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“Last Will and Testament” vs. “Living Will”

Estate Planning LawyerClients sometimes approach our firm to purchase a specific document they have heard or believe they require to protect against a particular risk or problem.  Other clients come to us to learn about the purpose and process of estate planning more broadly and to determine if they need to develop a plan to protect their own interests.  Nearly all clients in the beginning are confused about the distinction between a “Last Will and Testament” (or “Last Will” or simply “Will”) and a “Living Will.”

A Last Will and Testament is the document most people intuitively think of as a Will.  A Last Will and Testament is a testamentary legal document that, upon the death of a person, exists as evidence of how the person desired his or her real and personal property to be distributed.  The Last Will is typically submitted to a state court as evidence in a court proceeding known as “probate,” which determines the distribution of assets and payment of outstanding liabilities left by a decedent.

The Last Will may be as simple as a one-page form or a substantial document of dozens of pages with sections and subsections addressing various legal, financial, and personal concerns of the client.  For those clients who require a trust to effectuate their estate planning goals, the Last Will may act as the funding mechanism designating their Revocable Living Trust as the recipient of non-trust property for the benefit of other persons or entities.  Alternatively, a skilled estate planning attorney may draft the Last Will to actually create a Testamentary Trust to hold the decedent’s property after death for the benefit of other persons or entities. The other persons or entities are typically family members, business partners, or charities important to the decedent.

A Living Will, on the other hand, does not address property but instead addresses the end-of-life wishes of clients.  Specifically, a Living Will expresses the desires of how clients wish to be allowed to pass away. Most clients elect for pain relief and to be kept in a comfortable state, even if the use of medications to achieve this results in accelerating the dying process.  However other clients, a minority in our practice, elect for all available means to be kept alive regardless of the expense to their estate or physical pain that results. There are also a spectrum of circumstances and choices clients choose in between the two most common elections.  The important distinction to remember is that a Living Will is the expression of a person’s desires as to how to be allowed to pass away. The people who often benefit most from the Living Will are often the family members who do not have to make the painful decision to end or prolong the life of a loved one who is nearing death.

In addition to the Last Will and Living Will, a basic estate plan for all people typically also includes a Financial Power of Attorney, a Healthcare Power of Attorney, and a HIPAA Waiver.  Because the legal authority of a parent ceases when a child turns 18 years old, the Citadel Law Firm recommends all adults aged 18 or over complete at minimum a Living Will, Healthcare Power of Attorney, and a HIPAA Waiver to allow their loved ones (often parents) to be involved in their medical decision making, if required.  In addition, because one of the most common sources of legal disputes (or “estate litigation”) among families of a deceased loved one is over a poorly drafted or improperly executed Last Will, we always recommended consulting with an estate planning attorney rather than going it alone with basic forms purchased online.

Thanks to our friends and contributors from Citadel Law Firm for their insight into estate planning.

 

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7 Steps to Creating a Will

Estate Attorney

When creating a will, many people do not know where to start – especially if they decide to write their will themselves without the help of an estate lawyer Allentown, PA trusts. Writing a will can be simple by following a few easy steps. Here are 7 steps to creating a will.

  1. Pick your beneficiaries

The first thing you want to do is decide who is going to be a beneficiary of your will. Will you be leaving your things to only your children or are there other family members you wish to include? It’s a good idea to write out who you want to be considered as beneficiaries before you start writing your will to make sure you don’t forget anyone.

  1. Pick your children’s guardians

If you are leaving behind any children under the age of 18 years old, you will need to select a guardian (or two) for your children. These are the people you trust to raise your kids the way you would want them to be raised. This is a very important decision and it must be included in your will unless you want the state to decide who will be the guardians of your children.

  1. Pick an executor

The executor of your will is someone you trust to make sure your wishes are taken care of how you would like. This is extremely important because you are giving this person the legal authority to execute the items you’ve listed in your will.

