Identity Theft of the Deceased? Steps You Can Take to Prevent Identity Theft of a Deceased Family Member

I have seen an 5-year-old's identity used by criminals for financial gain, and I have seen an 85-year-old's used for the same - I have also seen someone no longer living whose identity was stolen to use for criminal purposes. All of these were unfortunate and taxing on the families dealing with the victimization of a loved one by identity theft. However, I feel the "grave robber" identity thief scenario to be one that is somewhat more disturbing; one who steals certainly stoops to a low level, but robbing the dead takes on another baseless level of moral turpitude . In any event, identity theft in particular is highly troubling to many because of the feeling of helplessness as far as preventing it from occurring, whether for the living or the deceased.

Specifically, I would like to examine the identity theft of a deceased family member. Regardless of the fact that one is deceased, postmortem identity theft injures the living, especially dependents who are relying upon the estate for their support. As such, clients who have contacted me for assistance in the probate process, usually the personal representative, want to know everything they can do to preserve the estate's assets. With equal importance to some of the other financial affairs, preventing identity theft of the deceased person is on the list of "items to do" - when one dies, they are unfortunately exposed to the public record as a deceased individual thus making them a more unique and vulnerable target by identity theft criminals.

It is a good idea to follow these steps you can take to prevent identity theft of a deceased family member:

(1) Consolidate and collect all of the documents, financial and otherwise, belonging to the deceased. This may be an overwhelming task given what one can accumulate in a lifetime, but it is essential for the personal representative of the estate, or executor/executrix, for probate matters and the closing of the estate. Keep these in one, secure, place. By documents, collect also anything electronically stored including the devices storing such data, i.e. computers, disks, CDs, etc.

(2) Write discreet obituaries. Keep in mind, that anything you publish becomes both public and brings attention to the fact of the family member's death. As such, avoid writing anything that reveals too much about the deceased's background, occupation, names of spouses and parents, as these can be used by identity theft criminals to open accounts.

(3) Safeguard death certificates and store the original in your safe or deposit box. Also, send death certificates only to trusted institutions and give only to trusted individuals helping you. Therefore, by working with local tax professionals and persons assisting you in the probate and administrative process it can be less risky than those operating from a “remote” location. When the typical estate may need a dozen or so certificates one cannot be too careful with these.

(4) Give prompt notice to credit bureaus by contacting Experian, 1-888-397-3742; Equifax, 1-888-766-0008; TransUnion, 1-800-680-7289. Moreover, send certified letters to them, logging all correspondence, including an explicit request not to issue credit and only to disclose information to the authorized person for the estate. At the same time request credit reports for closing accounts and notifying creditors.

(5) Do not forget to notify Social Security as well as all financial institutions and all entities doing business with the deceased. Accordingly, notify all banks, insurance companies, creditors and collection agencies if any, lien holders and mortgagors, lessors, debtors (including family members who owe money), etc. In addition, notify the Veterans Administration if they are a veteran and the Social Security Administration, the Department of Motor Vehicles, clubs and organizations or anything membership related, etc.

(6) Contact your attorney about destruction of documents. There is a point in time for probate, taxes and financial affairs, that the documents are no longer needed. When it comes time to destroy them do not just burn for shred them unless you are certain nothing can be salvaged. It may be worth looking into a local shredding company or have your attorney or accountant dispose of them.

(7) Be careful how you involve family members and how much information you give to them. To the dismay of many, a common identity theft situation can occur with a family member or friend. Watch closely those who may have felt unfairly treated in the probate process or held resentment against the deceased - scrutinize everyone, but use tact. It will be easier on you, and safer, to use one family member or friend to help you and disclose information. So, while unfortunate, guard information with family and friends, and be careful how you explain why and what you reveal.

