February, 2007 ABA ELDER LAW COMMITTEE Newsletter General Practice, Solo and Small Firm Division
Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA
In this issue:
1. HOW A PET TRUST ENSURES THE CONTINUAL CARE OF YOUR LIFELONG COMPANION
2 Reminder- Elder Law Committee meeting Saturday February 10, 2007
3 Elder Law Committee – Mid Year Report
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1. HOW A PET TRUST ENSURES THE CONTINUAL CARE OF YOUR LIFELONG COMPANION
By Neil A. Derman, Esquire
According to the latest statistics from the American Pet Products Manufacturers Association (APPMA), released in their 2005-2006 National Pet Owners Survey (NPOS), pet ownership in the United States is currently at its highest level, with 63 percent of all U.S. households owning a pet. This equates to more than 69 million households in the United States that own a pet. Americans own approximately 73 million dogs, 90 million cats, 139 million freshwater fish, 9 million saltwater fish, 16 million birds, 18 million small animals and 11 million reptiles.
With so many families in the United States owning a pet, the question arises, what will happen to these animals if something happens to their owners? It is important to ensure that when you plan your estate, that you address the care of your animals as well as your heirs.
Why a Pet Trust?
The federal tax code does not provide for any assistance with pet owners and the continual care of their animals once they pass away or if they become incapacitated. The Federal Tax code narrows its definition of a beneficiary, to a human being, a trust, a partnership, associate, company or corporation. However, many states have adopted statutes allowing the Federal definition of beneficiary to be expanded to non human animals. Both New Jersey and Pennsylvania have adopted such statutes.
When a pet owner passes away, they often assume that the surviving heirs will be willing to take over the care of that animal, or that the state laws will assist in determining the care of the animal. But pet laws and pet owners do not take into account one key fact of modern life: Surviving adult children may be reluctant to carry out a parent's final wishes.
The cost of caring for a pet may be overwhelming when you put the numbers on paper. The average pet owner spends $400 per month over the lifetime of a pet. This calculates out to a total cost of $48,000 over the life of the animal. Costs incurred include grooming, food, medication, veterinary expenses, boarding, equipment and many others. Depending on the age and health of the animal this could become a very large burden on your heirs.
How Does a Pet Trust Function?
Just like any other trust, a pet trust is established to provide for the continual care of the animal during periods of the owners incapacity or death. The trust can be funded during your lifetime or upon death by including it in your will. The funds will be used to cover the economic burdens of the animal such as those mentioned above. A Trustee is named to take care of these funds and ensure that they are appropriately used for the continual care of your pet. These funds can be invested in a plan to ensure that the money can continue to grow and be available during the lifetime of the animal.
The second fiduciary appointed in a pet trust is a caretaker. The caretaker is an individual who will be responsible for the care of the animal during times of incapacity or once the owner has passed. Their responsibility is to look after the animal as the owner did for the animal's health, shelter, and care. Therefore you should consider only a trustworthy adult who is familiar with your animal and how you care for the pet, as well as someone who has experience in caring for pets. Although many of the caretaker's responsibility will be spelled out in the terms of the trust, it is best to discuss with the caregiver what your wishes are for the pet, as you would do with a designated Power of Attorney.
An Alternate Caregiver should be named in case something happens to your designated Caregiver. Your executor can also be provided with the power to designate a Caregiver if an opening arises. New Jersey statute provides that if no trustee is designated, or is willing or able to serve the court shall appoint a trustee in order to carry out the intent of the creator of the trust.
What if I Over-fund the Pet Trust?
The terms of the trust will dictate where the money goes upon the passing of the last pet named in the trust. Although in some states courts have overturned a pet trust because it was over funded, the terms of the trust will likely control what happens to any excess funds. In New Jersey, the statutes allow the court to reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use. The amount of any reduction shall be transferred as directed in the trust instrument or, if no such directions are contained in the trust instrument, to the estate of the creator of the trust.
Why is estate planning for pets necessary? Year after year, countless pets are left to a fate that their deceased or incapacitated owners would have never imagined, much less desired. Families with pets should get assistance from legal professionals when making formal arrangements. An attorney can assess your estate and help establish a plan which will ensure that your pet will be provided for during periods of incapacity or at death. Seek an estate planning professional who takes this issue seriously, and recognizes that the care of your pet is as important a part of your estate plan as any other issue they may consider necessary.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Reprinted with permission-Copyright © 2006 by Begley & Bookbinder, P.C., 509 South Lenola, Building 7, Moorestown, NJ 08057
2. Elder Law Committee meeting
Saturday February 10, 2007 11am-12pm
Hyatt Regency, Johnson I Room, 3rd level Miami, Florida
Program coordinators: Kenneth A. Vercammen, Esq. - co-author
"Nuts & Bolts of Elder Law", Edison, NJ
Parag Patel, Esq, Iselin, NJ Chair- Taxation Committee
American Bar Association General Practice Section
Contact American Bar Association's ITS at 800-421-0459 for free registration. If you are attending, email Kenneth Vercammen, Esq at Kenv@njlaws.com
Main Topic:
Elder Law Practice- Changes in the law and ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
Elder Law may be the biggest practice area of your career. 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and needing your help.
Other Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional Conduct
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3 Elder Law Committee – Mid Year Report AMERICAN BAR ASSOCIATION
GENERAL PRACTICE, SOLO AND SMALL FIRM DIVISION
COUNCIL AGENDA BOOK REPORT FORM
Division Name and Number: Practice Specialty Division 3
Division Director Name: Jennifer Rymell
Group Name: Family Law
Group Chair: : Richard DeMichelle
Completed By: Ken Vercammen- Co-Chair
1. Please list your entity's activities and programs since last report.
(I.e. conference calls, meetings, publications, use of list serves, etc.)
Sent 4 email newsletters, Scheduled Committee meeting at Miami Mid-Year for Saturday, February 10, Solicited, prepared and submitted articles for e-newsletter. Also, solicited articles for law trends. Correspondence between members and authors.
Previously- Held Seminar at Annual meeting in Hawaii
2. Please describe the substance of the activities set forth in number 1 above.
Set up a meeting at the Miami mid-year on elder planning. Correspondence and meeting via phone conference with meeting with Parag Patel, Chair of Taxation Committee and other GP leaders.
3. Please describe future activities.
See attached seminar at San Francisco annual. Meeting at Miami mid-year We will continue to solicit e-newsletter articles for future editions of the e-newsletter. Provide forms to members.
- Request for contribution of articles for publication in the Law Practice & Trends eNewsletter
4. Please state how your entity’s activities conform to the Goals of the Division’s Long Range Plan.
The e-newsletter provides timely and meaningful information to members relative to Elder Law
5. Are you submitting an action item to Council and if so, describe. No
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Send us your articles & ideas
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
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The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
www.njlaws.com
January, 2007 ABA ESTATE PLANNING, PROBATE & TRUST COMMITTEE Newsletter
General Practice, Solo and Small Firm Division:
Chair - Kenneth Vercammen, Edison, NJ
In this issue:
1. Elder Law Committee meeting
2. For Medicaid Applications, Having an Attorney Can Be Crucial
3. Types of Life Insurance
4 Continuing Care Retirement Communities
5 "CONFIDENTIAL WILL QUESTIONNAIRE" form
6. Happy 2007
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1. Elder Law Committee meeting
Saturday February 10, 2007 11am-12pm
Hyatt Regency, Johnson I Room, 3rd level Miami, Florida
Coordinator: Kenneth A. Vercammen, Esq. - co-author
"Nuts & Bolts of Elder Law", Edison, NJ
American Bar Association General Practice Section
Contact American Bar Association's ITS at 800-421-0459 for free registration. If you are attending, email Kenneth Vercammen, Esq at Kenv@njlaws.com
Main Topic:
Elder Law Practice- Changes in the law and ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
Elder Law may be the biggest practice area of your career. 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and needing your help.
Other Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional Conduct
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2. For Medicaid Applications, Having an Attorney Can Be Crucial
By Dana E. Bookbinder, Esquire
Given the convoluted and ambiguous set of provisions that are our federal and state Medicaid laws, it is a wonder how any lawmaker could expect individuals, especially seniors with compromised health, to apply for benefits on their own. Federal regulations require Medicaid caseworkers to be helpful to those who file for benefits, but state and federal budgetary constraints have created a reality that is much more frustrating than the printed law would suggest. Many individuals file applications unprepared for the minutiae that will delay the processing of their application for several months or cost them tens of thousands of dollars in health care expenses. Fortunately, the public is becoming increasingly aware of the difference that an attorney can make with Medicaid applications.
The most common obstacle to obtaining a timely Medicaid approval is the failure to provide the Medicaid office with complete information. The amount of paperwork required with each application is burdensome, and under new federal law, last year it became potentially more burdensome. In addition to comprehensive financial information dating back three (soon to be five) years, Medicaid applicants must submit a variety of documents such as marriage licenses, birth records, deeds, affidavits, etc. to support their applications. The documentation required varies somewhat with each case, but the paperwork is oppressive for even the most organized individual. When a senior is dealing with his spouse’s ailing health and his own limitations, the task of applying for benefits becomes overwhelming.
The most daunting obstacle to a Medicaid approval is the Deficit Reduction Act of 2005. This Act extended the three-year lookback to five, creating much more homework for anyone seeking benefits. It also changed the rules regarding transfers of assets and created partial month penalties. Whereas the old rules granted Medicaid eligibility for a certain period of whole months, the new laws grant or deny Medicaid for partial month periods. With regard to certain assets such as annuities and promissory notes which may be held by Medicaid applicants, the new law confuses most Medicaid caseworkers rather than guides them. The result is that many more Medicaid applications have to be sent up from the county level, where the applications are originally filed, to central state offices for review. In New Jersey, the Division of Medical Assistance and Health Services in Trenton has been collecting applications that include trusts, annuities, and notes for several months. This is slowing the entire process.
To those who do not practice elder law, it is always unbelievable that the counties implement certain Medicaid eligibility policies which are not necessarily written down. Other policies are handed down from the state office to the county supervisors through memos that do not reach the public until after the supervisors begin to implement them. For instance, the firm recently learned that such a memo was disseminated among the counties concerning prepaid funerals and whether the Medicaid eligibility rules permitted prepaying a funeral luncheon.