  1. Be specific about who gets what items

If you are planning on leaving items to certain people, make sure you are specific. You don’t want there to be any arguments or tensions in your family because you were not clear in your will. This is the part of your will where you leave specific items to people. Do you want to leave your collector’s items to your cousin Dan? Or maybe you want to leave your jewelry to your granddaughters. This is the place to write that out.

  1. Gather witnesses

In order for your will to be a legal document, you will need two witnesses. These are people who are not beneficiaries in your will but can sign a sworn affidavit saying they witnessed you sign your will.

  1. Put your will in a safe space

This may seem obvious, but you want to keep your will somewhere safe and protected like a safe or a fireproof box. And make sure you let whoever you designate as your executor know where you’ve kept your will so they can get to it if and when they need it.

  1. Keep your will updated

It’s important to keep your will up to date. A good rule of thumb is to update your will anytime you have a major life change. Did you have another child? Did you get married? Did you get divorced? Keeping an updated will ensures that in the event of an unexpected event, your family will still be taken care of in the way you wanted.

Thank you to our friends and contributors at Klenk Law for their insight into estate planning and steps to creating a will.

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It’s Not About the Paper

Estate Planning Lawyer in Palatine, IL

There is a saying that goes “penny wise pound foolish.” Prospects tend to want the cheapest attorney to put together their Wills. The reality is the service you are paying for is not to produce paper. The actual document is certainly one aspect of the service, but the real service people are paying for boil down to two things: (a) Experience that your plan will fulfill all of your objectives; and, (b) Comfort that your family will be able to lean on someone at the time of an emergency – a disability or a death.

Some of the top reasons clients have recently called our office include the following:

(1) Client is selling real estate in another state and the attorney is requesting an entire copy of the trust; We contact the attorney and ask what he needs, and we are able to email just those pages, not the entire trust.

(2) Client’s son has been arrested with possession of drugs, and mother is crying profusely; we calm her down and discuss options, we contact a criminal lawyer on her behalf, and she receives the help she needs to take care of her son.

(3) Client died, and daughter calls in a panic because she cannot find the documents; we email the copies of the documents quickly to her. She mentions that her father’s girlfriend is refusing to leave the house that is owned by my client’s trust. We discuss the various options, and we keep in touch with the other attorney involved in the matter.

(4) Client died recently, and we receive a call from client’s son. He is panic stricken because he needs money to keep the house expenses paid. We discuss the next steps regarding the Trust provisions, and obtaining access to the bank accounts. He calmed down, and we helped him understand the terms of the trust, and what steps need to be taken.

(5) Client’s middle aged only child dies unexpectedly. Client calls extremely saddened and upset, wondering what to do next. Son did not have an estate plan, and we discuss the probate process with client. Although he is understandably grieving, we are able to provide a little comfort in holding his hand through the process.

These are just some of the types of calls we receive from clients on a daily basis. To a certain extent, we are their “problem solvers”. Whatever is on their minds, whatever they are panicking about, whatever challenges they are facing, we are the ones on the other line, listening to them. Although we cannot solve all of the problems, we do our best to point them to the right professionals, or companies, or agencies. But because we have established a certain trust with our clients, we are very appreciative to be the ones they call.

When determining who you want to work with to prepare your Will, it is important to know if that person will be there for you in times of need. It is important to know if they will check up on you to review and update your plan. It is important to know they care about you, and your family. It’s not the paper you are paying for when choosing an attorney, like an estate planning lawyer in Palatine, IL. You are choosing whether your family will have someone they can rely on, when any number of situations arise. So don’t be “penny wise and pound foolish.” This decision can make all the difference for the protection of your family.

For more information, call Bott & Associates, LTD. for more insight into estate planning.

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What Are the Duties Of a Trustee?

 Estate Planning Lawyer

When someone creates a trust, they are wisely thinking ahead to when they may not be around, ensuring that someone they can rely on will take care of their assets and property. However, if someone has just named you a “trustee” or even a “successor trustee” for the first time, you may not be sure of what your responsibility is. Do you need to speak with an attorney? Do you act immediately? How involved should you be in the trust process? This may seem like an overwhelming job at first, especially if you are not sure of the details, but below you will find answers to frequently asked questions to guide you through the trustee and successor trustee process.

