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Practice Areas2019-05-04T13:08:54-07:00

Business Planning

Estate Planning

Estate Planning – FAQs

Isn’t estate planning only about taxes?2019-05-04T10:55:32-07:00

This is a common misconception. Comprehensive estate planning takes the whole person into account. It involves selecting trusted individuals to carry out one’s wishes and drafting documents that carefully guide and protect future generations. Estate planning also goes beyond taxes, wealth, and medical decision making: Many people choose to include things like recorded oral histories and precious heirlooms in their plans. This makes estate planning not just about property, but about the legacy, values, and vision you want to pass along to future generations.

I thought trusts only dealt with property. How can a trust be used to pass along my values?2019-05-04T10:55:05-07:00

There is actually a huge diversity of types of trusts, and part of estate planning is picking the ones that work best for you, your family, and your goals. In terms of passing your values to the next generation, educational and incentive trusts can promote or discourage certain life choices. For example, someone who prizes their family vacation memories might create a fund for that purpose. Additionally, charitable trusts or foundations can pass along your personal mission of philanthropy.

What should I tell my children about my estate planning?2019-05-04T10:53:08-07:00

There is no cut-and-dry rule for what you should and shouldn’t tell your children about your estate planning, but it’s usually a good idea to err on the side of more information rather than less. It’s a good idea to tell your children the reasons behind your decisions,so they understand how your values translate into your plan. Sharing your perspective far in advance using important documents like your health care directives can also reduce stress on your family in a difficult moment down the road. It is also an excellent way to reduce (or even eliminate) family infighting that sometimes occurs after death if your children have heard directly from you about the reasons for your decisions.

The divorce decree divided all the assets; the legal work is already done, right?2019-05-03T22:22:34-07:00

Your divorce case may be final, but to be fully protected you must go through the estate planning process. Even if you created a plan while you were married, you are now a single person in the eyes of the law. Plus, the divorce decree may have divided the assets but it did not let you express who you want to leave them to now that you are no longer married. Estate planning lets you decide who you want to leave your assets to.

What should I discuss with an estate planning attorney after my divorce?2019-05-03T22:23:49-07:00

Now that you are no longer married, your plans for your assets may be less clear than they once were. So, first explore who you would like to receive your estate. Second, be prepared to discuss who you want to handle your affairs when you are unable to do so. Third, make sure that you living up to the terms required in your divorce decree regarding child support and alimony.

Do I have to get my ex-spouse’s consent to make a new will or trust?2019-05-03T22:25:11-07:00

Generally no. Once you are divorced, you are treated as a single person for estate planning purposes. As a result, there’s no permission you need to change your will or revocable trust. Irrevocable trusts vary, depending on their purpose. If you have an irrevocable trust of any kind, bring a copy with to your meeting and we can examine what options you have. If you have a contractual will (which is rare), you may need to discuss with your spouse or look at your divorce decree.

We just got married and don’t have any children. Why would we need an estate plan?2019-05-04T10:59:03-07:00

Just because you marry someone does not automatically mean that they will inherit from you.  Some assets, such as life insurance policies, have beneficiary designations that must be changed.  Whoever is listed on those will receive the assets on your death.  For those assets that do not have a beneficiary designation, they will be distributed according to the state law of intestacy.  While each state may vary, in most cases, the assets will be distributed between the surviving spouse and other family members. An estate plan puts you in control of the inheritance you leave behind.

We may be moving soon. It’s okay to wait until we’re settled before having our estate planning done, right?2019-05-04T11:06:08-07:00

A move should not be a reason to put off your estate planning. While we understand that a lot of changes occurring, tragedy can occur at any time.  Even if you are changing states, there are still some aspects such as updating your beneficiary designations that can be accomplished and will not be affected by the move.  Additionally, it is a good idea to have a Medical Power of Attorney, even if you are not going to be in the state for too much longer.  Life can be very unpredictable and you do not want to get caught needing court intervention should something happen to you or your spouse before the move.