Because much of what affects those applying for Medicaid is not part of the written law, different county Medicaid offices enforce different procedures for filing applications. Certain eligibility requirements also vary from county to county. Some counties permit applications by mail, some permit non-lawyers to represent the applicant at the meeting to file the paperwork, and others are stricter, only permitting certain family members or attorneys to represent the individual applicant. Partial month penalties as required under the Deficit Reduction Act have begun to be imposed by Burlington County, for instance, yet not by the other local counties as of this writing. Counties also vary in the levels of proof they require to permit a child of a Medicaid applicant to retain his or her parent’s house in his own name with no Medicaid penalty.
Finally, another difficulty is obtaining Medicaid approval is the public benefit numbers themselves. These figures on which Medicaid eligibility hinges change each year. Certain figures are updated each January and others in July. They include income and asset caps. To many seniors’ surprise, they also include strict limitations on the amount of assets that spouses of Medicaid recipients may retain.
The Medicaid application process and eligibility laws may be designed for the public’s use, but they are complex and burdensome. They are especially daunting for the population they are designed to assist. Especially in a time when our government is tightening the budget and implementing restrictive laws such as the Deficit Reduction Act, it is crucial for families to obtain legal counsel. Failure to plan ahead can severely impact a family’s financial status, especially if there is a spouse involved who wishes to maintain his or her home.
Tom Begley Jr. and Begley & Bookbinder, P.C. is an Elder, Medicaid & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Please mention Kenneth Vercammen's office when calling to make an appointment for Medicaid representation.
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3. Types of Life Insurance
By Pavese-McCormick Insurance
Here is some information about what are known as "permanent" (or "cash-value") life insurance policies that, unlike term life, are designed to last the rest of your life:
* "Permanent" life insurance includes a buildup of value in cash in addition to your death benefit. You can borrow against your cash value. You can even take out some of that cash value, but your death benefit will be reduced. What is cash value? It's that part of a permanent life insurance policy not needed for so-called "mortality expenses." The greater your risk of dying in the near term, the greater the mortality expense to your insurer.
* Cash-value life policies have premiums that are higher at the
beginning than they would be for the same amount of term
insurance. The part of the premium not used to cover the yearly
cost for mortality and other expenses is invested by the company
and builds up a cash value that you may use in a variety of ways.
Here are some specific examples of cash-value or permanent life
insurance:
* Whole (or Ordinary) Life -- The premium and the death benefit
don't change much in whole life policies. You pay so much a month
for a given death benefit. However, dividends to policyholders
can increase the coverage or decrease the premium.
* Universal Life -- This is the flexible life insurance. You can
change your premium and your death benefit at any time, although
a substantial increase in the coverage usually requires you to
prove you are still in good health.
* Variable Life -- This is a hybrid whole/universal coverage in
which the death benefit is dependent on the investment
performance of the insurance company's assets. And you get to
choose the investment vehicle -- money market fund, bond fund or
stock fund -- for your premium. If your investments do well, your
policy's cash value and death benefit will increase. If not,
they'll go down, but most variable life policies won't let your
death benefit drop below a certain level. However, it's possible
a company will charge you for a guaranteed death benefit.
So are permanent life policies, as opposed to term life, best for
you? In general, if you have significant assets, its better (and
less risky) to have some sort of cash-value policy.
But which one?
Actually, it's more important to buy the coverage from an insurer
that has the best chance of performing well in the future; an
insurer that has low expenses and mortality costs. Such an
insurer will be able to offer better terms, including higher
death benefits, higher cash value and lower premiums.
Pavese-McCormick is one of the rare companies that doesn't just talk customer service, they set the standard for it."
Pavese-McCormick 3759 Route One South
Monmouth Junction, N.J. 08852
Phone (732) 247-9800, Ext. 2003
Fax (732) 875-1083
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4 Continuing Care Retirement Communities (CCRC’s) BEFORE WRITING THE CHECK TO THE CCRC, CHECK OUT THE LAW ON THE ENTRANCE FEE
By Dana E. Bookbinder, Esquire of Begley & Bookbinder, P.C
Continuing Care Retirement Communities (CCRC’s) are becoming increasingly popular choices for aging couples and single individuals looking for leisurely social environments that provide flexibility in care options. Often, clients call upon the firm to review such contracts and point out potentially problematic provisions. Even outside the contracts, both tax and Medicaid law present issues for individuals to consider before writing their CCRC entrance checks.
Entrance Fees and the IRS
Moving into a qualified continuing care retirement community may have unforeseen tax consequences. Typically, the qualified continuing care facility will require that an individual pay an “entrance fee” along with monthly payments. The entrance fee is frequently refundable when the individual moves out or the contract is otherwise terminated. Since the entrance fee is refundable, the IRS treats the entrance fee as a loan made from the CCRC resident to the facility. Because the CCRC resident does not receive interest on the loan (or at least not a market rate of interest), the IRS views it as a below-market rate loan and, subject to certain exemptions, will impute interest income to the individual.
In a move that may help certain prospective and current CCRC residents, Congress recently passed the Tax Increase Prevention and Reconciliation Act of 2005 (TIRPA). The law, which was signed by the President on May 17, 2006, generally favors upper-income individuals but does mitigate tax consequences regarding CCRC entrance fees. The new law, however, only applies to calendar year 2006 through 2010. Old legislation will apply to calendar years after 2010 (unless Congress acts to extend the new law).
Below-market loans after 2005 and before 2011
A loan made by an individual (or his spouse) who is age 62 or older during the calendar year to a qualified continuing care facility pursuant to continuing care contract is not subject to the below-market interest rate rules which would otherwise impute interest income to the CCRC resident.
For this purpose, a continuing care contract is generally a written agreement between the individual and a qualified continuing care facility (discussed below) under which: (1) the individual or individual’s spouse may use a qualified continuing care facility for their life or lives; (2) the individual (or spouse) will be provided housing, as appropriate for the health of such individual or individual’s spouse, (i) in an independent living unit (which has additional available facilities outside such unit for the provision of meals and other personal care) and (ii) in an assisted living facility or a nursing facility, as is available in the continuing care facility; and (3) the individual (or spouse) will be provided assisted living or nursing care as the health of such individual (or spouse) requires, and as is available in the continuing care facility.
For this purpose, a qualified continuing care facility means: (1) one or more facilities that are designed to provide services under continuing care contracts; (2) that include an independent living unit, plus an assisted living or nursing facility, or both; and (3) substantially all of the independent living unit residents of which are covered by continuing care contracts. A nursing home is not a qualified continuing care facility.
Below-market loans after 2010
A loan made by an individual (or his spouse) who is age 65 or older during the calendar year to a qualified continuing care facility pursuant to continuing care contract is not subject to the below-market interest rate rules if the aggregate amount of loans between the lender (or the lender’s spouse) and the qualified continuing care facility does not exceed a certain amount, indexed for inflation. For 2006, prior to the President enacting legislation that reduced the age of the lender from 65 to 62 and eliminating the ceiling on the amount of the loan, the maximum amount of the loan subject to exclusion was $163,300. In addition, there are certain other requirements that must be met in order for a continuing care facility to be a “qualified continuing care facility.”
Entrance Fees and Medicaid Law
February 8, 2006 President Bush signed radical changes to Medicaid eligibility rules into law, making it significantly more difficult for individuals to qualify for benefits to pay for their long term care. This legislation known as the Deficit Reduction Act of 2005 (DRA) renders CCRC entrance fees as countable assets for Medicaid eligibility purposes provided that 1) the individual may use the funds to pay for care if other assets are insufficient; 2) any or all of the fee is refundable when the individual dies or terminates the CCRC contract; and 3) the entrance fee does not confer an ownership interest in the CCRC. Under this law, the entrance fee will significantly work to delay an individual’s eligibility for Medicaid and radically limit or eliminate a Medicaid applicant’s spouse’s opportunity to retain assets other than the entrance fee.
The Deficit Reduction Act also permits CCRCs to prohibit residents from transferring assets to expedite their Medicaid eligibility and instead require them to spend the assets they listed on their admissions paperwork on care. This provision potentially precludes individuals from legal asset protection planning for public benefits.
While CCRC’s offer many advantages and comforts to its residents, the decision to move into one has many legal ramifications that should be carefully considered by families and their attorneys.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
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5 "CONFIDENTIAL WILL QUESTIONNAIRE" form
This form is used by Kenneth Vercammen's Office in non complicated Estate Planning
Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE". If "NOT APPLICABLE", please state "N/A".
PLEASE PRINT CLEARLY
1. Your Full Name:
____________________________________________________
First Last
2. IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouse's Full Name:
___________________________________________________
First Last
3. Your Street Address: ____________________________________
City ____________________ State ____ Zip Code _________
4. Telephone Numbers:
Cell: ___________________ ________________________
Day: ____________________/Night: ________________________
5. E-mail address: __________________
6. Referred By: __________ 7. Today's Date ____________
If referred by a person, is this a client or attorney? ___________________
Do you want a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan? Yes ________ No _____
Do you want a Durable Power of Attorney in the event of your physical or mental disability to help you with financial affairs? Yes ________ No ________
How can we help you? What are your questions/other important info?
___________________________________________________________
8. Your Sex: [ ] Male [ ] Female
9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed
10. Your Date of Birth: _____________ SS # _______________
Month Day Year
11. Spouse Date of Birth: _____________ SS # ______________
Month Day Year
12. If you are the parent or legal guardian of a minor child or minor children, please check here. [ ]
2. ESTATE EXECUTOR
The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to you.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative:
Name: _______________________ _______________________
First Last
Relationship: _______________ Address: ______________
2. SECOND Choice of Executor:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.
Full Name: ___________________________ _________________
First Last
Relationship: _______________ Address: ____________________
The two proposed Executors must be filled out prior to meeting the attorney.
