Bicknell Utah estate planning strategies

Estate Planning - It's Just As Much Life As It Is Death Planning

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Estate planning is not solely about planning for your death. It also involves planning for your life in the event you're mentally incapacitated. Having an estate plan in place is very important because it reflects your wishes for your children, family, property and assets.

Is Estate Planning Often Overlooked?

Despite its extreme importance, estate planning is often overlooked and neglected. Many people work hard throughout their lives to provide for their families and build their estates, only to have the very things they've worked for and people to protect in disarray because they didn't invest time in a comprehensive plan that reflects their wishes.

Statistics show that more than 50% Americans do not have an estate plan in place at the time of their death. This is likely due to the average person's unfamiliarity with the estate planning process itself. Because they do not understand its importance and how it works, many Americans forego wills, trusts and other estate documents.

Why do you Need an Estate Plan?

Without the proper documentation in place at the time of your death or incapacity, you are leaving it up to a judge you don't know to decide how to distribute your assets throughout your family, who will care for your minor children, and who will care for you if you're ever unable to care for yourself.

Five Questions to Answer in your Plan

In your plan, you want to proactively answer questions that may arise in the event of your death or incapacity. Generally, these questions will involve your assets, minor children, inheritances, health care directives and sometimes more.

Here are 5 questions you should answer in your plan:

  • Who do you want to care for your minor children?
  • Who will be responsible for managing your estates?
  • How will your assets and property be distributed?
  • Who will care for you if you're unable to care for yourself?
  • How will inheritances be distributed to beneficiaries?
Five Documents to Include in your Plan

A comprehensive estate plan is not a mere document. It's actually a combination of several documents that reflect your wishes regarding your minor children, your health care, and distribution of your assets, property and inheritances in the event of your death. It also covers your health care wishes if you're ever incapacitated and unable to make your own decisions.

Here are the minimum five (5) documents you should include in your estate plan:

  • Will
  • Power of Attorney
  • Trust
  • Living Will and Advantage Directives
  • Guardianship Plans for Minor Children

Many of us get uncomfortable when we think about dying and our family's life without us. It's not a topic anyone wants to consider more than once. However, it is critical that you take time now, while you're healthy and in a good state of mind, to invest time in getting your estate, health and other affairs in order, and create an estate plan that reflects your wishes upon your death or incapacitation.

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Estate Planning: What to Think About Before Meeting Your Lawyer

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Here are four key elements of estate planning that can not only help to preserve the value of your estate but also to ensure the efficient administration and disposition of your estate assets.

1. A will is the cornerstone for an estate plan and deals with all matters regarding the final distribution of your estate assets. A will is a legal document that speaks on your behalf upon your demise. If you do not have a will, then the courts will decide the manner in which your estate assets will be distributed - and this may not be in accordance with your wishes.

2. A trust is a legal document that can be designed to address any unique situation that you may have in regard to the distribution of your estate assets. For example, a spendthrift trust can be set up to protect the interests of a beneficiary who is not good at handling money. A trust can be set up for the protection and administration of assets for minor children, a spouse or for any other beneficiary.

Creative use of wills and trusts can not only protect the interests of your heirs, but also can help reduce the impact of taxes and probate fees. An estate planning attorney can help with the proper legal drafting of wills and trusts. But before you engage the services of an attorney, it is highly recommended that you should do the essential ground work first - this will save you hundreds if not thousands of dollars in legal and accounting fees.

3. Your estate executor will need to know the location of your assets and vital documents. If you do not have a proper record of your assets and vital documents, valuable assets can be "lost" during the estate settlement process. For example, there are billions of dollars in unclaimed money currently held by the government waiting to be claimed by the beneficiaries of deceased relatives.

4. It is vitally important to understand that most estates usually comprise of assets that are not readily convertible into cash. For example, real estate, long term financial investments, business interests, rental properties and other assets. In other words, most estate assets are generally illiquid.

Without proper funding arrangements it is highly probable that valuable estate assets may have to be liquidated at fire sale prices in order to pay taxes and other estate settlement expenses. These expenses can easily amount to thousands and even millions of dollars in the case of larger estates. There is a smart way to fund estate settlement expenses without having to liquidate valuable estate assets by the creative use of life insurance.

By implementing the above estate planning strategies you can ensure that all your affairs are properly organized and depending on the size of your estate, you could potentially save thousands if not millions of dollars. Your heirs will be proud and glad that you made all the proper arrangements and that all your affairs were left in excellent order. To learn more on estate planning please check the resource box below.

