The KRASA LAW, Inc. Estate Planning Blog

Thursday, February 14, 2013

Family Story

Although my column focuses on issues related to estate planning, it is really all about family: planning for and protecting the ones you love. Sometimes it is nice to take a break from the technical aspects of the law and share a family story. Below is an article about my participation in the U.S. Pond Hockey Championships in Minneapolis last month written by Minnesota writer Michael Rand. It includes a part about my son and I thought I’d share it with you.

I want to thank both Michael Rand and Touchpoint Media who both gave me their permission to reprint this article. I hope you enjoy it!

Pond Hockey: How the Game was Meant to be Played


By Michael Rand

It’s January in Minnesota. The vast majority of citizens here are dreaming of hopping a flight to California—not vice-versa, like Kyle Krasa of Monterey Bay.

But for the second year in a row, that is exactly what Krasa will do. His dream again involves playing in the U.S. Pond Hockey Championships in Minneapolis. But on his maiden trip last year, he figured out just how unusual his plans were: The flight was so empty that he was upgraded to first class, where he had an entire row to himself.

That perspective changed, however, after he arrived and saw first-hand what all the fuss is about. It’s a chance to get outside and capture some nostalgia—it’s hockey with some modified rules, literally played on a frozen body of water, with a series of side-by-side rinks created so hockey players from all over can experience what it’s like growing up in the northern U.S. and Canada.

It has also evolved into a guy’s weekend destination complete with beers, laughs, competition, and like-minded strangers who quickly become friends.

There are several entrants in the pond hockey tournament fray, including the National Pond Hockey Championships (Feb. 8-10 in Eagle River, Wis.), the North American Pond Hockey Championships (Jan. 25-27 in Excelsior, Minn.) and the World Pond Hockey Championship (Feb. 7-10 in New Brunswick, Canada).

This weekend's U.S. Pond Hockey Championships, on Lake Nokomis in Minneapolis, Minn., ranks as one of the more established pond hockey events in North America. When the event is held Jan. 18-20, it will mark the tournament’s eighth year. The challenges of organizing the entrants, setting up boards, and constantly fretting about the weather are plentiful, USPHC co-commissioner Carson Kipfer says, but so are the rewards.

“It’s totally become this underground subculture,” Kipfer explains. “Some of (players’) best childhood memories were spent during hours and hours on the ice. Tournaments like this are great opportunities to bring those childhood, high school, college friends back together. It’s a great place where guys can just talk smart and drink beer.”

The rules of pond hockey typically foster competition in a more relaxed environment than, say, an advanced indoor league. At the USPHC, there is no checking or icing. Players basically referee their own games—four-on-four contests with no goalies and no lifting of the puck above the knees.

“It’s rare to have a competitive sporting event that captures the essence of youth at the same time,” Kipfer says.

Niels Heilmann, who lives in New York City, is getting ready for his fourth trip to the USPHC. His team also has a player from Alberta and had a former player who traveled to the tournament from Germany, but the core is a group of guys, including Heilmann, who play in a Monday night league in New York. But why travel halfway across the country?

“It’s the whole weekend experience,” Heilmann says. “Some guys do Las Vegas or golf trips. We come to Minnesota. It’s a place to just hang out and compete.”

It’s the outdoor experience that originally intrigued Krasa. He grew up in California and still lives about a 90-minute drive from the nearest indoor rink. But his grandfather grew up in what is now the Czech Republic and often told Krasa stories of playing on ponds. Two years ago, while watching the NHL Winter Classic, Krasa started doing research that led him to sign up for the USPHC the following year.

He couldn’t convince any other California players to join him, so he signed up as a “free agent.” He ended up exchanging e-mails with a man from Iowa whose team was a player short. Next thing he knew, Krasa was on a plane to Minneapolis.

“We got along instantly,” Krasa recalls. “We had dinner the night before. It was the first day, and we were already talking about playing the next year.”

Virtually the entire team is headed back for a second go-round this year. It’s the first of many Krasa, 33, has planned. After all, he wants the outdoor experience to span even more generations. Krasa’s son, Jonah, is not even 3 yet, but he’s already taking the youngster on the long drives to learn how to skate.

