Tangible Personal Property – “Who Gets All My Stuff?”

  • By Staff Writer
  • 28 Jul, 2016
personal property questions, Hot Springs, Arkansas

Estate planning attorneys and their clients spend a great deal of time drafting a plan that divides the large assets of an estate equally and equitably among their children, grandchildren, or other beneficiaries. However, they sometimes give far less thought to the other stuff, including tangible personal property that may have more sentimental value than monetary value. Oftentimes, it is the decisions about those sentimental items that can cause the most problems in a family upon the death of a loved one.

Arkansas has a statute that allows a written statement, signed and dated, designating how certain items of tangible personal property shall be distributed. This statement allows people to change the division of tangible personal property without having to amend their entire will or trust.

It is a good idea to ask your children or other beneficiaries which of your personal property items they would like to receive upon your death. It is helpful to know which child loves your paintings and which child loves your china. You can equalize values at death with other assets from the estate to ensure fairness, if that is your intention. Families can use an appraiser to determine values of personal property items to ensure fairness, especially if one child is receiving a Rembrandt painting and one child is receiving grandma’s famous casserole dish.

Oftentimes a family will draw lots or take turns in deciding what personal property items they want. This allows each family member to feel they got their fair share.

An extreme approach may be taken if a family cannot decide how to divide the personal property items. This approach is for the executor or trustee to sell everything and divide the proceeds from the sale among the beneficiaries in the will or trust.

As with all estate planning, it is best to speak to a trusted estate planning attorney or adviser to devise a plan that works best for your family and your beneficiaries. A properly drafted plan can reduce problems or fighting within the family upon your death.

Tiffany Tucker is an associate attorney at Farrar & Williams, PLLC and can be contacted at 501-525-4401 or by email at tiffany@farrarwilliams.com.

By Andy Williams, Elder Law Attorney 08 Dec, 2017

     It is a reality that as we live longer, the need for long term medical care continues to rise. A question I often get asked is, “How do we plan for the cost of long term care, including nursing home costs?” Long Term Care Insurance is by far the preferred option, since it offers the possibility of keeping people out of nursing homes by paying for care in the home or in assisted living facilities. Statistics show that the vast majority of people do not purchase long term care insurance and are forced to rely on other alternatives to pay for long term care costs. Unfortunately, the other alternatives often do not include care in the home and instead require the long term care to be in a nursing home.  

     Without insurance, there are two primary options for the payment of nursing home costs. First, a person may have sufficient income and assets to pay for such costs on a private pay basis. However, since such costs average in excess of $5,500 per month, the private pay option is not a long term solution for most people. The second option is the Long Term Care Medicaid Program. Since this is a government benefit program, there are asset and income requirements to be met in order to qualify. The rules differ depending on if you are single or married. As a result of the eligibility determination process, many clients structure their estate plans in a way to enhance their eligibility in the event such costs become necessary. The remainder of this article will focus on one of the more popular estate planning tools used to enhance Medicaid eligibility for long term care costs.

     A special type of trust often referred to as an “irrevocable trust” is a popular planning option. I prefer to call this trust a Medicaid Asset Protection Trust (MAPT). It is important to note that most Trusts that are set up are Revocable Trusts which offer no protection from nursing home costs. In most cases, in order to gain eligibility, one must either give away assets or structure assets in a MAPT. Gifting assets to your children is usually a poor option, since those assets then become exposed to the children’s debts and liabilities, divorces, etc. For these reasons, the MAPT may be a preferred option as it leaves you in control.

     The primary disadvantage of the MAPT is that it limits you and your spouse to the income earned on the Trust assets, as the principal is restricted and protected for the benefit of your remainder beneficiaries, usually your children. The MAPT does allow you to have full use and benefit of your home and real property, including the right to sell it (provided the proceeds stay in the Trust).