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Beaver City Utah estate planning house

Estate Planning - Do You Need an Estate Plan?

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There are numerous estate planning issues that arise during a separation or divorce. If you're considering divorce, make sure you've adequately addressed these issues and avoid significant consequences.

The first issue is to immediately revoke any powers of attorney that grant your spouse powers over your health care or financial decisions. If you do not revoke these powers of attorney, your ex-spouse will remain your agent despite your divorce. Just imagine your ex-spouse making your health care decisions or continuing to have access to your financial accounts even after your divorce.

If you do not have a health care power of attorney or financial power of attorney, or after you revoke your existing power of attorney, you should create a new one. You may do this before, during, or after your divorce. If your divorce is pending, you probably do not want your soon to be ex-spouse having any type of decision making power over you or your assets. However, if you do not appoint someone else, your spouse will likely serve as the "default" agent if one is needed.

The next thing to consider is your Will. If you already have a Will, revise it. Chances are that your current Will provides for everything to go to your spouse. Once your divorce is final, any bequests to your spouse are nullified. Still, if you do not change your Will, such bequests will be granted if you die before your divorce is final. You cannot completely disinherit your spouse through a Will because State law provides for minimum amounts to a spouse, which is called "taking against the Will". Still you can limit what your spouse receives to the statutory amounts.

Also, there is a good chance that your spouse is named as your Personal Representative (or Executor). Even after your divorce is final, this designation will remain valid. Finally, any bequests made to in-laws will remain valid despite your divorce. Often there is a provision in Wills that provides that in the event your spouse does not survive you and there are no other beneficiaries under your Will, your assets are divided evenly between your heirs at law and your spouse's heirs at law. So, you may have a bequest to your in-laws and not even realize it.

You may also want to consider appointing a guardian for any minor children. In almost all cases, your spouse will continue to have parental rights and will receive full custody of your children upon your death. However, if there is a valid reason, such as abuse or drug addiction, why your spouse should not receive custody you should identify those reasons in your Will and name the person(s) you wish to have custody. Also, if your ex-spouse predeceases you, your Will should control who receives custody.

Also, you should establish a trust through your Will (called a testamentary trust) to control assets left to minor or disabled children. That way, you can decide who makes the decisions over those assets until your children are old enough to receive them outright. If you do not establish a trust and appoint a trustee, your ex-spouse will likely have control over any assets left to your children. And, although the assets are supposed to be used for the children's benefit, there is no practical way of controlling or checking that that is what really happens.

You should also consider a Revocable Trust. If you have one already, revise it to remove powers and gifts given to ex-spouse. Unlike a Will, any gifts given to an ex-spouse through a trust remain valid despite your divorce. Likewise, if your spouse is named as your successor trustee, that appointment remains valid despite your divorce.

There is also a benefit to having a Revocable Trust rather than a Will. In some states, you can completely disinherit a spouse through a revocable trust. The reasoning is that the statutes that grant your spouse a minimum amount of your assets only apply to your probate estate. However, any assets that are placed in trust during your lifetime are not subject to probate. Therefore, if you title all of your individual assets in your trust, you can keep your spouse from receiving anything of yours even if you die before your divorce is final. It can also serve as an ongoing trust after your death to hold assets for your children without your spouse having control or decision making ability.

Additionally, you should review and update any beneficiary designations on life insurance policies, retirement plans, etc. You may not be able to make some of these changes until your divorce is final. For most retirement accounts, your spouse has to sign an authorization for you to appoint someone else as your beneficiary. You may also be prohibited by the court from making changes while your divorce is pending. Just don't forget to make the changes once your divorce is final.

Finally, you should re-title any assets held jointly with your spouse. For many assets (such as house, car, joint investments, etc.), this may need to be done after your divorce is final. However, you can open your own bank and investment accounts at any time.

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Bear River Box Elder County Utah estate planning 5 year rule

Estate Planning - The Benefits of Peace of Mind

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To many, estate planning may seem like a process that only the rich have to deal with. You may believe that unless you have a large amount of money, property, or land, you do not have an "estate". In fact, anyone who has anything to his or her name, whether it is a car, a house, land, bank account, or merely a few heirloom possessions, has an estate. Estate planning is designed to give you the chance to have your property and possessions passed on to the people that you wish to have them, instead of leaving the decision up to the state. Without planning, your property could possibly be passed on to certain people or in a certain way that you do not approve of.