Who needs estate planning?2019-05-04T11:13:30-07:00

Everyone needs estate planning. Children under the age of 18 are protected by their parents’ estate plan but everyone age 18 or older needs his or her own estate plan. Of course, estate plans vary immensely depending on goals, finances, family situation, domicile (where you live). There is no one-size-fits all estate plan.

How old do you need to be to have an estate plan?2019-05-04T11:15:00-07:00

Everyone needs estate planning, no matter their age. Children under the age of 18 are protected by their parents’ estate plan; everyone age 18 or older needs his or her own estate plan. Of course, estate plans vary immensely depending on goals, finances, family situation, domicile (where you live). There is no one-size-fits all estate plan. If you’re wondering whether you need an estate plan, you’re asking the right question and, yes, you do.

When do my children need to get their own estate plan?2019-05-04T11:17:46-07:00

Everyone is surprised when we answer this question. Even an 18-year-old high school senior needs her own estate plan. Once a child becomes 18 years old, she is legally an adult and must make her own health care, financial, and legal decisions. Without legal documentation, parents are powerless to act on behalf of their adult children.

Of course an 18-year-old’s estate plan is very different from a 48-year-old’s estate plan because life, assets, goals, and family situation evolve over 30 years, but some basics are the same.

How much money do I need before an estate plan is necessary?2019-05-04T11:21:48-07:00

You don’t need to be a Rockefeller or Kennedy to need an estate plan. In fact, you don’t need any assets to need an estate plan. What you do need is one of the following:

  1. someone you love,
  2. the desire to control your life and finances,
  3. the desire to maintain privacy, or
  4. the wish to avoid court interference.

To help you think this through, here are non-monetary reasons to have an estate plan in place:

  1. an estate plan empowers your trusted helpers to make healthcare decisions and manage your day-to-day business if you’re not able to;
  2. appoints guardians for minor children and pets; and
  3. avoids medical heroics through a living will.
My child is legally an adult, should she have her own estate plan?2019-05-04T11:23:47-07:00

Without a doubt, yes. Even an 18-year-old high school senior needs an estate plan. Once a child becomes 18 years old, he or she is legally an adult and must make his or her own health care, financial, and legal decisions. Parents are powerless to act on behalf of their adult children without legal documentation.

What is a guardian?2019-05-04T11:29:34-07:00

There are two kinds of guardians – (1) those appointed to care for a minor child when the child’s parent is unable to do so, and (2) guardians appointed for the care of an incapacitated adult who can no longer make his or her own decisions. Comprehensive estate planning addresses both types of guardians, so that you and your family are fully protected.

Although a guardianship for an incapacitated adult can be avoided by adding proper powers of attorney, and explicit directions for them, to your estate plan, you should always name guardians for minor children. A court will want to make sure the child’s best interests are cared for. The way that you, as a parent, can make your wishes known is to designate a guardian for your minor children in your estate plan.

If the person that would be a great guardian is not good with money, can I still select them?2019-05-04T11:31:17-07:00

Of course you can select them to the be guardian for your children. With a comprehensive estate plan, you can “split up” the roles: one person manages the money (the successor trustee) while another person raises the children (the guardian). Sometimes the same people are appropriate for both roles and other times, naming different people is the right thing to do. This is what we call a “counseling issue,” meaning that after we talk it through, you’ll know what decision to make. The people who care for your children day-to-day may or may not be the best fit to manage the finances as well. The responsibilities do require different skill sets. Luckily, your plan can be tailored to your unique circumstances and needs

I already have (or I’m getting) life insurance to care for my family. Why would I need a will or trust too?2019-05-04T11:38:10-07:00

If you don’t have a will, the court will decide who settles your estate and raises your children and state law determines who gets your assets – and it may not be who you think. Most people want to make those decisions themselves; don’t you?