What Is a Trust?

A trust is similar in many senses to a will, but the two documents are different. The person who creates a trust goes by many things, including a “grantor”, a “creator”, or a “trustor”. The grantor will write down who they want to handle their final affairs and who they want to get their assets when they die or when an injury or illness incapacitates them. One of the most common types of trusts that people use is a revocable trust. This allows the grantor a great deal of flexibility when making changes to their trust, like adding new assets, removing obsolete assets, canceling it, and naming trustees.

What Is a Living Trust?

Many people favor a living trust because the grantor transfers their assets into the trust before they pass away, making it a much smoother process when the trustee steps in to begin managing their assets.

Who Are the Main People Involved In Trusts?

There are typically a few people involved, including:

  • The Grantor. As noted above, this is the creator of the trust. Married couples can also be co-grantors.
  • The Trustee. The grantor names the trustee as the person to manage their assets. It is possible to even name yourself as the first trustee so you can continue managing your own assets and finances.
  • The Successor Trustee. If the original trustee can no longer manage the affairs as outlined in the trust, the grantor will usually name a successor trustee—a backup—to step in an ensure that they properly manage the remaining assets. In many cases, the successor trustee can be an individual or even a bank.
  • The Beneficiaries. The beneficiaries of the trust are those who get the assets of the trust once the grantor passes away.

What Are My Responsibilities?

As the trustee, remember that you are not necessarily the beneficiary, but you are ensuring that they are taken care of as the grantor has outlined so that the beneficiaries can get them after the grantor dies. You:

  • Cannot use the assets in the trust for personal gain unless the trust strictly authorizes it.
  • Cannot favor any beneficiaries in the trust unless the trust specifically states to do so.
  • Must keep accurate financial records and reports on tax returns.

Do I Have To Do This Alone?

While the law does not require you have a lawyer to help you out, it can be to your benefit to speak with an attorney who has worked with trusts before. To get help and legal advice regarding your responsibilities as a trustee, contact a trust lawyer Danbury, CT offers now.

 

 

Thank you to our friends and contributors at Sweeney Legal, LLC for their insight into estate planning and the duties of a trustee.

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Will Your Estate Be Required to Go Through Probate?

Probate Lawyer

If you’re thinking about estate planning, chances are you’ve already come across a seemingly scary word: Probate.

What Is Probate?

Probate is the court-supervised process of authenticating the last will and testament of someone who is deceased. It may also be used when the deceased did not leave a will behind. Essentially, it is one way for the state to ensure that the decedent’s wishes are being carried out and to be sure that all of their debts have been paid as well. The process can seem confusing and often ends up being a bit costly, but it’s nothing to be afraid of as it is very common. Anything that is left in the decedent’s name at the time of their death is subject to probate.

Some Ways to Avoid Probate:

  • Make Gifts to Your Beneficiaries

Because probate is dependent on the decedent owning a piece of property, when that property is given away in the form of a gift, it is no longer owned by the decedent. Seems simple enough, right? Anything that isn’t in the decedent’s name is not subject to probate.

  • Name a Beneficiary on Your Accounts

Did you know that some assets allow you to name beneficiaries? For example, you can name a beneficiary (or beneficiaries) on your bank accounts, investments, and retirement plans. And it’s not difficult to name beneficiaries on these accounts–you simply fill out some paperwork as provided by your bank or brokerage company. In some states you are even able to designate beneficiaries for your real estate through a transfer on death deed or affidavit. Additionally, life insurance policies, 401K plans, stocks, bonds, IRA accounts, and pension plans are all payable on death.

  • Joint Tenancy With a Right of Survivorship

Joint Tenancy With a Right of Survivorship is another way to keep property from going through probate. It’s not too difficult. When another person’s name is on the title of, for example, a home, and one of the owners dies, then the property would go to the other joint-owner.

