by Josh Bryant
One of the issues we work on every year is adoption legislation. Last year, we were able to get a great bill through that prohibits individuals from soliciting pregnant women to place their child up for adoption in exchange for anything prohibited by law. It also characterizes an act of forcing a woman to place her child up for adoption as human trafficking. There is still a lot of work left to do.
There still need to be systemic changes to our adoption laws in Arkansas. The process is broken and must be fixed. We need to tighten up the jurisdictional components of the law to make sure Arkansas actually has a reason to hear a case. Furthermore, we need to find a way to ensure that neither adoptive parents nor biological parents are harmed by a conflict of interests. We need to talk about the recognition of open adoptions. We need to talk about cleaning up the Interstate Compact on the Placement of Children up to be much clearer.
Recently, Representatives Kelly and Penzo filed an Interim Study Proposal so that we can discuss these issues with legislators until the General Assembly reconvenes in 2021. Our goal is to have comprehensive adoption reform legislation ready to file the day the Bureau of Legislative Research allows (usually in mid-November). We are having discussions with stakeholders and inviting others to join the discussion if they so choose. We look forward to the passage of comprehensive adoption reform legislation in Arkansas!
If you have a problem that could have a legislative solution, give us a call. We are always available to discuss your needs and determine whether we can help draft legislation to solve your problems. We can also help get that legislation in front of the right people who can get it on the agenda for debate in Little Rock. Time is short, however. We need to start having discussions now in order to help ensure a smooth process in January 2021.
by Josh Bryant
You may have heard of a revocable living trust (RLT), which is a commonly used estate planning solution. But what exactly are they, who is affected by them, how can they be changed, and what do they accomplish? Josh Bryant answers these questions.
What Are They?
Trusts, which are legal entities that hold title to property for the benefit of a living person, are often used as an alternative or supplement to a will. A revocable living trust (sometimes called a revocable trust, an inter vivos trust, or a living trust) is a trust that you create during your lifetime and can change at any time prior to your incapacity or death. RLTs are distinguishable from irrevocable living trusts, which are difficult to alter after their creation (though there are a few possible ways, for example, by making limited changes permitted by the terms of the trust, asking a court to order changes, or shifting the trust’s assets into a new trust). Josh Bryant usually advises an RLT for anyone who has children under 30 or assets over $75,000.
Who Is Affected by Them?
The living person or charity benefited by the trust, but who does not have legal title to the money or property in the trust, is called a beneficiary. The individual who creates the trust, decides how it will operate, and determines what property or funds to include in it is called the grantor (but may also be called the settlor or trustor). The trust is administered by a trustee, who is in charge of managing and investing the funds or property in the trust and distributing them to the trust beneficiary according to the grantor’s instructions, memorialized in a trust agreement. Typically, the grantor names a successor trustee in the trust agreemnt who will manage the trust if the original trustee becomes incapacitated, passes away, or is otherwise unable to serve.
Often, though not always, the grantor of the RLT is both the initial trustee and primary beneficiary. So, you create the trust and provide the funds or property for it, you manage, invest and control the property and money owned by the trust, and you distribute the trust funds to yourself as desired. While the grantor is alive and well, the tax identification number of an RLT is the grantor’s social security number, and any income earned by the trust is taxed as the grantor’s personal income.
How Can They Be Changed?
If circumstances change, as they often do, you can alter the RLT through amendment, restatement, or revocation. Typically, a trust amendment can be made by attaching a properly drafted and executed amendment to the original trust document. An amendment may be appropriate for minor changes or deletions, such as replacing a successor trustee. If more significant changes are needed, such as changing beneficiaries of the trust, or if the trust has already been amended multiple times, a document called a restatement of trust should be created. This document allows you to “restate” or rewrite the entire original trust agreement incorporating any necessary changes instead of revoking the original trust and creating and transferring assets to a completely new trust. There are circumstances that neither an amendment nor a restatement are appropriate, in which case you can revoke the trust. A revocation may be warranted if a major change such as a divorce or death of a beneficiary occurs and involves dissolving the trust entirely and transferring the assets owned by the trust back to yourself or into another trust.
