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8 tips on how to let your family know about who you really want as your childrens’ guardian

Consumer Guide on

How To Talk To Your Family about Your Fiduciary Choices

Time and again we have seen families hesitate (for years, may we add!) to even start the estate planning process because they are paralyzed by the thought of having to break the news to a family member that he or she is not going to be their first choice of a fiduciary (i.e. a guardian, trustee, agent under a power of attorney etc.). If you fall into this category of individuals, then having this conversation could be as awkward as letting a porcupine loose in a balloon store. However, setting up your estate plan and selecting the right people for various roles are critical not only to get your estate affairs organized but to ensure that your loved ones are taken care of when you are gone. Don’t let ‘paralysis by analysis’ get the better of you– use this guide to approach these important discussions with kindness, concern, and a sprinkle of humor.

      1. Schedule a meeting with the family member (s) asap!

  • Make reservations at a nice restaurant of their choice well in advance. Once its pre-scheduled both sides are committed so its harder to push off.
  • Start by acknowledging the sensitivity of the topic and any apprehension they might have
  • Show empathy and understanding, recognizing that these discussions can be emotional.
  • And one of our clients recommends – “don’t forget to bring a nice bottle of wine!
  • Prepare the environment that will allow your family member to relax and let their guard down even if its just for a bit.

      2. Simplify and Focus

  • Keep the conversation straightforward, focusing on the key points.
  • Explain the rationale of why you picked who you picked and avoid over-explaining.
    Stay on topic!
  • Be kind in your tone and always keep their sentiments in the back of your mind. Know that they may be upset, only because they care about you and your family.

      3. Explain Your Intentions Clearly:

  • Gently explain why you chose certain individuals as Executors, Guardians, and Trustees.  If you are selecting different people to handle your affairs if you become incapacitated, then explain why you chose that particular person. Focus on those people’s strengths rather than your family’s weakness.
  • Emphasize that these decisions are made with the family’s best interests in mind.

      Some examples –

  • You already have four kids of your own and we thought it would be unfair to impose this additional burden on you to name you as the guardian.
  • [Name of Person] would be better as my healthcare power of attorney because they would be less emotional if I gave them authority to make end of life decision making authority.
  • As you know, [Name of person] does not have pets and [Name of Child] is allergic to pets.
  • We really gave this a lot of thought and kept [Name of Child] interests in mind. We made arrangements with our [Name of Friends] who have offered to serve as guardians of our children, if we in turn, offered to serve as theirs.

      4. Address Their Concerns Thoughtfully:

  • Listen carefully to their concerns and respond with calmness and kindness.
  • Provide reassurance and factual information. If they get too heated, remind them, “Hey, I’m just trying to avoid a real-life version of ‘Family Feud.’”

      5. Set Boundaries with Compassion:

  • If the conversation becomes tense, kindly but firmly steer it back to the topic. “Let’s not go there. Otherwise we might turn this into a reality TV show”
  • Remind them of the importance of respectful communication and the shared goal of honoring your wishes.

      6. Seek Common Ground:

  • Find areas of agreement and emphasize shared goals. “We all want what’s best, even if we sometimes argue like we’re on a bad sitcom.”

      7. Offer Written Documentation:

  • We call this our “Letter of Wishes” which outlines your decisions and the reasons behind them. Normally we ask families to write a Letter of Wishes to their trustees to give them insight into how they want their money distributed to their children after they are gone. This is typically left along with their estate planning binder. However we think that by writing down a similar script in advance, it will not only help avoid ad-libbing during the drama but can be something your family can read later when things are not so emotionally charged
  • Ensure your estate planning documents clearly specify the roles and responsibilities of each chosen individual.

      8. Express Gratitude and Trust:

  • Thank them for their willingness to engage in this important conversation. “Thanks for  joining this not-so-fun, but oh-so-important family meeting!”
  • Reassure them of your trust in your chosen Executors, Guardians, and Trustees to carry out their duties responsibly.


Discussing your estate plan with difficult family members can feel daunting, but with patience, empathy, and a dash of humor, you can navigate the conversation effectively. By approaching it with kindness and understanding, you can ensure your wishes are clearly communicated and respected, keeping the family harmony intact—even if it means cracking a joke or two along the way.