  • Create a Revocable Living Trust

A simple and straightforward way to avoid probate is by creating a living trust. This is similar to a will, but has one key difference: It allows the person that is appointed as trustee the ability to transfer property and possessions to the beneficiaries without undergoing probate. You still get to choose who will inherit what, but essentially the trustee is the owner of your assets, and therefore they’re not required to go through probate.

How Long Does the Probate Process Take?

Because probate law is dependent on state law, the length of time is could take for an estate to go through probate varies. On average, the entire process can take six to nine months, but if the deceased did not keep clear records of their assets, or if the will is contested, the process can take considerably longer.

What Do I Do If My Loved One’s Estate Is Going Through Probate?

If your loved one’s estate is going through probate and you are dealing with the process, don’t hesitate to call a probate attorney Allentown, PA offers who is ready to help you through the process.

 

Thank you to our friends and contributors at Klenk Law for their insight into estate planning and probate.

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No Crystal Ball

A couple of years ago I heard about a car accident in a nearby neighborhood. A Mom and Dad, and their 16 year old daughter, were just leaving a local YMCA, about to turn into the main road at about 9pm on a weeknight. A 20 year old gentleman was driving on that main road, at 90 miles an hour. He ran into this family’s van head on. He survived, the family didn’t. The rest of the family, two minor children, were at a relative’s house at the time.

This story haunts me. First of all, I have 3 minor children so it’s hard not to think about the “what if”. But it also impacted me deeply because of the clients I serve. Many families tell me that certain “what if” scenarios would never happen. Like a parent surviving a minor child. Like an older spouse surviving a much younger spouse. Like an entire family dying in a common accident. So when I hear about these types of car accidents, I know different. We do not have a crystal ball. We just have to plan for every scenario, no matter how unbelievable it may seem at the time.

Another story that has impacted me is the one that just happened earlier this year. It was in a Duck Boat in Branson, Missouri. This tragedy is even more troubling because me and my entire family of 16 people were on this very same Duck Boat in 2015. The boat was on the lake this past summer, when a horrendous storm came over. 13 people died, including 9 people from the same family. What a horrific event. There are no words.

Hug your family. Say I love you. Often. And more importantly, plan ahead. Many people sit in my office to tell me they are not ready to do an estate plan. No one is ever ready, sort of like being a parent for the first time. The important thing is, get it done, before it’s too late.

Getting an estate plan done is not as complicated as you would think. I know seeing a lawyer can be a stressful situation. Generally if you are seeing a lawyer, you are either buying a house or going through a lawsuit or a divorce. All of those scenarios are very complicated and stressful. However, when you come in to discuss your estate plan, it can be somewhat of a relief. We discuss your family, and your assets. We discuss a myriad of “what if” scenarios. We help and guide you to make decisions about what would happen in case you are disabled, and upon your death. Not fun topics, but certainly important to discuss. Then after about a month, we come back together, review all of your documents, and sign the very same day. So in one month, you can have the peace of mind that a solid estate plan can provide. You will have given the gift of ease and protection to your family and beneficiaries, that will impact them fo the rest of their lives. The whole process does not take too long, and is more affordable than you think.

Call and make an appointment to discuss your estate plan with us. Feel free to come to an upcoming seminar or participate in our monthly webinar on basic estate planning concepts so you are armed with the information needed to make good decisions for your family. The first step is easy. Call us at (847) 818-9084 or email us at info@bottestateplanning.com.

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One Trustee vs. Co-Trustees – What is the best option?

Often clients choose 2 or more children to act as co-trustees or co-executors because clients don’t want to “play favorites” and want every child to have a say in the estate or Trust administration. Although it may seem like a logical idea, it often turns into the worst decision for the family.

When we raise our children, we try to instill them with the same values and beliefs and teach them to be kind and respectful to one another. Then the children grow up, get married, have children, and lead very separate lives. During that time, each child has evolved as their own families grow. Two people with different backgrounds raise their own children and mix their cultures, beliefs and traditions. Then fast forward around 35 to 40 years, these same children who Mom and Dad raised exactly the same, who hopefully have the same values and beliefs originally instilled in them, have to come together, and make an inordinate amount of emotional and financial decisions about Mom and/or Dad while they are alive, and when they are gone.

