Are you an owner in a multi-owner Corporation, LLC, S-Corp, or Partnership? If so, have you given any thought to or prepared a formal business succession plan?
One of the more difficult parts of being a business owner can be deciding how to wind up a business or determine how to restructure ownership after an owner wants out or dies. In order to simplify this process, the business owners should insist on having a formal Buy/Sell Agreement signed when they begin their business relationship.
A Buy/Sell Agreement is a legally binding contract that stipulates how an owner’s share of a business may be reassigned if that owner dies or otherwise leaves the business. Buy/Sell Agreements often stipulate that the available share be sold to the remaining owners or to the company. Buy/Sell Agreements can take many forms and there are no requirements as to how such agreements must be structured. Terms for such an agreement are negotiated between the owners. Therefore, the advice of an attorney is needed to ensure the best possible exit strategy for all of the owners.
Important clauses that every Buy/Sell Agreement should contain:
1. Valuation. The Agreement should include detailed information about your business’ worth. You should consider having it professionally appraised or using a set formula to value the business. You want the valuation provision clearly defined to establish a fair purchase price in the future in order to reduce conflicts.
2. Identify the Parties. The Buy/Sell Agreement must identify all the owners entering into the agreement.
3. Funding the Buyout. You want to make sure the Buyer has the financial ability to fulfill the payment terms of the Agreement. Many Buy/Sell Agreements utilize life insurance policies to ensure the purchase will be adequately funded. Don’t just assume the Buyer will have the cash at the time to purchase the business or that they can borrow 100% of the purchase price.
Acting as Trustee of a Trust can be challenging, and you should understand the responsibilities and duties involved if you are to serve in such a position. Although you may have initially been willing to assume this role, there may come a time when you know you want to resign as Trustee. Perhaps the administration of the Trust is taking more time and energy than you have available, or perhaps your health has deteriorated to the point where you no longer can properly carry out your duties; you don’t need to have a specific reason to resign. However, if you do need to resign as Trustee of a Trust there are a series of steps that should be followed to ensure that you are released, as much as possible, from any further liability.
A Trustee resignation should occur pursuant to the terms of the Trust. As long as you are Trustee, you are a fiduciary of the Trust with a duty of loyalty and a duty of care to the Trust and to the beneficiaries. Therefore, you must resign properly in order to ensure that you are not held responsible for problems that may occur due to your resignation or after your resignation. Even if the terms of the Trust seem clear and easy, you should consult with an attorney to ensure you are in compliance with the Trust and the law.
To resign as Trustee, the following steps generally must occur:
1. Check the original Trust document to see if there is a successor Trustee named. If there is no successor Trustee listed, a new Trustee will have to be appointed. The Trust may allow you to appoint a successor Trustee, but a thorough examination of the Trust will be required to determine this. If one or more of the original Grantors are still living and capable, they can name a successor trustee, if the Trust is a Revocable Trust. If the Grantor is unable to appoint a new Trustee, the current beneficiaries may be able to appoint a new Trustee. As a last resort, the Court always has the ability to appoint a successor Trustee. Whether these options are available to you depends largely on the terms of the Trust and the type of Trust.
If you’re age 65 or older, issues like retirement and long-term care planning are probably more frequent topics of your conversation. Even if you’re not in this population group, chances are you know and care for someone who is. Research from the U. S. Department of Health and Human Services suggests that if you are age 65 or older, you’re most likely going to need long-term care at some point in your life. Unless you are sufficiently wealthy or exceptionally poor, it would seem wise to do some advanced planning to cope with the increasing health care costs that will accompany long-term care stays.
Options you may want to investigate include, but are not limited to:
1. Long-term Care Insurance. The older you are and the longer you wait to obtain insurance, the more expensive it will become. Costs for long-term care insurance (LTCI) tend to be expensive and premiums will most likely rise over your lifetime. With average premiums running at $2,700 a year (per industry research firm, LifePlans), seniors may find LTCI too cost prohibitive to be a realistic option. Additionally, your age or current health condition may disqualify you from obtaining this type of insurance.
2. Life Insurance. Some insurance companies offer life insurance with long-term care riders. With this type of policy, your beneficiaries may still receive a death benefit even if you use long-term care rider benefits. With traditional LTCI, there is no death benefit paid to your beneficiaries after your death.
3. Family Members. Your immediate or extended family members may be able and willing to care for you or pay for your health care costs. With annual semi-private nursing home room costs running on average at $90,000 annually, according to a 2019 Genworth study, few families can afford to cover these costs for a year, let alone for multiple years.