“He loves hockey,” Krasa said. “Someday he’s going to come to Minnesota with me.”

Saturday, February 2, 2013

Reminder: Kyle A. Krasa to Speak for National Webinar About Estate Planning


KRASA LAW is pleased to announce that Kyle will be speaking in an upcoming Strafford live phone/web seminar, "Estate Planning Update for 2013" scheduled for Wednesday, February 6, 10:00 am to 11:30 am PST.  

The program is normally $200 but your relationship with KRASA LAW allows you to register at a 50% discount by using the code ZDFCT when registering.  You may register at the following link: and click on "Estate Planning Update for 2013."

Description of Program

The new fiscal cliff legislation dramatically changes estate planning in several ways. Asset protection planning will now be a critical component of estate planning and wealth preservation. In light of the higher exemption, counsel should consider advising clients to restate A/B trusts as disclaimer trusts.

The impact of portability and the ways it can be leveraged must also be considered. Permanent portability provides more opportunity concerning IRA’s and other non-trust assets. The higher exemption also provides gifting opportunities for asset protection.

In trust administration for married clients, estate planners should evaluate the advisability of filing a 706 to claim the deceased spouse’s unused exemption. With the much larger estate tax exemption, counsel should contemplate whether to allocate the GST exemption to a particular trust.

Kyle and his fellow panelists will discuss the impact of the fiscal cliff package on estate planning strategies. The panel will explain how the higher exemption gives estate planners an array of new tools and ideas, focusing primarily on asset protection planning rather than estate tax protection.

The panelists will offer their perspectives and guidance on these and other critical questions:

  • How does the fiscal cliff legislation redirect the focus for estate planning counsel?
  • What asset protection strategies should be considered in light of the new legislation?
  • What advantages can be accomplished by restating A/B trusts as disclaimer trusts?
  • What are the benefits of gifting for asset protection?

After the presentations, the panelists will engage in a live question and answer session with participants — so they can answer your questions about these important issues directly.

We hope you'll join us!

Monday, January 28, 2013

New Opportunities in Light of the Fiscal Cliff Legislation

In my last column, I commented on how the fiscal cliff legislation made the estate and gift tax exemption (the amount that can be gifted during life or transferred upon death without any estate or gift tax) permanently high at $5,000,000 adjusted for inflation. I mentioned how this much higher permanent exemption made the majority of A/B Trusts unnecessary as an estate tax planning tool. The higher permanent exemption affects many other areas of estate planning, including lifetime gifting.

In addition to the estate tax (which is a tax applied to the value of an estate at death) there is also a gift tax. The idea behind the gift tax is to prevent families from averting the estate tax by making lifetime gifts, thereby reducing the size of their estates upon death. The general rule is that each lifetime gift of $1.00 reduces the donor’s estate tax exemption by $1.00. For example, if Gwen gives away $250,000 during her lifetime and she dies in a year when the estate tax exemption is $1,000,000, her estate tax exemption is reduced to $750,000. While there are exceptions to this general rule, most notably the annual gift tax exclusion (currently $14,000 per donee / per year), every lifetime transfer needs to take into consideration the reduction of the estate tax exemption.

Although the estate and gift tax exemption has been in flux for over a decade, there was always a good possibility that the estate and gift tax exemption would return to as low as $1,000,000. This meant that lifetime gifting – even if it had nothing to do with estate tax planning – had the possibility of negatively impacting the donor’s estate tax exemption. As a result, gifting had to be limited and carefully measured.

Now that the fiscal cliff legislation has made the estate and gift tax exemption permanently $5,000,000 adjusted for inflation (the 2013 estate and gift tax exemption is $5,250,000), most middle class households will not be affected by the estate and gift tax as their estates are far below the exemption. As a result, most families are able to make significant lifetime gifts without having to worry about how those lifetime gifts will impact their estate and gift tax exemptions. This creates new gifting and overall estate planning opportunities that previously were not available.

