Legal Documents For Your College-Bound Student

This one hits close to home. I recently attended my daughter’s Donuts with Dad breakfast for high school seniors. As a parent of a child who is about to turn 18, my wife and I are preparing for my daughter’s college career. Part of that process includes getting legal documents in place.

The documents that I recommend for your high school graduate include the following:

  • Health Care Power of Attorney. This document allows your student to designate an agent to make medical decisions if they are not able to communicate their wishes.
  • Living Will. This document is similar to the Health Care Power of Attorney but is more limited to end-of-life decisions.
  • Durable Power of Attorney. This allows your student to appoint an agent to make financial transactions. This can be particularly important if your student is away at college, but needs a parent to access bank accounts or deal with financial institutions.

High school graduation is also a good time for parents to examine and update their estate plans. It is common for parents to draft a Will upon the birth of their first child, then just stash the documents away for years upon years. If you are in need of legal documents for your high school graduate and soon-to-be college student, or if you are need of a review and update of your estate plan, please contact me at mccarthy@danmccarthylaw.com or 513-815-7006 for a consultation.

 

McCarthy Appointed to Hamilton County Regional Planning Commission

Dan McCarthy was recently appointed to the Hamilton County Regional Planning Commission (“RPC”). Dan’s term expires on March 6, 2024. The RPC responsibilities include, among others:

  • Review all preliminary subdivision plans and approves, disapproves, or conditionally approves such plans;
  • Reviews and approves or disapproves all Final Plats;
  • Grants or denies requests for variations.

Dan has previously advised administrative bodies, such as Zoning Boards, represented clients before governmental boards, and has even sued boards when necessary. Sitting on a County-wide Board provides a different perspective, sitting as a member of the decision-making Board.

McCarthy Named as a 2022 Ohio Super Lawyer

We are pleased to announce that Dan McCarthy has once again been named to the Ohio Super Lawyers list. This is his fourth consecutive year on the list, continuing a streak that started in 2019. He was also named as a Rising Star Super Lawyer from 2014-2017.

Super Lawyers is a rating service of leading lawyers from multiple practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.

About Dan McCarthy Law

McCarthy Law Office Welcomes New Paralegal Renee Mason

McCarthy Law Office is pleased to announce the hiring of paralegal Renee Mason. Renee has over 20 years experience working with law firms in Cincinnati and throughout the nation. Renee has extensive experience in litigation, personal injury, insurance defense, and worker’s compensation cases. Renee primarily focuses her time on personal injury cases, but assists with all aspects and practice areas of McCarthy Law Office.

Renee grew up on the westside of CIncinnati and lives near our Bridgetown Road office with her husband of 17 years and their two daughters.

About McCarthy Law Office

McCarthy Law Office focuses on helping individuals, families and small businesses with their legal needs. Practice areas include estate planning, personal injury, civil litigation, and small business representation.

McCarthy Admitted to Practice In the United States Supreme Court

Dan McCarthy was recently admitted to practice in the United States Supreme Court. An attorney must be admitted to the Court in order to participate in any cases before the Court. McCarthy Law Office was retained by the Fraternity Forward Coalition and the Fraternity Housing Association to file an amici curiae brief in a case arising out of the Indiana Supreme Court. The case, UJ-Eighty Corporation v. City of Bloomington Board of Zoning Appeals, Case Number 21-113, involves whether a municipality can delegate zoning authority to a third-party (Indiana University in this case). The case has wide-ranging implications for fraternity and sorority chapters across the country. Our clients urged the Court to accept the case due to national significance of the issues presented.  The Court is currently considering whether to accept the case for its next docket. More information to follow.

Planning Considerations for Timeshares and Vacation Clubs–Should Your Trust Be the Owner?

Timeshares have come a long way since they first arrived in the real estate market back in the ’70s. In the early days of timeshare ownership, high-pressure sales tactics, exceedingly vague contracts, and inflexible scheduling policies caused many people to quickly regret such purchases. Over time, however, timeshares have become more consumer-friendly with greater transparency in the terms of the contract, more flexibility in scheduling timeshare weeks, more diversity in the location of the vacation properties, and less pressure during the sales experience. That is not to say that all timeshare companies are ethical and transparent. There are plenty of modern-day examples of abuses within the timeshare industry. However, it is not uncommon to find very happy timeshare owners who have obtained great value out of their timeshares and view them as highly valuable and desirable property in their estates.

When it comes to your estate planning though, how should you handle your timeshare? If you have a revocable trust, should you transfer ownership of the timeshare to your trust? Should you instead continue to hold it in your name, or jointly with another family member? What if you do not use it very often and, despite your efforts to get your adult children to use it, it mostly just goes unused? Here are a few things to consider when deciding how to plan for your timeshare.