Asset Information- Must Be Completed - If none, write “none”
House/Real Estate Address ____________________________
Estimate Total Real Estate Value: _____________ Approx mortgage ________________
Bank Accounts, Stocks, CDs and Assets: ______________________
Approximate Amount _____________________
Beneficiaries of Bank Accounts (if none write "none") ________________
Other Major Assets (if none, write "none"): ______________________
Approximate Life Insurance: _____________ Beneficiary __________
In the Will- Who do you want to get your assets:
Beneficiary (1) _______________________ Relationship _______________
Beneficiary (2) _______________________ Relationship _______________
Beneficiary (3) _______________________ Relationship _______________
[It is required by New Jersey Court Rules that assets and beneficiaries be filled out prior to seeing the attorney]
Any Specific Bequests of Money and Property:
___________________________________________________________
___________________________________________________________
[ ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
Generally most married people provide that, upon their death, property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).
Names of Children: ______________________________ Age: ______
______________________________ Age: ______
______________________________ Age: ______
LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE.
III. GUARDIAN(S) OF MINOR CHILD(REN)
[Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust]
The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):
1. PRIMARY Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: ______________________________________
2. SECOND Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: _____________________________________
Are there any beneficiaries with special needs, or receiving SSI or SDD? Please answer in detail
________________________________________
[ ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents.
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
Additional information on Wills, Probate and Elder Law available at www.njlaws.com
[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows: 1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
[ ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form. There are additional Will preparation fees if there are gifts, called specific bequests.
PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information:
___________________________________________________________
___________________________________________________________
ESTATE PLANNING
Your estate may be subject to Federal Estate Taxation if the total of your assets exceeds $1,500,000. If your assets exceed $1,500,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Tax Planning or Medicaid Planning.
WILLS:
T 1- Parents with minor children and trust for children ___________
T 2- Parents no spouse _________
T 3- Unmarried _______
T 4- Parents without trust _______
T 5- Unified Credit Trust over $1 million? ______
PAYMENT WILL BE MADE BY: (Please circle one)
Check, Credit Card (Visa, Mastercard, American Express) or Cash
Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. We charge a $100.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. This form was filled out by:
________________________
6. Happy 2007
I would like to thank my friends for another banner year in 2006. This year was our single best year for my office. So many of you were kind enough to tell others about our services. Since 1985 I have helped individuals and businesses with legal matters. With changing laws, it is important that you remind your client that estate planning documents should be updated to reflect their most valuable investments. As you know, all business must grow, and one of the safest ways to grow is to get referrals from satisfied clients.
May 2007 bring happiness and good health to you and those you love.
_____________________________
7. Send us your articles & ideas
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
General Practice, Solo and Small Firm Division:
Chair - Kenneth Vercammen, Edison, NJ
In this issue:
1. Elder Law Committee meeting
2. For Medicaid Applications, Having an Attorney Can Be Crucial
3. Types of Life Insurance
4 Continuing Care Retirement Communities
5 "CONFIDENTIAL WILL QUESTIONNAIRE" form
6. Happy 2007
_____________________________
1. Elder Law Committee meeting
Saturday February 10, 2007 11am-12pm
Hyatt Regency, Johnson I Room, 3rd level Miami, Florida
Coordinator: Kenneth A. Vercammen, Esq. - co-author
"Nuts & Bolts of Elder Law", Edison, NJ
American Bar Association General Practice Section
Contact American Bar Association's ITS at 800-421-0459 for free registration. If you are attending, email Kenneth Vercammen, Esq at Kenv@njlaws.com
Main Topic:
Elder Law Practice- Changes in the law and ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
Elder Law may be the biggest practice area of your career. 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and needing your help.
Other Topics:
New Medicaid Law 2006- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case.
Email newsletters
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Networking the Internet without backlash
-Ethics and marketing without violating the Rules of Professional Conduct
__________________________
2. For Medicaid Applications, Having an Attorney Can Be Crucial
By Dana E. Bookbinder, Esquire
Given the convoluted and ambiguous set of provisions that are our federal and state Medicaid laws, it is a wonder how any lawmaker could expect individuals, especially seniors with compromised health, to apply for benefits on their own. Federal regulations require Medicaid caseworkers to be helpful to those who file for benefits, but state and federal budgetary constraints have created a reality that is much more frustrating than the printed law would suggest. Many individuals file applications unprepared for the minutiae that will delay the processing of their application for several months or cost them tens of thousands of dollars in health care expenses. Fortunately, the public is becoming increasingly aware of the difference that an attorney can make with Medicaid applications.
The most common obstacle to obtaining a timely Medicaid approval is the failure to provide the Medicaid office with complete information. The amount of paperwork required with each application is burdensome, and under new federal law, last year it became potentially more burdensome. In addition to comprehensive financial information dating back three (soon to be five) years, Medicaid applicants must submit a variety of documents such as marriage licenses, birth records, deeds, affidavits, etc. to support their applications. The documentation required varies somewhat with each case, but the paperwork is oppressive for even the most organized individual. When a senior is dealing with his spouse’s ailing health and his own limitations, the task of applying for benefits becomes overwhelming.
The most daunting obstacle to a Medicaid approval is the Deficit Reduction Act of 2005. This Act extended the three-year lookback to five, creating much more homework for anyone seeking benefits. It also changed the rules regarding transfers of assets and created partial month penalties. Whereas the old rules granted Medicaid eligibility for a certain period of whole months, the new laws grant or deny Medicaid for partial month periods. With regard to certain assets such as annuities and promissory notes which may be held by Medicaid applicants, the new law confuses most Medicaid caseworkers rather than guides them. The result is that many more Medicaid applications have to be sent up from the county level, where the applications are originally filed, to central state offices for review. In New Jersey, the Division of Medical Assistance and Health Services in Trenton has been collecting applications that include trusts, annuities, and notes for several months. This is slowing the entire process.
To those who do not practice elder law, it is always unbelievable that the counties implement certain Medicaid eligibility policies which are not necessarily written down. Other policies are handed down from the state office to the county supervisors through memos that do not reach the public until after the supervisors begin to implement them. For instance, the firm recently learned that such a memo was disseminated among the counties concerning prepaid funerals and whether the Medicaid eligibility rules permitted prepaying a funeral luncheon.
Because much of what affects those applying for Medicaid is not part of the written law, different county Medicaid offices enforce different procedures for filing applications. Certain eligibility requirements also vary from county to county. Some counties permit applications by mail, some permit non-lawyers to represent the applicant at the meeting to file the paperwork, and others are stricter, only permitting certain family members or attorneys to represent the individual applicant. Partial month penalties as required under the Deficit Reduction Act have begun to be imposed by Burlington County, for instance, yet not by the other local counties as of this writing. Counties also vary in the levels of proof they require to permit a child of a Medicaid applicant to retain his or her parent’s house in his own name with no Medicaid penalty.
Finally, another difficulty is obtaining Medicaid approval is the public benefit numbers themselves. These figures on which Medicaid eligibility hinges change each year. Certain figures are updated each January and others in July. They include income and asset caps. To many seniors’ surprise, they also include strict limitations on the amount of assets that spouses of Medicaid recipients may retain.
The Medicaid application process and eligibility laws may be designed for the public’s use, but they are complex and burdensome. They are especially daunting for the population they are designed to assist. Especially in a time when our government is tightening the budget and implementing restrictive laws such as the Deficit Reduction Act, it is crucial for families to obtain legal counsel. Failure to plan ahead can severely impact a family’s financial status, especially if there is a spouse involved who wishes to maintain his or her home.
Tom Begley Jr. and Begley & Bookbinder, P.C. is an Elder, Medicaid & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Please mention Kenneth Vercammen's office when calling to make an appointment for Medicaid representation.
_______________________________________
3. Types of Life Insurance
By Pavese-McCormick Insurance
Here is some information about what are known as "permanent" (or "cash-value") life insurance policies that, unlike term life, are designed to last the rest of your life:
* "Permanent" life insurance includes a buildup of value in cash in addition to your death benefit. You can borrow against your cash value. You can even take out some of that cash value, but your death benefit will be reduced. What is cash value? It's that part of a permanent life insurance policy not needed for so-called "mortality expenses." The greater your risk of dying in the near term, the greater the mortality expense to your insurer.
* Cash-value life policies have premiums that are higher at the
beginning than they would be for the same amount of term
insurance. The part of the premium not used to cover the yearly
cost for mortality and other expenses is invested by the company
and builds up a cash value that you may use in a variety of ways.
Here are some specific examples of cash-value or permanent life
insurance:
* Whole (or Ordinary) Life -- The premium and the death benefit
don't change much in whole life policies. You pay so much a month
for a given death benefit. However, dividends to policyholders
can increase the coverage or decrease the premium.
* Universal Life -- This is the flexible life insurance. You can
change your premium and your death benefit at any time, although
a substantial increase in the coverage usually requires you to
prove you are still in good health.
* Variable Life -- This is a hybrid whole/universal coverage in
which the death benefit is dependent on the investment
performance of the insurance company's assets. And you get to
choose the investment vehicle -- money market fund, bond fund or
stock fund -- for your premium. If your investments do well, your
policy's cash value and death benefit will increase. If not,
they'll go down, but most variable life policies won't let your
death benefit drop below a certain level. However, it's possible
a company will charge you for a guaranteed death benefit.
So are permanent life policies, as opposed to term life, best for
you? In general, if you have significant assets, its better (and
less risky) to have some sort of cash-value policy.
But which one?
Actually, it's more important to buy the coverage from an insurer
that has the best chance of performing well in the future; an
insurer that has low expenses and mortality costs. Such an
insurer will be able to offer better terms, including higher
death benefits, higher cash value and lower premiums.
Pavese-McCormick is one of the rare companies that doesn't just talk customer service, they set the standard for it."
Pavese-McCormick 3759 Route One South
Monmouth Junction, N.J. 08852
Phone (732) 247-9800, Ext. 2003
Fax (732) 875-1083
_______________________________
4 Continuing Care Retirement Communities (CCRC’s) BEFORE WRITING THE CHECK TO THE CCRC, CHECK OUT THE LAW ON THE ENTRANCE FEE
By Dana E. Bookbinder, Esquire of Begley & Bookbinder, P.C
Continuing Care Retirement Communities (CCRC’s) are becoming increasingly popular choices for aging couples and single individuals looking for leisurely social environments that provide flexibility in care options. Often, clients call upon the firm to review such contracts and point out potentially problematic provisions. Even outside the contracts, both tax and Medicaid law present issues for individuals to consider before writing their CCRC entrance checks.