The law of most states provides that changes should be made according to instructions provided in the trust document, or if there are no instructions, in a way that clearly evidences your intention to make the changes. For example, if you amend the trust, you should create a written document, signed by the grantor and trustee, with a title that shows it is an amendment to the specific trust you are amending. The document should set forth the trust’s name, the date, and the name of the trustee. It should also mention the portion of the trust document that allows amendments to be made and should identify the part of the trust that will be changed, deleted, or added. If there is more than one grantor and the changes are made by fewer than all of them, notice should be provided to the grantors who did not participate in the changes. Josh Bryant recommends reviewing your trust with your attorney no less frequently than every other year, but preferably every year.
Warning: If the trust has grantors who are spouses or domestic partners, and the trust document does not provide otherwise, most states have special rules regarding changes:
Joint property, that is, property you own with another person, can also be placed in an RLT. You can put your own interest in jointly owned property in a revocable trust without affecting the rights of other joint owners. Spouses can create a living trust to hold both joint, community, and separate/individually owned property, in which both are grantors and trustees, and which either of them can amend or revoke during their lifetime. In fact, each spouse should be given the power to withdraw his or her separate property at any time without the consent of the other spouse to avoid possible gift tax liability.
What Goals Can an RLT Help Accomplish?
Avoid probate. When you pass away, none of the assets properly titled in the trust will need to go through a long and potentially expensive probate process that could delay a beneficiary’s access to those assets for months or even years. In addition, the trust assets will be distributed privately, and do not become part of the public record, as is the case when a will must go through the probate process, which is overseen by a court. All probate files, including wills, asset inventories, and distribution reports, are open for any member of the public to review, but your family’s privacy is preserved when assets are distributed according to an RLT. Probate is an ancient, inefficient, and drawn out process. Josh Bryant recommends a trust to avoid it at all costs.
Protect inheritances. You can include provisions in your RLT that will help ensure that, after you die, the trust assets intended to benefit the next generation will not be spent too quickly, vulnerable to creditors, lost in a divorce, or wiped out as a result of other life events your beneficiaries may experience.
Plan for your own incapacity. Although an RLT allows you to retain control over your assets, it is important to plan ahead in case you are unable to do so in the future. In an RLT, you can authorize a co-trustee or a successor trustee to manage the trust property if you become incapacitated as a result of an illness, accident, or incapacity. Otherwise, your family member will have to rely on a financial power of attorney or go to court to ask for legal authority to manage your finances.
What to Do Next
An RLT has many benefits, including enabling you to continue to manage your assets while also providing protections for your beneficiaries. As experienced estate planning attorneys, we can help you plan for the future by establishing a new RLT or changing the terms of an existing one. Call us today to schedule an appointment to discuss this or any of your other estate planning needs.
by Josh Bryant
In the golden age of the smartphone, you’re never far from a camera. This has made the sharing of videos and photos easier than ever before. Easy access to a quality camera has led many people to wonder: can I make a video will? More importantly, folks are curious about whether such a “will” can hold up in court. Given how common technology is these days, it’s natural to have such questions!
Unfortunately though, the law has yet to catch up with the constantly evolving digital trends. In most states like Arkansas, a will must be written down, signed, and witnessed for it to be considered valid. Video wills can be used to accompany the written document, but generally, a standalone video account of a person outlining their estate plans will not likely stand up in court. It may, however, be used to contest a will.
Some argue that the face-to-face, personalized nature of video wills should trump the old-fashioned signing of documents. While the way wills are handled in the future may indeed change, the law is unlikely to reflect such evolving attitudes soon. For all their benefits, video wills reflect just a few moments in time. Official documentation of the person’s wishes, complete with signatures and witnesses, will likely continue to remain supreme in the eyes of the law. In order for video wills to take over, legislatures would have to design a mechanism by which the video could be authenticated much like a will is authenticated by the witnesses who observe you sign the will.
That’s not to say, however, that all wills are written down all the time. Some states are willing to recognize oral wills made on a person’s deathbed. Also known as a nuncupative will, these oral statements are often made when someone is too sick to have their estate plans formally executed. Nuncupative wills aren’t accepted in every state, though, and they rarely supersede a written will (if one exists). Arkansas does not recognize nuncupative wills.