A common estate planning problem occurs when an asset is titled jointly between on adult child and a parent for “convenience purposes” with the “understanding” that upon the death of the parent, the child will “do the right thing” and distribute the asset equally to the other children. Historically, this would create an estate and gift tax problem for the adult child who was on the account. Although the understanding between the family members was that the asset really belonged to the parent and it should be divided equally, legally the asset belongs solely to the adult child. By distributing equal shares to the other children, the adult child would be making gifts, thereby reducing his/her estate and gift tax exemption.

When the exemption was low, this could create a serious estate planning problem. Now that the exemption is permanently high, it might not matter to the adult child if he/she uses hundreds of thousands of dollars of estate and gift tax exemption as long as his/her estate is not likely to exceed $5,250,000 upon death.

As parents accumulate wealth and have more than then need to live comfortably, they might start to be concerned that old age and future medical problems might create long term care or other health care needs that would put their hard earned assets in jeopardy. They might like the idea of gifting a significant portion of their assets away while they are still free of medical problems and have no debts on the horizon. The higher estate and gift tax exemption allows them to give much more of their estate away in this situation without significantly impacting gift tax or estate tax rules.

The permanently high estate and gift tax exemption created by the fiscal cliff legislation changes many fundamental assumptions about estate planning. Whether or not it is good policy, it greatly frees up estate planning and creates new opportunities. We have only begun to understand how an ostensibly simple rule change can have dramatic impact on many areas of planning.

Thursday, January 24, 2013

Kyle A. Krasa to Speak for a National Webinar about Estate Planning

KRASA LAW is pleased to announce that Kyle will be speaking in an upcoming Strafford live phone/web seminar, "Estate Planning Update for 2013" scheduled for Wednesday, February 6, 10:00 am to 11:30 am PST. 

The new fiscal cliff legislation dramatically changes estate planning in several ways. Asset protection planning will now be a critical component of estate planning and wealth preservation. In light of the higher exemption, counsel should consider advising clients to restate A/B trusts as disclaimer trusts.

The impact of portability and the ways it can be leveraged must also be considered. Permanent portability provides more opportunity concerning IRA’s and other non-trust assets. The higher exemption also provides gifting opportunities for asset protection.

In trust administration for married clients, estate planners should evaluate the advisability of filing a 706 to claim the deceased spouse’s unused exemption. With the much larger estate tax exemption, counsel should contemplate whether to allocate the GST exemption to a particular trust.

Kyle and his fellow panelists will discuss the impact of the fiscal cliff package on estate planning strategies. The panel will explain how the higher exemption gives estate planners an array of new tools and ideas, focusing primarily on asset protection planning rather than estate tax protection.

The panelists will offer their perspectives and guidance on these and other critical questions:

  • How does the fiscal cliff legislation redirect the focus for estate planning counsel?
  • What asset protection strategies should be considered in light of the new legislation?
  • What advantages can be accomplished by restating A/B trusts as disclaimer trusts?
  • What are the benefits of gifting for asset protection?

After the presentations, the panelists will engage in a live question and answer session with participants — so they can answer your questions about these important issues directly.

We hope you'll join us.

For more information or to register >

1-800-926-7926 ext. 10 (ask for Estate Planning Update for 2013 on 2/6/13 and mention code: ZDFCT)

Monday, January 14, 2013

Are A/B Trusts History?

Congress provided some dramatic theatre over the New Year’s holiday, eventually passing the American Taxpayer Relief Act, more commonly known as the “fiscal cliff legislation.” The legislation made significant “permanent” changes with regard to the estate tax that fundamentally change many longstanding traditional approaches to estate planning, especially the common “A/B Trust” for married couples.

For more than a decade, the estate tax exemption (the fair market value of one’s estate that can pass free of any estate tax) was in flux. In 2002, the exemption was $1,000,000. It increased over the years to $1,500,000 in 2004, $2,000,000 in 2006, $3,500,000 in 2009, unlimited in 2010, and originally back to $1,000,000 in 2011. At the end of 2010, Congress passed temporary legislation to increase the exemption to $5,000,000 in 2011, indexed for inflation. However, the $1,000,000 exemption amount was scheduled to return in 2013.