4. Medicare. Kansas Medicare program (KanCare) does NOT cover long-term care expenses for patients requiring full nursing home care, except for very limited circumstances.
Congratulations on your child’s high school graduation! Your graduate deserves acknowledgement for their hard work and the achievements they earned, but let’s not overlook the tremendous role that you, as a loved one, played in their success. Without your support and guidance, they most likely would not have reached this educational milestone.
You’ve shared your wisdom and advice, helped them plan their future course. Now it’s time for your child to embark upon their next journey in life: work or continued education. Before you turn your new “adult” out into the world, there is one last thing you should help them complete when they turn 18: estate planning. While you may not think 18 year olds need estate planning, there are three basic documents which every young adult needs:
1. Durable General Power of Attorney
The first necessary component of a young adult’s plan is a durable general power of attorney. Through a durable general power of attorney, your teen designates someone to make business and financial decisions. The durable general power of attorney can be set up as either “springing” or “non-springing”. A “springing” durable general power of attorney becomes effective only if your child becomes incapacitated; at that time it “springs” into action. Should your child be involved in an accident or suffer an illness and be unable to pay their rent or other bills, their appointed agent could make those payments and communicate with financial institutions and school officials until such time as he or she recovers.
A “non-springing” durable general power of attorney is effective as soon as it is signed. This document might be necessary if you have a child going to school in another country or far out of state. That child is not unable to handle their own matters, but, nonetheless, might need you to assist with some of their affairs for them while they are so far away from home.
2. Health Care Power of Attorney
A Health Care Power of Attorney is the second document recommended for all young adults. This document allows the young adult to name a person (a/k/a agent) to make medical decisions for them if they are unable to make such decisions themselves. The agent will work with doctors and other health care providers to provide the young adult with the care that they would want. Once the patient regains their capacity, the young adult can simply go back to making their own healthcare decisions. Many young adults move away from home to work or attend school where they no longer have a relationship with local physicians. By having a health care power of attorney in place when an emergency arises, the young
Attorney Megan L. McCann has lived most of her life in Southwest Kansas. As a youth, Megan excelled in academia and music and was heavily involved in multiple school activities. Her summers were spent earning money for college by working as an aide in the community nursing home, mowing lawns, keeping cattle records for a local farmer and helping behind the counter at the neighborhood soda shop. Because academics came easily to Megan, and as the eldest daughter of a banker and a school librarian, the idea of obtaining a degree in higher education was always part of her plan.
A graduate of Kansas State University with a major in accounting, Megan finished her degree in three years while working two part-time jobs. Subsequently, she obtained her law degree from Washburn Law School. While attending KSU, Megan met her husband, Tyler, a civil engineering technician, and they were married after Megan’s first year of law school. Her legal career began as an estate planning associate for Steven W. Graber, P.A., in Manhattan, KS. It was during this time that Megan and Tyler’s first child, Mara, was born.
In 2010, Megan was invited to return to Southwest Kansas to join attorney Tamara L. Davis at Tamara L. Davis, P. A. Megan and Tyler were thrilled to be able to be closer to family and thus, with a little one in tow, made the move back to Megan’s childhood hometown. Four years later, Megan was made a partner of the firm and the firm name officially changed to Davis & McCann, P. A.
Megan and Tyler have three young children: Mara (10), Tristan (8), and Bethany (2). You can frequently see the McCann vehicle on the roads of Southwest Kansas as they keep busy traveling to school and youth sporting events. Due to her husband’s desire to return to country living, the couple purchased an old farmhouse in rural Gray County in 2015. Their house has a unique history, having been built near Windthorst, KS, southeast of Spearville, KS in the early 1900s and moved to its current location north of Ensign, KS, in 2003. It also was the childhood home of a fellow Davis & McCann staff member for many years. Megan and her husband have finished a complete remodel of the second and third stories of the home and are currently tackling the main floor, doing most of the construction themselves.
Megan is an avid reader and you can often find her sitting in the swing on her wrap-around porch with a book in hand. During her spare time, she enjoys playing with her kids, fishing with her family at 99 Springs lake, helping out at her church, particularly with special music, and visiting Tyler’s family in Western Colorado.