Don't Let the Courts Control Your Estate

Creating a will through estate planning allows you to communicate your wishes to your family even after you are gone. A will is a legal document that specifies who you would like to leave your property to. These people are your beneficiaries. It also allows you to specify how you would like your property to be passed on. Perhaps you always expected that you would give your house to your daughter, who lives close by. Or maybe you intend to pass on your treasured tools and garage equipment to your nephew who is a mechanic. You may have already made promises to loved ones to pass on some of your treasured belongings once you pass away.

While you may have made promises to relatives or communicated all of your intentions to your spouse or children, without a will your words of intent will not carry any weight. When you pass away with no will, the court will divide your property according to state intestacy laws. This means that your property may be divided among your spouse, children, and other family members without any regard for your specific wishes, because there was no written proof of what you wanted. It may just be a major misunderstanding on your part, but to the loved ones to whom you made promises, it may seem like scorn and betrayal. They may be left behind thinking that you didn't care enough about them to take the time to write a will.

How a Probate Lawyer Can Help

Don't let your promises and intentions to your family go unfulfilled. Consider talking to a probate lawyer about how you can draft a valid will and protect your estate and personal wishes. A probate lawyer can walk you through the process of drafting a will, creating trusts, taking care of outstanding debts, dealing with greedy or disagreeable relatives, and more. An experienced probate lawyer can serve as your legal advisor to ensure that your intentions are communicated properly and that your property is passed on according to your wishes.

For More Information

To learn more about estate planning and protecting your property from state intestacy, please visit us or give us a call today.

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Bear River Utah estate planning attorney fees

Estate Planning - Do You Need an Estate Plan?

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If you're reading this article, it's probably not for entertainment value. And if you're reading for entertainment, then you're either a masochist or you're actually interested in what I have to say. It could be both, I guess. Whatever the reason, estate planning is an important topic, regardless of your station in life.

So what does it mean to have an estate plan? The better question is: why does it matter? This is not easy stuff. It deals with death and dying and the future. Of course, nobody wants to think about this stuff. But unfortunately, it's the pink elephant in the room. And it's not all that bad, actually.

Generally, an estate plan is a set of instructions that spell out how your property should be managed and distributed during your life and after death. The attorney (yours truly) is basically a conduit that channels your wishes onto paper in a way that make sense and have the most effect. Okay, maybe it's not that simple, but this should give you some idea. The estate plan should be a reflection of your life and vision. And don't confuse the word "estate" with a gated 8000 square foot villa with your initials on the entry gate. Your estate is all that you own in real estate and other assets.

At one point or another, most of us who own property think about what will happen to our property when we die. We think about stuff like, "Who will get my 1984 Honda Civic?" That's a legitimate concern. Nobody is going to want it, but the concern is no less legitimate. But what if you become disabled? And what happens when you get old and feeble minded? There may come a time where we will live out our lives without sufficient mental and/or physical capacity to manage our own affairs. Look, we all know or knew someone who started to "lose it." We can all remember thinking this or saying something like, "hey, is it me, or is Uncle Joe beginning to lose it?"

Enter the estate plan. The estate plan deals with the management of your property and financial affairs. There are two main types of estate plans: one is built around a Will and the other around a Revocable Living Trust. Each has it pros and cons. But as long as you have your wits about you, you can always make changes to the plan along the way. That being said, it's important to have an estate plan in place now because you don't know when you might become the "Uncle Joe."

THE WILL

A Will is the most common document used to specify how an estate should be handled after death. The person or entity designated to receive your property under the Will is called a Beneficiary. The person whose property is to be disposed by the Will is the Testator or Testatrix.

Like a Trust, the Will can set out different instructions, such as who gets certain property or who will be the guardian of Testator's minor child in the event that no parent is alive. It can be used to disinherit someone. It can set conditions on inheritance, such as the requirement that the Beneficiary first reach the age or 25 or graduate from college.

And then there's the dreaded P word - PROBATE. There's no getting around it. When a person dies and leaves property in a Will, probate is the legal proceeding that is used to wind up his or her legal and financial affairs. It's best described as a court-supervised process by where assets are gathered, valued, and distributed according to the Testator's last wishes as stated in the Will.

