Estate Planning Attorney

Estate Planning Starts With A Living Will

In short, a will is a legal document intended to coordinate the wishes regarding the distribution of a person’s wealth, property, and the care of dependents, e.g. minor children. It is advisable to work closely with an estate planning attorney to create and update your will.

A will allows you to state who you would like to inherit your property or to nominate a preferred guardian to care for minor children in the event of your death or incapacity. But a will does not avoid the probate process. Assets titled in your name or guided by your will must still go through your state’s probate course of action before distribution to your heirs. (probate law varies from state to state, if you own property in multiple states your family or heirs will encounter multiple probate processes) The probate process can become very expensive due to court costs and legal fees. On average the process can take six to nine months to complete and probate filings are open to the public, allowing excluded heirs to step forward in order to pursue a claim to your estate.

In brief, the state court system, not your heirs, has primary control over the process.

But not everything you own will require going through the probate process. Jointly owned assets or property that allow you to identify a beneficiary such as life insurance, IRAs, 401k’s, annuities, etc. are not controlled by your will and generally transfer ownership to a new beneficiary without probate.

However, there are problems that may arise with joint ownership and probate avoidance is not guaranteed.  If, for example, a valid beneficiary is not named, your assets will still have to undergo the probate process like the rest of your estate or if a minor is named a beneficiary, the court will most likely contend that a guardianship is required until the child becomes a legal adult.

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A Revocable Living Trust

For the reasons above it becomes important to make the proper arrangements now than to require your family to do so later. A revocable living trust is a preferred method for many families and professionals. It can avoid probate processes at death, prevent court interference of assets during incapacity, and may bring all of your assets into a single plan. Also, a trust can provide privacy, is valid in all states, and can be altered by you at any time.

In short, a trust is a fiduciary arrangement that allows a third party, often known as a trustee, to hold and manage assets on behalf of beneficiaries. A trust may be arranged in several ways and typically indicate specifically how and when assets are passed on to beneficiaries.

Assets in a trust may be able to avoid probate, which in turn may save time, money, and potentially reduce estate taxes.

Different than a will, a trust does not have to pass with you. Assets can be kept in one place and managed by a trustee of your choosing until beneficiaries are able to inherit. A trust may continue for a longer duration to provide care for an heir with special needs and can protect assets from other beneficiaries’ spouses, creditors, and reckless spending.

A living trust may be more expensive at first, but many prefer its benefits over a will. This is largely due to its ability to avoid probate interference by the state at a time of death or incapacity.

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Trust Administration & Litigation

Trust administration & litigation is a complicated and complex area of law. Whether you are a trustor, trustee, or beneficiary, our office can assist you to protect or obtain what may rightfully be yours under the law.

Our office is fully equipped to handle any situation that may emerge during the administration or planning of a trust. Trust administration refers to the contractual relationship between a trustor and their trustee. It is the carrying out of wishes of the decedent as written in his or her trust. The trust creator or trustor appoints a trustee whose responsibility is to administer the distribution of assets to named beneficiaries in the trust.

If there is a significant amount of wealth involved, it is not uncommon for disputes to end up in court. Trust litigation becomes necessary if there are conflicting views or opinions regarding the recently deceased’s last wishes.

Many steps are required in order to safeguard effective trust administration and the handling of trust litigation. Our firm will work with the trustee and beneficiaries to ensure a trust is administered in a timely and professional manner.

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Probate Administration & Litigation

Probate administration is the process of filing a will in court and administering the estate of the decedent. Whether you are a trustor, trustee, or beneficiary, our office can assist you with understanding and navigating the often complicated protocol surrounding probate administration and litigation.

A probate court oversees the process of probate administration. This typically includes the appointment of an executor or representative if one is not already named in the decedent’s will and the identification/notification of all qualifying heirs, beneficiaries, and creditors.

During probate, the executor must appraise all assets and property belonging to the decedent. Once the value of the estate has been determined, any creditors are to receive payment and any leftover funds are to be distributed amongst the heirs in accordance to the will or the requirements of state law if no will exists.

Probate litigation regards a challenge to a provision or the entirety of a will. Unfortunately, disputes like will contests are frequently occurring events. Our firm is experienced in representing parties regarding probate administration & litigation. Moving quickly and effectively, we can assist you through the many challenges involving the often complex probate process.

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Estate Planning Today – Family Security Tomorrow

Successful estate planning can provide welcome certainty and direction at a difficult time of transition.  Although individual’s specific objectives with respect to their estate plans will differ, most share certain general objectives. Engaging with an estate planning attorney will help you to arrange your affairs to protect you, your loved ones, and your assets, during your lifetime.

Good estate planning is much more than making a plan in advance and naming whom you want to receive your assets after you pass, it should also:

• Include instructions for your care if you become incapacitated before death.
• Name a guardian and an inheritance manager for minor children.
• Provide for family members with special needs without disrupting government benefits.
• Include instructions for your wishes regarding the disposition of your remains, directions for anatomical gifts, and directions concerning autopsies.
• Provide for loved ones who might be irresponsible with money or who may need future protection from creditors or divorce.
• Include life insurance to provide for your family at your death, disability income insurance to replace your income if you cannot work due to illness or injury, and long-term care insurance to help pay for your care in case of an extended illness or injury.
• Provide for the transfer of your business as per your retirement, disability, or death.
• Minimize taxes, court costs, and unnecessary legal fees.

If you don’t make arrangements, the state will do so for you, which will likely not match up with your personal preference.

Without a plan in place:

Regarding disability: If you are unable to manage your assets due to a physical or mental disqualification, only a court-appointed representative may sign for you. Meaning the court system, not your family, will maintain authority over your assets and how they are used to care for you. This becomes expensive and time-consuming, as well as difficult to cease even in the event of your recovery.

Regarding death: In the event of your untimely death, your assets will be dispersed in accordance with your state’s probate laws. Probate is the court’s system or process for distribution of your wealth and assets. In California, for example, your heirs will each receive a share of your assets. Meaning your spouse may only receive a fraction of your entire estate and any inheritance belonging to minor children would be controlled by the court. In the event both parents pass away, the state will designate a conservator regarding minor children’s affairs.

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The Best Time To Plan Your Estate Is Now

None of us really likes to think about our own mortality or the possibility of being unable to make decisions for ourselves. This is exactly why so many families are caught off-guard and unprepared when incapacity or death does strike. Don’t wait. You can put something in place now and change it later…which is exactly the way estate planning should be done. Your plan should be reviewed and updated as your family and financial situations (and laws) change over your lifetime.  A properly prepared plan in place – one that contains your instructions and will protect your family – will give you and your family peace of mind.

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