Can adding children to my bank accounts avoid the need to sign a Will?

Question: “I just heard that if I name my children as joint account holders to my accounts, then should I become incapacitated or pass away, my children will find it very easy to manage my money during my life or when I die.

Then why do I even need an expensive Will ?“

RLG Attorney answer – In certain areas, making things simple is not always going to give the desired result and in such cases, less is not always more.  People learn the hard way about the pitfalls of this strategy.  This article highlights the importance of getting the right advice from the right professionals who can guide you towards setting up a more comprehensive estate plan.

Let’s take a look at these 2 situations – when someone is alive and when that person passes away

During lifetime

1.      Exposure to Creditors:

A significant red flag in this planning technique is the exposure of assets to the creditors of the named individuals. If you named 2 children on the account and one of them (say your son) gets into financial difficulties or legal disputes, his creditors can now go after all of the assets under his name and yes, his 1/3rd interest in this joint bank account is now vulnerable to those creditors’ attacks.  Therefore you need to weigh the desire to protect your assets for your children against this undesirable outcome

2.      Loss of Control:

We have also seen unfortunate situations where one child goes “rogue” and either because of spendthrift issues or financial difficulties, they wipe out the account of whatever is in there. Since the child, as joint account holder, has complete and absolute control over the funds within the account, he or she will not need anyone’s permission to operate the account during your lifetime. This may be a reasonable set up if the funds are small or you trust your children to do the right thing but our rule of thumb – don’t set up a joint account if all you are looking for is someone to help you manage the funds during your lifetime… instead execute a General  Durable Power of Attorney

Upon death

3.      Lack of Alignment

If your end goal is to have the assets passing to your children protected from their creditors after you are gone, then setting them up as joint account holders will instead allow the funds to pass to them outright upon your death and become exposed to their creditors (including divorcing spouses).  If you want to protect these assets for your children, then naming them as joint account holders of your assets is not a good strategy.

4.      Unequal Distribution:

If you name only 1 child and tell him or her to distribute the assets to the other when you are gone, then you may have not only inadvertently created a situation where children may imply your favoritism of the named child causing an impact on family dynamics but you may have also created an adverse tax impact on the child receiving the assets in the account.  Also, if you have children with special needs, you just made it harder for that child to receive assets in a protected special needs trust.

Our advice – often, avoiding probate is not always the ultimate goal in estate planning. Don’t be swayed by misinformation that may be out there on what you need to do.  Instead, get the proper guidance and advice of a specialized estate planning attorney who can ensure that your plan is set up in a way that fulfills your objectives both during incapacity as well as after death while addressing your unique needs.

Valentine’s Day

Question:  I just got remarried but I have children from a previous marriage. If something were to happen to me, how do I take care of my spouse during his lifetime but ensure that my assets go back to my children after his death?

RLG advice: So you’ve found love again and are navigating the adventure of a second marriage with kids from a previous chapter. Kudos! Let’s chat about some friendly advice on how to make sure your wishes are honored and everyone gets their fair share.

Step 1 – Get your Valentine a gift of a Last Will & Testament or Revocable Living Trust!: Of critical importance to you who has seen Cupid more than once, is to get your Will or Revocable Living Trust – what we call your foundational estate planning documents – signed asap!  In your documents you will state that what passes to your spouse will go in trust (a QTIP or Qualified Terminal Interest Property trust) so that when your spouse passes, the assets can revert to your children. By spelling out “the-what, the-who, the-when and the-how” in a Will or a Rev Trust, you are giving your loved ones the greatest gift of all – the gift of time that they would have otherwise lost dealing with a messy estate where state law determines who should inherit your assets.

Step 2: Don’t underestimate the power of titling of accounts. Remember your Will can be beautifully laid out but it will only control what is in your own name alone i.e your probate assets. However, for those accounts you own jointly with your spouse or if the account has beneficiaries designated (i.e. non probate), then such accounts will pass directly to the joint tenant or named beneficiary outside of your Will or Rev Trust.