The criminal intentions in identity theft of the deceased range from opening accounts to absconding with property. While it is a difficult time to deal with both the loss and matters following death, the stark reality is that when we die we become easier targets for identity theft, as is publicized by many police departments who educate the public on the issue. Information pamphlets can often be found through your local law enforcement agencies. Finding one of these can also help you learn more in general about preventing identity theft and what you can do if it ever happens. All in all, prevention requires more than just being cautious, education and up-to-date information are also critical.

How to Choose a Good Financial Advisor: A Lawyer's Perspective

How to choose a good financial advisor and finding the best one for you is much like interviewing candidates seeking employment; you are the employer and the advisor is the employee. Working in the area of estate planning, I can offer some criteria I look for in light of my experience working with financial professionals.

Here are seven tips when "interviewing" candidates that are competing for your business:

(1) Qualified Referral: Did the candidate come to you, or did you contact the candidate, based on a qualified referral? By "qualified referral," in other words, is the candidate someone who was recommended to you based on their proven success with their clients, or is it someone whom is referred to you because of a person you trust that is making a recommendation? Keep in mind that advisors are in a business which relies heavily on referrals. Advisors are also in "sales." Therefore, they are frequently soliciting referrals from new clients who have yet to "qualify" the referral based on empirical proof of their advisor's actual performance - though the client may have received good advice or service and thus wants to promote their advisor.

(2) Objective Ratings: There are sources such as A.M. Best and TheStreet.com (formerly known as Weiss) that rate financial companies with an A,B,C, (+/-), system. These are helpful to know if the advisor works for a well rated company or firm. Yet, at least with A.M. Best insurance and financial companies pay for their ratings to be published, which then calls into question objectivity. So, rely on more than just one rating source. There are also the Better Business Bureau reports (BBB), Security and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA), as well as the Federal Trade Commission (FTC) that announce any wrongdoings committed by financial among other companies. Searching through the above will at least reveal any "red flags."

(3) Compensation Driven Advice: Unfortunately, those in financial positions may like other sales-related industries be held to scrutiny. When it comes to making financial recommendations, advisors' own compliance dictates acceptability, to some extent, based on whether the product advised passes a "suitability" test. The SEC thus has some built-in consumer protections in its regulations. However, the financial industry is very clever in making product recommendations that can get around suitability restrictions in attempting to be one step ahead of the SEC. As such, know how much your advisor is making on the deal as well as exactly what his or her company's share is of the compensation. The lesson of the past is that advisors are notorious for making recommendations based on compensation.

(4) Do not be fooled by guarantees of any kind: If your advisor guarantees anything, be highly skeptical. Some financial instruments, such as cash value in a whole life policy, can have some degree of guaranteed protection of principal. Yet, with any third party holding your money or assets ,even if FDIC insured, there are no 100% guarantees - although there are some financial instruments that are safer than others (FDIC insured being relatively safe). In fact, promises of guarantees on financial products or plans that are not so can get an advisor in trouble with his or her regulatory agency.

(5) Good Standing: It is not offensive to simply ask about an advisor's good standing with his license and/or any disciplinary actions that may have been taken. You may even request that he or she furnish paperwork demonstrating a "clean record." Why not? Employers obtain background checks on employees. Right?

(6) Who is on the advisor's team: Know all the "players" on the advisor's team who will be a part of making recommendations and managing your account. Does his or her company have someone watching your money all the time? Will your investments be frequently assessed for risk and will precautions be taken ahead of market crashes like the one experienced in 2008 and 2009?

(7) Availability and Specialty: If your advisor or someone on his or her staff does not get back to you before the end of the day or at least first thing in the morning, this gives cause for concern. Good advisors tend to get back in touch with their clients within 24 hours after they are contacted, usually within the same day. On another note, is your advisor specialized in anything important to your needs. It is one thing to have an advisor "tend to your needs," but is he or she knowledgeable in desired products and areas that matter to your financial bottom line, such as in variable annuities, variable life insurance, long term care insurance, ETF's, etc., or college planning, distribution planning, aggressive growth investing, commodities, etc.

