who may not be able to manage them on their own. Whether a special needs trust or a trust created for minors, the unique circumstances your beneficiaries must be considered in drafting the terms of your trust.
These are important pieces of the pie (no pun intended) to be considered. The estate planning attorneys at Phelan, Frantz & Peek are experts in the creation of trusts for all occasions and in a variety of flavors. Contact us to make an appointment today to discuss your needs.