Step 3: Deeds must also be re-titled differently. You and your new spouse need to have a frank conversation on what should happen to the family home when you are both gone.  Is this a home you bought together? Is this home yours but he moved into after you got married?  If the end goal is that your children should benefit from this when you are not around, then titling of the deed becomes critical.  If the deed has the magic words “husband and wife” or “married couple” at the end of your names, then the house get a “Tenancy by the entirety will automatically pass to your wife, outside of probate and your children will be out of luck. ).  Talk to your new spouse and figure out whether it makes sense to keep title in your name alone so you can either dictate what happens to it in your Will or Trust, or if you agree to create mirror image Wills that you both agree not to change upon the death of one, this could also ensure that your children will be the final beneficiaries under either Will.

  1. Don’t forget the Elective Share. The law in NJ provides that unless you both had contractually agreed to not receive anything from the other spouse’s estate, if you disinherit your spouse in your estate planning documents, your spouse has a claim for his or her Elective Share against your estate. This means that the disinherited spouse has the right to receive upto 1/3rd of your augmented estate (i.e. probate and non-probate assets). So before you decide to omit your spouse without your spouse’s consent and waiver, you will need to make sure that your spouse is properly provided for with your other assets and everyone is treated equitably.
  2. Communication is critical: Grab a cup of coffee and sit down for a heart-to-heart with your spouse (and if your kids get along with your new spouse, then bring them into the conversation too). Talk to them about your dreams, concerns, and expectations. Then, turn those dreams into reality with legally binding documents like wills and trusts. It’s like making a promise with a seal of approval! Unfortunately, the best laid plans can fall prey to expensive and lengthy court battles when disgruntled beneficiaries make claims that this is not what the deceased wanted.  Explaining things to family during lifetime and supporting that with documentation can bring closure to your grieving family.

Remember, estate planning is about giving your loved ones the gift of time which in turn creates peace of mind and a happy home for everyone. This Valentine’s Day, give the gift of love, laughter, and a happy home to your family!





Revocable Living Trust

January Question – I just signed my Revocable Living Trust and feel pretty good knowing my assets are protected!

RLG’s Attorney Answer – Not all trusts are “built” alike and unfortunately, your Revocable Living Trust, although excellent for many things (and there will be more on that in the months to come), will not protect your assets.

The best way to understand trusts is that there are two primary types of trusts – Living Trusts (those created during your lifetime) and Testamentary Trusts (those that are created upon death).  However, Living Trusts can be further divided into Revocable Living Trusts (RLTs) or Irrevocable Living Trusts.  And, know that all testamentary trusts are automatically irrevocable – otherwise what would be the point of someone saying in their Wills that they want their loved ones to inherit in trust upon that someone’s death, if the loved one can go ahead and change it.  That would defeat the purpose of that someone’s objectives wouldn’t it?

By virtue of its name, all Irrevocable Trusts offer some type of asset protection – either from the IRS (for death tax purposes) or from creditors & predators of a beneficiary.  So if Irrevocable Trusts are like vaults or treasure chests, Revocable Living Trusts are really like “Cookie Jars” – those glass jars on the kitchen counter – transparent, easy to access, and perfect for managing your sweet assets during your lifetime. However, people often mistake the cookie jar for a vault. The term “trust” creates this illusion of impregnability, leading many to believe that any trust, including RLTs, have a high-security protection.

The charm of RLTs lies in their revocable nature – like a lid you can lift anytime to add or remove cookies. It’s great for sole control and flexibility, but this very feature makes the contents vulnerable to outside hands, unlike the sealed vault. Your assets in an RLT are more like cookies where you can put your hand in to get your cookies out and legitimate creditors can take a bite as well if they wish.

Conclusion: RLTs are nothing more than Will substitutes and both RLTs and Wills can have language within them to set up testamentary trusts for their loved ones upon death. Its only Irrevocable Living Trusts set up during the lifetime of someone that can get assets out of his or her estate to save on estate taxes or provide asset protection during the lifetime of that person. RLTs are effective during lifetime and when assets are in them, they can be convenient, flexible, and perfect for daily use. However, mistaking them for impenetrable vaults might leave you with a trail of crumbs.


Estate Planning for Families with Special Needs

Rekha will be discussing why estate planning for parents with loved ones with special needs is even more important particularly from the legal perspective.

Discover how to create a comprehensive estate plan that safeguards your loved ones, ensures financial security, and addresses the unique needs of individuals with disabilities. Gain valuable insights on wills, trusts (both revocable and irrevocable), guardianship, and government benefits. Don’t miss this opportunity to gain peace of mind and build a brighter future for your family.