Probate proceedings are held in Superior Court for the county in which the Testator lived. The Executor (the person who administers the estate) is responsible for protecting a deceased person's property until all debts and taxes have been paid, and seeing that what's left is transferred to those who are entitled to it. Their job includes making an inventory of the estate's assets, locating creditors, paying bills, filing tax returns, and managing the estate assets. Finally, when this is all done, a petition is filed with the court requesting a distribution to the Beneficiaries. The whole process can take many months and sometimes years to complete.

As you can imagine, probate can also be very expensive. The Probate Code sets the maximum amount that attorneys and personal representatives (i.e. executors, administrators, etc.) can charge. As of 2016, the fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. On top of that, a probate referee is appointed to appraise all of the non-cash items. This person usually takes one percent of the total assets appraised. All of this can add up very quickly. Although it's safe to say that most of us will probably not die with an estate valued at $15 million, the probate process can easily reduce the size of the estate by tens of thousands of dollars.

And of course there's the privacy issue, or lack thereof. When a Will is admitted to probate it becomes a matter of public record, including the details of what your assets are and who's in line to get them. Some may have legitimate reasons for following the probate matter, like a beneficiary's creditor who's looking to collect. Other unscrupulous types may want to know who to bamboozle.

THE REVOCABLE LIVING TRUST

A Living Trust is established with a document, usually a Declaration of Trust or a Trust Agreement. It's basically a relationship whereby property (real or personal, tangible or intangible) is held by one party for the benefit of another. A Living Trust conventionally arises when property is transferred to a separate Trustee to hold for the Beneficiary. However, that's not always necessary.

The person creating the Living Trust is called the Settlor or Trustor (these are synonymous). The Settlor appoints a Trustee to manage the Trust assets. The Trusee holds legal title to property for the benefit of another, also known as the Beneficiary. Although the Beneficiary does not own legal title to the property, he or she is said to own beneficial title. So you can imagine that the Trustee cannot do anything with the property that does not benefit the Beneficiary, like sell some off and pocket the money. It may be easier to think about a Trust like a Corporation. The Trustee is the CEO and the Beneficiaries are the shareholders. And it's not uncommon for Trustee to also be a Beneficiary, although it's advisable that a Co-Trustee be named as well.

A Living Trust should usually be accompanied by a Last Will and Testament, also known as a "pour-over will." The Will should say that property that is outside of the Trust is to be distributed to the Trustee of the Trust when the Testator dies. As long as the property outside of the Trust is valued at less than $100,000, probate can be avoided. The benefit is that property not previously placed in the Trust will get "poured" into it. Even if the property exceeds $100,000 and has to go through probate, it will eventually be distributed according to the instructions of the deceased instead of being distributed according to California law. It may also be a good idea to name the same person to be both the Executor of the Will and the Trustee of the Trust, since he or she will dealing with the same property.

WHAT DOES THIS ALL MEAN?

So what's the point of all of this mumbo jumbo? Well, just that it's easy to overlook the necessity of a proper estate plan. A Living Trust helps to protect you, your assets, and those people and/or entities who you want to leave your assets to when you're gone.

A good reason to create a Living Trust is to keep your estate plan private. Unlike a Will and probate, the Living Trust is a private contract between you (the Settlor) and the Trustee. It does not need to be filed with the county. The only way it can become public is if a dispute arises and someone files a lawsuit, which is possible.

Another major benefit of a Living Trust is that it has the ability to protect you in the event that you become disabled. The Trust can specify how your incapacity should be determined, how you should be taken care of if you're deemed disabled, and who will be able to manage your property if you can't. A Living Trust is written so that your Trustee can automatically jump into the driver's seat if you become ill or incapacitated. This will keep you and your property outside of court-supervised guardianship or conservatorship. The more you can keep the court out of your life and affairs, the better.

A Living Trust also allows you to dispense with your property in the manner that you choose. For example, many families have a child who has or had some problems in life. This may range from physical challenges to addiction to partying in Las Vegas with prostitutes every weekend. A Living Trust can provide for financial support to others without giving them direct control of the trust property.

Finally, a Living Trust makes it possible to avoid having to go through probate. How? It's simple - the property is titled in the name of the Trust when you die. Your Trust does not check out just because you do. Only those assets that are titled in your name at the time of death go through probate.