     As with most asset transfers the creation of a MAPT is subject to a Medicaid “look back” of five years. This means the Trust should be created and funded at least five years prior to applying for any Medicaid benefits. It is important to note that most clients who set up a MAPT elect to keep a sufficient amount of assets out of the Trust so they will have full access and control to a comfortable level of assets for their lifestyle. IRA’s and other retirement plans are usually left out of a MAPT.

     In summary, planning for the cost of long term care is an important issue that many people need to consider when setting up their estate plan. This type of planning is very specialized and should only be implemented with the help of an experienced elder law attorney.

Adam Williams is the managing partner at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located on the 2nd floor of the Bear State Bank building, 135 Section Line Road, Hot Springs, Arkansas, and can be reached at (501) 525-4401 or at adam@farrarwilliams.com. The firm’s website is www.farrarwilliams.com .

By Staff Writer 18 Oct, 2017

     One of the most unpopular taxes that exist is the estate or inheritance tax (commonly called the death tax!) The tax is based on the assets a person owns at the time of death. All citizens have an exemption from said taxes. The federal estate tax exemption is now $5,450,000 per person ($10,900,000 for a married couple!) Any assets owned above the exemption are subject to the tax, which starts at thirty-five percent. In addition, certain states such as New Jersey also have a state estate tax. Nineteen states and the District of Columbia still levy a tax at death. Fortunately, Arkansas does not have a state estate tax.

     Given the large exemptions that are in place, most people do not have to be concerned with estate taxes.

     If you have a larger estate (over $5,450,000) you still need to plan for the federal estate tax, which can tax at a bracket of thirty-five percent on amounts over the exemption. There are many estate planning options that can be used to reduce or eliminate estate taxes. Trusts, limited partnerships, and gifting are a few of the more commons options to consider. In the event you are married, the options are even greater as you want to make sure both the husband and wife’s exemptions are utilized. Proper planning is essential for larger estates.

Adam Williams is the managing partner at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located on the 2nd floor of the Bear State Bank building, 135 Section Line Road, Hot Springs, Arkansas, and can be reached at (501)525-4401 or at adam@farrarwilliams.com . The firm’s website is www.farrarwilliams.com .

By Tiffany Tucker 07 Sep, 2017

No eighteen year-old wants to think about a living will or a durable power of attorney when they are heading off to college. Likewise, no parent wants to think that their eighteen year-old child needs documents like this. But the reality is, there are a few bare-bones estate planning basics that even the college freshman could benefit from and that become even more important for young adults in their 20s or 30s.

If something happens to your child while they are off at college, you as the parent have no right to see their medical records because of the “HIPAA” rules. Legally, parents are not able to make health care decisions without a signed healthcare directive naming them as agents authorized to act on the child’s behalf while they are incapacitated or unable to speak for themselves.

A durable power of attorney is a document that your young adult children could also benefit from. Powers of attorney name an agent to act on their behalf if they are unable to take manage for their financial affairs. If you, as the parent, are named as the power of attorney for your young adult child, you would be able to pay their bills or handle their financial affairs as needed in an emergency situation.

While most college students do not have substantial assets, a simple will might be needed to designate who should receive his or her assets and belongings in the event of death (even if it is just a baseball card collection). Wills become especially important once young adults have their own children, as this is the document that will name guardians for their minor children.

These simple estate planning documents will give you, and your young adult children, peace of mind in knowing that a plan is in place in case a tragedy occurs.

Tiffany can be contacted at 501-525-4401 or by email at tiffany@farrarwilliams.com . She can answer any questions you have about this subject.

By Manda Bass 01 Aug, 2017

     One of the critical decisions a person has to make when setting up their estate plan is who to name as their agent to carry out their wishes and manage their assets in the event of death or disability. There are several agent functions to be concerned with, including: Executor of your Will; Successor Trustee of your Trust; Agent under your Durable Power of Attorney; and Agent under your Healthcare Directives.