Additionally, life insurance may provide the money to provide for your family if you’re not able to, but it doesn’t provide any structure, guidance, or protection against waste or financial abuse. When you use a “plain” beneficiary designation, you lose the ability to provide this protection for you family. But, a comprehensive estate plan gives you the opportunity to provide safeguards and protection against waste or abuse. Life insurance can be very helpful component of estate planning, but only when it’s used properly.

How do I name guardians for my children?2019-05-04T11:35:15-07:00

Guardians for minor children must usually be named in a will. If you fail to appoint guardians in your will, the court will decide who raises your children. For parents of minor children, this is the most important estate planning decision you’ll ever make.

Even though it’s hard and no one can raise your children as well as you can, move forward and select the guardians you think will muddle through the best. Some people delay estate planning because they can’t make this decision. Don’t do that; your inaction puts your children at risk. And, be sure to name back-up guardians as well in case your first choice is unable to serve if the time comes.

What if the guardians I name for my children can’t serve when the time comes?2019-05-04T11:36:53-07:00

This is an important question that many folks forget to ask. It’s essential that you name contingent guardians in your will in case your primary guardians are unable or unwilling to serve if the time comes. Life does indeed change, so be sure to also indicate who get the kids if guardians divorce. Check in with the people you’d like to name to be sure they’re willing and able to serve.

Should I tell my estate planner I’m expecting an inheritance?2019-05-04T12:04:22-07:00

Yes. While some people are hesitant to count their chickens before they hatch, looping your estate planner into your full financial picture is the best way to prepare for whatever the future may hold. By planning ahead, you can help make sure that whatever is left to you will be protected and able to be enjoyed for years to come.With all of the emotions that surround the passing of a loved one, you’ll be able to focus on grieving and the administration process, without having the extra worries of how you will handle your finances.

What will happen to my plan if I don’t actually receive the inheritance?2019-05-04T12:07:17-07:00

If you expected to a receive an inheritance and ultimately do not, your financial and estate plans can be revised to take the change into account. We like to think of estate planning as a process rather than a one-time event. Your plan must evolve over time to make sure a continued management of the assets you have, not just the ones you had when the plan was originally prepared.

How do I ask my family if I’m getting an inheritance?2019-05-04T12:10:50-07:00

Money can be a taboo subject in some families. Broaching this subject with your family may be difficult and uncomfortable, but it is necessary.  Start the conversation during a relatively stress-free time and not springing it on a family member during the chaotic holiday season or before a big family celebration. Instead of focusing solely on what you are to receive as your inheritance, you can discuss it as part of a larger conversation about your loved ones’ future plans for their health and overall well-being. You can begin by inquiring about what type of planning they have already done. Have they designated agents under Financial or Medical Powers of Attorney to act on their behalf should they become incapacitated? Do they have a living will in place to help with end-of-life decisions?Whileplanning for an inheritance may be your main focus, this conversation can help make sure that your loved one is protected as well.

The trustee of my trust just isn’t working out. Can I change the trustee? I’m afraid I’m stuck because the trust is irrevocable. Please help!2019-05-04T12:15:04-07:00

You may be in luck because most trust modifications we make involve changing the trustee.  Unfortunately, we can only answer generally here because we don’t know the details of your trust or your individual situation, but, yes, often the trustee can be changed, even if the trust is irrevocable. Please call our office ASAP to get on the schedule; we’ll review your trust and let you know the best way to proceed.

I’m the beneficiary of a trust set up by my spouse when she died. The tax laws have changed significantly since then. Do I have to go to court to change the terms of the trust?2019-05-04T12:17:13-07:00

Not necessarily. The simplest way to change the trust would be if there are provisions within the trust that allow a private modification. Look for “trust protector” provisions. If you’d like help interpreting your trust and get an overview of your options, we’d be happy to review the trust.