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Ballard Uintah County Utah estate planning at 50

Estate Planning: What to Think About Before Meeting Your Lawyer

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In my estate planning practice, it is not uncommon to meet with a new client who wants an estate plan prepared, but is a bit vague as to what should be included in that plan. Quite frequently, the initial conversation begins with the client saying something like, "I would like a will... or should I have a trust? Do I need anything else?" Actually, those are good questions to begin a discussion.

Most folks recognize that their estate plan should provide for the distribution of their assets upon their death. That, of course, is an essential element of an estate plan, but there is more to consider in a well-designed plan. Prior to meeting with your attorney for the first time you should also be thinking about such things as who you want to handle your affairs should you become incapacitated; whether you would want your doctor to keep you alive should you be near the point of death with little chance of recovery; who you want to have the authority to sign important legal papers for you if you are unavailable; and, who you would want to raise your children if you suddenly die. There is a wide variety of personal circumstances which impact estate planning, but let me offer the following as items you should consider even before you meet with a lawyer to discuss your own estate plan.

Should I have a will or a trust?

This is typically among the first questions posed by clients during an initial meeting. Many are aware that a trust will avoid probate, but that is true only if the trust is properly funded, meaning that all of their assets are transferred into the trust. Not every estate plan needs a trust, however, and it may not be necessary for you to incur the additional cost of having your lawyer prepare a trust, when a will is suitable for your needs. And, contrary to what some folks think, having a trust does not avoid estate taxes.

A trust may be the right choice for you, if it is unlikely that you will acquire more assets in the years ahead. What can often happen, however, is that folks will have a trust established and thereafter acquire new assets that they neglect to place in the trust. Then when they die the assets outside of the trust have to go through probate which defeats the intent of establishing a trust in the first place. So, before deciding upon a trust as the main element of your own estate plan, take some time to consider your future investment plans and major acquisitions.

There are some other advantages to a trust, which might make it the right choice for you. For example, should you become incapacitated, your trustee will be able to step in and manage your assets without having to seek a court appointed conservator. In that sense, a trust document is more all-encompassing and flexible than an ordinary will.

What else should I consider in my estate plan?

Estate planning isn't just about deciding who gets your wealth when you die. It is also about making decisions as to what you want to happen should you become seriously ill or incapacitated.

Every estate plan should include an advance directive, which used to be called a living will. This document allows you to appoint a health care representative to make health care decisions for you, including end of life decisions, when you are unable to do so.

Similarly, we recommend that you give a durable power of attorney to a family member or trusted friend in order to allow your appointed agent to manage your financial and business affairs when you are unavailable or otherwise incapacitated. A durable power of attorney remains in effect so long as you are alive and should provide that it will be effective even in the event of your incapacity.

What about my bank accounts, life insurance and investment accounts?

Careful estate planning should include a review of all of your assets, including checking the beneficiary designations you have listed in your retirement plan and in regard to your investment and bank accounts. With such beneficiary designations, these assets will be transferred outside of the probate process to those persons you have previously designated as beneficiaries on these accounts. It is important that you review your beneficiary designations to ensure that your choice of beneficiaries is in accordance with your current intentions as to disposition of your estate.

A thorough review of your portfolio and consideration of the issues described above before meeting with your estate planning attorney will allow you to realize the maximum benefit from your meeting. It will also help your attorney to focus his or her discussion with you on aspects of the process that are most relevant to your goals and needs.

© Call today for your free initial consultation.

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Estate Planning and Trusts

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If you're reading this article, it's probably not for entertainment value. And if you're reading for entertainment, then you're either a masochist or you're actually interested in what I have to say. It could be both, I guess. Whatever the reason, estate planning is an important topic, regardless of your station in life.

So what does it mean to have an estate plan? The better question is: why does it matter? This is not easy stuff. It deals with death and dying and the future. Of course, nobody wants to think about this stuff. But unfortunately, it's the pink elephant in the room. And it's not all that bad, actually.

Generally, an estate plan is a set of instructions that spell out how your property should be managed and distributed during your life and after death. The attorney (yours truly) is basically a conduit that channels your wishes onto paper in a way that make sense and have the most effect. Okay, maybe it's not that simple, but this should give you some idea. The estate plan should be a reflection of your life and vision. And don't confuse the word "estate" with a gated 8000 square foot villa with your initials on the entry gate. Your estate is all that you own in real estate and other assets.