Registration link is below. Registration is FREE but Required!

Questions? Reach out to

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Disability Pride Month

As we all know, July is Disability Pride Month, commemorating the anniversary of the Americans with Disabilities Act (ADA), which was signed into law on July 26, 1990. This landmark legislation prohibits discrimination against individuals with disabilities and ensures their equal rights and opportunities.


In honor of this month let us take a closer look at Special Needs Trusts that are crucial estate planning tools designed to protect the financial well-being of individuals with disabilities. We will delve into the essential aspects of special needs trusts, their benefits, and the considerations involved in setting up and managing them.


1. What is a Special Needs Trust?

A special needs trust is a legal arrangement that allows funds to be held and managed for the benefit of an individual with a disability. It is established to supplement and not supplant government benefits so additional financial resources can be provided to him or her to enhance the quality of life without jeopardizing their eligibility for assistance programs like Medicaid and Supplemental Security Income (SSI).


2. Types of Special Needs Trusts:

There are different types of special needs trusts, including First-party or self-settled trusts, third-party trusts, and pooled trusts. First-party trusts are funded with the individual’s assets, such as an money earned by the individual prior to the disability, or inheritance or personal injury settlement When the individual dies, any money remaining in this trust must be paid back to the StateThird-party trusts, on the other hand, are created by someone other than the beneficiary typically a parent or grandparent, for the benefit of the individual with disability. Money left over in these types of trusts upon death of the beneficiary can be redistributed among other family members. Pooled trusts are managed by nonprofit organizations, combining resources from multiple beneficiaries for investment purposes.


3. Preserving Eligibility for Government Benefits:

One of the primary advantages of special needs trusts is the ability to protect the individual’s eligibility for government benefits. These trusts ensure that the assets held within the trust are not considered as owned by the individual, preventing them from exceeding the income and asset limits set by benefit programs. As a result, the individual can continue receiving essential government assistance.


4. Using Trust Funds for Supplemental Needs:

Special needs trusts allow funds to be used to cover a wide range of supplemental needs beyond what government benefits provide. These may include medical and dental expenses not covered by insurance, therapy and rehabilitation services, educational expenses, transportation costs, assistive technology, home modifications, and recreational activities, sometimes even air-fare for the individual along with a companion. Therefore, the Trust funds are used to enhance the individual’s quality of life and promote their overall well-being.

5. Protection from Exploitation and Mismanagement:

Establishing a special needs trust also provides an added layer of protection for individuals with disabilities. By appointing a trustee to manage the trust funds, you can ensure that the funds are used responsibly and in the best interest of the beneficiary. This protects the individual from potential exploitation or mismanagement of their financial resources.


6. Selecting the Trustee:

Therefore, trustee selection can become a crucial decision in establishing a special needs trust. It is important to choose someone who is trustworthy, reliable, and capable of handling financial matters. We prefer appointing a professional trustee (like Plan NJ or Bryn Mawr Trust) rather than a family member or close friend to ensure proper management and adherence to the trust’s terms.



Special needs trusts are powerful tools that enable families to protect their loved ones with disabilities, preserve eligibility for government benefits, and enhance their quality of life. Understanding the different types of trusts, their benefits, and the proper management of trust funds is crucial in ensuring the long-term financial security and well-being of individuals with disabilities.

Aretha Franklin’s Will Drama Is Over

This article highlights the importance of having a Last Will and. Testament drafted by an attorney; but it fails to mention another important estate planning vehicle – a Revocable Living Trust – that could have not only avoided the family drama related to Aretha Franklin’s objectives on how and who her assets should go to but could have kept this entire affair very private and out of the Court’s and public’s scrutiny. Same destination but a different (and in this case, a critically essential) route to get there!


Everyone has heard of Wills and Trusts. Most articles written on these topics, however, often presume that everyone knows the basics of these important documents. But, in reality, many of us don’t – and with good reason – as they’re rooted in complicated, centuries-old law.

Let’s face it, if you’re not an estate planning attorney, these concepts tend to remain merely that – concepts. So, if you’re “fuzzy” about Wills and Trusts, know that you are not alone. After we show you the difference between all these documents, we’ll let you decide why you think one may be better off than the other for your particular situation.