If you have specific instructions for how your assets are distributed after you pass, it’s worth spending a little time with an estate planning attorney like Josh Bryant to formalize your will or trust. Should you choose to make a video will in addition to the written estate plan, it may be used as visual proof that you were of sound mind when you made it. You may wish to read the will on camera and add in explanations for the reasoning behind your choices. Such a video may help clarify your wishes and settle any will contests from relatives unhappy with their inheritance. Josh Bryant can assist with this as well.
Your legacy is important. Don’t leave it to chance by recording your wishes on a smart phone. Instead, work with an experienced estate planning attorney like Josh Bryant – it’s the best way to ensure your wishes are carried out in the way you intend.
For the second in the series of posts answering frequently asked questions about NWA FaithWorks, we take up the topic of what makes NWA FaithWorks unique. Josh Bryant has a saying, "differentiate or die." He didn't coin the phrase - that honor belongs to Jack Trout in his book by the same title. However, the premise is the same. Any business that is not unique in its field and service area is going to have a hard time surviving. There are other incubators here in Northwest Arkansas. What makes NWA FaithWorks different?
Faith-Based. There are few faith-based incubators anywhere in the country, and none of them are based in Northwest Arkansas. NWA FaithWorks is one of the few in the U.S. that are markedly faith-based and designed to help entrepreneurs build and run a business consistent with their faith and as a means of taking the gospel to Northwest Arkansas and the world.
Lawyer Lead. There are also very few incubators lead by attorneys in the U.S., and none of them are based in Northwest Arkansas either. Since it is lawyer lead, those in the program can have all of their legal work done at no fee. Since Josh Bryant is a tax attorney, entrepreneurs in the program have all of their tax work done at no fee as well. In a world that is becoming more regulated and litigious by the minute, it helps to have a lawyer coach you through the startup years of your business. For more on why you should join a lawyer lead incubator, see our previous post.
No Equity. Neither Josh Bryant nor NWA FaithWorks take an equity stake in your business. Many incubators will allow you to enter their program for no fee other than taking an ownership interest in your business. This is your business, so we want you to own it and run it. We won't take an equity stake in your company in exchange for your participation in the program. We have a simple fee that covers everything: utilities, rent, phone, internet, legal work, tax work, access to capital, discipleship, networking, and more. That fee is a flat $400 per month.
Competitor Ban. We will not admit two entrepreneurs to the program that compete with one another. If we get an insurance agent in the program, that will be the only insurance agent we have. When we get a graphic designer, that will be the only graphic designer in the program. Josh Bryant wants your business to succeed, so he will not admit your competitors to the program. This will give you a distinct advantage over your competition.
There are only a few spots left in the incubator. Put in your application today by clicking on the NWA FaithWorks tab above.
It's spring, which means it's tornado time. The year 2018 was no stranger to natural disasters. From multiple earthquakes, back-to-back hurricanes, and raging wildfires, the United States and abroad has suffered some serious natural disasters. These acts of nature can devastate your life and your family. Who knows what 2019 will bring.
In addition to creating a disaster preparedness plan for your family, be sure to protect your legal documents during these events. Below are several tips to follow so that you can ensure your important paperwork is safe if your home is damaged or destroyed in a natural disaster.
1. Make sure to back up electronically. Having an electronic backup, such as a secure cloud storage, can be useful. Electronic versions can serve as a legally valid substitute for a paper copy of your important documents in some circumstances. Josh Bryant keeps electronic copies of all his clients' documents in the event of a disaster or a need to update them.
2. Use a safe box. Whether this is a fire/water resistant one in your home or a safety deposit box at your local bank, using these types of boxes can be an easy precaution to the more minor natural disasters. These types of boxes can protect your important items during a natural disaster so that there is one less thing you need to worry about during a difficult time. Josh Bryant recommends keeping originals in either your home or a safe box and copies elsewhere.
3. Create a “go” bag. This is useful when you are forewarned about a disaster, because a “go” bag can include all of your family documents, financial paperwork, legal documents, vaccination records, immigration and residency documents, among others safe and close to you. In addition to keeping all of your critical documents safe, make sure to have at least one extra copy in an easily accessible, off-site location and keep them in a sealed plastic bag.