The fiscal cliff legislation makes the $5,000,000 exemption, indexed for inflation, permanent. Of course, nothing is “permanent” with regard to the law. A new Congress may always override what a previous Congress accomplished. However, unlike any time over the past dozen years, there is no “sunset clause” that automatically drops the exemption. As a result, we finally have some certainty regarding the estate tax. With the index for inflation, the 2013 exemption is $5,250,000.

The legislation also made permanent a concept originally introduced in 2010 as a temporary idea: “portability.” The idea behind portability is to provide an opportunity for a surviving spouse to “claim” the deceased spouse’s unused exemption as his/her own. This means that a married couple is not required to have specific planning in place to maximize each spouse’s exemption. The surviving spouse may choose to file an estate tax return, IRS Form 706, within nine months of the first spouse’s death to elect portability, thus claiming the deceased spouse’s unused estate tax exemption. Although there are some exceptions and caveats to portability, it is a powerful tool that changes some traditional estate planning strategies.

For generations, the centerpiece of a married couple’s estate plan was the A/B Trust. With an A/B Trust, upon the death of the first spouse, the trust divides into two sub-trusts, an “A Trust” for the surviving spouse’s share and a “B Trust” for the deceased spouse’s share. The idea behind an A/B Trust is to capture the estate tax exemption of the first spouse to die to increase the amount of inheritance a married couple may pass free of estate tax.

Before portability was introduced for 2011, an A/B Trust was the only method for capturing the deceased spouse’s unused exemption. When portability was introduced for 2011, it was only scheduled to be available for two years. Because it was not a permanent tool, it wasn’t prudent for estate planning attorneys to rely on portability. As a result, A/B Trusts were still critical in ensuring that a couple’s estate is not required to pay unnecessary estate tax.

The fact that the fiscal cliff legislation makes the estate tax exemption permanently high and establishes permanent portability means that A/B Trusts are generally no longer necessary as an estate tax planning tool. With each individual allowed to shield at least $5,250,000 from inheritance tax, the vast majority of couples will not need to use the unused exemption of the first spouse. Furthermore, portability is always available should future circumstances dictate otherwise.

A/B Trusts are still useful for non-tax reasons. For example, if there is concern on the part of a couple that the surviving spouse will amend the estate plan to disinherit certain individuals, then an A/B Trust still makes sense for these “control issues.” This is especially relevant for blended families or if there is concern that the surviving spouse might be manipulated by an unscrupulous individual.

If you have an A/B Trust solely for estate tax purposes (i.e., you are not concerned about “control issues”) and both spouses are still living and have capacity, you might want to consider amending your trust. The fiscal cliff legislation makes A/B Trusts largely unnecessary for estate tax purposes and removing the A/B aspect of your trust could greatly simplify its administration.

Of course, there is nothing fundamentally wrong with the A/B Trust format and amending your A/B Trust is not necessary. It is simply important to be aware that, in light of the fiscal cliff legislation, your A/B Trust can be simplified if you so choose.

The fiscal cliff legislation also impacts gifting, trust administration and asset protection. A qualified attorney can help you determine how the legislation affects your estate planning needs.

Friday, December 28, 2012

A Race to the Courthouse?

December of 2012 was a very busy month for many estate planning attorneys and certified public accountants who deal with trusts and estates. With the Estate Tax / Gift Tax exemption expected to drop from $5,120,000 in 2012 to $1,000,000 in 2013, many clients decided to make gifts of substantial assets in 2012 in order to take advantage of the higher exemptions. The key to this strategy was the timing of the gift. If the gift was “completed” in 2012, they successfully took advantage of the more liberal 2012 rules. If the gift was not “completed” until 2013, they likely created further tax problems. Therefore, the question of when a gift has been legally “completed” is critical.