Entrance Fees and the IRS
Moving into a qualified continuing care retirement community may have unforeseen tax consequences. Typically, the qualified continuing care facility will require that an individual pay an “entrance fee” along with monthly payments. The entrance fee is frequently refundable when the individual moves out or the contract is otherwise terminated. Since the entrance fee is refundable, the IRS treats the entrance fee as a loan made from the CCRC resident to the facility. Because the CCRC resident does not receive interest on the loan (or at least not a market rate of interest), the IRS views it as a below-market rate loan and, subject to certain exemptions, will impute interest income to the individual.
In a move that may help certain prospective and current CCRC residents, Congress recently passed the Tax Increase Prevention and Reconciliation Act of 2005 (TIRPA). The law, which was signed by the President on May 17, 2006, generally favors upper-income individuals but does mitigate tax consequences regarding CCRC entrance fees. The new law, however, only applies to calendar year 2006 through 2010. Old legislation will apply to calendar years after 2010 (unless Congress acts to extend the new law).
Below-market loans after 2005 and before 2011
A loan made by an individual (or his spouse) who is age 62 or older during the calendar year to a qualified continuing care facility pursuant to continuing care contract is not subject to the below-market interest rate rules which would otherwise impute interest income to the CCRC resident.
For this purpose, a continuing care contract is generally a written agreement between the individual and a qualified continuing care facility (discussed below) under which: (1) the individual or individual’s spouse may use a qualified continuing care facility for their life or lives; (2) the individual (or spouse) will be provided housing, as appropriate for the health of such individual or individual’s spouse, (i) in an independent living unit (which has additional available facilities outside such unit for the provision of meals and other personal care) and (ii) in an assisted living facility or a nursing facility, as is available in the continuing care facility; and (3) the individual (or spouse) will be provided assisted living or nursing care as the health of such individual (or spouse) requires, and as is available in the continuing care facility.
For this purpose, a qualified continuing care facility means: (1) one or more facilities that are designed to provide services under continuing care contracts; (2) that include an independent living unit, plus an assisted living or nursing facility, or both; and (3) substantially all of the independent living unit residents of which are covered by continuing care contracts. A nursing home is not a qualified continuing care facility.
Below-market loans after 2010
A loan made by an individual (or his spouse) who is age 65 or older during the calendar year to a qualified continuing care facility pursuant to continuing care contract is not subject to the below-market interest rate rules if the aggregate amount of loans between the lender (or the lender’s spouse) and the qualified continuing care facility does not exceed a certain amount, indexed for inflation. For 2006, prior to the President enacting legislation that reduced the age of the lender from 65 to 62 and eliminating the ceiling on the amount of the loan, the maximum amount of the loan subject to exclusion was $163,300. In addition, there are certain other requirements that must be met in order for a continuing care facility to be a “qualified continuing care facility.”
Entrance Fees and Medicaid Law
February 8, 2006 President Bush signed radical changes to Medicaid eligibility rules into law, making it significantly more difficult for individuals to qualify for benefits to pay for their long term care. This legislation known as the Deficit Reduction Act of 2005 (DRA) renders CCRC entrance fees as countable assets for Medicaid eligibility purposes provided that 1) the individual may use the funds to pay for care if other assets are insufficient; 2) any or all of the fee is refundable when the individual dies or terminates the CCRC contract; and 3) the entrance fee does not confer an ownership interest in the CCRC. Under this law, the entrance fee will significantly work to delay an individual’s eligibility for Medicaid and radically limit or eliminate a Medicaid applicant’s spouse’s opportunity to retain assets other than the entrance fee.
The Deficit Reduction Act also permits CCRCs to prohibit residents from transferring assets to expedite their Medicaid eligibility and instead require them to spend the assets they listed on their admissions paperwork on care. This provision potentially precludes individuals from legal asset protection planning for public benefits.
While CCRC’s offer many advantages and comforts to its residents, the decision to move into one has many legal ramifications that should be carefully considered by families and their attorneys.
Begley & Bookbinder, P.C. is an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.
___________________________
5 "CONFIDENTIAL WILL QUESTIONNAIRE" form
This form is used by Kenneth Vercammen's Office in non complicated Estate Planning
Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to sitting down with the attorney.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE". If "NOT APPLICABLE", please state "N/A".
PLEASE PRINT CLEARLY
1. Your Full Name:
____________________________________________________
First Last
2. IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouse's Full Name:
___________________________________________________
First Last
3. Your Street Address: ____________________________________
City ____________________ State ____ Zip Code _________
4. Telephone Numbers:
Cell: ___________________ ________________________
Day: ____________________/Night: ________________________
5. E-mail address: __________________
6. Referred By: __________ 7. Today's Date ____________
If referred by a person, is this a client or attorney? ___________________
Do you want a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan? Yes ________ No _____
Do you want a Durable Power of Attorney in the event of your physical or mental disability to help you with financial affairs? Yes ________ No ________
How can we help you? What are your questions/other important info?
___________________________________________________________
8. Your Sex: [ ] Male [ ] Female
9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed
10. Your Date of Birth: _____________ SS # _______________
Month Day Year
11. Spouse Date of Birth: _____________ SS # ______________
Month Day Year
12. If you are the parent or legal guardian of a minor child or minor children, please check here. [ ]
2. ESTATE EXECUTOR
The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to you.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative:
Name: _______________________ _______________________
First Last
Relationship: _______________ Address: ______________
2. SECOND Choice of Executor:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.
Full Name: ___________________________ _________________
First Last
Relationship: _______________ Address: ____________________
The two proposed Executors must be filled out prior to meeting the attorney.
Asset Information- Must Be Completed - If none, write “none”
House/Real Estate Address ____________________________
Estimate Total Real Estate Value: _____________ Approx mortgage ________________
Bank Accounts, Stocks, CDs and Assets: ______________________
Approximate Amount _____________________
Beneficiaries of Bank Accounts (if none write "none") ________________
Other Major Assets (if none, write "none"): ______________________
Approximate Life Insurance: _____________ Beneficiary __________
In the Will- Who do you want to get your assets:
Beneficiary (1) _______________________ Relationship _______________
Beneficiary (2) _______________________ Relationship _______________
Beneficiary (3) _______________________ Relationship _______________
[It is required by New Jersey Court Rules that assets and beneficiaries be filled out prior to seeing the attorney]
Any Specific Bequests of Money and Property:
___________________________________________________________
___________________________________________________________
[ ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
Generally most married people provide that, upon their death, property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).
Names of Children: ______________________________ Age: ______
______________________________ Age: ______
______________________________ Age: ______
LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE.
III. GUARDIAN(S) OF MINOR CHILD(REN)
[Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust]
The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):
1. PRIMARY Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: ______________________________________
2. SECOND Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: _____________________________________
Are there any beneficiaries with special needs, or receiving SSI or SDD? Please answer in detail
________________________________________
[ ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents.
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
Additional information on Wills, Probate and Elder Law available at www.njlaws.com
[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows: 1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
[ ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form. There are additional Will preparation fees if there are gifts, called specific bequests.
PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information:
___________________________________________________________
___________________________________________________________
ESTATE PLANNING
Your estate may be subject to Federal Estate Taxation if the total of your assets exceeds $1,500,000. If your assets exceed $1,500,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Tax Planning or Medicaid Planning.
WILLS:
T 1- Parents with minor children and trust for children ___________
T 2- Parents no spouse _________
T 3- Unmarried _______
T 4- Parents without trust _______
T 5- Unified Credit Trust over $1 million? ______
PAYMENT WILL BE MADE BY: (Please circle one)
Check, Credit Card (Visa, Mastercard, American Express) or Cash
Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. We charge a $100.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. This form was filled out by:
________________________
6. Happy 2007
I would like to thank my friends for another banner year in 2006. This year was our single best year for my office. So many of you were kind enough to tell others about our services. Since 1985 I have helped individuals and businesses with legal matters. With changing laws, it is important that you remind your client that estate planning documents should be updated to reflect their most valuable investments. As you know, all business must grow, and one of the safest ways to grow is to get referrals from satisfied clients.
May 2007 bring happiness and good health to you and those you love.
_____________________________
7. Send us your articles & ideas
General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE
Who We Are
This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.
________________________________________
The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Would We Really Downsize?
I understand this is something people disagree about but increasingly the exploitation of athletes by colleges is unacceptable to many. Football is the worst. In basketball and baseball, the athletes can, if qualified, sell their labor to the higher bidder. In football because of the wink and a nod relationship between the NCAA, the NFL and the NFLPA football players are at the mercy of colleges. These colleges pay their coaches millions while the labor they use to generate those salaries do not actually receive scholarships that pay the full cost of their time in school. I love college football but am uncomfortable with my complicity, as a fan, in the cycle.
It’s a stretch but I see similarities to some law students and their future clients. What is the connection? It has been reported that many law schools have experienced decreased enrollments. In the case of Florida I think it is over 9%. (I use Florida only as an example here because the data indicate there are many similarly situated law schools.) Yet this year Florida admitted 450 students which was close to a record. What worries me is the possibility that even huge declines in application wou have little or no impact on admissions because of the funding each student represents
The problem is that we treat as fixed by the number the seats and size of the faculty. This seems backwards. Shouldn't the number admitted be a function of the number of qualified applicants and their willingness to pay back, in terms of public service or some positive externality, the huge investment taxpayers are required to make? Instead, law schools need to fill seats (in our case to justify a $20 million classroom building that is empty much of Thursday and Friday) to generate funding. Maintaining enrollments becomes the end and students, like the players, become the means.
Many college football players do not graduate and some leave the game battered. In law school it is a bit different. The grading curves most law schools have and the reluctance of faculty to be candid mean that, unlike 25 years ago, nearly all graduate. (In fact, at my school the concept of “academic probation” is practically obsolete.) In both cases, after being used to generate funding for the three years the students are sent off. I do not know what becomes of the football players after two or three years of college. I do know what becomes of the law students and luckily their plight is usually a better one. Most become attorneys, a large percentage (20% in our case) after initially failing the bar exam. Some, even if they earn a living, though, become attorneys to whom their professors, if they are candid, would not refer a member of his or her family or a distant friend. In the interest of maintaining enrollments and funding, however, they do refer the rest of the world to these very same attorneys. Both students and future clients become means to the end of maintaining the status quo.