      In most cases your agents are set up as your spouse being the first nominee and some combination of your children as secondary nominee(s). Much thought must be given to the appointment of your agent as they will be in charge of your affairs. Selecting people with good business judgment is important as well as selecting people with good temperaments.  Since the agent will be called upon to serve during a time of crisis (usually at death or disability), you must make sure the person you name can handle the pressures that such situations bring about. The last thing you want to happen is to create a situation where your family is in conflict regarding your wishes. For this reason many people elect to name non family members as their agents.

      Some of my clients do not have suitable family members to name as their agents. In such cases, you can look to corporate agents such as trust departments or private trust companies. In my experience these companies are a good choice as they administer your wishes according to your documents and without the emotional attachment that comes with naming a family member. The downside to corporate agents is they charge a fee for their service. Generally speaking, the fees are around 1% per year for the assets under management. Close friends or your attorney or accountant can also be given consideration, although in my experience, corporate agents are a better option.

      There are many important decisions to make when setting up your estate plan. Perhaps the single most important decision is who to name as you agent. For this reason you should spend a lot of time considering the options so as to protect your wishes as well as to facilitate family harmony.

Adam Williams is the managing partner at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located on the 2nd floor of the Bear State Bank building, 135 Section Line Road, Hot Springs, Arkansas, and can be reached at (501)525-4401 or at adam@farrarwilliams.com . The firm’s website is www.farrarwilliams.com .

By Manda Bass 10 Jul, 2017

 Did you recently retire to Arkansas from another state? The legal complications of moving from state to state are not as difficult as they were in past years. But you still need to be knowledgeable about the tax and legal issues that can differ from state to state.

  For example, if you sold your home in another state recently, you probably do not owe any capital gains tax on the sale, but you usually do need to file a final state income tax return for that state. The good news is that you will probably not owe any tax on the sale if your profit was less than $500,000 (this exemption may vary from state to state, but the federal exemption for a married couple is up to $500,000 in profit on sale of the principal residence).

  What about your estate planning documents, including your Last Will and Testament, Durable Power of Attorney, and advance directives? Are these documents effective in Arkansas? As a general rule, the answer is yes. A  legal document properly executed in another state is effective in Arkansas. However, a durable power of attorney and healthcare advance directives typically need to be updated to include the statutes of the state where you currently reside.

  But then the legal system always has exceptions to consider. Do you have children that you are not providing for under your Last Will and Testament?  Arkansas has a law, known as the “pretermitted heir law” that requires your will to at least mention the child, even if you do not wish to give that child   anything under your will. Likewise, if you have a deceased child leaving children, you need to  mention those grandchildren’s names in your will. Failure to mention the child or grandchild   can result in that person   you wished to disinherit instead receiving a portion of your estate, despite the terms in your Last Will and Testament.

  What about Arkansas estate tax?  Fortunately, Arkansas has eliminated its state estate tax, so that is not a problem. The federal estate tax still applies to   estates in excess of $5,490,000 for 2017, and there are even larger estate tax exemptions for married couples.

  Do you still own real estate in another state? For example, many families own vacation condominiums in other states? If so, you will want to plan for that to avoid “ancillary probate” (a probate court proceeding in another state.)     This can be an expensive and time consuming legal problem for your surviving spouse or children.

  In summary, if you have moved here from another state, the laws are usually not significantly different from state to state. However, we typically advise that you have an attorney review your out of state documents, and possibly make updates to your documents in accordance with the laws of the state where you currently reside. Further, an experienced estate planning attorney can advise you on any other issues that might affect your estate plan now that you are a resident of Arkansas.

Tiffany is an associate attorney at Farrar & Williams, PLLC and can be contacted at 501-525-4401 or by email at tiffany@farrarwilliams.com . She can answer any questions you have about this subject.