While clients gifted all types of assets in December of 2012, a very common asset gifted was real property such as homes, commercial buildings, and vacant land. Typically, real property is transferred by a deed that is recorded with the county. A legal principal that many attorneys had to remember from law school is whether the recording of a deed is necessary to “complete” the transfer, or whether signing the deed is sufficient. If recording is necessary, then it would be a “race to the courthouse” to get the deed recorded by the end of 2012. If recording was not necessary, then the deed could be signed and notarized in 2012 but not recorded until 2013 – the pressure would therefore be lessened.

Before the concept of a “deed” was developed, the conveyance of land in England did not depend upon a written instrument. Instead, a method known as a “feoffment” was utilized where the parties to the transaction would meet upon the land with witnesses. The grantor would orally announce the conveyance to the grantee and would hand over a twig or a clump of earth to symbolize the transaction. Subsequently, laws were passed that required a written instrument be utilized in order to convey real property. Although there are other methods used to convey real property, today the most common method for conveying real property is a deed.

The requirements for a valid conveyance of real property by deed are (1) execution of a (2) valid deed, (3) delivery of the deed, and (4) acceptance of the deed. “Execution” simply means that the transferor signs the deed. In order for a deed to be “valid,” it must contain a description of the land and clearly communicate intent to convey the real property between the parties. “Delivery” does not require that the deed be physically transferred to the grantee, but rather it is a question of whether the grantor intended that the deed be presently operative. “Acceptance” is presumed if the conveyance would be beneficial to the grantee and sometimes it is not even necessary that the grantee was even aware of the existence of the deed.

The recording of the deed is not necessary in order to effectively convey real property. California adopted this English principal. In fact, California Civil Code Section 1217 states: “An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.”

The recording system is in place simply to put third parties “on notice” of the current ownership of the property. It is designed to prevent an unscrupulous person from selling property that he or she does not own (such as the Brooklyn Bridge), or selling the same property more than once. In the latter example, there is an exception in California that makes the recording of the deed significant in determining who holds valid title.

For example, let’s assume that Scoundrel executes a valid deed transferring real property to Bing on Day 1. Bing does not record the deed because under the law, recording of the deed is not necessary to complete the transfer. On Day 2, Scoundrel executes a valid deed transferring the same real property to Gwen. Gwen decides to record it. Under California law, as long as Gwen was not aware the previous deed to Bing, Gwen will have valid title. This result reverses the general principal that recording is not necessary to complete a transfer because the reasoning is that all Gwen should be required to do under the law to ensure that Scoundrel is the current owner of the real property is to examine the public records.

This exception to the general rule that recording of a deed is not necessary to convey title is known as a “notice-race” rule. The term “race” is used because it conjures the fictitious image of Bing and Gwen “racing” to the courthouse to record their deeds first. It’s fictitious because if Gwen is actually aware of Bing’s deed, she cannot prevail even if she records her deed first.

The bottom line is that all valid deeds that were signed in 2012 are “completed” 2012 gifts, even if the deeds are not recorded until 2013. In “notice-race” jurisdictions, the one exception might be if the grantor decided to gift the same property to two different grantees and the second grantee recorded the deed first. However, in this context of gifts between family members for estate planning purposes, that would be very unlikely!

Tuesday, December 18, 2012

Special Needs Require Careful Planning

As I often mention to my clients, how a beneficiary inherits from your estate is just as important as to what a beneficiary inherits. This is particularly true if the beneficiary has special needs and is receiving – or is likely to receive in the future – “means-tested” public benefits. These kinds of benefits are only available as long as the beneficiary is below a certain asset level. The concern is that an inheritance will suddenly increase the special needs beneficiary’s asset level, thereby abruptly eliminating the public benefits. After the beneficiary spends through the inheritance and is once again eligible for public benefits, it might be very difficult or even impossible for the beneficiary to successfully reapply for such benefits. Furthermore, the beneficiary might not be capable of managing the inheritance and might make poor financial decisions.