This evolution of life is truly a recipe for potential disaster. Kids coming back together for Thanksgiving dinner or holiday brunch is common, and generally peaceful and happy occasions. Kids coming back for a Family Planning Meeting with a coordinator at a senior living facility, or at a funeral home, or at an attorney’s office to discuss estate planning, is definitely emotional and very tense for everyone. Sometimes the adult children are very accommodating, respectful and generous when dealing with decisions for Mom and Dad. That unfortunately is the exception. Most times, there is at least one child in the family that will cause more issues when making tough decisions for Mom and Dad.

Is the answer NOT choosing 2 or more kids to act together as trustees or executors? No. The answer is to be honest with yourself, and take stock of your family dynamics as they are today. Perhaps the kids were very close growing up. Perhaps parents wish them to be close today, but they are not. If that is the case, DO NOT make them act together to make important decisions with your finances and/or your health. Choose one person for each type of decision, and tell the family that you have made your decisions. If you want to avoid conflict for your children when you die, talk to them while you are alive, about the decisions you made, and why you made them. This way no one is caught off guard. The goal is not only to keep them from fighting, but hopefully, the children can have Thanksgiving together in peace, even after Mom and Dad are gone.

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What Happens If You Die Without a Will?

Estate Law Lawyer

It can be daunting to think about creating a law will and testament in the event of your death. Taking into account your assets and considering your beneficiaries can seem like a monumental task when you don’t know where to begin. Let’s start simply: Having a will can make the lives of your loved ones easier after your passing and will make your last wishes known so that you can have peace of mind.

What happens if you die without a will?

If you don’t leave behind a will, your estate will be known as “intestate.” That means that your estate is in the hands of the laws in the state you reside in, and that those laws will determine how and to whom your assets will be distributed. These laws vary depending on your marital status at the time of your death.

If you are…

Married Without Children

If you own your property with your spouse, your estate will go entirely to them, but if you do not both own the property, it will be divided evenly between your partner, parents, and siblings.  

Married With Children

This one can be more complicated than you would think. If your children are all the children of your surviving spouse, your estate will simply be inherited by your surviving spouse, but if your children are not all shared with your spouse, things are a bit different. Your spouse would get up to 50% of the estate and the rest would go to the the surviving children from the other spouse or partner.

In a Domestic Partnership

Not all states recognize domestic partnerships, so it’s important to check your state laws, but if domestic partners are recognized in your state, your partner would inherit your estate in the same way a married couple would.  

Unmarried, but in a Relationship

If you are unmarried but in a relationship and living together at the time of your death and you choose not to leave a will, that means that your partner does not inherit any of your assets. Intestacy laws only recognize relatives and not unmarried couples.

Single Without Children

If you are single and without children, then your estate will pass on to your parents (if they are both living). If one parent is deceased, the estate gets divided among your surviving parent and the rest of your siblings. If both parents are deceased, then the estate is divided amongst the surviving siblings. If there are no surviving  parents, siblings, or children of siblings, then the estate will be split in half with 50% going to relatives on your father’s side and the other 50% going to relatives on your mother’s side. If you have no family at all, then the estate is often given over to the state.

Single With Children

If you are single with children at the time of your passing, the estate will pass on to your children and split among them equally.

As you can see, passing without a will means that you do not really have a say in how your estate is divided amongst your loved ones. It could be helpful to talk to an attorney at an estate planning law firm St. Peters, Missouri relies on to discuss the specifics of your case so that you can figure out what would be the best fit for you.

 

Thank you to our friends and contributors at Legacy Law Center for their insight into estate planning and what it means to not have a will.

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Should I Create Trusts for My Grandchildren?

Trust Lawyer

If you are a grandparent, you are likely deeply invested in your grandchildren’s wellbeing. To that end, you may have questions about how you can best financially support them as they grow and their needs evolve. Whether you are interested in providing them with financial support during your lifetime or after you have passed away, it may benefit you to speak with a law firm about setting up trusts for your grandkids. These legal and financial tools have numerous benefits and may allow you the best possible avenue to assist your grandchildren in specific ways while ensuring that your support is used at specific times and/or for specific ends.