By Manda Bass 07 Jun, 2017

     One of the first questions I often get asked by prospective clients is how much my services will cost. This is a fair question as fees should always be discussed at the beginning of a business relationship. Under ethical rules, an attorney’s fee should be reasonable and based on the time spent on the matter; the expertise of the attorney; and fees customarily charged for similar services in the community. Most lawyers charge fees on an hourly basis and charge for all time spent on the matter. By contrast, many estate planning lawyers prefer to charge fees on a flat or fixed fee basis. My firm has a published fee schedule available on our website or by calling our office. This fee schedule lists the fees and expenses we normally charge for most routine estate planning services, such as powers of attorney, healthcare directives, Wills and Trusts.

      Are fixed fees better than hourly fees? This is a tough question but I have found that my clients prefer to know what the cost will be for the services rendered. The unknown of how much time is being spent can cause client’s anxiety, and in my opinion can have a negative impact on my dealings with my clients. I do not want my clients to feel rushed or in a hurry to get the services done in order to reduce the costs. In estate planning the services are more predictable and routine so fixed fees can be established based on the amount of time spent on the typical case. Our fee schedule is reviewed and updated on an annual basis. Of course you will have cases that take more time and end up being less “profitable” but in the long run fixed fees are the most reasonable way to charge for estate planning services. It must be pointed out that many legal services cannot be charged on a fixed fee basis as there is no way to predict the amount of time the matter will take. This is usually the case with any type of lawsuit.

      There are some disturbing trends I have encountered with some attorneys, including some estate planning or elder law attorneys. The first trend involves charging fees based on a percentage of the assets involved or “being protected” with said fees charged while the client is living. While percentage fees on trust and estate settlements (such as in probate) may be somewhat customary, in my opinion, charging a percentage fee to a client based on how much of their assets you are going to “protect” is not reasonable and often results in the client being taken advantage of during a vulnerable time in their life (such as when being admitted to a nursing home). Another disturbing trend involves a so-called “lifetime fee retainer,” where an attorney charges a large fee and agrees to provide for all future legal services (read the fine print as the services are limited). This type of fee arrangement does not pass the ethical requirements in my opinion as there is no way to predict the future needs of a client, and it may be difficult to ensure the attorney or law firm will be around to even provide such services.

      In summary, attorney fees are a “necessary evil” as some of my clients put it. I encourage you to discuss the fees at the beginning of the matter and ask questions about other types of fee arrangements. I also encourage you to be wary of percentage fees for protecting your assets, or fees that are based on a lifetime of services.


Adam Williams is the managing partner at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located on the 2nd floor of the Bear State Bank building, 135 Section Line Road, Hot Springs, Arkansas, and can be reached at (501)525-4401 or at adam@farrarwilliams.com

The firm’s website is www.farrarwilliams.com .




By Manda Bass 27 Apr, 2017

     If you have a grandchild graduating from high school next month, chances are you have been hearing a lot of talk about scholarships, financial aid and the cost of tuition.

     The Wall Street Journal recently reported that the cost of college tuition, room and board is averaging about $19,000 a year at public universities and $42,000 at private nonprofit schools. With these costs, it is important for families to know their options regarding paying for college.

     According to Sallie Mae, 17% of families relied on relatives to help pay for college.  There are many different ways that grandparents (or other relatives) can help their grandchildren pay for college.

     If your grandchild is looking to pay for college this year, your options are more limited than if you had planned for this in advance.

     One way to help your grandchild immediately would be simply making cash gifts. However, the gift tax exclusion is currently $14,000 per person. This means that grandma can give $14,000 to a single individual and grandpa can give $14,000 per year without having to report the gift on any tax returns. However, these cash gifts could hurt the student’s chances for financial aid. If your grandchild is applying for financial aid you should not pay the money directly to the school because the school will reduce the student’s financial aid.

     Another option would be for the grandparent to pay a student’s full tuition directly to the college. When this is done there is no gift tax, but these tuition payments cannot be deducted.