The solution is to set up a “special needs trust” (also known as a “supplemental needs trust”) for the benefit of the special needs beneficiary. The special needs trust names a third party as the trustee or “manager” of the trust. The special needs trust would not allow the beneficiary to have any right to force a distribution, which makes the assets of the special needs trust exempt from being considered an “available resource” to the beneficiary. The special needs trust will typically give the trustee full discretion on whether or not to make a distribution on behalf of the beneficiary. As long as the trustee makes sure to avoid distributions for “impermissible purposes” which the public benefits are designed to cover such as food, shelter, and clothing, the distributions will also not count as a resource to the beneficiary and will not affect the receipt of public benefits. The trustee may make distributions for purposes that are not covered by public benefits, such as entertainment and travel, which will not affect the receipt of public benefits. In this regard, the inheritance can still be available to the beneficiary without eliminating public benefits.

This type of special needs trust that is established by a third party as a gift or an inheritance for the special needs beneficiary is often referred to as a “third party special needs trust.” Such a trust may be a separate, independent trust or may be a sub-trust established as part of a Revocable Living Trust. Upon the death of the special needs beneficiary, the remaining balance of the trust may be transferred to anyone or any charity the trust maker decides. Unlike a “first party special needs trust” described below, a “third party special needs trust” does not require that the government be a beneficiary of the balance of the trust proceeds upon the death of the special needs beneficiary, though by mistake sometimes such a “payback provision” is included in such trusts.

Sometimes persons receiving means-tested public benefits will be legally entitled to a certain amount of money, the receipt of which would eliminate their benefits. The most common examples are proceeds from a lawsuit or a potential receipt of an inheritance where the benefactor did not plan ahead by creating a special needs trust for the beneficiary. Under certain circumstances, a “first party special needs trust” (also known as a “(d)(4)(A) trust”) may be established by a parent, grandparent, guardian, or the local court. The trust will operate in much the same way as a “third party special needs trust” with one key difference: a “payback provision” that pays the balance of the trust upon the death of the special needs beneficiary to the government as reimbursement for public benefits paid out is a requirement. If there are any trust funds left after reimbursement to the government, such funds may go to remainder beneficiaries such as family members or friends.

Even after taking the time to establish a special needs trust for the benefit of a special needs beneficiary, it is important that your overall estate plan is coordinated. For example, retirement plans, life insurance policies, and payment on death accounts often name beneficiaries directly, which would bypass the special needs trust. In such a situation, it is critical to make sure that beneficiary designations on such accounts are updated to name the special needs trust as the beneficiary.

A qualified attorney can help you navigate these complicated issues.

Friday, November 30, 2012

"Nice and Easy Does It"?

“My situation is very simple,” estate planning attorneys often hear, “I don’t need a complicated plan.” Although most people realize that they need an estate plan to make sure that their finances are handled during periods of disability and that their wishes are carried out after death, there is a common propensity to want to oversimplify the process. This is especially true if there are not obvious complicating factors such as multiple marriages, blended families, creditor problems, irresponsible beneficiaries, or special needs children. If one’s situation is so simple, what is wrong with a “nice-and-easy-does-it” plan?

I often counsel clients that their situation might be “simple,” but the law is complex. Even the “easiest” circumstances can spiral out of control without proper and comprehensive planning. Every estate – whether it’s modest, grand, or something in between – involves an array of potential intricate issues that must be addressed.

During periods of disability, making sure the person of your choice has the legal authority to manage your finances is an obvious concern. You can accomplish this by signing both a revocable living trust and a general durable power of attorney. However, a common problem is that the powers enumerated in such documents are often too vague. Issues such as the need to make gifts or initiate a spend-down plan in order to efficiently plan for long term care, to obtain insurance and name beneficiaries of such policies, and to deal with mortgages might arise after you have become disabled. If the trust and power of attorney do not have robust and detailed powers, the documents might be worthless. At the time of signing, the “simplicity” of a twelve-page trust and a two-page power of attorney might seem appealing, but when the documents need to be put into action, the value of a more detailed plan becomes clear.

Also during periods of disability, you want to make sure that a person of your choice has the power to make medical decisions on your behalf in accordance with your wishes. Some “standard” Advance Health Care Directives actually have clauses that state the authority granted to the agent will expire after a period of years, meaning that by the time you need to put your Advance Health Care Directive in action, it might be unnecessarily invalid. Older health care documents that predate the passage of medical privacy laws do not address your agent’s ability to access your medical information. Making sure your health care documents are detailed, comprehensive, and up-to-date is important.