At one point or another, most of us who own property think about what will happen to our property when we die. We think about stuff like, "Who will get my 1984 Honda Civic?" That's a legitimate concern. Nobody is going to want it, but the concern is no less legitimate. But what if you become disabled? And what happens when you get old and feeble minded? There may come a time where we will live out our lives without sufficient mental and/or physical capacity to manage our own affairs. Look, we all know or knew someone who started to "lose it." We can all remember thinking this or saying something like, "hey, is it me, or is Uncle Joe beginning to lose it?"

Enter the estate plan. The estate plan deals with the management of your property and financial affairs. There are two main types of estate plans: one is built around a Will and the other around a Revocable Living Trust. Each has it pros and cons. But as long as you have your wits about you, you can always make changes to the plan along the way. That being said, it's important to have an estate plan in place now because you don't know when you might become the "Uncle Joe."

THE WILL

A Will is the most common document used to specify how an estate should be handled after death. The person or entity designated to receive your property under the Will is called a Beneficiary. The person whose property is to be disposed by the Will is the Testator or Testatrix.

Like a Trust, the Will can set out different instructions, such as who gets certain property or who will be the guardian of Testator's minor child in the event that no parent is alive. It can be used to disinherit someone. It can set conditions on inheritance, such as the requirement that the Beneficiary first reach the age or 25 or graduate from college.

And then there's the dreaded P word - PROBATE. There's no getting around it. When a person dies and leaves property in a Will, probate is the legal proceeding that is used to wind up his or her legal and financial affairs. It's best described as a court-supervised process by where assets are gathered, valued, and distributed according to the Testator's last wishes as stated in the Will.

Probate proceedings are held in Superior Court for the county in which the Testator lived. The Executor (the person who administers the estate) is responsible for protecting a deceased person's property until all debts and taxes have been paid, and seeing that what's left is transferred to those who are entitled to it. Their job includes making an inventory of the estate's assets, locating creditors, paying bills, filing tax returns, and managing the estate assets. Finally, when this is all done, a petition is filed with the court requesting a distribution to the Beneficiaries. The whole process can take many months and sometimes years to complete.

As you can imagine, probate can also be very expensive. The Probate Code sets the maximum amount that attorneys and personal representatives (i.e. executors, administrators, etc.) can charge. As of 2016, the fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. On top of that, a probate referee is appointed to appraise all of the non-cash items. This person usually takes one percent of the total assets appraised. All of this can add up very quickly. Although it's safe to say that most of us will probably not die with an estate valued at $15 million, the probate process can easily reduce the size of the estate by tens of thousands of dollars.

And of course there's the privacy issue, or lack thereof. When a Will is admitted to probate it becomes a matter of public record, including the details of what your assets are and who's in line to get them. Some may have legitimate reasons for following the probate matter, like a beneficiary's creditor who's looking to collect. Other unscrupulous types may want to know who to bamboozle.

THE REVOCABLE LIVING TRUST

A Living Trust is established with a document, usually a Declaration of Trust or a Trust Agreement. It's basically a relationship whereby property (real or personal, tangible or intangible) is held by one party for the benefit of another. A Living Trust conventionally arises when property is transferred to a separate Trustee to hold for the Beneficiary. However, that's not always necessary.

The person creating the Living Trust is called the Settlor or Trustor (these are synonymous). The Settlor appoints a Trustee to manage the Trust assets. The Trusee holds legal title to property for the benefit of another, also known as the Beneficiary. Although the Beneficiary does not own legal title to the property, he or she is said to own beneficial title. So you can imagine that the Trustee cannot do anything with the property that does not benefit the Beneficiary, like sell some off and pocket the money. It may be easier to think about a Trust like a Corporation. The Trustee is the CEO and the Beneficiaries are the shareholders. And it's not uncommon for Trustee to also be a Beneficiary, although it's advisable that a Co-Trustee be named as well.

A Living Trust should usually be accompanied by a Last Will and Testament, also known as a "pour-over will." The Will should say that property that is outside of the Trust is to be distributed to the Trustee of the Trust when the Testator dies. As long as the property outside of the Trust is valued at less than $100,000, probate can be avoided. The benefit is that property not previously placed in the Trust will get "poured" into it. Even if the property exceeds $100,000 and has to go through probate, it will eventually be distributed according to the instructions of the deceased instead of being distributed according to California law. It may also be a good idea to name the same person to be both the Executor of the Will and the Trustee of the Trust, since he or she will dealing with the same property.