     Typically the best option to help your grandchildren pay for college is by planning in advance and contributing to a 529 Plan. A 529 Plan is an education savings plan operated by a state or educational institution designed to help families set aside funds for future college costs.   Amounts contributed to a designated beneficiary's 529 account are treated as a gift. However, contributions of up to $14,000 can be made for each designated beneficiary without incurring federal   gift tax   in accordance with the annual exclusion. In addition, there is a special exemption to the gift tax for the purpose of contributing to a 529 Plan, which allows each grandparent to contribute a one-time gift of $70,000 (five years of the gift tax exemption). Arkansas taxpayers can deduct up to $5,000 (up to $10,000 for married couples) of their Arkansas 529 GIFT Plan contributions from their Arkansas adjusted gross income.

Tiffany is an associate attorney at Farrar & Williams, PLLC and can be contacted at 501-525-4401 or by email at tiffany@farrarwilliams.com . She can answer any questions you have about this subject.

By Manda Bass 14 Apr, 2017

     Probate is considered a dirty word by most seniors. Why is that? Probate can be defined as a court supervised proceeding where a person’s Last Will and Testament is enforced and administered at the time of death. Probate is also required for a person who dies without a Last Will and Testament. Since it is a court supervised process, it can be quite expensive (up to 6% of the estate value in some states) and time consuming (minimum of 6 months in Arkansas). Based on these problems, probate should be avoided if possible. A good estate plan often focuses on probate avoidance. This article will outline some probate avoidance strategies that should be avoided or at least carefully considered, as shortcuts to avoid probate can create more problems than probate itself!

     The best probate avoidance plan is the use of a Revocable Living Trust. Trusts are the most popular estate planning document primarily because they avoid probate while at the same time thoroughly addressing all issues that can come up in administering an estate at death. A Trust is simply an agreement that controls your assets while you are alive (with you serving as your own Trustee and remaining in full control), but also controls the distribution of your assets at death (much like your Will would). Trusts are often called Will substitutes as they replace the function of a typical Will.

     Rather than using a Trust, many people attempt to avoid probate by other means, most commonly through joint accounts, payable on death (POD) accounts, and transfer on death (TOD) accounts. Joint accounts are when a child or other beneficiary is named as a joint owner. POD accounts designate beneficiary(s) at death and are available for most bank accounts. TOD accounts (much like POD accounts) are allowed for most investment accounts. These forms of ownership do avoid probate; however, they may create other problems. First, they do not plan for the “what if’s” in life, such as the prior death of a named beneficiary or a beneficiary who has financial or personal problems. Next, they also do not require the payment of your final expenses such as funeral expenses, which may leave other relatives paying for your funeral and your named beneficiaries skipping town.

     Jointly owned accounts create an additional risk in that the named joint account owner is an owner of your account, thereby subjecting the assets in said account to their creditor and marital claims. If your family needs access to your funds in the event of your incapacity, your estate plan should have a Power of Attorney to allow such access for your benefit. For this reason there is no need to have a joint account owner (other than your spouse) with a proper estate plan.

     In my experience, these “short cut” strategies often have poor results and end up costing more in legal fees to clean up the mess left behind. There are often unattended consequences as a result of short cuts in planning and your family may end up in conflict with one another over what your true intentions were.

Adam Williams is the managing partner at Farrar & Williams, PLLC, a law firm limiting its practice to trusts, estate planning, and elder law, located on the 2nd floor of the Bear State Bank building, 135 Section Line Road, Hot Springs, Arkansas, and can be reached at (501)525-4401 or at adam@farrarwilliams.com.

By Manda Bass 06 Apr, 2017

  With advances in health care, statistics show that people are living longer. With advanced age, many people require assisted living or nursing home care during the later stages of life.  The costs of such care can be very expensive and unfortunately the options for payment of the care are limited.  If forced to private pay for such care, the costs for long-term care can rapidly deplete a person’s estate. Nursing home costs in Garland County can easily exceed $5,000.00 per month, with home based care being even more expensive. My law practice focuses on helping people plan for such costs.