Wills vs. Trusts: Defined

Let’s take a minute and define both “Will” and “Trust”:

Will. A Will is a written document that is signed and witnessed. A Will is considered a “death” document as it only goes into effect when you die.  A Will provides for the distribution of assets owned by you, but not assets directed to others through beneficiary designations (e.g. life insurance or retirement benefits).  It permits you to revoke or amend your instructions during your lifetime, tends to cost less than a Trust on the outset but costs more to settle during court proceedings after death.  Example – to probate a 50-page Will, you are looking at a cost of $300 just for the filing fee plus more for the Executor Short certificate etc.

Trust. There are 2 types of trusts – (1) A Testamentary Trust; (2) An inter-vivos (or living) Trust.  Inter-vivos trust can either be Revocable or Irrevocable.

  • Testamentary trusts are created under a Will or a Revocable Living Trust and assets pass into such trusts only after the death of a Testator. That means, in order for these testamentary trusts to become effective, death needs to occur.  Example:  My Will states that upon my death my minor child who is 17 now shall inherit my assets at age 35.  This means that a testamentary trust has been created under my Will so that if my death occurs before my child turns 35, the assets passing from my estate will go into a trust until my child turns 35.
  • Inter-vivos or living trusts are legal documents, signed and either witnessed or notarized (or both) effective during your lifetime, during any period of disability, and after death. However, in order to be effective, either trust needs to be funded with your assets.  They are of two types – revocable living trust or irrevocable living trust.

Revocable Living Trust (RLT).  RLTs are nothing more than Will substitutes and form an important part of an individual’s foundational estate plan.  They become effective immediately upon execution and remain effective during your lifetime until terminated.  Just like Wills, they are completely changeable or modifiable during lifetime and minor changes can be added on by restating the original or including amendments.  Upon death, RLTs function just like Wills by providing for the distribution of your assets to your ultimate beneficiaries. It avoids probate if fully funded, provides for a successor trustee upon your death or incapacity, allows for the management of your property – even if you’re incapacitated, can address appointing disability guardians during your lifetime for any minor beneficiaries of your estate and permit you to revoke or amend your wishes during your lifetime.  It does cost more than a simple Will on the outset but much less upon administration, since there is no probate and costly delays are avoided.  If you have property in another states, putting these properties into an RLT will avoid ancillary probate in all these states.  Finally, in NJ, no Inheritance Tax lien is imposed on any of the assets inside the RLT – your estate may still be subject to taxes but there is no “freezing” of the any bank accounts or other probate assets while the estate is waiting for the waivers to be issued by the NJ Tax Branch.

Irrevocable Living Trusts.  These trusts, as the name suggests, are set up during an individual’s lifetime but are irrevocable.  When established, the Grantor (the person setting up the trust) transfers either by sale or gift, assets into this trust and completely gives up all dominion and control over the assets in the trust.  The appointed Trustees now “own” the assets in the trust and manage the assets on behalf of the beneficiaries.  These trusts are set up primarily to save on estate taxes as the assets in the trust are not included in the Grantor’s estate upon death, provides creditor protection both to the Grantor as well as to the beneficiaries and depending on how the trust provisions are drafted, the assets may avoid passing into the estates of the individual beneficiaries as well.  In the Elder Law area, irrevocable living trusts may also be established as part of Medicaid planning to get individuals eligible for Medicaid.  No matter which trust structure is utilized, irrevocable living trusts are sophisticated planning techniques that are established as part of an individual or married couple’s advanced planning.

Probate Process: Key Element in Deciding Between a Will and Revocable Living Trust

A key element in deciding between a Will and a Revocable Trust (your foundational plan) is understanding the probate process. “Probate” – which literally means “proving” – refers to the process wherein a decedent’s Last Will & Testament must be authenticated, outstanding legitimate debts paid, and assets transferred to the beneficiaries.  The downside is that probate can take a long time – even years – it’s expensive in many places and the entire process is completely public, meaning your nosey neighbor Nancy and evil predator Paul both know exactly who got what and how to contact them.  Additionally, as explained previously, in New Jersey, due to the inheritance tax structure, assets passing through probate will have an immediate lien imposed until waivers are obtained.