You may contact Megan at Davis & McCann, P. A., Dodge City, KS, 620-225-1674. They are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
Tamara was born in Anthony, Harper County, KS and spent her first five years Cimarron, KS where her father was the band instructor, before the family moved back to the farm in Harper County. She loves to reminisce about cooking with her grandmother for the cutting crew and then later, driving the grain cart during wheat harvest. Growing up, in addition to farming, her family operated a large poultry operation. She enjoyed her years on the farm and spending time with grandparents, cousins and her brother. She attended undergraduate school at Wichita State University, majoring in Business Administration and Finance and obtained her law degree from the University of Tennessee.
Tamara is the founding partner of Davis & McCann, P. A., having opened her own solo practice in 2003 after working as an associate for Pain Swiney and Tarwater in Knoxville, TN and then Hershberger, Patterson, Jones and Roth and Foulston Siefkin, both in Wichita, KS.
Tamara and her husband Lloyd, a financial adviser, have lived in Western Kansas since 1998. They met in Kansas in 1982, when Tamara was in college and Lloyd was in graduate school in Virginia. After dating long distance for three years, they were married in 1985. They have three grown children: Austin, AlexMarie, and Parker. Austin owns and operates businesses in Lawrence, Kansas and Enid, Oklahoma. His wife, Kristen, works for State Farm Insurance and they are expecting the first grandchild this July. AlexMarie is pursuing her B.S. in Dental Hygiene at the University of Missouri in Kansas City, and her fiancé, Adrian Gomez (also a Dodge City native) is a dentist in Olathe, KS. They are to be married this fall. Parker and his wife, Katrina, met as students at the United States Air Force Academy, and both are currently active duty Air Force Officers. Parker is a pilot and Katrina is a logistics officer.
Tamara and Lloyd love to travel, and have many stamps in their passports. During her spare time, she enjoys gardening, cooking (her current interest is plant-based cooking), reading, playing the piano and spending time with Lloyd, their children, and her parents, brother and his family at their family home at Lake of the Ozarks.
You may contact Tamara at Davis & McCann, P. A., Dodge City, KS, 620-225-1674. They are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). They focus their practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
In an age where estate planning is considered a low priority item by some, and an extravagance by others, are there any circumstances that necessitate immediate estate planning? In our experience, if you answer “NO” to one or more of the following statements about your life circumstances, we strongly suggest that you consider doing some estate planning:
1. I have executed a Healthcare Power of Attorney to appoint an agent of my choice to make medical decisions for me in the event that I am unable to make such decisions for myself. My agent has agreed to serve on my behalf in this capacity and either has a copy of the legal document I have signed or knows where to obtain one.
2. I have executed a General Durable Power of Attorney to appoint an agent of my choice to handle my financial affairs for me in the event that I am unable to. My agent has agreed to serve on my behalf in this capacity and either has a copy of the legal document I have signed or knows where to obtain a copy.
3. I have appointed someone in my Last Will and Testament to care for my minor children if I am unable to. They have agreed to serve in this capacity and know where to obtain a copy of the legal document in the event of my death.
4. I have created a secure way for trusted individuals to access and manage my digital assets, records and profiles and ensured that such individuals are aware of this and know where to look for this information.
If your answer was “NO” to any of the above statements, then you risk not being able to choose who you would want to take care of you or your children in the event of your incapacity or death. Instead, the Court would have this responsibility. This means that in addition to being a costlier proceeding, you would also have no say over how your medical or financial decisions would be made. Would you approve of your house being sold, being placed in a nursing home facility (not of your choosing), or your financial investments being liquidated by someone you didn’t choose? If any of these situations make you the least bit uncomfortable, you should consult an experienced estate planning attorney today.
For more information on estate planning, contact Davis & McCann, P. A., Dodge City, KS. We are members of Wealth Counsel, a national consortium of Estate Planning Attorneys and the National Academy of Elder Law Attorneys (NAELA). We focus our practice on providing clients with the best legal advice on Estate Planning, Medicaid and Long-term Care Planning, Special Needs Planning, Family Business/Small Business Succession Planning, Probate, Trust Administration, Real Estate Transactions, and related matters.
If you or a family member have faced a recent health scare, such as the kind presented by the Coronavirus, it’s likely that you’ve been told to update your Last Will and Testament. You may have had a new Will prepared or had your previous Will updated with a Codicil. While preparing a Will generally is a move in the right direction when it comes to estate planning, it may not be the “best” option for you individually.