What does a trust protector do? Do I need one?2019-05-04T12:18:08-07:00

A trust protector’s duty is to make sure the trust maker’s intent is carried out. And, yes, we use trust protectors in all of our trusts to make sure changes in the law or changes in circumstances don’t frustrate the trust maker’s intent. The trust protector has the power to modify your trust to meet your wishes without hauling your loved ones into court.

I set up a trust for my grandchildren years ago and everything has changed since them. Can I revoke that trust and start over?2019-05-04T12:20:12-07:00

What you can do is “decant” your trust, meaning you can take the assets from the original trust and pour them into a new trust, with new and more favorable terms. Decanting essentially would give you the results you’re looking for.

What is an SRT?2019-05-04T12:24:06-07:00

A standalone retirement trust, “SRT” for short, is a trust used to provide asset protection and maximized tax-deferred growth for spouses, children, and other loved ones. This means more assets go to the people you care about.

Why would my loved ones need asset protection?2019-05-04T12:26:39-07:00

Lawsuits are filed every few seconds all year long, every year, in the United States. We all have a bullseye on our back. Commonly, lawsuits stem from car accidents, business failure, divorce, malpractice, tenants, slip-and-falls, bankruptcy, and the like. Without your protection, inherited assets can be seized for any number of reasons.

What if I end up using up my retirement account during my lifetime?2019-05-04T12:29:04-07:00

By all means, use your retirement funds as you think best. Even after you set up an SRT, you’ll have full control and the right to enjoy your retirement funds for years. The SRT is named as the beneficiary of your retirement account and therefore, will only receive funds once you have died, leaving you free to spend the money as you see fit.  However, if you’re like most people, you will still have assets in your retirement account when you die; that’s when the SRT will protect your loved ones and their inheritance.

Who should I pick as successor trustee?2019-05-04T12:34:36-07:00

For most trusts, you are going to be the initial trustee.  You will need to select a successor trustee to act when you no longer can. To figure out how to select the right person for the job, first consider whether the trustee should be an individual or a financial institution. If choosing an individual, pick someone you know who is diligent, detail-oriented, and whom you trust to carry out your clear instructions.

What does a successor trustee do?2019-05-04T12:36:38-07:00

A successor trustee (either an individual or institution) serves as a back-up, or replacement, to the original trustee (usually you) when the first trustee passes away or is incapable or unwilling to perform their duties regarding the management of your trust. As successor trustee, he or she will be in charge of managing the assets owned by the trust and ensuring that the assets are managed or distributed according to the terms of the trust.

Should I pick a corporate trustee?2019-05-04T12:38:20-07:00

While it’s straightforward enough to pick a friend or family member you think will be up to the task, picking a corporate trustee is the best option for some people. Banks and trust companies that focus on trusteeship provide expert management. Being unrelated to your personal life, you can also rely on them to be impartial. However, corporate trustees do charge for their services and may have minimum asset requirements.

What does a guardian do?2019-05-04T12:40:06-07:00

Guardians and conservators are court-appointed individuals who make decisions on a person’s behalf in the event of mental or physical incapacity. These decisions can range from where you live to making sure that your bills get paid. These court-supervised helpers can be avoided by adding proper powers of attorney, and explicit directions for them, to your estate plan.

What’s the difference between my health care agent and my financial agent?2019-05-04T12:42:08-07:00

While there is some overlap, health care and financial agents are two distinct roles in an estate plan. Your health care agent, also referred to as health care power of attorney or health care proxy, is responsible for making medical decisions on your behalf and may also implement your pre-arranged instructions if you experience incapacity. Likewise, a financial agent can manage your money by paying bills, filing taxes, purchasing insurance, and adjusting investments for you if you become unable to do so yourself. You may choose to appoint the same person or you may select different people. It’s up to you to decide who is best for each role.

What does personal representative mean — is that different than an executor?2019-05-04T12:43:28-07:00

A personal representative is the same as an executor. This is the individual or institution named in a will who becomes responsible for carrying out the instructions provided in your will during the probate process.