With regard to transferring assets at death, regardless of their value, there are traps for the unwary. An estate plan must effectively navigate taxation (including income tax, capital gains tax, estate tax, and property tax), avoid probate, permit the trustee to hire experts such as attorneys, financial advisors, and tax preparers, deal with creditors, give the trustee flexibility in dividing the estate, allow the trustee to efficiently pay bills, and address unexpected issues such as pre-deceased or recently disabled beneficiaries. Other unexpected issues can arise such as disagreements among the beneficiaries over whether or not to liquidate an asset and how to direct investments. Furthermore, due to the nature of different assets, these issues often cannot be addressed just by one document by might need to include an estate plan that encompasses many components.

While your situation might be “simple,” do not underestimate the need to have a robust, comprehensive, and detailed estate plan. After all, estate planning involves all the assets that you worked so hard during your lifetime to obtain and everyone whom you love: everything that is important to you. Cutting corners in this arena is a perilous proposition.

Wednesday, November 21, 2012

"Kyle's Famous Legal Lessons"

My parents were educators. My mother taught at Bay View Elementary School in Monterey for over twenty-five years and my father was a school principal and administrator in the Monterey Peninsula Unified School District. For a period of time, I thought of following in their footsteps with my own twist by becoming a college English professor, before I instead decided to go to law school. However, when I started practicing law, I realized that my “teaching genes” were quite helpful in explaining complex legal principles to my clients and to the public.

Early in my legal career, I presented estate planning seminars throughout the Monterey Peninsula and Salinas Valley. Based upon the questions and feedback I received from the seminar audiences, I honed my skills in “teaching” the law to non-lawyers. I carried these skills back to my office where I would further explain legal concepts in greater detail to my clients in private meetings using the teacher’s tool, the whiteboard. Over time, I created certain routine “lessons” that my clients really appreciated and understood.

I developed a philosophy that it was important to have a balanced approach to sharing legal information with my clients and the public. One extreme is the traditional approach to law where attorneys believe that the details are far too complex to explain to non-lawyers and they instead make various drafting choices for their clients without bothering to describe the various options available. The other extreme is pseudo legal online services or “legal guide products” that claim to be able to allow a client to take a “do-it-yourself” approach that oversimplifies the law, attempts to put tools in the hands of the public without adequate guidance, and is doomed to fail.

The law is far too complex to encourage non-lawyers to draft their own legal documents. Years of legal education, the preparation for and passage of the Bar Exam, and years of practice cannot be transported to a non-lawyer through a packaged “legal guide.” At the same time, having a legal background is not necessary to understand legal concepts in general terms to be able to make intelligent choices about one’s legal options with the guide of a qualified attorney. The key for the attorney is to avoid attempting to teach a law school course by putting on airs and using unnecessary legal vocabulary, while at the same time understanding what non-lawyers do not know but respecting their intelligence to grasp legal concepts in general terms.

The routine whiteboard “lessons” that I created provide this balanced approach to explaining complex legal principles in an easy-to-understand manner. In an effort to make these legal principles more accessible to the general public, I filmed my most common “legal lessons” and posted the videos on my website ( under the heading, “Kyle’s Famous Legal Lessons.” The videos can be used by the general public to learn more about estate planning, by my clients to reinforce what I might have explained during a client meeting, and for other advisors such as tax preparers and financial planners to be able to share legal concepts with their clients.

These videos are not designed to take the place of legal advice but rather to provide a general introduction to estate planning concepts. Because the law is complex, everybody’s situation is different, and because in short segments important details must be left out, it is important to work with a qualified licensed attorney before acting on any of the information provided in the “legal lesson” videos. The idea is to give some legal familiarity to non-lawyers so that they can be prepared to discuss their estate planning wishes when they meet with their attorneys.

Friday, November 2, 2012

Would Your Kids Pass the Marshmallow Test?

