Forbes:  “Demand for estate planning has actually been declining for years.  People are reluctant to pay fees for work that does not currently benefit them.  They don’t see estate planning as a productive use of their funds….People still need to plan their estate, to make sure their property goes to the persons they want it to go to, and to avoid probate on succession to their property….And people need the assistance of an estate planning attorney in planning their estate. Poorly-drawn, ambiguous documents can spark litigation, and fail the testator’s purpose. But the days of carte blanche fees paid to estate planning attorneys are passing away.”

Perhaps the article fails to mention other possibilities surrounding the decrease in demand for Estate Planning such as uncertainty in Estate and Gift Tax Law.

So many people today are using Facebook and Twitter to stay in touch with friends and family.  Have you considered what happens to your social medial accounts when you die?  A recent article in Wealth Counsel discussed how this information can be accessed by your loved ones after you die. 

As an estate planning lawyer our job is to preserve not just our clients’ financial wealth, but their legacy as well. That often means going beyond financial assets covered by “traditional” estate planning methods, and delving deep into human assets such as family values, traditions, and memories. 

More and more people are using social media sites such as Twitter and Facebook to record important memories such as the birth of a baby, a child’s graduation, a wedding and so much more.  We see commentary not just from the owner of the social media account, but also from friends and family as well.  Social media accounts serve as a cache for photos and videos – all of which incredibly valuable to your clients family.

Arizona Republic:  “If you become ill from old age and can no longer take care of yourself, the people you and your family turn to for help can hand over control of your life to an expensive for-profit business. . . . Fiduciaries charge fees that in months or years can wipe out your assets. The organizations and firms that refer clients to fiduciaries often do not advise clients of the potential costs.”

See “Hospitals can call fiduciaries for their patients” and “Close lawyer-fiduciary ties raise questions of cronyism.”

Wealth Strategies Journal:  “The headline of the November 10, 2010 posting on Forbes' “Estate of Confusion” blog by Hani Sarji sums it up, “Results of Midterm Elections Do Not Bring Certainty to the Federal Estate Tax.”  While uncertainty about the long-term status of the estate tax is nothing new, it appears that the uncertainty will continue as we begin the New Year. . . . All of this means that the uncertainty that has clouded the estate planning playing field for the past eight years is likely to continue through the current Congress until we see the make-up of the 2013 Congress and administration.  While there are flexible tax planning strategies that can help deal with this uncertainty from a planning perspective, uncertainty frequently leads to inaction on the part of the client.  It is the intent of this article to examine how dealing with uncertainty can actually create viable opportunities to examine how we approach our estate planning practices.”

Arizona Republic:  “You could use software to write your own will, but here's a safer alternative.  Yes, it can be painful to pay for estate planning. Lawyers charge a lot. The benefits of a plan are delayed, and you don't live to see them anyway. . . . The trouble with do-it-yourself planning, however, is that even if your situation seems simple, there are many oddball things a layman wouldn't think of that can go wrong, especially with a will. These mistakes can end up costing your heirs a lot more than you saved in legal fees.”

Bankrate.com:  “You're ready to tackle estate planning, but you're not sure what ‘equipment' you need.  Flounder no more.  Here are nine essential estate-planning tools, along with details about what they do and why you need them.”

Financial Advisor:  “As trusts grow more popular, the need to appoint the right trustees becomes crucial. . . . Yet trusts can only be as successful as the trustees who manage them. So picking the right trustees is crucial.”

The Trust Advisor Blog:  “Our new trust industry survey for the third quarter of 2010 reveals who’s charging what for directed trusts and for investment management. We found providers charge about the same price for similar services. Our report offers guidance on what to look for to gain the best value for your client.”

Wall St. Journal:  “It isn't just the estate tax that's scheduled to return on Jan. 1 after a one-year absence. A lesser-known companion levy will return as well: the generation-skipping transfer tax. Not surprisingly, affluent families are rushing to transfer wealth to their progeny before the year-end deadline.”

Investopedia:  “Not only is it important that you have a plan in place in the unlikely event of your death, but you must also implement your plan and make sure others know about it and understand your wishes – as Benjamin Franklin's famous quote goes, ‘by failing to prepare, you are preparing to fail.'  If you've procrastinated on your estate planning, this article will help you get going in the right direction.”

Wall St. Journal:  “Congress is trying to put limits on a popular trust families use to avoid the tax.  Because this type of trust works best at times when interest rates are low and asset values are depressed—times like these, in other words—estate planners are urging clients to set one up before Congress makes them far less attractive.  Called a grantor-retained annuity trust, or GRAT, it allows people to give a portion of an asset's future profits to heirs tax-free.”

Question:  “I want to transfer the title to my home to my revocable living trust I created for as part of my estate plan so it will not have to go through probate on my death.  My home is encumbered by a deed of trust that secures a debt I owe to my lender.  The loan documents say that the lender has an option to call the loan if I transfer the title to the home.  Can my lender call my loan?

Answer:  No as if the borrower continues to occupy the home.  Most of the time when you ask a lender if it will consent to allow you to transfer the title to your home to your revocable living trust, the lender's personnel will either say no or require you to jump through a bunch of unnecessary hoops.  There is a federal law called the Garn-St. Germain Depository Institutions Act of 1982 (12 U.S.C. § 1701j-3(d)) that prohibits a lender from exercising a due on sale clause in loan documents when you transfer the title to the home in which you live to your revocable living trust.  Here is the pertinent language of the statute:

(d) Exemption of specified transfers or dispositions. With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon –

(1) the creation of a lien […]

Arizona Republic:  “A federal investigation into elder abuse has found that Probate Courts nationwide are failing to protect vulnerable adults from exploitation by the guardians appointed to look after their health and finances.  In a report released Wednesday, the Government Accountability Office reported instances of abuse in 45 states, including Arizona, where courts failed to conduct background checks or monitor those it put in charge of an incapacitated adult.”