What is a trust protector and do I need one?2019-05-04T12:44:46-07:00

A trust protector is an individual named in a trust to ensure that your estate planning goals and intent are carried out if the law or other circumstances change. A trust protector can be empowered to update your trust without court interference or mandate to carry out your wishes.  This is extremely helpful once you have passed away and cannot make the changes yourself. Although there is no legal requirement that you appoint one, a trust protector is often an excellent addition to an estate plan.

Who should be the trust protector?2019-05-04T12:46:17-07:00

This role can be carried out in a couple of different ways. You can appoint an individual that you trust to step in if the need arises. Because this is not a role that has ongoing responsibilities, there is not the same time commitment as that of a successor trustee.  You could also appoint an attorney or other professional to step in if necessary.

What is an irrevocable trust?2019-05-04T12:52:10-07:00

An irrevocable trust is a trust that, by its terms, cannot be revoked by the settlor, who is the person who set up the trust. Sometimes trusts are irrevocable from their inception. These  trusts are commonly used for certain estate tax and asset protection strategies. Other trusts become irrevocable because of the death of the settlor.

Can irrevocable trusts be changed?2019-05-04T12:53:50-07:00

Yes, although not as easily as revocable trusts. It may seem counterintuitive, but  irrevocable trusts can be changed. Numerous legal strategies exist to modernize irrevocable trusts. You can utilize techniques such as  decanting, having a trust protector restate a trust (so long as it is allowed per the original trust), asking for a judicial modification, or having all interested parties execute a non-judicial settlement. The mechanics of each of these processes can be somewhat involved and varies depending on what your trust says now.  However, some changes are not possible. If you have set up an irrevocable trust  or are the beneficiary of a deceased loved one’s irrevocable trust, it’s always worth exploring whether modernizing the trust can improve your tax and asset protection situation.

What is probate?2019-05-04T12:57:14-07:00

Probate is the process by which the court validates the authenticity of a will; appoints an executor (aka personal representative); and supervises the settlement of an estate, including the payment of bills, filing of tax returns, and transfer of assets to beneficiaries. If no will is presented, the court will appoint an estate representative, called an “administrator.” The administrator carries out the same duties as an executor; but when a person dies without a will the court must determine the heirs of the deceased. The complexity and duration of this heirship determination process varies from state to state, but typically the remainder of the probate process, such as the payment of taxes and bills, remains the same whether there was a will or not. Of course, estate assets are distributed to heirs at law as determined by the state’s intestacy laws, not beneficiaries chosen by the testator (aka the deceased who created the will).

How do I avoid probate?2019-05-04T12:57:57-07:00

Only assets in your individual name or payable to your estate will go through probate. Many folks use a (fully funded) revocable living trust to avoid probate. In addition, contract assets such as life insurance, retirement accounts, and annuities as well as assets owned by joint tenants with rights of survivorship avoid probate as well.

Is probate bad?2019-05-04T12:59:32-07:00

Many people, but not all, think so. The difficulty and expense of probate varies from state to state and from family to family because of differences in state laws, family goals and personalities, and assets. Many clients wish to avoid probate because it’s a public process, time consuming, and costly. We’ll take a look at your entire situation together and let you know whether a probate avoidance plan should be part of your estate plan.

Why should I avoid probate?2019-05-04T13:01:46-07:00

Most people want to avoid probate because it can include high fees and costs, significant time delays and stress, and public dissemination of private information. What do I mean by public? In most cases, court records are public records, meaning that anyone could get a copy of your will, the estate’s inventory, and other information you might wish to keep private. The ease of accessing this information does vary from state to state, and sometimes even from county to county. Some places even have online dockets, allowing anyone with an internet connection to see a listing of your assets, debts, beneficiaries, and who got what. If you’re like most people, you want to keep your family affairs and finances private, so probate should be avoided.

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