After disaster strikes, first focus on your family’s safety. After the immediate aftermath is over be sure to replace any damaged or destroyed paperwork as soon as you can. While there may be other more pressing tasks post-natural disaster, do not neglect replacing these documents as it will be incredibly important later on for you and your family.
Josh Bryant is here to help. If you want to be legally prepared for potential disasters, give him a call today.
Josh Bryant is telling everyone he knows how excited he is about NWA FaithWorks. He always gets the same questions - what will NWA FaithWorks do? What makes it unique? How will it help entrepreneurs? What types of entrepreneurs will it help? These are a few questions we'll answer on the blog over the next week or so. What will NWA FaithWorks do?
Infrastructure. NWA FaithWorks will provide entrepreneurs with the infrastructure they need to get their business going. If they have not formed an LLC or other business organization, Josh Bryant will create that for them. He will help them get their EFTPS and ATAP accounts established. He'll get them set up with accounting software. He'll help them figure out how much to pay themselves and how much to withhold for taxes. NWA FaithWorks will provide the workspace, meeting space, high speed internet, and telephone. In short, all of the infrastructure needed to get a business off the ground is already in place. You just have to go market and do your business.
Discipleship. NWA FaithWorks is an incubator for faith-based small businesses whose owners want to run their business consistent with their values and as a means of bringing glory to God. Josh Bryant is a pastor who led a large discipleship ministry in Northwest Arkansas before returning to the practice of law to help churches and Christian small business owners. Together we'll walk through Scripture, pray together, and sharpen one another on ways we can use the business God gives us to bring Him glory in Northwest Arkansas and around the world. We'll hear from other God-honoring small business owners who are already doing this in their workplaces.
Networking. You've got to get your name out there, so we're going to network like it's going out of style. Josh Bryant will introduce you to several different networking groups in Northwest Arkansas. You'll get the opportunity to meet with like-minded commercial bankers, venture capitalists, private equity investors, and angel investors. This is a great opportunity to meet others who will volunteer to be leveraged by you to grow your business, and turn to in difficult times for encouragement and advice.
Community. We're going to do all of this together. We'll be a small group, and we won't be stepping on each other's toes competing for the same business. You will be the only person in your field in the incubator, but you'll have a community of other entrepreneurs to pray for you and live life with you.
There are only a few spots remaining, so click on the NWA FaithWorks tab above to get your application in before it is too late!
Whether or not you currently have estate planning documents, one important item to add to your calendar is getting an estate plan checkup.
Don’t Have an Estate Plan?
If you don’t already have an estate plan, then getting one in place should be at the top of your to-do list.
Why? Because without an estate plan, you and your property may end up in a court-supervised guardianship if you become incapacitated, and your property and your loved ones may end up in a time-consuming and expensive probate proceedings after you die. Josh Bryant is often asked if a simple will is enough, and while he appreciates the desire to cut costs the possibility of a guardianship or probate is reason enough to have a trust in the vast majority of scenarios.
Worse yet, if you don’t take the time to have any estate planning done, then the state where you live at the time of your death will essentially write one for you. It most likely won’t divvy up your property the way you would have and certainly will not protect your heirs the way you would.
A common misconception is that estate planning is only necessary for wealthy people. But this simply isn’t true – anyone with a bank or retirement account, a home, or a family needs to make a plan for what happens if they become incapacitated or when they die. Of course, the complexity of the plan will vary depending on your circumstances, but all estate plans should be put together with the help of an attorney like Josh Bryant who is experienced with the legal formalities required to create a valid will, trust, health care directive, and power of attorney in Arkansas.
How Old Is Your Estate Plan?
Do you already have an estate plan? If you do, then please pull your documents out of the drawer, dust them off, and look at the date you signed them.
Were your documents signed in the 80s or 90s, or, worse yet, before 1980? If so, please run, don’t walk, to the phone and call estate planning attorney Josh Bryant. Your documents are terribly out of date and need to be updated as soon as possible.
Did you sign your documents between 2000 and 2009? Aside from the federal estate tax exemption jumping from $675,000 to $3,500,000 during that time period, state estate taxes disappeared in many states. Because of the significant changes in federal and state estate taxes, documents from this time period may be out of date and need to be tweaked in some shape or form.
