By Associate Attorney Danielle Nodar

National Estate Planning Awareness Week runs from October 19 through 25th and was created in order to increase public awareness about the importance of estate planning for financial and personal wellness. According to the National Association of Estate Planners & Councils, it is estimated that 56% of Americans do not have an up-to-date estate plan! In honor of this week, we are reminding you of the importance of having an estate plan in place and working with an estate planning attorney to create a plan that is tailored to your specific needs and goals.

There are many myths associated with estate planning that can be answered and addressed if you work with an estate planning attorney. Some of these include:

• “My estate is not big enough to require any estate planning”
• “My spouse is a joint owner of our assets so I don’t need an estate plan since they will inherit everything automatically”
• “I am too young for an estate plan”
• “Estate planning is too complicated or too expensive for me”
• “I created an estate plan years ago and nothing needs to be changed”

These myths, coupled with the discomfort that often accompanies thinking about incapacity and death, prevents many people from prioritizing their estate plan. However, by working with an estate planning attorney, you can address these concerns, gain control over an incontrollable life event, and leave with the peace of mind knowing that your loved ones will be taken care of when you pass away.

The purpose of estate planning is to develop a strategy that will maintain your financial security during your lifetime and create a plan for transferring your property at your death. A good estate plan considers a variety of circumstances unique to each person, including family dynamics, overall assets and debts, and the costs associated with transferring assets at death. Estate planning goes beyond making decisions relating to where your property goes when you pass away. It also includes naming individuals who will help implement your plans when you pass away, such as naming the executor who will administer the probate of your estate, a trustee who will manage property for the benefits of your named beneficiaries, or a guardian who will have custody and care of any minor children. Comprehensive estate planning also creates a plan for who will take care of you in the event that you become incapacitated during your lifetime. This includes naming agents under a durable power of attorney who will act in your place as to financial, business, and legal decisions if you are no longer able to manage your affairs and naming an agent under a healthcare power of attorney who will make medical decisions for you in the event you cannot speak for yourself. There are even ways to make plans for end-of-life medical decision-making in the event that you do not want life support if you are suffering from serious or terminal medical conditions.

Even if you have an estate plan in place, you should meet with your estate planning attorney every three to five years to review any life changes or changes in the law. Some reasons to update an estate plan are major life changes or changes in circumstances or assets, including factors like births, deaths, marriages, divorces, illness or disability, or even moving to a new state.

Thus, in honor of National Estate Planning Awareness Week, we want to remind everyone of the importance of creating and reviewing your estate plan to plan for your future and the future of your loved ones. If you have questions about creating an estate plan or potential revisions to your existing estate plan, please call Jesson & Rains!

By Attorney Kelly Jesson
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On September 22, 2020, the U.S. Department of Labor (“DOL”) issued a proposed rule regarding classifying workers as employees versus independent contractors. As we’ve written before, failing to correctly classify workers may result in employers paying thousands of dollars in fines, taxes, and back wages. The Fair Labor Standards Act (“FLSA”) requires that employers pay their employees minimum wage and overtime, but these rules do not apply to independent contractors.

The DOL has proposed this rule because of conflicting court cases across the country, in order to create the “sole and authoritative interpretation of independent contractor status under the FLSA.” The proposed rule creates an “economic realities test” to determine whether a worker is an employee or an independent contractor. If the worker is economically dependent on the employer for work, he/she should be classified as an employee. If a worker is considered to be in business for him or herself, that worker should be classified as an independent contractor. In the past, several factors have been used to aid in court’s determinations as to whether or not a worker is economically dependent on the employer, but with this proposed rule, the DOL specifically notes that there are two core factors that are to be given more weight than others:

     1. The nature and degree of the worker’s control over the work: If the worker, and not the employer, exercises substantial control over key aspects of the work, such as by setting his or her own work schedule, working with little or no supervision, and being able to work for others, including a potential employer’s competitors, they may be classified as an independent contractor.

     2. The worker’s opportunity for profit or loss: If the worker has an opportunity to earn profits or incur losses based on his or her personal initiative, managerial skills, or business acumen (including investments in money and also equipment, tools, and people), the worker may be classified as an independent contractor.

The text of the proposed rule references “entrepreneurs” multiple times. In reviewing the proposed rule, it is clear that the DOL considers independent contractors to be workers who work for themselves. “[T]he ability to control one’s work and to earn profits and risk losses strikes at the core of what it means to be an entrepreneurial independent contractor, as opposed to a ‘wage earner’ employee.”

The proposed rule has been submitted for public comments and, given that an election is happening in a month, it is unlikely that the proposed rule will become law in the next few months. But we will be keeping an eye on it.

If you’re considering hiring your first worker, or have questions about your existing workers, please give Jesson & Rains a call!