In addition to these seven tips, make sure your advisor takes ownership for bad recommendations as well as be modest about good ones. These indicate someone who is likely more accountable and less the defensive or ego driven type. Otherwise, it is good to know that someone will do everything they can when things do go wrong.

Ultimately, there are going to be advisors that are good and bad; the advisor that is good for you is equally important to choosing someone who is "good." A professional recommending the best products to meet your goals and protect your money is critical. Therefore, doing some of your own due diligence in financial products is a good idea despite seeking an advisor for their opinions. The money and finance section at your local book store ought to carry good publications that will assist you. In the end, seek a neutral opinion from someone outside the financial industry who has no reason to either defend or criticize companies or advisors themselves. Financial industry people may have a tendency to protect their own or be too quick to criticize another. After the recent aftermath of the current recession, caution and deliberation with your current advisor or in finding a new one are well justified.



Author Information: Frank A. Cseke is a Fort Collins, Colorado-based attorney whose practice is focused on the areas of Estate Planning (Wills and Trusts), Business Law, VA and Governments Benefits Assistance. He serves as President of the Northern Rocky Mountain Chapter of the Society of Financial Services Professionals. Before setting out on his own, Frank practiced civil litigation and criminal defense for two Northern Colorado law offices, where in his general practice work he grew his passion for Estate Planning and Elder Law. Moreover, he has taken on an emphasis in Veterans and Special Needs trusts. Frank received his J.D. from the University of Colorado, School of Law (Boulder), in 2004, where he also worked as a student associate for LexisNexis, Inc. Prior to attending law school, Frank gained experience as an entrepreneur and LLC manager, and later as General Counsel, with 4 Guys Investments, LLC of Fort Collins. Frank obtained his undergraduate degree (a B.A. in Political Science with High Honors) from Franklin Pierce University (Rindge, NE) in 1999, where he was a member of Alpha Chi, Phi Alpha Theta, and Sigma Tao Delta. Frank, who grew up in Fort Collins, Colorado, now lives there with his wife, Daffney, and his son, Matthew, and step-son, Austin.

"We are here to add what we can to life, not to get what we can from life." -William Osler

Emotional Inheritance: How Many Estate Planners Go Wrong

The typical estate plan has come to include - though not always - a will, living will, powers of attorney, trusts, guardianship designations, letter of intent, and beneficiary designations. Unfortunately, over half, or an estimated 54% of Americans, do not have a will. So as not to berate the work of estate planning professionals, many of those in this business, nevertheless, focus little at all on what are referred to as "emotional inheritances." Some, although they are very acute to the notion of legacy building, frame estate planning in terms of wealth transfer, tax avoidance, and divestment of assets. On the other hand, a number of estate planners review the client's emotional legacy and/or inheritance in making a comprehensive plan.

An "emotional inheritance" is essentially the passing on of values, traditions, cuture, and heritage to one's heirs. The will, in effect, can be a 'tapestry' of the family lineage and depiction of its ways signifying the testator's "passing of the torch." There is another dimension to making an emotional inheritance. Imagine when you are gone what people what will be saying about you at the funeral. What would you like to see them doing and saying. An "emotional inheritance" can set the tone. Think of this aspect as preservation of things that make family enjoyable and enduring, the best of nostalgia. Oftentimes, when family comes together after a death are they likely reminisce; yet, there is no telling what can be missed in the commiseration.

The preoccupation with the basic fundamentals of planning have to some extent overlooked "emotional inheritances." The making of a will with regard to "who gets what" and the fashion of burial, minimizing costs, taxes, administration and probate, determining the fate of tangibles, etc. may leave much to be lost that truly is 'priceless' and most important to one's legacy. For what else is a legacy if not those things that money cannot buy? Certainly, leaving behind wealth and assets to the people or organizations of our choice matters, without question. However, despite this necessity basic planning seems remiss of the "stuff" that makes us, in a large part, who we are: namely, our family and heritage. Invariably, family identity is very important to many and they wish for it to be recognized by the next generation.