In response to an earlier draft of this post, Anthony Ciolli suggested reading “In his own defense Series: THE $40 LAWYER.” It’s a terrific piece of journalism.
It’s a stretch but I see similarities to some law students and their future clients. What is the connection? It has been reported that many law schools have experienced decreased enrollments. In the case of Florida I think it is over 9%. (I use Florida only as an example here because the data indicate there are many similarly situated law schools.) Yet this year Florida admitted 450 students which was close to a record. What worries me is the possibility that even huge declines in application wou have little or no impact on admissions because of the funding each student representsThe problem is that we treat as fixed by the number the seats and size of the faculty. This seems backwards. Shouldn't the number admitted be a function of the number of qualified applicants and their willingness to pay back, in terms of public service or some positive externality, the huge investment taxpayers are required to make? Instead, law schools need to fill seats (in our case to justify a $20 million classroom building that is empty much of Thursday and Friday) to generate funding. Maintaining enrollments becomes the end and students, like the players, become the means.
Many college football players do not graduate and some leave the game battered. In law school it is a bit different. The grading curves most law schools have and the reluctance of faculty to be candid mean that, unlike 25 years ago, nearly all graduate. (In fact, at my school the concept of “academic probation” is practically obsolete.) In both cases, after being used to generate funding for the three years the students are sent off. I do not know what becomes of the football players after two or three years of college. I do know what becomes of the law students and luckily their plight is usually a better one. Most become attorneys, a large percentage (20% in our case) after initially failing the bar exam. Some, even if they earn a living, though, become attorneys to whom their professors, if they are candid, would not refer a member of his or her family or a distant friend. In the interest of maintaining enrollments and funding, however, they do refer the rest of the world to these very same attorneys. Both students and future clients become means to the end of maintaining the status quo.
In response to an earlier draft of this post, Anthony Ciolli suggested reading “In his own defense Series: THE $40 LAWYER.” It’s a terrific piece of journalism.
Accepted, the first MoneyLaw cult classic movie?
I just finished watching Accepted, a movie about Bartleby Gaines, a high school senior who gets rejected from every university to which he applies. Bartleby decides to create a fake university to appease his disappointed parents. (That's not the MoneyLaw part of it.)Instead of creating a typical university (a typical fake university?), Bartleby creates a place where the students design their own curricula based on their interests. He calls the university the South Harmon Institute of Technology, in part to distinguish it from (the accredited) Harmon University. Bartleby uses an abandoned mental hospital as the site, borrows his best friend's uncle (a disgruntled former academic, played by Lewis Black) to play South Harmon's dean (OK, it's not that accurate--no mention of presidents), and engages his friends in various administrative tasks.
Harmon University is headed by Dean Van Horne. (In a nice twist, Anthony Heald, the shrink in The Silence of the Lambs, plays Van Horne.) Van Horne explains the ratings game:
Dean Van Horne: Rejection.Van Horne wants to buy property near Harmon in order to put up a grand entrance, which he wants to name after himself. Of course, South Harmon is on one of those properties. We know that Bartleby is going to get caught, that he's going to have to find a way to avoid prison, and that eventually things will turn out fine.
That's what makes a college great. The exclusivity of any university is
judged primarily by the amount of students it rejects.
The MoneyLaw part of the movie involves, among other things, the scene with Ohio's accreditation board. Bartleby contrasts the learning that goes on at Harmon (with its 100 years of tradition and boring classes) with the learning that goes on at South Harmon (with its student-directed initiatives).
This isn't a perfect movie (unlike Dodgeball, Galaxy Quest, and Office Space). I don't believe that students know best about what they should study. I do, however, believe that students should see that learning is exciting and self-driven. Overall, a nice flick to associate with MoneyLaw.
For you movie lovers, Accepted stars Justin Long, of Dodgeball: A True Underdog Story ("If you can dodge a wrench, you can dodge a ball") and Galaxy Quest ("Never give up, never surrender") fame. And, in case anyone's keeping track, Justin Long has a Bacon Number of 3: from Vince Vaughn in Dodgeball to Vincent D'Onofrio in The Break-Up to Kevin Bacon in JFK. You can't get much more MoneyLaw than that.
Ranking Secondary Law Journals
I have a brief paper up on ssrn that relies on John Doyle's outstanding law review citation database to rank secondary law journals: "Law [Review]'s Empire: The Assessment of Law Reviews and Trends in Legal Scholarship." It follows up on "The Relationship Between Law Review Citations and Law School Rankings" and is part of an issue of the Connecticut Law Review, which features Ronen Perry's important work. I suspect the paper's primary utility comes in ranking the top 100 secondary journals, though I'm again in interested in what having well-cited secondary journals says about a school.
Of the top 100 student-edited secondary journals, 58 are produced by students at just 15 schools. You might find this list interesting.
Of the top 100 student-edited secondary journals, 58 are produced by students at just 15 schools. You might find this list interesting.
| Law School | Number of Secondary Journals In Top 100 |
| Harvard | 8 |
| Columbia | 6 |
| Georgetown | 5 |
| California | 4 |
| Yale | 4 |
| UVA | 4 |
| Boston College | 3 |
| Fordham | 3 |
| Hastings | 3 |
| Michigan | 3 |
| Pennsylvania | 3 |
| American | 3 |
| NYU | 3 |
| Texas | 3 |
| William and Mary | 3 |
Incorporation Service Pursued by State Bar
The State Bar of Michigan has successfully obtained a permanent injunction from the Kent County Circuit Court against the "We the People USA, Inc.," and its franchises in the state from engaging in the unauthorized practice of law.State Bar of Michigan Press Release 1/27/2007
The consent judgment was a result of action taken in response to a complaint received by the State Bar of Michigan that "We the People of West Michigan LLC," drafted a special needs trust for an individual and that the trust did not meet statutory requirements. Had the elderly individual funded the trust, she would have suffered serious financial harm. The defendants were ordered to pay the State Bar $150 in costs and to reimburse the victim $356.
"The State Bar is committed to protecting Michigan residents from entities and individuals not licensed to provide legal services or advice," said SBM President, Kimberly M. Cahill. She added that the Bar usually receives 100-150 complaints each year about persons or organizations that are practicing law or giving legal advice without a license. Most of these complaints are usually resolved through correspondence with the offender. In rare cases, litigation becomes necessary.
Two princes tackle PrivilegeLaw
Jeff Harrison has called my attention to PrivilegeLaw, a bastion of the complacent elite in legal education. This classic Spin Doctors song says everything I want to say to Chadsworth Osborne Junior III:
FAQ: California Corporate Seal
In this post, I will address the first of many frequently asked questions (FAQs) I receive from client and potential clients regarding California business law:
Do I need a corporate seal for my California corporation or LLC? Where do I get one?
Historically, a company's official seal was applied to documents to indicate that the contract was a corporate act. Wax and a stamp was used. In modern times, the wax was replaced by a stamp that made only an impression on the paper.
California Civil Code Section 1628 states:
Thus, while a corporate seal may be applied to a document, its legal signifigance is zilch. If your company still desires to have one, or in the rare circumstance that a third party will not complete a transaction without one (occasionally encountered in lending situations), custom seals can be purchased at most office supply stores and from many online outlets. For our clients that prefer to have one, we can also arrange to have one made as part of a corporate kit at the time of incorporation or LLC formation.
Do I need a corporate seal for my California corporation or LLC? Where do I get one?
Historically, a company's official seal was applied to documents to indicate that the contract was a corporate act. Wax and a stamp was used. In modern times, the wax was replaced by a stamp that made only an impression on the paper.
California Civil Code Section 1628 states:
"A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written."The term "may" in the statute indicates that the use of a seal is permissive, rather than mandatory. Lest anyone interpret this code section to mean only that a modern seal must be used, instead of an old-world wax seal, Section 1629 makes it clear:
"All distinctions between sealed and unsealed instruments are abolished."This is consistent with the laws of most if not all U.S. states which have abolished the use of seals as a requirement for corporate contracts.
Thus, while a corporate seal may be applied to a document, its legal signifigance is zilch. If your company still desires to have one, or in the rare circumstance that a third party will not complete a transaction without one (occasionally encountered in lending situations), custom seals can be purchased at most office supply stores and from many online outlets. For our clients that prefer to have one, we can also arrange to have one made as part of a corporate kit at the time of incorporation or LLC formation.
Stroke Play
In a prior post I suggested that the quest to determine what makes for a MoneyLaw law school was, using a tennis analogy, too focused on the final score and not enough on hitting each stroke perfectly. If the strokes are right the score will follow. If they are not, there is not much you can do.Strokes in the case of a law schools means what happens on day to day basis within the life of the school. So here are some different strokes that I think make for a Moneylaw school. Please answer with respect to your school with the number of the correct answer and add them up. Higher numbers are better. (I know there are other questions but let’s start here.) Please fill in the poll with your school’s score at the bottom.
1. What percentage of the faculty are in their offices at 10:00 AM Monday morning?
5. 80% or higher
4. 60% to 80%
3. 40 % to 60%
2. 20% to 40%
1. under 20%
(Higher is better if only because presence has an impact on norms and makes a law school feel more alive.)
2. What percentage of the faculty are in their offices at 10:00 AM Friday morning.
5. 80% or higher
4- 60% to 80%
3- 40 % to 60%
2- 20% to 40%
1– under 20%
(Higher is better for the same reasons in number 1. In addition, it is indicative of faculty who really enjoy their work and their work environment.)
3. What is the difference between the answers in 1 and 2?
5- 0%
4 – 20% - 40%
3 – 40% - 60 %
2 - 60-80 %
1 – over 80%
-(Lower is better)
4. How many hours per week does the average faculty member spend on scholarship independent of class preparation?
5. 40 hours or more
4. 30- 40 hours
3. 20 -30 hours
2. 10 – 20 hours
1. Under 10 hours
( Higher is better)
5. When there is a guest speaker, what is the percentage attendance?
5. 80% or more
4. 60 -80%
3. 40- 60%
2. 20 -40 %
1. Under 20%
(Higher is better)
6. Are guest speakers told that they may send a paper in advance but they should not assume it has been read.
5. Never
4. Rarely
3. About half the time
2. Most of the time
1. Always
-(The answer to this should be never.)