Trust Basics

One of the many reasons why trusts serve as excellent financial tools is that they are advantageous from a tax-related standpoint. The tax benefits associated with individual trusts vary depending on the trust type, terms and amount. Trusts set up for grandchildren tend to lower taxes on grandparents’ estates, which can be an excellent incentive for older Americans interested in creating trusts. Please feel free to ask any questions you may have about the potential benefits tied to the kind(s) of trust you may be interested in setting up for your grandchildren at any time.

One of the other reasons why trusts are so attractive is that the individual seeking to set up a trust is generally empowered to set terms related to its execution. For example, if you are interested in providing your children with money specifically for their education, you can insist that the funds in the trust be utilized for that purpose. Properly constructed trusts carry the force of law, so their terms must be generally respected. You may also set conditions related to the timing of when funds are released, etc. This kind of flexible oversight may be especially helpful for grandparents whose financial intentions are highly specific.

It is important to be wary of any advertising related to trust creation. If you are not speaking with a licensed attorney or a certified financial professional, the promises being made on such advertisements may be less than legitimate. In general, it is important to avoid signing any legal documentation related to your financial situation unless you have consulted an attorney or certified financial professional first. Your noble intentions related to providing for your grandchildren must be treated with the utmost care and respect.

Estate Planning Guidance Is Available

If you have questions or concerns about setting up trusts for your grandchildren, please consider connecting with trust attorneys Dallas, TX offers today.

 

 

Thank you to our friends and contributors at Brandy Austin Law Firm, PLLC for their insight into estate planning and trusts.

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15 COMMON REASONS TO CREATE AN ESTATE PLAN

Estate Planning Lawyer Palatine, IL

 

You don’t have to be a millionaire to benefit from an estate plan. Reasons to create an estate plan are as unique as the individuals who create them. If you own a home, have minor children and/or grandchildren, grown children in their own marriages, have been divorced, own a business, or expect to receive an inheritance of your own, you need to take action now with the help of an estate planning lawyer Palatine, IL offers.

 

Here are the common reasons you need to not only build and protect your hard-earned money, but transfer it with as little depletion and expense as possible. ‌With a proper estate plan in place, you can plan ahead to:

 

  1. Designate who will manage your affairs if you become disabled and when you pass away. If you fail to do so, the court will decide for you. You never know who the court will appoint. Keep control of your own destiny!

 

  1. Plan for Medicaid and its impact on your estate if you must go into a nursing home. ‌Nursing homes today can cost as much as $90,000 per year or more, and a long-term stay can easily impoverish all but the wealthiest families. With proper planning, however, you can shelter assets and keep your family’s wealth intact. Because there is a 50-50 chance that the average adult will spend at least one year in a long-term care facility, it becomes painfully clear this type of planning is extremely important

 

  1. Avoid probate, during your lifetime and when you pass away. ‌Do you want the court controlling you or your assets? Probate proceedings are public, expensive, time-consuming and should be avoided whenever possible. Leave your money to your heirs quickly, privately and efficiently by establishing a proper estate plan.

 

  1. Protect children from a prior marriage if you pass away first. ‌Second marriage planning can be complex and tricky. Expert legal guidance is needed to ensure your assets are preserved and your children of your first marriage will receive the proper share of their inheritance.

 

  1. Protect assets inherited by your heirs from lawsuits, divorces and other claims. ‌Make sure your assets are inherited by your loved ones, not the people you don’t want to receive them, such as their ex-spouses, in-laws, creditors or the IRS.

 

  1. Impose discipline upon children and/or grandchildren who may not be capable or experienced in managing money. ‌Make sure your children and/or grandchildren spend their inheritance wisely. Protect their inheritance against inexperience and mismanagement by including specific conditions and rewards in your estate plan.

 

  1. Provide for special needs children and grandchildren. ‌The loss of governmental benefits can wipe out your estate. Special considerations and planning is needed to avoid the loss of governmental benefits.