Whether young or old, those with plenty or little, we face a point when our 'last testament' - our 'will' - is going to be considered. Some chose to do nothing, and thus their legacy remains understood by the actions taken by their descendants. But for those seeking to assemble a lasting legacy, an attorney can be a useful guide in the process. Prior to meeting, it is a good idea to pull out the old photo albums, scrap books, memorabilia, keepsakes, and give particular thought to all those things that make one's "emotional inheritance" and what needs to be stated. By doing so you may take some notes. These will significantly aid your attorney, and hopefully make for better, more meaningful, legacy building.

For answers to your questions you may contact: Frank A. Cseke Attorney at Law 2120 Timber Creek Drive, C-2 Fort Collins, CO 80528 Office: 970.219.9978 Fax: 970.631.8897 email: http://estateplanner.page.tl/Contact.htm

LegalZoom Review: Should I Use Online Legal Documentation Services?

As an attorney I am often approached by people asking me to look over a legal document to see if it is done right. One of the first questions I ask them is, did you draft this yourself, and if not where did you get it? A common answer is, "I got it online."
You may have heard of LegalZoom.com. The likelihood is also that you are aware that this website is one of the best known and largest online clearinghouses for legal documentation, endorsed by Robert Shapiro. One question I would like to ask Mr. Shapiro is whether LegalZoom is superior to obtaining the same service from a local practitioner.

So as to be both fair and balanced, I would like to explore the pros and cons of using a LegalZoom.

The Pros: (1) It's affordable. Legal documents for important purposes such as a company's LLC or a will and trust are obtainable for what may be less than the local attorney's fees (a $69 will doesn't sound bad); (2)It's fast. The website offers same-day delivery of the documents via downloading; (3) It's has attorney oversight. It is hard to say who is doing what, but LegalZoom advertises its services with the "warrantability" of attorneys working behind the scene.

Read, however, LegalZoom's full disclaimer:

"LegalZoom's legal document service is not a substitute for the advice of an attorney...

LegalZoom is not permitted to engage in the practice of law. LegalZoom is prohibited from providing any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies...

Therefore, if you need legal advice for your specific problem, or if your specific problem is too complex to be addressed by our tools, you should consult a licensed attorney in your area. Visitors to our site may obtain information regarding free or low cost representation through your state bar association or local legal aid office."

The Cons: (1) LegalZoom is not a 'substitute'. You are not getting the advice of an attorney!; (2) LegalZoom is not engaged in the practice of law. As such, LegalZoom is not taking on the same liability that an attorney is when he/she is engaged in practicing; this begs the questions if their documents are prepared with the same "duty of care" owed to a client compared to that of a local practitioner; (3) It is not comprehensive, e.g. "if your specific problem is too complex..." Therefore, if your problem is too complex LegalZoom will not suffice for competent legal help. This also begs the question as to how one will know if their problem is complex unless they speak to a qualified attorney?

I am not one to shun or disparage an affordable and convenient service, unless I feel a consumer could end up getting injured in the end. One can relate, especially if they have met with an attorney, that very few legal problems are "simple" - thus why one went to seek the counsel of an attorney rather than attempt to figure it out on their own. Yet, in all fairness to LegalZoom, there are some sophisticated consumers who are both learned in legal matthers and laws - though not attorneys - who can utilize LegalZoom to their advantage. Saving money and time is unsually a good thing; but, when "self-help" ends up costing more time and money in the end because of a critical error or lack of oversight, the regret can be profound. So, as with anything like LegalZoom use it with caution and avoid taking a cavalier approach to solving a legal problem.

For answers to your questions you may contact: Frank A. Cseke Attorney at Law 2120 Timber Creek Drive, C-2 Fort Collins, CO 80528 Office: 970.219.9978
Fax: 970.631.8897 email: http://estateplanner.page.tl/Contact.htm


[Circular 230 Disclosure: pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained on this website, including links, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. The information on this site is for information only. It is not intended to offer legal advice of any kind. This website does not establish the attorney-client relationship. Should you have any questions regarding legal matters you should contact an attorney.]