7. What percentage of the faculty regularly ask more that 2 or 3 others to read drafts of articles.
5. Most.
4. About 75%.
3. About half.
2. It’s rare.
1. Never
-(Higher is better because it indicates comfort with asking more than close friends)
8. What is the average time between when the request is made and the comments are returned?
5. A week or less.
4. 10 days
3. Two weeks
2. Three weeks
1. A month
(Lower is better. Not doing it for a month is like not doing it at all.)
9. Is your dean or associate dean interested in “ideas” and actively involved in discussions about scholarship?
5. Attends most talks and faculty presentations and asks questions
4. Attends some talks and faculty presentations and asks questions
3. Attends some talks and faculty presentations but rarely says anything.
2. Rarely involved
1. Invisible
(Deans lead in a variety of ways when they choose to and this is one way that counts especially at mid or lower level schools.)
10. What percentage of your faculty attend meetings and conventions at which they are not delivering a paper.
5. Very few
4. About 75%
3. About 50%
2. About 25%
1. Under 25%
(Lower is better. Its fine not to present a paper but if very few ever do, it’s hard to believe they are all there for the right reasons.)
11. Are there some topics that people are afraid to raise in faculty discussions?
5. Talk about controversial issues is valued.
4. No, as long as one is reasonable
3. You can talk about these issues in small groups
2. It can be a minefield
1. Talk about these issues has been effectively silenced.
(No is the better answer here. If your faculty can talk openly about race, gender, and class issues calmly you are in a special place in terms of faculty trust.)
12. How many hours per week, on average, are faculty available to students.
5. 30 hours or more
4. 20 -30 hours
3. 10- 20 hours
4. 5-10 hours
5. Rarely
(This is an average. Not all teacher have the same demands for their time.)
13. How often to you perceive that other faculty ask the administration for special treatment – reduced teaching; special teaching schedules, i.e. two days a week; extra travel money – that may make them fall into the category of “high maintenance.”
5. There are strong norms against this behavior.
4. Once in a while
3. There are a handful of repeaters
2. Several do this on a regular basis
1. It’s a free for all.
(A few high maintenance people can lower the quality of life for everyone.)
14. How often to faculty ask secretaries and librarians to do things that seem like they should be part of the professor’s job.
5. There are strong norms against this.
4. On occasion.
3. There are a handful of faculty who do this.
2. Several do this on a regular basis
1. Staff people do everything short of grading papers,
(Highly subjective but lower is better.)
15. If a legitimate request for materials is make the library or to someone in charge of internet data bases, how fast is the response?
5. No more than a day.
4 No more that 3 days
3. A week on average
2. More than a week.
1. What response.
(Lower is better.)
Ok, there are 75 total point possible. Rank your perception of your school and fill out the following poll.
Satisfaction
Nancy Rapoport reports this item from The Chronicle of Higher Education:
And be sure to play this item's soundtrack as you read the article:
And be sure to play this item's soundtrack as you read the article:
Random responses: A MoneyLaw triptych
Herewith three short items in response to recent posts and comments by others on MoneyLaw:
- Hey, Jeff. I like you, too. And it isn't just because I agree with you or because your writing entertains me. But the answer is simple: No, I'm not done being dean yet. Not even close. I like this job. At my previous job, it took me nearly a dozen years -- between July 4, 1993, and December 17, 2004, if you want precise temporal coordinates -- to realize how intensely I hated the Mets. My first half dozen days in the new office have restored my faith in baseball. As a dear friend who now lives in San Diego would agree, life sure is nice when you don't have to watch the Twins in the Metrodome.
Here's something else I've learned, Jeff. You're right. More than any of the quantitative gauges we've discussed here at MoneyLaw, "the measure of a good law school is what takes place on a day to day basis." I still believe in my bibliometric manifesto, of course. But consider this, dear readers. Where would you rather work?- A law school whose "numbers" are stellar but where rule by Arschloch prevails because the faculty has abjured the first rule of academic governance, that virtue must be rewarded at least as much as vice?
- Or a law school with putatively inferior numbers whose dean and faculty treat each other with mutual respect in pursuit of a simple goal: to seek justice, to love mercy, and to walk humbly with the law?
I'd like to think that this is an easy question. Perhaps our readers disagree. Make my day: let 'er rip in the comments. - Hey again, Jeff. I've got another answer for you. You ask how we should evaluate noninstructional law school programs. Notwithstanding my embrace of intangible measures of quality, I'll propose a simple mathematical test: At your law school center, what is the ratio of pages published to dollars spent? Fiscal responsibility might counsel flipping the numerator and the denominator in that ratio, but the list would then be studded by mathematically indefinite results. Division by zero, in case you hadn't noticed, makes everyone's spreadsheet run over.
- Finally, a word or two for Red Lion, the commenter who is disturbed by the musical presence of Hilary Duff. Ease up, dude. I'm neither an artist nor a madman, and certainly not a creature of infinite melancholy who patrols the boundaries -- the mirrory beaches and rosy rocks -- of the enchanted island called academia. But I understand your musical pain. Out of boredom I watched a video of Hilary and Haylie Duff covering a Belinda Carlisle tune. Don't ask which one; my lips are sealed. For my perfidy, I paid a steep tax in brain cells. You're right, Red Lion. It served me right.
As recompense, I offer something more musically and lyrically sophisticated. Here are The Shins, performing "Gone for Good," on Chutes Too Narrow (2003):You want to jump and dance
But you sat on your hands
And lost your only chance
Go back to your hometown
Get your feet on the ground
And stop floating around
I find a fatal flaw
In the logic of [law]
And go out of my head
Is He Done Being Dean Yet?
I miss Jim and not just because I agree with him most of the time. Even when I don't, I enjoy his writing. Do you think he has decided the deaning thing is not for him yet? I mean it has been several days already.I especially looked forward to Jim’s statement on what a Moneylaw school looks like and how a school gets there. I am not sure on either of these. In fact, I am not even sure what it means in baseball. It’s one thing to say a baseball team wants to win the World Series at the lowest cost. But the owners might just want to maximize profit or win as many games as possible working within a predetermined budget. All those possibilities exist in a context in which success is supposed to be quantifiable. This seems simple when compared to law schools.
In several months of Moneylaw, contributors and commentators have come up with a list of measures which, at least on their own, are not indicative of success:
1. USNWR ratings.
2. SSRN uploads or downloads.
3. Bar passage rate.
4. Bar passage rate as a function of entering glass GPA and LSAT score.
5. Scholarship citation and impact measures.
Presumably, even if there were a way to combine these, much would still be left out. Most obvious is cost. All of these measures, like a building a better (if not best) baseball team, can be influenced by “player” acquisitions. Somewhere in the analysis credit should be given to schools that do a great job with limited budgets. Another thing that is missing is the impact of graduates on the well-being of others. In the case of state schools, the whole idea is that subsidization leads to a “public good.” We are unlikely to come up with any measure of the raison d'etre for public law schools.
Could we be going about this all wrong? The measure of a good law school may not be susceptable to an end product approach at all. Maybe the measure of a good law school is what takes place on a day to day basis. For example, are most faculty around most of the time? Do most read papers beforehand when there is a guest speaker? Are most available to students at least several hours a week? Are they willing to read drafts of colleagues an comment promptly? Are untenured faculty comfortable asking senior people to read drafts? The list of the day to day activities is, of course, much longer. But my sense is that the focus has been too much on the "score" and not enough on hitting each stroke perfectly.
Come Clean (Let the Rain Fall Down)
It's been a while since I've been able to post regularly. And the posting hiatus may continue for some time yet. But here's a Hilary Duff video to keep you entertained. Yes, Hilary Duff. Why? Partly because I can, and partly because, oddly enough, the song seems appropriate for the beginning of a new job.
As Hilary says, sometimes you just want to feel the thunder, and sometimes you just need to scream.
As Hilary says, sometimes you just want to feel the thunder, and sometimes you just need to scream.
Prediction Markets for Faculty Decision-Making?
What with posts here about faculty dynamics and "echo-chamber" scholarship (I'm too much of a namby-pamby wimp to offer a view on these subjects; I just lurk), I offer a Cass Sunstein article, recently posted on SSRN, on how the lessons from prediction markets may help in overcoming the failings of group deliberation, as to which I offer a critique over at Legal Profession Blog.
The mind boggles at the possibilities. . . .
Echo-Chamber Scholarship
A recent post on StephenBainbridge.com, entitled "Does What 'Elite Professors' Think Matter?," begins with the premise that: "University faculties tend to be highly self-selected and appointments tend to be dominated by network effects that produce a remarkable homogeneity of belief .... Outside their areas of expertise (and sometimes even inside it), their beliefs tend to be colored by their ideology and by the need to conform to the expectations of their colleagues." The post then goes on to endorse an assertion that, as a result, legal scholarship tends to be disproportionately liberal.
The premise is sound; the conclusion is not.
I've run into this problem twice recently in my own scholarship. Over the past two decades, a group of about a dozen very smart, very productive "elite professors" has engaged in a debate about the relative merits of income vs. consumption taxes. A recent article by a member of this group -- a scholar whose work I regard very highly -- begins: "Recently, a consensus seems to have emerged in favor of a consumption, or cash flow, tax."
A consensus? Really? Among whom? Members of Congress? The electorate? Members of the tax academy? No, to all of the above. The author in question was referring rather to an emerging consensus within the small group reading each other's articles on the issue. That "consensus," in turn, strongly influenced the recent recommendations of President Bush's Tax Reform Panel. Those recommendations, unfortunately, turned out to be completely out of sync with the electorate's views and were pronounced DOA.
In tax, the problem goes even deeper. For the past half century, opinion-shapers in the tax academy have viewed "ability to pay" as irrelevant to tax policy analysis. Congress, by contrast, views it as the starting place for almost all such analysis. See my grumpings on this issue at Seto & Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053 (2006). In consequence, a colorable argument can be made that elite tax scholarship has actually contributed to the mess that is now the Internal Revenue Code.