 

  1. Insure that a specific portion of your estate actually gets to grandchildren, charities, etc. ‌Without planning, the state will decide who inherits your assets… NOT YOU! Planning your estate ensures your intentions and directions are followed.

 

  1. Protect a portion of your estate if you pass away first and your surviving spouse remarries. ‌Special Trusts can be set up to protect your current surviving spouse and insure that your assets don’t end up in the wrong hands. Take action now to protect your family.

 

  1. Address different needs of different children. ‌No two children are alike. Customized estate planning can assure that each child’s personal needs are addressed in the manner you deem best.

 

  1. Prevent or discourage challenges to your estate plan. ‌Establishing a Revocable Living Trust now makes it more difficult for objections when you are no longer around to speak for yourself.

 

  1. Encourage and reward heirs who make smart life decisions, and prevent the depletion of your estate from those who do not. ‌There can be a point at which giving a child more money can make them less productive and less happy. A Family Incentive Trust can be tailored with financial incentives which encompass your family values and goals to encourage and motivate your children. Such a Trust can be a loving way to support your children while inspiring them to be productive members of society and fostering their sense of self-worth.

 

  1. Assure an education for children, or grandchildren, despite what they (or their parents) dream of doing with the inheritance. ‌Establishing an educational Trust can assure that your children and/or grandchildren use their inheritance for education and not fund a vacation in Las Vegas.

 

  1. Plan for a “Brady-Bunch” family estate plan and assure the step-parent doesn’t spend your children’s inheritance and/or provide for a spouse without sacrificing the intended legacy for children of a prior marriage. ‌Divorce and second marriages can have devastating effects on the inheritance you intend for your children, if your estate plan is not reviewed and updated. Often times, the original “traditional” estate plan will not meet the needs or provide the protection needed for your new blended family, so proper planning is imperative.

 

  1. Pursue charitable goals you may not otherwise feel you can afford. ‌Considerably cutting probate expenses allows you to also leave a legacy to a charitable organization you admire.

 

Contact the attorneys at Bott & Associates for further insight into estate planning and reasons to create an estate plan.

 

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Which Costs More: Probate or Trust Administration?

Estate Planning Lawyer Rolling Meadows, IL

A Living Trust can help you avoid probate, but does it really save you money? Let’s compare the cost of administering a Trust with the cost of probating a Will.

There is no question that a Living Trust allows you to avoid probate – if, of course, the Trust is properly drafted and funded. But does this mean a Living Trust is more cost-effective than a Will?

Some people say that a Living Trust offers no net savings over a Will. In their opinion, the cost of preparing a Living Trust plus the cost of Trust Administration at death, equals or exceeds the costs of preparing a Will and probating an estate. Is this the truth?

In 2002, the Second Circuit Court of Appeals released an opinion in the case of Estate of Grant v. Commissioner of Internal Revenue Service. This opinion contained some interesting findings about the cost of probate as compared to the cost of administering a Trust.

Here’s what happened:

Mrs. Grant, a Maryland resident, established a Living Trust. When she died, most of her assets, including her home, were included in the Trust. These assets, with a total value of approximately $866,000, avoided probate. Mrs. Grant also left assets totaling $11,253 that were not included in her Trust. These assets were subject to probate.

Mrs. Grant’s children served as personal representatives for her estate. On the estate tax return, her children deducted a total of $48,102 in administration expenses. Personal representative and executor fees accounted for $16,875 of the deducted amount.

Since only $11,253 of Mrs. Grant’s estate was subject to probate, the IRS disallowed most of the $16,875 deduction. The Tax Court agreed, making these determinations:

  • Under Maryland law, the maximum executor fee for an estate totaling just over $11,000 was roughly $1,103.
  • The maximum Trustee fee for a Trust totaling $866,000 was $5,720 under Maryland law.

The Tax Court reduced the $16,875 deduction for personal representative and executor fees to $6,733. The children argued that their fee was reasonable and that it was less than what the executor’s fee would have been if Mrs. Grant’s entire estate had been subject to probate. They appealed to the Second Circuit Court of Appeals, and the Tax Court’s decision was upheld.