WHAT DOES THIS ALL MEAN?

So what's the point of all of this mumbo jumbo? Well, just that it's easy to overlook the necessity of a proper estate plan. A Living Trust helps to protect you, your assets, and those people and/or entities who you want to leave your assets to when you're gone.

A good reason to create a Living Trust is to keep your estate plan private. Unlike a Will and probate, the Living Trust is a private contract between you (the Settlor) and the Trustee. It does not need to be filed with the county. The only way it can become public is if a dispute arises and someone files a lawsuit, which is possible.

Another major benefit of a Living Trust is that it has the ability to protect you in the event that you become disabled. The Trust can specify how your incapacity should be determined, how you should be taken care of if you're deemed disabled, and who will be able to manage your property if you can't. A Living Trust is written so that your Trustee can automatically jump into the driver's seat if you become ill or incapacitated. This will keep you and your property outside of court-supervised guardianship or conservatorship. The more you can keep the court out of your life and affairs, the better.

A Living Trust also allows you to dispense with your property in the manner that you choose. For example, many families have a child who has or had some problems in life. This may range from physical challenges to addiction to partying in Las Vegas with prostitutes every weekend. A Living Trust can provide for financial support to others without giving them direct control of the trust property.

Finally, a Living Trust makes it possible to avoid having to go through probate. How? It's simple - the property is titled in the name of the Trust when you die. Your Trust does not check out just because you do. Only those assets that are titled in your name at the time of death go through probate.

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Estate Planning - Consider Your Options Before it is Too Late

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Estate Planning is not something that everyone wants to think about.  But it's an important thing to consider if you have a significant amount of property or wealth.  Even if you only have a small amount of wealth, you want to make sure that if you pass on, your property goes to the right people in your life.

Without the proper planning this may not happen.  Let's say for example you have no children and have yet to be married.  Let's say also that you spend all of your time working with a children's charity, and that if you did pass on you would want your money to go to this group. 

Without the proper planning, your money could go to your closest surviving family member.  This could be a sister that you don't get along with or a cousin you never knew.  If you know where you want your money to go, then estate planning should be a top priority. 

Nobody likes to think about death.  When you start to think about estate planning, you start to think about how you might die.  It's a sad thing to think about for many people.  But you should try your best to stay strong so that those that you love can get what you would've wanted them to have.

Another way to approach the issue is to do it with an experienced company.  Estate planning companies with experience dealing with this sort of thing can make the process much easier.  They know it's hard to think about these matters, so they make the questioning process as brief as possible for you.  Working with a professional in the field will make the whole process much easier.

You can do some shopping around to find the right company.  Your estate planning choices are some of the most important choices you will have to make in your lifetime.  You want to make sure that you choose the right company to handle them.

It is important to note that the estate planning process doesn't have to take a long time.  You generally know how you would like things to be worked out before you begin the process.  Your estate planner will just help to make your words legally binding, and remind you of issues you might have forgotten.

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Estate Planning: What You Need To Know

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There are numerous estate planning issues that arise during a separation or divorce. If you're considering divorce, make sure you've adequately addressed these issues and avoid significant consequences.

The first issue is to immediately revoke any powers of attorney that grant your spouse powers over your health care or financial decisions. If you do not revoke these powers of attorney, your ex-spouse will remain your agent despite your divorce. Just imagine your ex-spouse making your health care decisions or continuing to have access to your financial accounts even after your divorce.

If you do not have a health care power of attorney or financial power of attorney, or after you revoke your existing power of attorney, you should create a new one. You may do this before, during, or after your divorce. If your divorce is pending, you probably do not want your soon to be ex-spouse having any type of decision making power over you or your assets. However, if you do not appoint someone else, your spouse will likely serve as the "default" agent if one is needed.

The next thing to consider is your Will. If you already have a Will, revise it. Chances are that your current Will provides for everything to go to your spouse. Once your divorce is final, any bequests to your spouse are nullified. Still, if you do not change your Will, such bequests will be granted if you die before your divorce is final. You cannot completely disinherit your spouse through a Will because State law provides for minimum amounts to a spouse, which is called "taking against the Will". Still you can limit what your spouse receives to the statutory amounts.