            The best planning option for long term care expenses, whether it be assisted living, home based care or long-term care, is an appropriate long-term care insurance policy. A properly structured long-term care policy will include services for home care, assisted living care as well as nursing home care. These policies provide the best choices for such care and should be included in your estate plan. I am often told by my clients that they do not purchase the long-term care insurance based on the high premiums.  Despite these concerns, I always encourage my clients to seek out information about long-term care insurance as it remains the best option to cover such costs.

  Surprisingly, a small percentage of seniors actually have long-term care insurance, which forces them to look for other alternatives to pay for such care. For this reason other options must be evaluated. In the case of assisted living care or home based care, my first inquiry is whether or not my client or their spouse was a wartime veteran. If they were a wartime veteran, then they have an opportunity to seek a special pension benefit available through the Veteran’s Administration, known as Aid and Attendance Benefits. While this pension benefit will not cover the full cost associated with most care, it does provide a monthly pension (of  over $2,000.00 per month in some cases) which will help supplement the cost of uncovered medical-related care, including assisted living or home-based care. There are numerous eligibility restrictions on the Veteran’s Administration Aid and Attendance program. If you or your spouse were a wartime veteran and you have medical-related expenses that exceed your monthly income, you should inquire as to your eligibility for said pension benefits, as they provide much needed funds to help supplement the cost of your care.

            For those clients that need full-time nursing home care, the payment options are limited. The two main options are private payment (in excess of $5,000.00 per month) and the long-term care Medicaid program. The Medicaid program is a large government funded program that pays for up to 70 percent of all people in nursing homes. The cost savings associated with the long-term care Medicaid benefits can be significant. Gaining eligibility for the long-term care Medicaid program is a complex process. Throughout my practice I have gained experience in this area as I have assisted hundreds of people in obtaining long-term care Medicaid eligibility. Early planning is the key so I encourage you to explore your options sooner rather than at the time of a crisis.

            Planning for the increasingly high cost of long term care is an essential part of your estate planning. This type of planning is complex and requires the services of an attorney who deals with elder law issues.

By Manda Bass 06 Mar, 2017

     If you are retired, what is the best way for you to title your vehicle, so that your surviving spouse and children do not have any problems following your death?

      If you are in a first marriage, and your spouse is still alive, you would usually want to hold the title in to both you and your spouse’s name. I recommend that you title your car with an “or” between your names on the car title (for example, “Joe Smith or Sue Smith.”) In this manner, either you or your spouse can sell the vehicle at a later date without both of you having to sign the paperwork. Following your death, your surviving spouse would have sole ownership of the vehicle without having to obtain an updated title.

      What if you are in a second marriage? If it’s a long-standing second marriage, you would typically want your surviving spouse to inherit your car. You would simply follow the same procedure outlined above for a first marriage. But if you are in a recent second marriage and instead desire your vehicle to pass to your children, you would  accomplish this either by a provision in your will or alternatively by  adding  your children’s names on the car title through a ”TOD” designation (transfer on death”). This TOD can be handled through the local Department of Motor Vehicles office for a small title transfer fee.

      How should you handle your car title if you are a single person? If you want all of your children to inherit your car following your death, then all your children have to do is take the car title to the Department of Motor Vehicles following your death, and fill out an affidavit of inheritance. This would place the vehicle in all of the children’s name.  This procedure assumes the children get along with each other, and that your children will cooperate in filling out the paperwork.

      If you’re single, and you want just one of your children to inherit your car, then you should follow the transfer on death procedure explained above, or specifically designate that in your estate plan.

      In summary, the transfer of your car following your death usually does not require involvement of lawyers or probate court. But it is helpful to your family for you to leave clear instructions, and fill out paperwork in a manner that avoids problems for your survivors.


Tiffany Tucker is an associate attorney at Farrar & Williams, PLLC and can be contacted at 501-525-4401 or by email at tiffany@farrarwilliams.com.

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