Did you sign your documents between 2010 and 2017? Federal estate taxes, gift taxes, and generation-skipping transfer taxes went through major changes during these years, and “portability” of the federal estate tax exemption between married couples was introduced. Unfortunately, while your estate planning documents may only be a few years old, they very likely do not take advantage of the opportunities made available from recent changes in federal tax laws.
And, it’s not just tax laws that are changing – modifications to state laws governing wills, trusts, health care directives, and powers of attorney may warrant some revisions to your estate planning documents as well. Just this session, the Arkansas General Assembly passed several acts affecting how trusts are treated in Arkansas.
And last but not least, regardless of what year you signed your estate planning documents, think about all of the changes in your life since you signed them. Did you get married or divorced, have a child or two or a grandchild or two, or move to a new state? Did you sell your business, retire, have a significant change in assets, or win the lottery? Any major changes in your family or financial situation will certainly have an affect on your estate plan.
Estate Planning Is Not a One Shot Deal
Estate planning is not a static event that you can grudgingly do once and then forget about it. On the contrary, estate planning is a continuing process, because life is a moving target that is full of constant change: Your estate plan needs to change as your life changes.
Josh Bryant is here to help you navigate the changes that have occurred since you had your estate plan prepared and ensure your wishes are still being carried out as you envisioned. For those needing an estate plan, Josh Bryant is here now and in the future to mold your estate plan as you move through the various stages of life.
So you have done the hard work of establishing an estate plan. Good for you! However, you still have serious work to do to ensure that the strategy you have selected will maximize your peace of mind and protect your legacy.
Josh Bryant agrees with the vast majority of estate planners: estate plans should be like living, breathing creations that reflect the changes in your life. Your life can and will change due to new births, children getting older, and other shifts in the family; changes to your investment portfolio, career and business; and changes to your health, where you live, and your core values. Likewise, external events, such as new tax legislation passed in our state or the development of a novel financial instrument, can throw your plan off track or open the door to new opportunities. Josh Bryant stays on top of these new laws and means of investment.
Obviously, you should do due diligence without spending inordinate amounts of time noodling over your plan. To that end, ask yourself the following “stress test” questions to assess whether you need to meet with Josh Bryant to update your approach:
1. When was the last time you updated your will or living trust? Since then, have you had new children or gotten divorced? Have you moved, opened or sold a business, or just changed your mind about the type of legacy you want to leave behind? Especially if big, tangible life events have occurred, strongly consider updating your documents as soon as possible. Also keep in mind that there may have been changes in the law since your last update that could significantly affect the viability of your plan.
2. Who have you named as executor and trustee? If you had to start your planning over from scratch today, would you still name the same people? If not, why not? Did you choose the best person for the job or was your choice based on less relevant factors? Is the person you chose still available to serve in that role?
3. Do you have adequate insurance? Many people do not have enough insurance for themselves or their businesses. They also fail to name contingent beneficiaries. Get your insurance policies in order, and make sure your designations match your estate plan.
4. How much of your property is jointly owned with someone other than your spouse? Jointly owned property has the potential to be double taxed. Take a look at your real property and seek advice on the proper adjustments to make in order to save on taxes when it's really necessary to save on taxes.
5. How's your record keeping? Nothing drives an executor crazy like sloppy record keeping.
6. When was the last time you gave your plan a thorough once-over? Even if nothing “huge” has happened in your life recently, if it’s been over five years since a qualified estate planning attorney has assessed your strategy, schedule a time to meet with Josh Bryant. Identify any issues, and iron out the kinks one at a time.
After going through the “stress test,” if you have any questions, please feel free to give Josh Bryant a call. Estate planning is an ongoing process, and he wants to make sure your wishes withstand the test of time.
So you're taking that leap of faith and starting a business. That's awesome! Josh Bryant has a few pointers for people going into business for the first time. In summary, avoid the entrepreneurial plagues like... the plague!
Plague 1: The Rope Swing Budget
A lot of small businesses will fail. A lot of those small businesses didn't fully grasp the concept or necessity of the shoestring budget. A lot of people start a business and operate it more like a rope swing. They build the business they want in 10-years and spend massive amounts of cash swinging into the entrepreneurial lake. The problem is, they aren't quite heavy enough to generate the momentum they need. The rope swings a little bit, but the never get the speed to make it far enough to get over the water and end up falling flat on their face on the shore.