What is a Special Needs Trust?

A conundrum for many Americans, especially with the growing aging population, is their estate plan. Yet, families that have a special needs member have their own puzzle to manage, which involves planning that is unlike others’. Particularly, a special needs loved one poses a unique challenge of “how to provide” in the event no one is left, usually close family, to care for said individual.

The Problem: Typically, special needs Americans are receiving government entitlement program benefits such as SSI or SSDI. One of the issues family-caregivers face is leaving assets or a ”financial support structure” for their loved one while at the same time avoiding loss, or ineligibility, of the entitlement. Life insurance is one of the common funding mechanisms for the care-plan. For those unaware, however, SSI, Medicaid, and SSDI have strict guidelines surrounding recipients’ assets and income, even if it is inherited – in light of this, such programs fall grossly short of being able to fund many of the “quality of life” expenditures the special needs person deserves: simple luxuries like televisions, cell phones, vacations, or health expenses such as dentist care.

The Solution: The special needs person need not resign the notion of having funds set aside for their “quality of life.” But, their caregivers planning should not be ‘pigeonholed’ into the “prototypical estate plan” that may apply to many of those without a special needs family member; this is not to suggest there is a “one-size-fits-all” plan for anyone, as each family invariably has its own specific needs and goals. Nevertheless, planning considerations for those with special needs takes on a dimension of its own requiring attention to (1) the goals for care following the point in time when care is not possible as with incapacity or death, and (2) designing a plan that fits within the narrow regulations and guidelines that the federal and state entitlement programs mandate regarding a recipient’s finances.

Fortunately, programs such as SSI and Medicaid contemplate the limits on the funds they deliver therefore recognizing special needs individuals’ right to “quality of life” as well as their families’ desire to reserve money to this end. Special needs planning, consequently, involves balancing the needs of the individual and the family with the government’s entitlement policies . Therefore, a will and/or life insurance policy is simply not enough.

A planning instrument referred to as either a Special Needs Trust (SNT), or Supplement Trust, is needed. Such a trust can be created using a will by way of a testamentary (upon death) SNT or the trust can be made independently, which is often the preferred method because of probate. The testamentary SNT would still need to go through the probate process causing a delay, whereas the stand-alone SNT avoids probate altogether. In either event, the SNT and/or Supplemental Trust circumvents the income and asset restrictions by maintaining ownership and control over the funds and assets. A “maintenance provision” therein gives the trustee authority to make only those distributions that do not violate “quality of life” expenditures recognized as permissible by Federal and/or State administrative agencies. The upshot for the special needs family members is a reserve of funds for a better life while keeping important entitlement benefits.

Before setting up a life insurance policy or transfer of any assets whatsoever through a will or other estate planning instrument, if the beneficiary is a special needs individual it is strongly recommended by this author and others to seek the help of a qualified attorney or estate planner.

For answers to questions or if you know someone with special needs, you may contact The Offices of Frank A. Cseke: Frank A. Cseke, Esq. 2120 Timber Creek Drive, C-2, Fort Collins, CO 80528 Office: 970.219.9978 Fax: 970.631.8897 Email: estateplanner@mcom.com

[Circular 230 Disclosure: pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained on this website, including links, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. The information on this site is for information only. It is not intended to offer legal advice of any kind. This website does not establish the attorney-client relationship. Should you have any questions regarding legal matters you should contact an attorney.]