Also, there is a good chance that your spouse is named as your Personal Representative (or Executor). Even after your divorce is final, this designation will remain valid. Finally, any bequests made to in-laws will remain valid despite your divorce. Often there is a provision in Wills that provides that in the event your spouse does not survive you and there are no other beneficiaries under your Will, your assets are divided evenly between your heirs at law and your spouse's heirs at law. So, you may have a bequest to your in-laws and not even realize it.

You may also want to consider appointing a guardian for any minor children. In almost all cases, your spouse will continue to have parental rights and will receive full custody of your children upon your death. However, if there is a valid reason, such as abuse or drug addiction, why your spouse should not receive custody you should identify those reasons in your Will and name the person(s) you wish to have custody. Also, if your ex-spouse predeceases you, your Will should control who receives custody.

Also, you should establish a trust through your Will (called a testamentary trust) to control assets left to minor or disabled children. That way, you can decide who makes the decisions over those assets until your children are old enough to receive them outright. If you do not establish a trust and appoint a trustee, your ex-spouse will likely have control over any assets left to your children. And, although the assets are supposed to be used for the children's benefit, there is no practical way of controlling or checking that that is what really happens.

You should also consider a Revocable Trust. If you have one already, revise it to remove powers and gifts given to ex-spouse. Unlike a Will, any gifts given to an ex-spouse through a trust remain valid despite your divorce. Likewise, if your spouse is named as your successor trustee, that appointment remains valid despite your divorce.

There is also a benefit to having a Revocable Trust rather than a Will. In some states, you can completely disinherit a spouse through a revocable trust. The reasoning is that the statutes that grant your spouse a minimum amount of your assets only apply to your probate estate. However, any assets that are placed in trust during your lifetime are not subject to probate. Therefore, if you title all of your individual assets in your trust, you can keep your spouse from receiving anything of yours even if you die before your divorce is final. It can also serve as an ongoing trust after your death to hold assets for your children without your spouse having control or decision making ability.

Additionally, you should review and update any beneficiary designations on life insurance policies, retirement plans, etc. You may not be able to make some of these changes until your divorce is final. For most retirement accounts, your spouse has to sign an authorization for you to appoint someone else as your beneficiary. You may also be prohibited by the court from making changes while your divorce is pending. Just don't forget to make the changes once your divorce is final.

Finally, you should re-title any assets held jointly with your spouse. For many assets (such as house, car, joint investments, etc.), this may need to be done after your divorce is final. However, you can open your own bank and investment accounts at any time.

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Estate Planning - Do You Need an Estate Plan?

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To many, estate planning may seem like a process that only the rich have to deal with. You may believe that unless you have a large amount of money, property, or land, you do not have an "estate". In fact, anyone who has anything to his or her name, whether it is a car, a house, land, bank account, or merely a few heirloom possessions, has an estate. Estate planning is designed to give you the chance to have your property and possessions passed on to the people that you wish to have them, instead of leaving the decision up to the state. Without planning, your property could possibly be passed on to certain people or in a certain way that you do not approve of.

Don't Let the Courts Control Your Estate

Creating a will through estate planning allows you to communicate your wishes to your family even after you are gone. A will is a legal document that specifies who you would like to leave your property to. These people are your beneficiaries. It also allows you to specify how you would like your property to be passed on. Perhaps you always expected that you would give your house to your daughter, who lives close by. Or maybe you intend to pass on your treasured tools and garage equipment to your nephew who is a mechanic. You may have already made promises to loved ones to pass on some of your treasured belongings once you pass away.

While you may have made promises to relatives or communicated all of your intentions to your spouse or children, without a will your words of intent will not carry any weight. When you pass away with no will, the court will divide your property according to state intestacy laws. This means that your property may be divided among your spouse, children, and other family members without any regard for your specific wishes, because there was no written proof of what you wanted. It may just be a major misunderstanding on your part, but to the loved ones to whom you made promises, it may seem like scorn and betrayal. They may be left behind thinking that you didn't care enough about them to take the time to write a will.

How a Probate Lawyer Can Help

Don't let your promises and intentions to your family go unfulfilled. Consider talking to a probate lawyer about how you can draft a valid will and protect your estate and personal wishes. A probate lawyer can walk you through the process of drafting a will, creating trusts, taking care of outstanding debts, dealing with greedy or disagreeable relatives, and more. An experienced probate lawyer can serve as your legal advisor to ensure that your intentions are communicated properly and that your property is passed on according to your wishes.

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To learn more about estate planning and protecting your property from state intestacy, please visit us or give us a call today.

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