A Will is one of the most basic levels of estate planning that you can do in order to direct how and to whom your assets will be distributed upon your death. People often misunderstand the estate process and assume that their assets will automatically pass to the beneficiaries found in their Will after their death. What they don’t realize, is that assets that pass by way of a Last Will and Testament must first go through the probate process before any distributions can legally take place.
To clear up some of that confusion, here are some answers to common misconceptions surrounding the probate process:
1. If you have a Will, your family will not have to go through a probate. Not true! In fact, if you do Will-based planning, you are planning for a probate. This means your estate will go through a court process and be open to public examination before your beneficiaries will receive their inheritance. Your named Executor under the Will cannot even act on behalf of your estate until the court has granted them approval to do so.
2. Probate is a simple and speedy process. This is rarely true. On average, it takes up to 16 months to settle an estate. That’s a significant wait time for beneficiaries to receive the assets you intended them to have. Additionally, you will need legal assistance if you are required to open a probate in an estate due to the complexity of the process. Professional help from a good probate attorney will be your best insurance for preventing unnecessary expenses and delays during the probate process.
The month of May is recognized as National Elder Law Month and Older Americans Month. Davis & McCann, P. A., acknowledges the growing need for legal services for senior citizens in rural Kansas and has expanded its practice to include Elder Law. To facilitate this, the firm has invested significantly in specialized training for their attorneys in the areas of long-term care planning and Medicaid.
“As baby boomers enter their advanced senior years, we’ve seen a spike in the need for assistance with long-term care planning and Medicaid applications. It’s our goal to provide affordable, high-level legal advice to our clients, without them having to leave the area. We’ve increased our long-term care planning services, including completing advanced training in this area to ensure we can fulfill our commitment to our clients,” attorney Megan L. McCann says. “We develop long-term care plans that support the client’s overall estate plan. Our discussions with a client might include private pay options for long-term care, gifting, long-term care insurance or annuities, caregiver expense allowances, spend down options, or a Medicaid Asset Protection Trust. Each families’ needs are different. One may only need to discuss available options, while the next needs us to take the lead on filing for Medicaid benefits, including helping to determine allowable expenses and payments.”
Tamara L. Davis, the firm’s President, is pleased with the firm’s expansion efforts. “We’ve seen significant growth in our long-term care planning and Medicaid planning practice over the past two to three years,” Davis says. “One of our goals as a firm is to make these essential services accessible to Western Kansas families. Our practice already included estate planning, business formations and contracts, real estate transactions, and probate. It just made sense to expand our practice to include long-term care planning and Medicaid planning, as more and more families look to us for help in this area. Based on the number of clients we’ve already aided, we’ll continue to explore the expansion of services in this area.”
McCann and Davis are members of Wealth Counsel, a national consortium of Estate Planning Attorneys. McCann is also a member of the National Academy of Elder Law Attorneys (NAELA), an association designed to assist in education and training on elder law matters and special needs planning. In addition, McCann acts as an advisory committee member to the Southwest Kansas Area Agency on Aging and Davis is a long-standing board member for Hospice of the Prairie and Prairie Home Health in Dodge City.
Davis & McCann, P. A. also offers services in simple and complex estate planning, special needs planning, business and farm succession planning, business formation, probate, trust administration, real estate, 1031 exchanges, and more. The firm represents clients from most of the counties in Western Kansas.
With all the restrictions imposed by COVID 19, those of us with family and friends residing in nursing homes have become acutely aware of the importance of quality nursing home care. Not only are sanitation and quality medical care important, but so are social, physical, and spiritual opportunities. The COVID virus has put a microscope on nursing homes and forced all of us to rethink the definition of quality care for our seniors. While not all older Americans require nursing home care, the vast majority do or will at some point in their life. Because May is designated as National Older Americans Month, this is a good time to focus on ways we can make life a little better for the generation who paved the way for us, particularly for those who are more vulnerable and require nursing home care. If you or a loved one are considering a move to a nursing home, here are some specific questions you should ask each facility:
1. What services do you provide? Specially, what type of social programs are offered and with what frequency; are there worship sessions and, if so, how often do they occur; what type of physical activities are available; are beauty services provided; etc…
2. What is the staff to resident ratio on each shift? It’s also important to ask about skilled staff turnover rate. A well run institution will have a lower staff turnover rate. Be sure to inquire about screening for criminal records, drug use, etc... for employees.
3. How much time do nurses and aides spend with residents daily?
4. What services are available for the resident as their nursing care requirements increase? Is there a separate unit for advanced dementia care?
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