That metaphor can't be taken any further, but the point is that you must operate on a tight budget until you have cash in-flows to substantiate a bigger budget. Don't go and rent the biggest and best office you can find. Start small. Start in an incubator or accelerator like the one lead by Josh Bryant at The Bryant Law Firms in Northwest Arkansas.
Plague 2: The Pocket Knife in the Amazon
You wouldn't want to trek through the Amazon with just a pocket knife. You need a machete. Better yet, you need some nice paved roads. Your business is no different. You're embarking on a journey through what the government has made a heavily thicketed forest. You're going to have to cut through all sorts of regulations, taxes, snares laid by litigious customers, and more. Wouldn't it be nicer if you could drive through that forest on a nice paved road?
Josh Bryant does just that - he paves the road so you can get where you need to be. As a member of NWA FaithWorks, you'll get all the legal and tax work done for you. You'll have phones and high speed internet. You'll have a workspace and advisors. You'll have access to mentors and capital. The infrastructure is already there. All you have to do is run your business.
Plague 3: The Blank Map
A lot of people go into the entrepreneurial jungle with nothing but a piece of the map. They've done their business plan with their pro formas and SWOT analyses and think that's the only map they need. It just isn't correct. Business owners have to get their business out of their heads and on paper - not just the goals and dreams of revenue, income, and profit, but the step by step process by which they are going to market, secure, and serve their clients and customers. That is a much more detailed map than a canned business plan.
Josh Bryant has become a bit of an expert on process management as a means of making a business secure, effective, and efficient. He helps all types of organizations use process to make their organizations more legally secure. You're far less likely to get sued if you can do your business the same way every time. It will also make you more effective. You'll see what works and doesn't work, and make corrections along the way. It will also make you more efficient. You'll see that some things in the process are taking more time, energy, or money than they should and work those inefficiencies out of the system. When you join NWA FaithWorks, you get access to process management systems that make you more secure, effective, and efficient.
Please allow me to be frank. It’s unrealistic to think that a piece of paper you draft, reflecting your life at a certain time, will work when your life has completely changed some years later. I'll use the Kendrick family as an example.
Meet the Kendricks
Meet Bill and Karen Kendrick. They got their first estate plan in place when their daughter, Jessica, was born 30 years ago. They updated it when their son Steve came along 4 years later. After attending one of Josh Bryant's living trust seminars 7 years ago, they got a fantastic trust-based plan in place, protecting themselves, their children, their grandchildren, and their dog, Sadie.
Unfortunately, the Kendricks didn’t join Josh Bryant's client maintenance program; instead, they elected to take responsibility for calling him for updates themselves. Life got busy and, as you might guess, they never called to update their documents.
Here’s what’s changed in their lives in the last 10 years.
Do you think their estate plan will still work the way they want it to?
Changes in Your Own Life
The Kendricks have experienced a lot of changes, but those changes are typical of what 10 years brings. Think about the changes in your life over the past 10 years — or since you last updated your estate plan.
Have you moved? Do you have more children or grandchildren? Have you started a business, suffered health problems, or purchased a new home? Do you have new accounts and investments? Do you now care for a parent, pets, or dependent children? Have you remarried, gotten divorced, or retired? Has someone you loved died? Have friends or family named in your plan as trusted helpers moved away, or has your relationship changed? Are your children now adults and able to help you? Do you want to help with grandchildren’s college or dance lessons? Do you see the world in a different way?
Many things have happened in the past 10 years. Your estate plan needs to reflect the changes in your personal life, financial situation, and goals. There have also been changes in the law. Josh Bryant stays abreast of these changes to protect his clients in better and better ways, so the way he does things has changed.
Is Your Estate Plan Out of Date?
If you’ve experienced changes like the Kendricks, or it’s been more than 3 to 5 years since you updated your estate plan, it’s time to come in. Josh Bryant will review your plan and chat with you about what’s been happening in your life. He can get you and your estate plan up to date, reflecting where your life is now.
Josh Bryant is an attorney, entrepreneur, pastor, and visionary with a heart to see churches, businesses, and families more secure, more effective, and more efficient in fulfilling their mission and bringing glory to God.