Veterans Need to Pay Close Attention to Their Estate Plan

United States Veterans: you have honorably served our country, made sacrifices, defended the homeland, and demonstrated the highest form of patriotism. As such, you are a special class of citizens entitled to the rewards of your service and duty, especially if during war-time. Moreover, you and your spouse may enjoy the benefits awaiting you through the Veterans Administration.
Since its establishment in 1930, the Department of Veterans
Affairs has evolved to supporting and aiding the nation’s
veterans in numerous ways. One of these services for example, the Veterans Health Administration, is the largest single provider of medical care in the United States. Its 22regions with 154 hospitals and their associated 875 outpatient clinics offer the following services:

Hospital, outpatient medical, dental, pharmacy
and prosthetic services
Domiciliary, nursing home, and community-
based residential care
Sexual trauma counseling
Specialized health care for women
veterans
Health and rehabilitation programs for
homeless
veterans
Readjustment counseling
Alcohol and drug dependency
treatment
Medical evaluation for disorders associated
with military service in the Gulf War, or
Treatment
for exposure to Agent Orange, radiation,
and other environmental hazards
HISA grants
Other special benefits

A pension, through the Aid and Attendance Program, is also available up to just under $2000 per month. And while many Veterans already know or have applied to the VA for these benefits, often what happens is that the surviving spouse of a veteran is not aware of their possible eligibility.

As with applying for any other government entitlement program, there are a myriad of forms and requirements. Sometimes, these can confuse or delay the process. This is why a Veterans Benefits Consultant or an attorney can be helpful in the process, whereas many who assist veterans in their benefits applications do not charge a fee, or if they do it is a nominal sum (there may be other compensation for ancillary services such as financial or insurance products, trusts, legal counsel, etc.) In fact, federal law prohibits charging excessive fees for this service.

In conclusion, if you are a veteran or a spouse of one you may want to consider having a qualified individual review your current benefits as well as have a professional consult with you regarding the pros and cons. Or, if you have a parent who is either a veteran or a spouse of one(maybe both) contacting a local VA consultant or attorney will not hurt in light of the availability of no cost consultations. With the rising costs of long-term care reaching figures in excess of $80 per day and the limits on Social Security income, much can be lost for the eligible veteran and/or his/her spouse. Remember, though you may be seeking the VA entitlements there are caps on income and assets that may require the need for some specialized planning, which is why an attorney is highly advised where the veteran or spouse has significant assets. So, before applying for benefits and submitting an application to the VA, if you are uncertain in any way about the process or requirements refrain from going forward until you have received adequate assistance and/or counsel from someone who has experience in the area of VA benefits. A CPA should also be contacted where possible tax implications are likely to arrise.

For answers to your questions you may contact: Frank A. Cseke Attorney at Law 2120 Timber Creek Drive, C-2
Fort Collins, CO 80528 Office: 970.219.9978
Fax: 970.631.8897 Email: estateplanner@mcom.com

[ Circular 230 Disclosure: Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained herein or above, including links, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein. The information on this site or elsewhere is for information only. It is not intended to offer legal advice of any kind. This website does not establish the attorney-client relationship. Should you have any questions regarding legal matters you should contact an attorney. ]

Frank A. Cseke is a Fort Collins, Colorado-based attorney whose practice is focused on the areas of Estate Planning (Wills and Trusts), Business Law, VA and Governments Benefits Assistance. He serves as President of the Northern Rocky Mountain Chapter of the Society of Financial Services Professionals. Before setting out on his own, Frank practiced civil litigation and criminal defense for two Northern Colorado law offices, where in his general practice work he grew his passion for Estate Planning and Elder Law. Moreover, he has taken on an emphasis in Veterans and Special Needs trusts. Frank received his J.D. from the University of Colorado, School of Law (Boulder), in 2004, where he also worked as a student associate for LexisNexis, Inc. Prior to attending law school, Frank gained experience as an entrepreneur and LLC manager, and later as General Counsel, with 4 Guys Investments, LLC of Fort Collins. Frank obtained his undergraduate degree (a B.A. in Political Science with High Honors) from Franklin Pierce University (Rindge, NE) in 1999, where he was a member of Alpha Chi, Phi Alpha Theta, and Sigma Tao Delta. Frank, who grew up in Fort Collins, Colorado, now lives there with his wife, Daffney, and his son, Matthew, and step-son, Austin. "We are here to add what we can to life, not to get what we can from life." -William Osler





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