My point here is not that they're wrong and I'm right. My point is rather that echo-chamber scholarship does not necessarily lead to liberal conclusions, even if all or most of the participants are liberal. An income tax based on ability to pay is probably as liberal a tax policy conclusion as one might imagine. Both the income tax and ability to pay, however, are currently out of favor among the tax-scholarly in-crowd, almost all of whom are Democratic liberals in their civilian lives.
A similar effect can be observed in a very different context: theories of constitutional interpretation. In his recent extremely helpful posting on Originalism, Larry Solum writes: "These days one is more likely to hear pronouncements that 'we are all originalists, now.'" With respect, Larry, really? Among whom? Judges? Constitutional law professors? Or just constitutional law professors who write to each other about originalism? Again, I find myself wondering how to break into this particular echo chamber, see Seto, Originalism vs. Precedent: An Evolutionary Perspective, 38 Loyola L.A. L. Rev. 2001 (2005). Thus far, no success.
My point again is not that originalism is wrong or, indeed, that I have anything interesting to say about it. But clearly, originalism is not typically associated with liberal modes of thought. The conclusion that echo-chamber effects in a legal academy dominated by Democrats inevitably lead to a liberal conventional wisdom is simply not supported by the facts.
The premise is sound; the conclusion is not.
I've run into this problem twice recently in my own scholarship. Over the past two decades, a group of about a dozen very smart, very productive "elite professors" has engaged in a debate about the relative merits of income vs. consumption taxes. A recent article by a member of this group -- a scholar whose work I regard very highly -- begins: "Recently, a consensus seems to have emerged in favor of a consumption, or cash flow, tax."
A consensus? Really? Among whom? Members of Congress? The electorate? Members of the tax academy? No, to all of the above. The author in question was referring rather to an emerging consensus within the small group reading each other's articles on the issue. That "consensus," in turn, strongly influenced the recent recommendations of President Bush's Tax Reform Panel. Those recommendations, unfortunately, turned out to be completely out of sync with the electorate's views and were pronounced DOA.
In tax, the problem goes even deeper. For the past half century, opinion-shapers in the tax academy have viewed "ability to pay" as irrelevant to tax policy analysis. Congress, by contrast, views it as the starting place for almost all such analysis. See my grumpings on this issue at Seto & Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053 (2006). In consequence, a colorable argument can be made that elite tax scholarship has actually contributed to the mess that is now the Internal Revenue Code.
My point here is not that they're wrong and I'm right. My point is rather that echo-chamber scholarship does not necessarily lead to liberal conclusions, even if all or most of the participants are liberal. An income tax based on ability to pay is probably as liberal a tax policy conclusion as one might imagine. Both the income tax and ability to pay, however, are currently out of favor among the tax-scholarly in-crowd, almost all of whom are Democratic liberals in their civilian lives.
A similar effect can be observed in a very different context: theories of constitutional interpretation. In his recent extremely helpful posting on Originalism, Larry Solum writes: "These days one is more likely to hear pronouncements that 'we are all originalists, now.'" With respect, Larry, really? Among whom? Judges? Constitutional law professors? Or just constitutional law professors who write to each other about originalism? Again, I find myself wondering how to break into this particular echo chamber, see Seto, Originalism vs. Precedent: An Evolutionary Perspective, 38 Loyola L.A. L. Rev. 2001 (2005). Thus far, no success.
My point again is not that originalism is wrong or, indeed, that I have anything interesting to say about it. But clearly, originalism is not typically associated with liberal modes of thought. The conclusion that echo-chamber effects in a legal academy dominated by Democrats inevitably lead to a liberal conventional wisdom is simply not supported by the facts.
The New NJ Probate Law makes a number of substantial changes in Probate and the administration of estates and trusts in New Jersey. Update your Will now.
The law now includes situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. The law provides that divorce or annulment of a marriage, under certain circumstances, would revoke not only provisions of the former spouse's Will, but also non-probate transfers occurring by reason of the decedent's death to the former spouse. The law expands the provisions requiring survival of a beneficiary by 120 hours to succeed to an interest of a decedent in non-probate transfers.
The law also makes substantial revisions to the laws governing intestate succession. For example, the law provides that the intestate share of a surviving spouse would be 100 percent of the intestate estate where all of the surviving descendants of the decedent are also the descendants of the surviving spouse and the surviving spouse has no other descendants. Further, the surviving spouse is now entitled to a larger share of the estate in the event that either a parent of the decedent survives a decedent who has no descendants, or there are descendants of the surviving spouse who are not descendants of the decedent. Finally, stepchildren of a decedent would be added as a final class of takers.
The law consolidates the law concerning disclaimers of probate and non-probate property. The law clarifies that a fiduciary may, with court approval, disclaim any power or discretion held by such fiduciary, and may disclaim without court approval if the governing instrument so permits.
Finally, the law expands the rules of construction formerly applicable only to wills to other donative transfers. The law provides a statute of limitations with respect to creditor claims against a decedent's estate.
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
kenvnjlaws@comcast.net
The law now includes situations where writings that are intended as Wills would be allowed, but requires that the burden of proof on the proponent would be by clear and convincing evidence. The law provides that divorce or annulment of a marriage, under certain circumstances, would revoke not only provisions of the former spouse's Will, but also non-probate transfers occurring by reason of the decedent's death to the former spouse. The law expands the provisions requiring survival of a beneficiary by 120 hours to succeed to an interest of a decedent in non-probate transfers.
The law also makes substantial revisions to the laws governing intestate succession. For example, the law provides that the intestate share of a surviving spouse would be 100 percent of the intestate estate where all of the surviving descendants of the decedent are also the descendants of the surviving spouse and the surviving spouse has no other descendants. Further, the surviving spouse is now entitled to a larger share of the estate in the event that either a parent of the decedent survives a decedent who has no descendants, or there are descendants of the surviving spouse who are not descendants of the decedent. Finally, stepchildren of a decedent would be added as a final class of takers.
The law consolidates the law concerning disclaimers of probate and non-probate property. The law clarifies that a fiduciary may, with court approval, disclaim any power or discretion held by such fiduciary, and may disclaim without court approval if the governing instrument so permits.
Finally, the law expands the rules of construction formerly applicable only to wills to other donative transfers. The law provides a statute of limitations with respect to creditor claims against a decedent's estate.
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
kenvnjlaws@comcast.net
Governance discussion at my blogspot--and yet another interesting blog....
Tony D'Amato and I have been debating the role of university presidents here and here. (You should check out the comments after both posts, too.) If you'd like to join in, why don't we see if we can expand the discussion a bit, perhaps here at MoneyLaw. (This discussion sure is helping me with my outline for Managing By Ambush.)
And my dad pointed out some interesting stuff at StephenBainbridge.com, including this post on Does What "Elite Professors" Think Matter?
Bainbridge's blog also pointed me to some classic other posts, including Daniel Solove's A Guide to Grading Exams, and Law Dean Bobbleheads (I obviously left "the deaning biz" way too soon--I wonder if mine would have been the same size as David Logan's, or if mine would have been proportionally shorter; and don't get me started on what my accessories would have been for the bobblehead....).
And my dad pointed out some interesting stuff at StephenBainbridge.com, including this post on Does What "Elite Professors" Think Matter?
Bainbridge's blog also pointed me to some classic other posts, including Daniel Solove's A Guide to Grading Exams, and Law Dean Bobbleheads (I obviously left "the deaning biz" way too soon--I wonder if mine would have been the same size as David Logan's, or if mine would have been proportionally shorter; and don't get me started on what my accessories would have been for the bobblehead....).
Law Prof Diversity, Hiring, and Tenure
Do women or non-Caucasian minorities have trouble winning tenure at U.S. law schools? Prof. Harrison worries that class biases might make the tenure review process especially difficult for such professors. As he observes, we for present lack very solid data on that front. But we have got pretty good data about how well women and non-Caucasian minorities do at winning academic jobs at law schools—a necessary prerequisite to winning tenure. That data suggests that, at least in terms of hiring, women and minorities enjoy significant advantages.
For the last fourteen hiring seasons, the American Association of Law Schools (AALS) has collected data about how well the candidates listed in its Faculty Appointments Register did at finding academic jobs with law schools. (Presumably, those candidates got hired, if they did, after being interviewed at the AALS's annual Faculty Recruitment Conference, colloquially known as the "Meat Market.") The AALS has published that data in table form in its Statistical Report on Law School Faculty and Candidates for Law Faculty Positions (2005-06). I here recreate select portions of that data graphically, so as to better illustrate the relative success of women and non-Caucasian minorities.
This chart, using data from Table 13B of the Statistical Report, shows how well women have fared relative to men at landing jobs via the AALS faculty recruitment process:
This chart, using data from Table 13C, shows how well minorities have fared relative to non-minorities:
For a summary of how various types of candidates have done, on average, over the last 14 hiring seasons, consider this data, from Table 13E of the Statistical Report:
I could say a lot more about this data, adding caveats and analyses. I've written about the topic several times before, though, and don't want to tax anyone's patience by repeating myself. For some more recent blogging about the American Bar Association's causal role in these observed hiring trends, see Gail Harriot's recent series of posts.
I'll just say this, for now: Having gone through the meat market process three times, and having served for many years on my school's Appointments Committee, I find the relative success of males and non-minorities in the mid-to-late-90s the only surprising thing in the above data. Perhaps we can explain that divergence from the normal hiring pattern as an effect of the relatively tight job market in that era. Note, after all, that the percentage of all candidates hired, regardless of their sex, race, or ethnicity, hit all time lows around that time.
[Crossposted to Agoraphilia.]
For the last fourteen hiring seasons, the American Association of Law Schools (AALS) has collected data about how well the candidates listed in its Faculty Appointments Register did at finding academic jobs with law schools. (Presumably, those candidates got hired, if they did, after being interviewed at the AALS's annual Faculty Recruitment Conference, colloquially known as the "Meat Market.") The AALS has published that data in table form in its Statistical Report on Law School Faculty and Candidates for Law Faculty Positions (2005-06). I here recreate select portions of that data graphically, so as to better illustrate the relative success of women and non-Caucasian minorities.