When I was a kid, my absolute favorite stories were from the Frog and Toad series by Arnold Lobel.  I am so thrilled that my two-year-old son inherited my passion for the stories about the two special friends.  In fact, this year we decided to dress up as Frog and Toad for Halloween (my son assigned me the role of Toad – I’m trying not to read into this too much). 

One of our favorite Frog and Toad stories is entitled, “Cookies.”  In the story, Toad makes the most delicious cookies and invites Frog over to enjoy some.  They keep eating the cookies over and over again.  At one point, they both agree that they should stop eating cookies otherwise they’ll be sick.  They keep vowing that they will have “one last cookie” but continue to eat more (my son and I both relate to this scenario).  Frog mentions that they need willpower.  When Toad inquires as to what is willpower, Frog explains that “willpower is trying hard not to do something you really want to do.”  Toad asks, “You mean like trying hard not to eat all of these cookies?”  They devise various schemes to keep the cookies out of their reach but eventually decide to remove the temptation altogether by giving them away to the birds. 

This story reminded me of a famous study from the 1960s about willpower and children.  Instead of cookies, the study involved marshmallows.  Stanford psychologist Walter Mischel would leave young children in a room alone with one marshmallow.  The children were told that they could eat the marshmallow but if they waited until the researcher returned, they would be allowed to eat two marshmallows.  Some children ate the lone marshmallow right away while other children were able to wait until the researcher returned, often 15 or 20 minutes later. 

Mischel checked in on the children as they grew up and discovered remarkable results.  Those children who exhibited willpower in the study turned out to be more independent, had higher salaries, were more respected in their communities, and generally led happier lives.  The researchers believed that willpower is not an inherited trait but rather a skill that can be developed.

Estate planning attorneys took note of the results.  If willpower – or delayed gratification – leads to happier, more successful lives, can there be a way to instill this value in children through an estate plan?  Inheriting an estate without any limitations does not teach delayed gratification: sudden wealth without any capacity to responsibly manage it can lead to ruin.  However, if an estate plan creates incentives for children to become responsible adults, they will develop willpower which will give them the tools to create successful and meaningful lives and allow them to manage wealth responsibly. 

Often such estate plans will identify certain “benchmarks” such as attaining a Bachelor’s Degree, attaining a graduate or professional degree, attaining gainful employment, or performing community service.  For each “benchmark” achieved, the estate plan will distribute cash or other assets as a reward for these accomplishments.  This method of eschewing an “all at once” inheritance by transferring wealth in increments and linking the transfer of wealth to self-attained achievements creates a delayed gratification scenario that trains the children to develop willpower and hopefully lead happier and more successful lives. 

Perhaps a good way to determine if your children need this kind of plan is to leave them alone in a room with a cookie or a marshmallow and see if they can resist the temptation.  This experiment might even be more revealing if your children are adults!

If you’d like something to lift your spirits, take a two minute break and watch an updated version of the Marshmallow Test at this Youtube link.

Friday, October 26, 2012

Kyle A. Krasa Wins "Golden Pine Cone" for "Best Estate Planning Attorney"

Earlier this month, a poll of the 10,500 e-subscribers of the Carmel Pine Cone was conducted asking respondents to vote on what businesses should win "Golden Pine Cone" awards for being the best in their fields.  The winners were announced in the October 26-November 1, 2012 edition of the Carmel Pine Cone.

We are pleased to announce that Kyle A. Krasa / KRASA LAW won a 2012 Golden Pine Cone as the "Best Estate Planning Attorney."

Kyle knows that this award would not be possible without a wonderful staff, great clients, supportive colleagues, and dedicated readers of this blog. 

Thank you to everyone! 

Link to "Golden Pine Cone" special section

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KRASA LAW assists clients with Estate Planning, Elder Law, Pet Trusts, Asset Protection, Special Needs Planning and Probate / Estate Administration in Pacific Grove, CA(93950), Monterey (93944, 93940, 93943, 93942), Salinas (93901, 93905, 93906, 93907), Hollister (95023,95023) Pebble Beach (93953), Carmel By The Sea (93921), Seaside (93955) and Carmel (93923, 93922) in Monterey County and San Benito California.

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