One of the lessons from this case is that in Maryland, all things being equal, the cost of administering a Trust is significantly less than the cost of probating an estate.

Is the same thing true throughout the country? The American Academy of Estate Planning Attorneys conducted a nationwide survey of probate costs and found that, on average, probate fees approximate 2 percent of the value of the estate. According to the same survey, Trust administration expenses were much lower – ½ to 1 percent of the cost of the estate, on average.

Are Trust administration costs always less than probate costs? The facts in Mrs. Grant and the American Academy survey do not indicate this, but what they do indicate, that in most situations, it is less expensive to administer a Trust than to probate an estate.

Which is the best choice for you, a Will or a Living Trust? The best way to determine this is to seek the advice of an experienced, qualified estate planning lawyer Rolling Meadows, IL trusts at Bott & Associates, Ltd. He or she can walk you through all of the relevant factors, including cost, and help you establish an estate plan that meets your unique needs.

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ARETHA FRANKLIN, QUEEN OF SOUL – WHAT COULD HAVE BEEN

The Queen of Soul, Aretha Franklin, died in August at the age of 76. As tragic as it is, I find it
more tragic to learn that she died without a Will. Having been an estate planning attorney for
over 20 years, my stomach aches every time I hear about this. According to a NY Times article,
Aretha was “known to be private and unusually protective of her finances. According to a 2016
profile in the New Yorker, she demanded cash before performing live, and then often kept the
money in a handbag that she kept near her onstage.”

They say that PROCRASTINATION is the number one reason people do not prepare an estate
plan. No one thinks they are going to die soon. And even when you have a health prognosis that
provides you with some time to “get your affairs in order,” often times it still does not get done.
Aretha was survived by her four sons. According to court documents, the sons nominated
Sabrina Owens, a niece of Ms. Franklin, as the estate’s personal representative. She will likely
need to file an “accounting” of the assets of the estate. This is a formal court document that
states the current values of all assets, all income and payments that come into the estate since
the date of death, then subtracted by all of the expenses paid out from the estate. Once there
is a net number, then it is divided equally among her four sons. This entire process will take a
lot of time. And a lot of money. There will be attorneys, court fees, bond fees, valuation fees,
accounting fees and other miscellaneous fees. One of the challenging aspects of Aretha’s estate
is the value of her music collection. What would it be valued at today, considering her estate
will likely be benefiting from the value for many years to come? This also dovetails into estate
taxes. If Aretha’s estate is greater than $11M, then her family would need to file an Estate Tax
Return, and a State Inheritance tax return, and such taxes could be as high as 40% of the gross
value of the estate greater than $11M.

In any event, it will be a long, arduous process. It will be a public process. It can be a
contentious process. Unfortunately, money and family dynamics bring out the worst in people.
My biggest hang up when I hear about these stories is the “what could have been”. What kind
of legacy could Aretha have left had she really thought through who could benefit from her
estate? Could she have created a scholarship in her name for upcoming artists trying to make it
in the business? Could she have given lower-income talented singers a chance to make it in
music? Could she have had a talent agency created in her name that helped people like her?
The possibilities are endless.

Unfortunately the woman who kept her money in a handbag near a stage while she performed,
will not be able to tell us what she would have wanted. You don’t have to be a celebrity to leave
a legacy. We are only here on earth for a short period of time. Make your time count. Plan
ahead. Don’t procrastinate.

About the author
Maritess T. Bott, of Bott & Associates, Ltd. is an estate planning attorney in Rolling Meadows,
Illinois, a Northwest suburb of Chicago. She has been an attorney since 1997, and has helped
hundreds of families have peace of mind by protecting their wealth, and preserving their
relationships. She has been a member of the American Academy of Estate Planning Attorneys
since 2003, a nationally recognized organization of attorneys who specialize in estate planning
and probate. If you are interested in more information, you may check out
www.bottestateplanning.com.

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