This chart, using data from Table 13B of the Statistical Report, shows how well women have fared relative to men at landing jobs via the AALS faculty recruitment process:
This chart, using data from Table 13C, shows how well minorities have fared relative to non-minorities:
For a summary of how various types of candidates have done, on average, over the last 14 hiring seasons, consider this data, from Table 13E of the Statistical Report:
| Candidate Type | Success Rate (%) |
| Minority Women | 18.5 |
| Minority Men | 17.5 |
| Non-Minority Women | 15.0 |
| Non-Minority Men | 11.3 |
I could say a lot more about this data, adding caveats and analyses. I've written about the topic several times before, though, and don't want to tax anyone's patience by repeating myself. For some more recent blogging about the American Bar Association's causal role in these observed hiring trends, see Gail Harriot's recent series of posts.
I'll just say this, for now: Having gone through the meat market process three times, and having served for many years on my school's Appointments Committee, I find the relative success of males and non-minorities in the mid-to-late-90s the only surprising thing in the above data. Perhaps we can explain that divergence from the normal hiring pattern as an effect of the relatively tight job market in that era. Note, after all, that the percentage of all candidates hired, regardless of their sex, race, or ethnicity, hit all time lows around that time.
[Crossposted to Agoraphilia.]
Perfect Product Development
In past postings I have said that I thought a Moneylaw school would probably not have as many ancillary products/programs as currently exist. On a couple of occasions commentators have taken issue with my position and, reflecting about it, I am not sure I have stated or, perhaps, even thought it out with sufficient care. Here I hope to do that.
When I say “programs” I mean everything outside the standard three year program. This would include student run publications, LLMs, certificate programs, centers, institutes, foreign programs, and probably some things I do know exist.
My objections are not to programs per se but to the lack of care taken in establishing them and, far, far more importantly, the virtual impossibility of discontinuing them.
In fact, consider this. Auto makers with massive market studies make mistakes with respect to their product lines. So do clothes designers, pharmaceutical manufactures, and restaurants. Yet law professors, to hear them tell it, get it right nearly every time they introduce a new product. There is a possible explanation. In conventional markets, demanders and suppliers occupy different sides of the market. Law faculties tend to occupy both sides of the market – they supply the programs that they demand and are lucky enough to pay for what they demand with the money of others. Think I’m wrong on this? If so, when is the last time you heard someone proposing a new program say, “I am not personally interested in this but I am proposing it because I believe it is something the school ought to do.”
Let me give an example or two of how this plays out. One is about the life of a program. The other is about the difficulty of reexamination. At Florida we have a summer teaching program in France. It is far from our worst (or best) program and I use it here as an example. The director (who goes every year) takes another professor and 20 or so students who respond to what seems to me to be a massive advertising campaign. The program was approved at a summer faculty meeting over ten years ago with 17 people in attendance. (Our faculty numbered over 50 at the time.)When a lack of a quorum was mentioned, the dean replied that everyone knew about the meeting and could have come if they cared. The meeting likely had been selected so supporters would outnumber detractors.
They did, but barely. Years later the program still exists. The costs and benefits of the program and its quality have never been seriously examined. The enrollment remains low and there are many other similar programs offered by other schools that our students could attend. In effect, it was established and continues to exist on a whim and it can hardly be something that elevates the School in any ranking or offers an opportunity to students that they could not get elsewhere.
On the inertia problem. A few years ago a former dean appointed a committee to review all of our programs and to make recommendations on whether any should be discontinued. Among those appointed to the program were some faculty with the most to lose if any serious changes were make and some faculty of the Making Nice, Knowing Better, Doing Nothing ilk. (I should add that instances in which others might think in terms of recusal are looked upon as opportunities on my faculty and perhaps others, but I do not know.) The committee worked and argued and worked and argued some more. That dean moved on and was replaced.
The new dean wanted no part the controversy that is invariably necessary to bring about change. He distanced himself from “program review” and turned a deaf ear to complaints that the directors – within in his administration -- of the programs under scrutiny had not reported their full costs. (A charge he later conceded was true but the administrators remained.)
After two years, a report was written. The faculty voted not to consider it but to allow it to serve as something for the Dean to keep in mind. To say that the report was tame is an understatement. No programs were to be discontinued. There was a mild suggestion that one program should be increasing transferred over private funding. Years have passed and nothing became of it. In fact, in 25 years, as far as I know not one program of any kind had been eliminated or, for that matter, come close to it except for one that involved summer study in Poland. (Potentially the most important for the students.)
Once a program is established, people become attached it and are deeply vested. Efforts to examine a program are taken personally. Any attempt to overcome the resistance to examination is met with the charges of “uncollegiality.” “Owners” avoid evaluating other programs for fear theirs will be the next to come under scrutiny.
I have no doubt that a Moneylaw approach to programs requires a periodic evaluation with a real possibility that a program will be discontinued regardless of which faculty are affected and choose to play the “collegiality card.” Until law schools adopt this approach, they are all suspect to me.
Is it different at other law schools? I doubt it but if it is, please weigh in. Otherwise I will interpret your silence as agreement.
When I say “programs” I mean everything outside the standard three year program. This would include student run publications, LLMs, certificate programs, centers, institutes, foreign programs, and probably some things I do know exist.
My objections are not to programs per se but to the lack of care taken in establishing them and, far, far more importantly, the virtual impossibility of discontinuing them.
In fact, consider this. Auto makers with massive market studies make mistakes with respect to their product lines. So do clothes designers, pharmaceutical manufactures, and restaurants. Yet law professors, to hear them tell it, get it right nearly every time they introduce a new product. There is a possible explanation. In conventional markets, demanders and suppliers occupy different sides of the market. Law faculties tend to occupy both sides of the market – they supply the programs that they demand and are lucky enough to pay for what they demand with the money of others. Think I’m wrong on this? If so, when is the last time you heard someone proposing a new program say, “I am not personally interested in this but I am proposing it because I believe it is something the school ought to do.”
Let me give an example or two of how this plays out. One is about the life of a program. The other is about the difficulty of reexamination. At Florida we have a summer teaching program in France. It is far from our worst (or best) program and I use it here as an example. The director (who goes every year) takes another professor and 20 or so students who respond to what seems to me to be a massive advertising campaign. The program was approved at a summer faculty meeting over ten years ago with 17 people in attendance. (Our faculty numbered over 50 at the time.)When a lack of a quorum was mentioned, the dean replied that everyone knew about the meeting and could have come if they cared. The meeting likely had been selected so supporters would outnumber detractors.
They did, but barely. Years later the program still exists. The costs and benefits of the program and its quality have never been seriously examined. The enrollment remains low and there are many other similar programs offered by other schools that our students could attend. In effect, it was established and continues to exist on a whim and it can hardly be something that elevates the School in any ranking or offers an opportunity to students that they could not get elsewhere.On the inertia problem. A few years ago a former dean appointed a committee to review all of our programs and to make recommendations on whether any should be discontinued. Among those appointed to the program were some faculty with the most to lose if any serious changes were make and some faculty of the Making Nice, Knowing Better, Doing Nothing ilk. (I should add that instances in which others might think in terms of recusal are looked upon as opportunities on my faculty and perhaps others, but I do not know.) The committee worked and argued and worked and argued some more. That dean moved on and was replaced.
The new dean wanted no part the controversy that is invariably necessary to bring about change. He distanced himself from “program review” and turned a deaf ear to complaints that the directors – within in his administration -- of the programs under scrutiny had not reported their full costs. (A charge he later conceded was true but the administrators remained.)After two years, a report was written. The faculty voted not to consider it but to allow it to serve as something for the Dean to keep in mind. To say that the report was tame is an understatement. No programs were to be discontinued. There was a mild suggestion that one program should be increasing transferred over private funding. Years have passed and nothing became of it. In fact, in 25 years, as far as I know not one program of any kind had been eliminated or, for that matter, come close to it except for one that involved summer study in Poland. (Potentially the most important for the students.)
Once a program is established, people become attached it and are deeply vested. Efforts to examine a program are taken personally. Any attempt to overcome the resistance to examination is met with the charges of “uncollegiality.” “Owners” avoid evaluating other programs for fear theirs will be the next to come under scrutiny.
I have no doubt that a Moneylaw approach to programs requires a periodic evaluation with a real possibility that a program will be discontinued regardless of which faculty are affected and choose to play the “collegiality card.” Until law schools adopt this approach, they are all suspect to me.
Is it different at other law schools? I doubt it but if it is, please weigh in. Otherwise I will interpret your silence as agreement.
2007: Time to Incorporate Your Sole Proprietorship?
IRS to Target Schedule C Filers:IRS to Target Schedule C Filers, About.com U.S. Business Law / Taxes, 25 December 2006
In a recent telephone conference, IRS commissioner Mark Everson said that they will be conducting more audits on individuals running unincorporated businesses (i.e. self-employed individuals).
While Schedule C filers have long been audit targets for the IRS, they are now stepping up their audit efforts because they believe that self-employed individuals represent a large portion of those individual taxpayers underreporting their income.
Incorporating, while not a panacea by any means, nor appropriate for all small businesses, entrepreneurs, and those with side businesses in addition to W-2 income, can help reduce exposure to a time-consuming audit, as well as potentially offering tax, asset protection, and other benefits to business owners.
See also: January 2009 update
Sign of the Apocalypse - RateMyProfessor.com Acquired By MTV Networks
Yes, folks, it's true. Imagine the synergistic possibilities among RateMyProfessor.com, Comedy Central, and VH1.
By no small feat of imagination, I have parlayed this into some thoughts on the metaphysical nature of accounting fraud over at Legal Profession Blog.
Rankings redux
I just posted, over at my own blog, a question about whether touting SSRN "top 10 download" status would be one useful way to help people become aware of what the faculty of a school has been doing in terms of research. On the one hand, it's some indication of productivity and interest; on the other, SSRN deals with articles and not all of the other forms of scholarship, and it might be possible to game this system, too. I don't know if emphasizing such things would become so much "noise" (a la car alarms, fancy brochures about law schools that tend to come out in early September, the rankings themselves) or whether law professors would find this type of information interesting or useful. If you want to discuss this, you could either do that here at MoneyLaw or over at my blog. If SSRN downloads wouldn't be useful, would something else be useful? And--this is the more important question--would monitoring this sort of thing create behavior that we don't want to encourage?
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