  • Probate Guaranteed with a Will.If you use a Will as your primary estate planning tool, you own property in your individual name, or property is made payable to your estate, probate is guaranteed.
  • Probate Avoided with a Revocable Living Trust.If you use a fully-funded Revocable Living Trust as your estate planning tool, probate is avoided – saving your family time and money.


Consult an attorney who specializes in estate planning & elder law to see whether trust planning is necessary for you and whether they will help in fulfilling your overall estate planning goals.  Trusts may not be necessary in every situation but it is important to understand if there may be ways in which your specific estate plan may benefit from them!

What you Should Know about Having a Joint Account with your Child. Copy

Most banks will not allow minors to set up bank accounts by themselves. To get around this, many parents set up joint accounts with their children, so the child can deposit money they get from working, gifts, etc.

Joint accounts are easy to set up, but they may not be the best way to get your child access to a bank. They can expose the child and the parent to unnecessary risk.

Problems for the Child

A joint account is owned by both individuals 100%. This means that either the parent or the child can take all of the money out no matter who put in the money.

This means the child can be exposed to the parent’s creditors.

Example 1

John is 15. He works at a retail store after school, and his mother, Sally, opens a joint account with him, so he can get his wages via direct deposit.

Unfortunately, Sally had some outstanding credit card debt. She ignored the summons from the credit card company; the company got a default judgment against her, and then went to court to get her bank account garnished.

There were insufficient funds in Sally’s account, so bank took the money from John’s account and gave it to the credit card company.

Unfortunately, John has no recourse. The bank was required to turn over the money as it was legally John’s AND Sally’s. John can only hope that his mother straightens out her finances and is able to pay him back in the future.

Problems for the Parent.

Most parents set up joint accounts with  their child wherever they already do their banking. This exposes the parents’ other accounts.

Example 2

Annie opened a joint account with her daughter, Marcia, when Marcia was 17 for her to put in money she was gifted from relatives. Annie occasionally sends $50 to her daughter for fun money, but Annie does not pay attention to this account and does not consider the money in the account to be hers.

When Marcia went to college, Marcia continued to use the joint account and never opened a solo one. Unfortunately, Marcia is spendthrift. She really likes to shop, and she spent more money than she had in her account.

Since the account was tied to one of Anne’s other account that served as an overdraft protection, this account was depleted due to Marcia’s excess spending.  Annie was furious and complained to the bank, but she was out of luck.  Because Annie was on Marcia’s account, she was liable for her daughter’s overspending.

Alternatives to a Joint Account.

Joint Accounts are the most common way for parents to set up accounts for their minor children, but they are not the only option. Here are two other options for parents who may not want to have a joint account with their child.

Custodial Accounts

One option for parents is establishing a custodial bank account. With a custodial account, the child is the owner and primary beneficiary, but there is an adult (usually the parent but it can be a financial institution) who oversees the account until the child is 18 (or 21 in some states), which is when control of the account is given to the child.

The advantages here are that the parent’s money and the child’s money are separate, so the child is not exposed to the parent’s creditors, and the child cannot overdraw the account.

Neither John nor Annie would have been in trouble if they had custodial accounts instead of joint accounts.

Prepaid Debit Cards

Another alternative to a joint account is a reloadable pre-paid debit card.

Several institutions allow parents to set up pre-paid debit cards for their minor children.

No two cards, however, are exactly the same. Before signing up for one, the parents should review the terms carefully, and make sure they understand what their rights and obligations are with that institution.

For example, some cards offer parental monitoring and control or are designed to teach the child how to save and invest wisely. Usually, these features come with a monthly fee.

If the parent prefers to be more hands-off approach, there are a number of cards that are free to use, but do not offer parental monitoring, so the child is left to his or her own devices.

In addition to the ability to control or monitor the child’s spending, parents should also consider if the card offers overdraft or fraud protection.

Be aware that some institutions do require the parent to also have an account if the minor child is to have his or her own debit card; this could expose the parent to the same risk that a joint account would.


There are different options for parents who want to help their child better access his or her money. A joint account is often used by married couples and generally are preferred in such situations.  However, there could be problems when owned by parents together with children so it is worth exploring your option to see what works best for you and your family.