The Case for Owning Your Timeshare in Your Trust

Suppose you find significant value in timeshare ownership. It may be worth the effort to purchase the timeshare in the name of your revocable living trust initially. If you obtained ownership before the formation of your trust, however, you may want to consider retitling the contract in the name of your living trust. In some states, and depending on the timeshare contract, you may be an owner of rights in real property. This is important to know because in most states if you die owning real property, it will be subject to an often timely and perhaps expensive probate proceeding for it to pass to your heirs unless it is owned through a probate avoidance tool such as a living trust, joint ownership with rights of survivorship, or payable on death or transfer on death designation. Owning your timeshare in your revocable trust is one of the most common ways to ensure that your named trust beneficiaries will have the right to either use or take ownership of your timeshare after you are gone without needing to utilize the probate court to do so.

When you first purchase a timeshare, it is crucial that you understand the requirements to transfer it at your death. If the person selling the timeshare to you cannot with certainty tell you how you can transfer the timeshare (and show you language in the contract supporting their answer), you should seek the counsel of an experienced timeshare or real estate attorney before signing the contract. This distinction can make a difference of thousands of dollars of probate costs and frustration upon your death or disability. You will also want to check your contract or with the timeshare management company to determine whether there will be a fee assessed for the transfer of your timeshare from your name to the name of your trust. Some timeshare companies charge steep fees for transfers like these.

Ultimately, the decision to title your timeshare into the name of your trust is a very fact-specific decision. Asking questions and reading your timeshare contract carefully can help you avoid costly mistakes.

Reasons Not to Title Your Timeshare in the Name of Your Trust

Maybe you have used your timeshare frequently in the past, but now, for health reasons, you just cannot get away as you used to and no one in your extended family seems to ever want to use your weeks either. In that case, you might consider trying to sell the timeshare before you pass away. One of the main complaints people have with timeshares that they no longer use is that most, if not all timeshares, have annual maintenance fees or dues assessed to the owners. Some consumer reports estimate that the average timeshare maintenance fees are $800 to $900. In addition, special assessments can be levied on owners when the property incurs damage from a natural disaster, fire, or other mishap, or needs maintenance. Special assessments can often add thousands of dollars a year to the cost of ownership. If you are not using the timeshare regularly, these extra costs can be very burdensome with little benefit.

If your living trust owns the timeshare, your trust beneficiaries will inherit these maintenance fees and special assessment obligations that the trust is bound to by contract. If none of your beneficiaries want the timeshare, your trustee will have to try to sell the timeshare on the open market. Thus, you should be aware that, even today, the market for timeshares is very limited. There are a handful of websites where you can list your timeshare for sale or attempt to rent out your weeks; it is important to note, however, that it is rare for people to sell their timeshares for even a small fraction of their original purchase price.

Moreover, it can be very difficult to simply walk away from your timeshare while you are alive. Many timeshare companies are experts at pressuring timeshare owners to pay their annual maintenance fees through threats of litigation and using collection companies. As a result, if you feel that your timeshare no longer provides the value that it once did, and if your children or other family members are unlikely to want to inherit it once you are gone, you might consider leaving it out of your living trust entirely. Many timeshare contracts have provisions where the contracts terminate at the death of the owner. If your trust owns the timeshare, however, such a termination on death provision would likely not be applicable because a trust cannot die and the trust would continue to be obligated for the maintenance fees.

Even if your timeshare contract does not terminate at the death of the owner, from a practical standpoint, if the only asset in your name was the timeshare (because all other assets passed via the trust or beneficiary designation), and your family had no interest in inheriting the timeshare, then the timeshare company would have to initiate a probate proceeding to seek payment from the estate for the unpaid maintenance fees. Doing so would not likely benefit the timeshare company, leading them to abandon any claims against the estate for anything more than a reversion of the timeshare’s title to the company.

Conclusion

Owning timeshares can provide significant benefits for those committed to using them regularly and who know how to maximize the value for themselves and their families. Under circumstances in which a timeshare can continue to benefit a family and successive generations, it may be wise to title ownership of your timeshare in the name of your trust. However, when timeshares become more of a liability than an asset to a family, it is important to review your obligations under the timeshare contract, perhaps with the help of your attorney, and determine whether owning your timeshare in your trust is a good idea. It may not be the right thing to do. Remember, timeshare contracts can vary widely in their terms and obligations. If you are unsure of your rights and obligations under your timeshare contract, seek the help of your attorney to understand the best course of action for your family when it comes to your estate planning.